ROCKEY LEE LOPEZ v. THE STATE OF TEXAS--Appeal from 24th District Court of De Witt County

NUMBER 13-00-765-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

  ROCKEY LEE LOPEZ, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 24th District Court

of De Witt County, Texas.

__________________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Rodriguez

Appellant, Rockey Lee Lopez (Lopez), brings this appeal following a conviction for aggravated robbery. By two issues, Lopez generally contends (1) the trial court erred in denying his motion for mistrial, and (2) he was denied effective assistance of counsel. We affirm.

Lopez was indicted by a grand jury for aggravated robbery of a Sonic Drive-In restaurant in Yoakum, Texas. During the jury trial, Lopez admitted to the robbery. However, Lopez denied he pointed, or attempted to fire, a shotgun at an employee at the restaurant. Lopez was found guilty of aggravated robbery.

During the punishment phase of the trial, Lopez=s attorney informed the court that, during a lunch recess, a juror was seen sitting at a local restaurant with several witnesses who testified during the case-in chief.[1] Lopez moved for a mistrial based on the juror=s alleged misconduct. The court denied the motion. After the jury retired to deliberate, a hearing was held on Lopez=s bill of exceptions. Following testimony from the case witnesses, the trial court again denied Lopez=s motion for mistrial. The jury sentenced Lopez to seventy-five years imprisonment.

I. Motion for Mistrial

By his first issue, Lopez contends the evidence presented at the bill of exceptions hearing was insufficient to support the trial court=s denial of his motion for mistrial.

In reviewing the denial of a motion for mistrial, an abuse of discretion standard is applied. See Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994); Cano v. State, 3 S.W.3d 99, 109 (Tex. App.BCorpus Christi 1999, pet. ref=d). We review the facts in the light most favorable to the ruling and will uphold the ruling absent an abuse of discretion. State v. Cabrera, 24 S.W.3d 528, 529 (Tex. App.BCorpus Christi 2000, pet. ref=d).

A juror is not permitted to converse with a person about the case on trial except in the presence, and with the permission, of the trial court. Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 1981). Lopez correctly argues that the rule against jurors conversing with unauthorized persons about a case is so strong that injury to the accused is presumed. Thomas v. State, 699 S.W.2d 845, 853 (Tex. Crim. App. 1985); Gates v. State, 24 S.W.3d 439, 442-43 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d) (citing Alba v. State, 905 S.W.2d 581, 587 (Tex. Crim. App. 1995)). However, the presumption is rebuttable. McMahon v. State, 582 S.W.2d 786, 793 (Tex. Crim. App. 1978); Gates, 24 S.W.3d at 443. If it is shown that the case was not discussed, or that nothing prejudicial to the accused was said, the verdict will be upheld. Id.

In this case, during the bill of exceptions hearing, two witnesses testified they saw the juror sitting at a table with the case witnesses. They also testified they observed the juror conversing with the case witnesses, but they were unable to hear any of the conversation. Three of the case witnesses also testified. One testified as to where everyone was sitting at the table, and the others testified that the conversation did not concern the case at bar or Lopez. Because there is no evidence the conversation concerned the case or Lopez, the presumption of harm was rebutted. See Gates, 24 S.W.3d at 443. The trial court did not abuse its discretion in denying appellant=s motion for mistrial. Accordingly, Lopez=s first issue is overruled.

II. Ineffective Assistance of Counsel

By his second issue, Lopez contends he was denied effective assistance of counsel.

The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant=s Sixth Amendment right to counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986). To establish ineffective assistance of counsel, appellant must show: (1) his attorney=s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney=s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.BCorpus Christi 2000, pet. ref=d). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Stone, 17 S.W.3d at 350.

An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded and the record affirmatively demonstrates counsel=s alleged ineffectiveness. Id.; Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.BCorpus Christi 1999, pet. ref=d). In assessing a claim of ineffective assistance of counsel, there is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Also, in the absence of evidence of counsel=s reasons for the challenged conduct, an appellate court will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. See id.; Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

Lopez argues his counsel was ineffective because, during the bill of exceptions hearing, he failed to question the juror about the conversation he may have had with the case witnesses. Counsel=s failure to question the juror, Lopez argues, kept relevant evidence as to the content of the juror=s conversation from being presented to the court.

Lopez=s counsel questioned a total of five witnesses about the incident. There was no evidence that the conversation between the juror and the case witnesses concerned Lopez, or the case itself. There could be any number of reasons why Lopez=s counsel did not question the juror involved. We will not speculate about the reasons underlying counsel=s decisions.[2] Perez v. State, 56 S.W.3d 727, 731 (Tex. App.BHouston [14th Dist.] 2001, pet. ref=d). Because there is no evidence of Lopez=s counsel=s reasons for the challenged conduct, we will assume a strategic motivation and will not conclude that the conduct was deficient. See Garcia, 57 S.W.3d at 440;Thompson, 9 S.W.3d at 814.

Therefore, because Lopez failed to prove that his counsel=s representation fell below an objective standard of reasonableness, we conclude his representation was not ineffective. See Strickland, 466 U.S. at 687. Lopez=s second issue is overruled.

Accordingly, the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.3.

Opinion delivered and filed

this 25th day of April, 2002.

[1]The witnesses with whom the juror was seated included Justice of the Peace Micah Harmon, Police Chief Ronald Leck, police officer William Formolo, and two other police officers. Gary Cooper, a civilian who watched the case proceedings but did not testify, was also present.

[2]Appellate counsel for Lopez did not file a motion for new trial and did not attach an affidavit from Lopez=s trial counsel. AWhen the record is silent as to counsel=s reasons for his conduct, finding counsel ineffective would call for speculation by the appellate court.@ Stults v. State, 23 S.W.3d 198, 208 (Tex. App.BHouston [14th Dist.] 2000, pet. ref=d).