James Tony Stogner v. The State of Texas--Appeal from 91st District Court of Eastland County

Opinion filed July 12, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00373-CR

__________

   JAMES TONY STOGNER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 91st District Court

Eastland County, Texas

Trial Court Cause No. CR-04-20,300

O P I N I O N

The jury convicted James Tony Stogner of the offense of murder. The jury assessed appellant=s punishment at sixty years confinement and a fine of $5,000. We affirm.

Issues on Appeal

Appellant presents two issues for review. He does not challenge the sufficiency of the evidence supporting his conviction. In his first issue, appellant asserts that he received ineffective assistance of counsel at trial (1) because his trial counsel failed to preserve error on the trial court=s denial of challenges for cause and (2) because his trial counsel failed to object to a nonresponsive statement by one of the State=s witnesses on constitutional grounds. In his second issue, appellant complains that the trial court erred in admitting into evidence two exhibits without redacting the words AOffense Murder.@

Ineffective Assistance of Counsel

To determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and an appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 690; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).

Appellant=s trial counsel challenged for cause a number of veniremembers. The trial court sustained some of the challenges for cause but denied appellant=s trial counsel=s challenges for cause on Veniremembers Nos. 9, 11, 15, 17, 28, and 29. Appellant asserts that his trial counsel was ineffective by failing to preserve error with respect to the trial court=s denial of his challenges for cause. To preserve error with respect to a trial court=s denial of a challenge for cause, an appellant must take the following steps: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use. Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App. 2003); Nelson v. State, 848 S.W.2d 126, 134 (Tex. Crim. App. 1992).

The record demonstrates that appellant=s trial counsel took the steps necessary to preserve error on the trial court=s denial of appellant=s six challenges for cause. Specifically, the record demonstrates the following: (1) that appellant=s trial counsel asserted clear and specific challenges for cause to each of the six veniremembers; (2) that appellant=s trial counsel used peremptory strikes on the six veniremembers; (3) that appellant=s trial counsel exhausted all ten of his peremptory strikes; (4) that appellant=s trial counsel requested four additional peremptory strikes; (5) that appellant=s trial counsel identified four objectionable jurors B Veniremembers Nos. 12, 24, 25, and 37; and (6) that appellant=s trial counsel informed the trial court he would have struck the four objectionable jurors with peremptory strikes if he had four additional peremptory strikes to use.[1] By taking these steps, appellant=s trial counsel preserved error on the trial court=s denial of the challenges for cause. Therefore, appellant=s trial counsel did not render ineffective assistance on the challenge-for-cause issue.

Additionally, the record demonstrates that the trial court did not err in denying the challenges for cause to the six veniremembers. We review a ruling on a challenge for cause with Aconsiderable deference@ because the trial court is in the best position to evaluate the veniremember=s demeanor and responses. Saldano v. State, No. AP-72556, 2007 WL 1610422, at *9 (Tex. Crim. App. June 6, 2007); Newbury v. State, 135 S.W.3d 22, 32 (Tex. Crim. App. 2004); Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998). We will reverse a trial court=s ruling on a challenge for cause Aonly if a clear abuse of discretion is evident.@ Saldano, 2007 WL 1610422, at *9; Newbury, 135 S.W.3d at 32; Colburn, 966 S.W.2d at 517.

During voir dire, Veniremember No. 17 stated that he would have a hard time considering probation as a punishment in a murder case but that he could keep an open mind on the issue. During questioning at the bench, Veniremember No. 17 stated that he did not think that he would ever give probation on a first-degree murder charge. However, he later stated that he could consider giving the minimum and maximum punishment in an appropriate case and that he could consider probation as a punishment in an appropriate case. Qualified jurors must be willing to consider the full range of punishment applicable to the offense submitted for their consideration. Banda v. State, 890 S.W.2d 42, 55 (Tex. Crim. App. 1994). Veniremember No. 17 stated that he could keep an open mind on the punishment issue and that he could consider probation in an appropriate case. Based on these answers, the trial court could have reasonably concluded that Veniremember No. 17 was willing to consider the full range of punishment for the charged offense. See Cooks v. State, 844 S.W.2d 697, 709 (Tex. Crim. App. 1992). Therefore, the trial court did not abuse its discretion in denying appellant=s challenge for cause to Veniremember No. 17.

