Randy Henderson v. The State of Texas--Appeal from 202nd District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00111-CR

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RANDY HENDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 03F0146-202

Before Ross, Carter, and Hadden,* JJ.

Memorandum Opinion by Justice Carter

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*Roby Hadden, Justice, Sitting by Assignment

MEMORANDUM OPINION

Randy Henderson appeals from his conviction for multiple counts of indecency with a child, one by exposure and four by sexual contact. The jury assessed punishment, and the trial court sentenced Henderson to serve some counts consecutively and some concurrently. //

On appeal, Henderson complains only of errors committed during the voir dire of the jury panel. He initially complains that trial counsel's failure to object to the trial court's actions constitutes ineffective assistance of counsel, and then seeks to address the alleged errors on their merits.

Jury Shuffle

Henderson argues that two jury shuffles occurred. This contention is premised on the fact that the clerk's record contains two lists of the jury panel, one of which has the written notation "1st shuffle" and the other a notation "2nd shuffle." Henderson correctly states that Tex. Code Crim. Proc. Ann. art 35.11 (Vernon Supp. 2004 2005) has been interpreted by the Texas Court of Criminal Appeals as allowing one, and only one, shuffle of the panel. See Chappell v. State, 850 S.W.2d 508, 511 (Tex. Crim. App. 1993). It is not clear from the record that two jury shuffles occurred. The State argues that the first "shuffle" was a list of the individual veniremembers randomly selected from the central jury pool, and the list with the notation "2nd shuffle" contained the names of the same panel after the jury shuffle. However, the record does not reveal that any objection was made to the procedure used by the court. In the absence of an objection, nothing is preserved for review. Tex. R. App. P. 33.1. Even with a proper objection, a procedural error is not subject to compulsory reversal. The Texas Court of Criminal Appeals has recently acknowledged that, because the right to a jury shuffle is statutory in nature, any error in connection therewith must be evaluated for harm under the standard for nonconstitutional errors. Ford v. State, 73 S.W.3d 923, 924 (Tex. Crim. App. 2002).

Improper Excusal for Cause?

Henderson also complains about the excusal of African-American panelists for cause without the trial court's hearing excuses offered as required by Tex. Code Crim. Proc. Ann. art. 35.03, 1 (Vernon 1989). Again, there was no objection made to the trial court's actions; thus, nothing has been preserved for our review. See Tex. R. App. P. 33.1.

Batson:

Henderson also complains about the State's use of a peremptory strike to remove the only remaining African-American from the panel. This argument, however, is based on counsel's failure to make a Batson objection, and thus will be addressed in the following discussion of his complaint that counsel was ineffective. // We note the excused juror stated he knew the defendant and the victim, which appears to provide a race-neutral reason for striking the juror.

In a connected argument, counsel complains that the trial court committed reversible error by collecting and destroying juror information forms that revealed the race of the veniremembers thus increasing the difficulty of effectively raising a Batson claim on appeal. We find nothing in the record to document that this occurred. Assuming that it did occur, there was also no objection raised; thus, nothing has been preserved for our review. See Tex. R .App. P. 33.1.

Ineffective Assistance of Counsel

The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, Henderson must prove by a preponderance of the evidence (1) that his counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his defense. Id.; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).

Henderson contends counsel was ineffective because he failed to object to a second shuffle of the venire, failed to raise a Batson objection, failed to object to the trial court's sua sponte excusal of eleven veniremembers, failed to attempt to remove a veniremember by use of a peremptory challenge or a challenge for cause, and failed to object to seizure and destruction of juror questionnaires showing the race of each juror.

Each alleged error is an error of omission. We cannot determine the reason that counsel did not object to a second shuffle, did not raise a Batson objection, why he did not object to the excusal of veniremembers, or why he did not challenge the complained-of veniremember. Further, we cannot determine from this record whether a second shuffle occurred, or whether juror questionnaires were indeed "seized and destroyed." //

Direct appeals often present a limited record for review of the typical issues raised in an ineffective assistance point. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Phetvongkham v. State, 841 S.W.2d 928, 932 33 (Tex. App. Corpus Christi 1992, pet. ref'd, untimely filed). One way to get evidence of counsel's trial strategy or other matters in the direct appeal record is through a motion for new trial. See Motley v. State, 773 S.W.2d 283, 290 (Tex. Crim. App. 1989) (evidence relating to counsel's trial strategy appeared in the record because a motion for new trial was held on the issue of counsel's ineffective assistance). Here, no motion for new trial was filed.

To defeat the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Where the alleged derelictions are primarily errors of omission outside the record rather than commission revealed in the trial record, collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread on a record. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).

In this case, the record shows no reasons for trial counsel's actions, and we may not presume that they were without reason. The contention of error is overruled.

We affirm the judgment.

Jack Carter

Justice

Date Submitted: July 13, 2004

Date Decided: October 13, 2004

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