Richard Watkins v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION
No. 04-02-00724-CR
Richard Wayne WATKINS,
Appellant
v.
The STATE of Texas,
Appellee
From the 2nd 25th Judicial District Court of Guadalupe County, Texas
Trial Court No. 02-0816-CR
Honorable Gus J. Strauss Jr., Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine M. Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 29, 2004

AFFIRMED

A jury found Richard Watkins guilty of two counts of aggravated assault of a public servant and two counts of evading arrest. The trial court imposed concurrent sentences of forty, fifty, twenty and ten years' imprisonment. Watkins appeals, arguing that he was denied effective assistance at trial. We disagree and affirm the trial court's judgment.

To establish ineffective assistance of counsel during either the guilt/innocence or the punishment phase of a non-capital criminal trial, a defendant must show (1) his trial counsel's performance was deficient and (2) the deficient performance prejudiced him to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989). To establish deficient performance, a defendant must show counsel's performance fell below an objective standard of reasonableness and rebut the presumption that counsel's trial decisions were based on sound strategy. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record. Id. at 813. The court does not look to isolated acts or omissions but reviews the totality of the representation. Id.

1. Watkins argues his trial counsel was ineffective because he failed to strike a member of the venire, Dwayne Kalina, who Watkins alleges is a past victim of his criminal activity. We disagree. During the trial the State introduced evidence that Watkins was convicted in 1999 of theft in the Guadalupe County Court at Law; but neither the store name nor the location of the theft was identified. At the hearing on Watkins' motion for new trial, Watkins presented evidence that the 1999 theft conviction resulted from his shoplifting at a Wal-Mart store at a time when Kalina was the general manager of the store. Watkins also presented evidence that in 2001, while Kalina was still the general manager, he was again arrested for theft at the same Wal-Mart store. No evidence of this second offense was introduced at trial. Kalina testified at the motion for new trial hearing that he did not know or recognize Watkins. He also testified that he did not know until defense counsel spoke to him after the trial that any of the convictions introduced at trial related to a theft at Wal-Mart. This is consistent with Kalina's failure to respond to the State's questions whether members of the venire knew or recognized Watkins and whether there was anything that would lead a potential juror to believe that they would not be fair if they had to serve on a case like this. Because there is no evidence that Watkins' trial counsel knew during voir dire that Watkins had previously stolen from Wal-Mart or that Kalina had been Wal-Mart's general manager at the time of the thefts, Watkins' trial counsel was not deficient in not striking Kalina. See Bone v. State, 77 S.W.3d 828, 834 (Tex. Crim. App. 2002); Delrio v. State, 840 S.W.2d 443, 446-47 (Tex. Crim. App. 1992).

2. Watkins next argues that his trial counsel was ineffective during voir dire because he failed to challenge nine members of the venire who expressed a bias against the law. During voir dire, Watkins' trial counsel attempted to explain to the venire the difference between "evading arrest" and "aggravated assault." He then attempted to determine if the potential jurors would be able to apply the law as the court instructed. After restating and attempting to clarify the question several times, it is arguable that some jurors may have indicated that they would not. However, the record is silent regarding Watkins' trial counsel's strategy during voir dire and his reasons for not challenging the nine jurors for cause. Watkins thus failed to establish that his trial counsel's performance was deficient. See Thompson, 9 S.W.3d at 813-14; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Bone, 77 S.W.3d at 834.

3. Finally, during closing arguments at the guilt/innocence phase of the trial, the State argued that the "officers were trying to save you and me from getting killed because we are going out there on our way to pick up our kids from school." During the rebuttal phase of the State's closing argument at the punishment phase of trial, the State rhetorically asked the jury "if it was your car that had been broken into, would you think it was a big deal?" Watkins argues that his trial counsel was ineffective because he failed to object to these remarks. We disagree. Proper jury argument must fall within one of four categories: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Allridge v. State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1040 (1989). The State's argument that the "officers were trying to save you and me" was a plea for law enforcement made in reference to the involvement of the police in the high speed chase with Watkins. The State's question to the jury about their reaction to a theft of their property was an answer to Watkins' trial counsel's argument that Watkins' previous crimes were the "sort of low end of the crimes." Because both of the State's arguments were proper, trial counsel's failure to object did not result in ineffective assistance of counsel. See Richards v. State, 912 S.W.2d 374, 380 (Tex. App.-Houston 1995 [14th Dist.], pet. ref'd). The judgment is affirmed.

Sarah B. Duncan, Justice

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