During voir dire, appellant=s trial counsel asked the veniremembers whether they knew any of the individuals identified in the State=s list of potential witnesses. Veniremembers Nos. 9, 11, 15, 28, and 29 knew law enforcement personnel who were listed as potential witnesses by the State. Veniremembers Nos. 9, 11, 15, 28, and 29 indicated, in effect, that they would give more credibility to the witnesses they knew than to the witnesses they did not know. Veniremember No. 9 stated that she knew the prosecutors in the case and that, based on her respect for them, it would be hard for her to be fair and impartial in the case. During questioning at the bench, Veniremember No. 9 stated that she would base her verdict upon the evidence presented in the case and the law given by the trial court and that she could comply with the juror=s oath to render a true verdict based on the law and the evidence as presented to her in the case. Veniremember No. 11 stated that the fact she knew individuals in law enforcement and in the district attorney=s office would not cause her any problems in being able to comply with the juror=s oath to render a true verdict based on the law and the evidence as presented in the case. She also said that she could listen to all of the witnesses, whether she knew them or not, and consider the believability and credibility of each and every witness. Veniremember No. 15 stated that he could listen to all of the witnesses in the case and judge the credibility of the witnesses. He also said that he would not have any problem following the juror=s oath and that he would require the State to prove its case before he voted guilty or not guilty on the case. Veniremember No. 28 stated that she would not give more credence and credibility to a witness just because she knew the witness. She also stated that she would not believe witnesses she knew over witnesses she did not know. Rather, she said she would listen to the witnesses and decide who was telling the truth. Veniremember No. 29 stated that she would make the State prove its case beyond a reasonable doubt before finding appellant guilty in the case. She also stated that she would follow the law given by the court and base her decision only on the evidence presented in the case.

A veniremember is challengeable for cause if he or she cannot impartially judge the credibility of witnesses. Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999). AHowever, this means only that jurors must be open-minded and persuadable, with no extreme or absolute positions regarding the credibility of any witness.@ Id. In this cause, Veniremembers Nos. 9, 11, and 15 stated that they could follow the juror=s oath and that they would base their verdict on the evidence and the law presented in the case. Veniremembers Nos. 11, 15, and 28 stated that they could listen to the witnesses and consider the credibility of the witnesses. Veniremembers Nos. 15 and 29 stated that they would make the State prove its case before finding appellant guilty in the case. Veniremember No. 28 said that she would not give more credence and credibility to a witness just because she knew the witness. Veniremember No. 29 stated that she would follow the law given by the court and base her decision only on the evidence presented in the case. Based on the answers of Veniremembers Nos. 9, 11, 15, 28, and 29, the trial court could have reasonably concluded that they were open-minded on the credibility issues. Therefore, the trial court did not err in denying appellant=s challenges for cause to these veniremembers. Because the trial court did not err in denying the challenges for cause, appellant cannot prevail on his claim that his trial counsel was ineffective in failing to preserve error on the trial court=s denial of the challenges for cause. See Surredin v. State, 165 S.W.3d 751, 754 (Tex. App.CSan Antonio 2005, no pet.).

Appellant also asserts that his trial counsel was ineffective in failing to object on constitutional grounds to the following testimony from one of the State=s witnesses:

[PROSECUTOR]: When you confronted [appellant] about the, did I kill the B B statement, what was his response when you talked to him about the term that he used?

[WITNESS]: He didn=t have one. It was shortly after that that he asked for an attorney.

