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[W] Landers v. State4/17/2003
thetical example on the point.
Appellant's amended motion for new trial alleged numerous complaints of ineffective assistance by her trial counsel, all of which he disputed in his affidavit that accompanied the State's response to appellant's amended motion for new trial. However, the amended motion for new trial did not raise ineffective assistance of counsel in conjunction with biased jurors, voir dire, and peremptory challenges — issues appellant now asserts. An appellant who chooses to litigate claims of ineffective assistance of counsel in the trial court must present those claims to the trial court in order to preserve them for appeal; claims not litigated are procedurally defaulted and may not be argued on appeal. See Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim. App. 1997) See also Robinson v. State, 16 S.W.3d 808, 809 (Tex. Crim. App. 2000).
Because failure to use a peremptory challenge against Ms. Campos was not pled in her motion for new trial, appellant's trial counsel was not put on notice to answer the claim in his response affidavit. Further, appellant's amended motion for new trial was not presented and heard (as will be discussed in Issue Seven). The record therefore contains no evidence as to why appellant's trial counsel did not exercise a peremptory challenge against Ms. Campos.
Counsel may have agreed with the prosecutor that Ms. Campos was rehabilitated. An appellate court must presume that trial counsel had a plausible reason for his actions. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). In responding to questions later posed during voir dire, some prospective jurors answered by name and/or numbers, and others did not. Some unidentified jurors expressed opinions favorable to appellant; Ms. Campos may have been one of them. Defense counsel may have observed an indication, after he stated his jury voir dire hypothetical, that led him to conclude that she was not biased, as her initial quoted answers would indicate, or that she would be sympathetic on some issue.
To know defense counsel's reasoning concerning Ms. Campos would require us to speculate, which we cannot do. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The presumption of sound trial strategy has not been overcome. Appellant's third issue is overruled.
B. Denial of Federal and State Constitutional Rights
Appellant's issues four and five assert that the seating of a juror who could not give her the presumption of innocence denied her the constitutional right to an impartial jury guaranteed by both the Sixth and 14th Amendments to the United States Constitution (issue four) and Article I, Section 10 of the Texas Constitution (issue five).
Appellant argues that Ms. Campos should not have served on the jury because she was biased against appellant, which deprived appellant of a fair and impartial jury. Juror bias against a defendant does not constitute an absolute disqualification from jury service. Tex. Code Crim. Proc. Ann., art. 35.19 (Vernon 1989). Thus, a prospective juror can be excused from service only by agreement, by challenge for cause, or by peremptory challenge of either party. Tex. Code Crim. Proc. Ann., art. 35.15(b) (Vernon Supp. 2001); Tex. Code Crim. Proc. Ann., art. 35.16(d) (Vernon 1989); Tex. Code Crim. Proc. Ann., art. 35.16(c) (Vernon 2001).
The trial court's denial of appellant's challenge for cause is the basis for these constitutional complaints, and the relevant evidentiary and procedural facts are the same as those in issue three.
To preserve error in the denial of a challenge for cause, an appellant must show on the record: (1) a clear and specific challen
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