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Orchard v. State9/6/2001
lains his trial counsel did not discuss on voir dire, only two - whether anyone on the venire knew Officer Soliz, and whether anyone on the venire were victims of crimes in general - were not already addressed by the trial court or the State. Appellant's trial counsel only had 30 to 45 minutes to conduct voir dire. Instead of rendering counsel ineffective, it appears more likely that trial counsel was effective by avoiding replicating issues already covered by the trial court, or the State, during the limited amount of time he had to conduct voir dire.
Additionally, appellant's trial counsel covered many pertinent issues during voir dire, such as the definition of "intoxication," whether anyone belonged to Mothers Against Drunk Driving , whether anyone had a problem arising out of contact with a driver who was intoxicated, whether anyone would give more credibility to the testimony of a police officer, and whether anyone would hold against appellant his refusal to take a breath test. He also asked the venire if they had any questions of him.
Judicial review of an ineffective assistance of counsel claim must be highly deferential to the counsel and avoid using hindsight to evaluate counsel's actions. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). The fact that counsel did not cover some issues that appellant, in hindsight, thinks that he should have does not render counsel ineffective. The questions critical to the type of case for which appellant was tried were covered during voir dire. On the state of this record, we find that appellant did not prove that counsel's conduct during voir dire fell below the standard for reasonable professional assistance.
F. Failure to Enter Into a Pre-Trial Stipulation Regarding Prior DWI Convictions
In the remaining ineffective assistance claims, appellant claims that his trial counsel was ineffective for failing to enter into a pre-trial stipulation regarding his prior DWI convictions.
The indictment, containing the two prior DWI convictions was read to the jury, and appellant pled true to these two prior DWI convictions before the jury. During the State's investigation of Officer Soliz, the arresting officer, after eliciting testimony of appellant's date of birth, the State offered State's Exhibits 1, 2, and 3 into evidence. Appellant's counsel had no objection to exhibits 1 and 2, and objected to 3 as hearsay. Over that objection all three were admitted by the trial court. State's Exhibits 1 and 2 were the conviction packets for the two prior DWI convictions, and State's Exhibit 3 was appellant's redacted DPS driving record.
We begin our review of counsel's effectiveness on this issue by noting that whether the State is required to prove two previous DWI convictions in order to prosecute a defendant for felony DWI or if a defendant's stipulation admitting those previous convictions is sufficient was not decided in Texas until the court of criminal appeals' January 5, 2000 decision in Tamez v. State. 11 S.W.3d 198, 201 (Tex. Crim. App. 2000).
Appellant's trial on guilt/innocence occurred on December 14, 1999. Basing an ineffective assistance claim on an unsettled area of the law entails engaging "in the kind of hindsight examination of effectiveness of counsel [that] the Supreme Court expressly disavowed in Strickland . . . ." Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim. App. 1996) (quoting Ex Parte Davis, 866 S.W.2d 234, 241 (Tex. Crim. App. 1993). Appellant had already pled true to these prior DWI convictions. While that made the admission of State's exhibits 1, 2, and 3 redundant, without an adequate appellate record describing why appellant's trial counsel did not object
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