[DEFENSE COUNSEL]: I am going to object to being nonresponsive, first.

[THE COURT]: Sustained. Let=s move along.

[DEFENSE COUNSEL]: Would you admonish the jury to disregard that last statement?

[THE COURT]: The jury will disregard the last statement.

[DEFENSE COUNSEL]: Ask for a mistrial, Your Honor.

[THE COURT]: Denied, overruled.

On appeal, appellant contends that the witness=s answer violated his right to be presumed innocent until proven guilty, his right to counsel, and his right to remain silent. Therefore, appellant asserts that his trial counsel should have raised an additional objection to the answer based on constitutional grounds.

An allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Appellant=s trial counsel may have made the decision not to object to the above testimony on constitutional grounds because the trial court sustained his objection that the testimony was nonresponsive and instructed the jury to disregard the testimony. However, the record is silent as to appellant=s trial counsel=s strategy, if any, in electing not to object to the above testimony on constitutional grounds. When a record is silent as to trial counsel=s strategy, we Awill not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it.@ Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). When a trial court sustains an objection to testimony, a decision not to raise an additional objection to the testimony may be based on reasonable trial strategy. For example, counsel may not want to bring additional attention to the testimony by raising an additional objection to it. Therefore, the record does not demonstrate that appellant=s trial counsel=s failure to object to the above testimony on constitutional grounds was so outrageous that no competent attorney would have engaged in it.

Additionally, even if appellant=s trial counsel was ineffective in failing to object to the above testimony on constitutional grounds, appellant cannot satisfy the second prong of the Strickland test. The trial court sustained a different objection to the testimony and instructed the jury to disregard it. Therefore, the record does not demonstrate a reasonable probability that, but for appellant=s trial counsel=s failure to object to the testimony on constitutional grounds, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687, 694.

The record does not demonstrate that appellant received ineffective assistance of counsel in either of the two instances claimed by appellant. We overrule appellant=s first issue.

Evidentiary Issue

The State introduced into evidence Texas Department of Public Safety laboratory submission forms as State=s Exhibits Nos. 41 and 43. The forms identified a number of items that were submitted to the Texas Department of Public Safety for testing. The forms included a number of blanks for providing case information. Exhibits Nos. 41 and 43 included the following information: Agency Case Number 230563; Offense Murder; Date of Offense 12/31/2003; County of Offense Eastland; Agency Eastland County Sheriff=s Office. State=s Exhibits Nos. 41 and 43 identified appellant as a suspect and James Matthew Walker as the victim.

In his second issue, appellant complains that the trial court erred in admitting into evidence State=s Exhibits Nos. 41 and 43 without redacting the words AOffense Murder@ or amending the words to state ACharged Offense Murder.@ Appellant contends that, without such a change, the admission of the exhibits violated his right to be presumed innocent until proven guilty because they Aimproperly exposed the jury to a legal conclusion sanctioned by the State through its agent, the Texas DPS, that [a]ppellant was guilty of the offense of murder.@

We review a trial court=s decision to admit or exclude evidence under an abuse of discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2002); Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An appellate court will not reverse a trial court=s ruling unless that ruling falls outside the zone of reasonable disagreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Burden, 55 S.W.3d at 615.

State=s Exhibits Nos. 41 and 43 did not state that appellant committed the offense of murder. Rather, they merely identified the offense as murder and identified appellant as a suspect. As such, the exhibits did not include an opinion as to appellant=s guilt or innocence. Under these circumstances, the exhibits could not have violated appellant=s right to be presumed innocent until proven guilty. Therefore, the trial court did not abuse its discretion by admitting State=s Exhibits Nos. 41 and 43. We overrule appellant=s second issue.

This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

July 12, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]The record shows that, of these four veniremembers, only Veniremember No. 12 served on the jury. The State struck Veniremembers Nos. 24 and 25 with peremptory strikes, and the trial court did not reach Veniremember No. 37 in sitting the jury.