DARIO JACOEL v. THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

 NUMBER 13-04-588-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

DARIO JACOEL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Castillo and Garza

Memorandum Opinion by Justice Garza

Appellant, Dario Jacoel, was convicted of three counts of aggravated sexual assault of a child and two counts of injury to a child. See Tex. Pen. Code Ann. '' 22.021, 22.04 (Vernon 2005). The jury assessed punishment at ten years= imprisonment plus a $2,500 fine for each sexual assault conviction, and a ten-year probated sentence plus a $1,000 fine for each injury to a child conviction. The sentences were ordered to run concurrently. Appellant now challenges his conviction by three issues: (1) the trial court erred in denying appellant=s motion for new trial complaining of juror misconduct, (2) the trial court abused its discretion in admitting prejudicial hearsay over appellant=s objection, and (3) appellant received ineffective assistance of counsel. For the reasons that follow, we affirm the judgment of the trial court.

I. Motion for New Trial

In his first issue, appellant contends the trial court erred by failing to grant him a new trial after it was discovered that juror Amanda Probert did not disclose that, during voir dire, she heard another prospective juror say that appellant had been accused of a similar incident in Austin. This information was brought to the court=s attention during the hearing on appellant=s motion for new trial. Appellant argues that Probert failed to accurately answer trial counsel=s voir dire questions and, because of this failure, prevented counsel from intelligently exercising her peremptory challenges and challenges for cause. Appellant contends he was thus denied his constitutional right to trial by a fair and impartial jury and that the trial court=s refusal to grant a new trial constitutes reversible error under Texas Rule of Appellate Procedure 44.2(a). Tex. R. App. P. 44.2(a).

We review the denial of a motion for a new trial for abuse of discretion. Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995). A conviction will be reversed when a juror withholds information if (1) the omission is material, and (2) the defendant exercises due diligence in eliciting that information. Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980), overruled on other grounds by Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984); see Armstrong, 897 S.W.2d at 363 64.[1] When a juror withholds material information during voir dire, the parties are denied the full opportunity to intelligently exercise their challenges, thus hampering their selection of a disinterested and impartial jury. Franklin v. State, 138 S.W.3d 351, 355 (Tex. Crim. App. 2004). However, defense counsel must ask specific questions designed to bring out information that might indicate a juror's ability to be impartial and truthful. Armstrong, 897 S.W.2d at 363 64; cf. Von January v. State, 576 S.W.2d 43, 44-46 (Tex. Crim. App. 1978) with Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978). Information will not be considered "withheld" so as to constitute misconduct which would warrant reversal if defense counsel fails to ask specific questions. See Armstrong, 897 S.W.2d at 364.

In the instant case, no material information was "withheld" because defense counsel did not ask the questions needed to elicit the desired information. Appellant alleges to have exercised due diligence by stating to the panel, Aif there is any reason you feel like you cannot give my client, [appellant], a fair trial, a fair trial like you would expect, let me know.@ Counsel also relies on a number of questions asked of the panel: ASo is there anybody in here who cannot presume him innocent?@ A [If] you can think of any reason, whatsoever, that I haven=t asked or you didn=t raise your hand, that you can reconsider something, that you cannot give [appellant] a fair trial, be an impartial juror, will you let me know? Will you call it to my attention?@

In addition, appellant relies on questions asked by the court and prosecutor. During voir dire, the court instructed the potential jurors that A[i]f you know anything about this case, you need to let us know@ and A[i]f anyone attempts to discuss the case with you, you must report it to me at once.@ After swearing in the jurors, the court instructed them that A[i]f you know of or learn of anything about this case, except from the evidence admitted during the course of the trial, you should tell me about it at once.@

The prosecutor asked if any of the prospective jurors knew appellant. Probert raised her hand. He also asked if anyone had heard of, or been to, appellant=s business. Again, Probert raised her hand. He asked if anyone felt they could not be fair and impartial to one side or the other due to some other fact. None of the jurors responded to this question. During individual voir dire, the prosecutor asked Probert if she had any other contact with appellant other than seeing him at his business. She responded that she had not.

Our review of the voir dire record reveals that neither appellant=s counsel, the trial court, nor the prosecutor asked the jury panel or Probert the necessary questions (i.e., does anyone know anything about appellant, or has anyone heard of or know of any previous misconduct by appellant?). See Armstrong, 897 S.W.2d at 363-64. The questions asked were limited to whether (1) there was any reason the jurors felt they could not give appellant a fair and impartial trial, (2) the jurors knew of or learned anything about this case, (3) the jurors knew appellant, and (4) the jurors had heard of or been to appellant=s business. The questions were subjective in nature. They required the venire members to determine whether any knowledge they had would affect their decision making. See id. If Probert concluded that her knowledge about the prior similar incident would not affect her ability to be a fair juror, then the appropriate response to those questions was no response. See id. Additionally, defense counsel could have probed further once she was aware that Probert knew appellant and had been to his business, but chose not to. Accordingly, we hold that the trial court did not abuse its discretion by denying appellant's motion for new trial. We overrule appellant=s first issue.

II. Admission of Exhibit 27

In his second issue, appellant contends that the trial court abused its discretion in admitting State=s Exhibit 27, which consisted of notes prepared by the victim=s psychotherapist. Appellant contends the notes should not have been admitted because they contained prejudicial hearsay. The State argues that appellant has failed to preserve the issue for review because appellant=s counsel failed to raise a hearsay objection at trial. See Tex. R. App. P. 33.1. We agree.

To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context. Id.;Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000). Generally, a party's failure to timely and specifically object at trial fails to preserve error. See Blue, 41 S.W.3d at 131. An objection stating one legal basis may not be used to support a different legal theory on appeal. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). Where a complaint on appeal does not comport with an objection made at trial, the error is not preserved for appellate review. See Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996).

The record reflects that, at the time Exhibit 27 was offered into evidence, defense counsel objected that the notes improperly bolstered the psychotherapist=s testimony, not that the notes constituted prejudicial hearsay. Because appellant's complaint on appeal does not comport with his objection at trial, we hold that he has failed to preserve this issue for review. Tex. R. App. P. 33.1; see also Goff, 931 S.W.2d at 551; Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990).

Even if appellant had preserved the issue for review, the record reflects that the same evidence came in through the unobjected-to testimony of other witnesses, including that of the victim. Hearsay evidence may be rendered harmless by the introduction of the same or similar evidence without objection. Huff v. State, 560 S.W.2d 652, 653 (Tex. Crim. App. 1978); Mendoza v. State, 69 S.W.3d 628, 634 (Tex. App.BCorpus Christi 2002, pet. ref=d). Thus, any error in the admission of Exhibit 27 was waived when the same or similar evidence was came in later without objection. See Richardson v. State, 83 S.W.3d 332, 352 (Tex. App.BCorpus Christi 2002, pet. ref'd).

We overrule appellant=s second issue.

III. Ineffective Assistance of Counsel

In his third issue, appellant contends he received ineffective assistance of counsel due to trial counsel=s failure to timely object to the testimony of the victim=s psychotherapist.

The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 687B88 (1984). To prevail on a claim of ineffective assistance of counsel, an appellant must, by a preponderance of the evidence, prove (1) trial counsel=s performance fell below an objective standard of reasonableness, and (2) counsel=s deficient representation prejudiced appellant=s defense. Id. at 688; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To satisfy the first prong, the appellant must (1) rebut the presumption that counsel is competent by identifying the acts and/or omissions of counsel that are alleged as ineffective assistance, and (2) affirmatively prove that such acts and/or omissions fell below the professional norm of reasonableness. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.BHouston [14th Dist.] 2000, pet. ref'd). To satisfy the second prong and establish prejudice, the appellant must prove there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Stults, 23 S.W.3d at 208. A reasonable probability has been defined as a probability sufficient to undermine confidence in the outcome of the proceedings. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). In other words, the appellant must prove counsel=s representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. If, however, Athere is at least the possibility that the conduct could have been legitimate trial strategy,@ then we must Adefer to counsel=s decisions and deny relief on an ineffective assistance claim on direct appeal.@ Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003).

Our review of counsel=s representation is highly deferential, and we indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable representation. See Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. An appellate court should not use hindsight to second guess the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Harner v. State, 997 S.W.2d 695, 704 (Tex. App.BTexarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Assuming, without deciding, that counsel=s performance fell below a reasonably professional standard, we note that counsel has neglected addressing the second prong of the Strickland test, which is essential to establish ineffective assistance of counsel. See Tong, 25 S.W.3d at 712. We will not construe appellant=s argument for him. Accordingly, we overrule appellant=s third issue.

We affirm the judgment of the trial court.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 6th day of October, 2005.

[1] The parties do not dispute that the allegedly withheld information is material. Accordingly, we will limit our review to whether appellant=s defense counsel exercised due diligence in eliciting the information.