Alvis Lee Brooks v. The State of Texas--Appeal from County Court at Law No. 3 of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00378-CR
Alvis Lee Brooks, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
NO. 411774, HONORABLE DAVID CRAIN, JUDGE PRESIDING

PER CURIAM

 

A jury found appellant guilty of criminal trespass and assessed punishment at incarceration for ninety days. Because we find appellant's sole point of error to be without merit, we will affirm the judgment of conviction.

At about 3:30 a.m. on June 11, 1993, University of Texas police officer Curtis Funke discovered four persons sleeping in the entryway to the Frank Erwin Center, a university building. The officer woke these individuals, informed them they were not permitted to sleep at that location, and asked them to leave. Appellant's companions complied with the officer's request but appellant refused to do so. He was ultimately arrested for criminal trespass.

Appellant contends his trial counsel was ineffective during the jury selection process. Specifically, appellant complains that counsel erroneously failed to challenge venire member James Van Pelt for cause and, as a result, was forced to use a peremptory challenge to remove Van Pelt from the jury. This alleged waste of a peremptory challenge meant that counsel could not strike venire member Edward Eichner, who ultimately served as jury foreman. In appellant's view, Van Pelt was challengeable for bias, while Eichner should have been stricken due to his unfavorable attitude toward homeless persons.

Van Pelt was a former assistant county attorney whose duties had consisted primarily of criminal prosecutions. He was a friend of one of the prosecutors in this cause. When asked by defense counsel if his prior employment and personal relationships would "create any kind of bias for you during this trial," Van Pelt replied, "Well, I think it's obviously very dishonest to say there's absolutely no bias whatsoever." But Van Pelt also stated, "As far as ultimate bias, as far as this case, I do not know the defendant. I have been a criminal prosecutor. I've also been a criminal defense [sic]. I suppose that's the most honest answer --." When told the names of the police officers who would testify, Van Pelt said he did not know them. Van Pelt indicated that he would be able to "listen to the facts of this case and judge it based on the facts" rather than on his past affiliation with the county attorney or experience as a defense attorney.

Appellant's conclusion that Eichner was an unsuitable juror is based on his response to a single question by defense counsel. When counsel asked the jury panel where a homeless person should sleep, Eichner answered, "Community shelters." Appellant asserts that this response indicated that the panelist would be unsympathetic to his defensive claim that he had a right to camp-out at the Erwin Center.

To prevail on a claim of ineffective assistance of counsel, an appellant must show that counsel made such serious errors that she was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). In reviewing a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume that counsel was in the best position to judge the pragmatism of the particular case and that she made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992).

The record is silent as to why counsel failed to challenge Van Pelt for cause. There is also no evidence to explain why counsel elected to use a peremptory challenge against Van Pelt but not against Eichner. In light of the silent record, and considering the voir dire responses of Van Pelt, Eichner, and the other panelists as a whole, appellant has failed to meet his burden of proving that counsel was not acting within the broad range of reasonable professional assistance during voir dire. See Jackson, 877 S.W.2d at 771 (given silent record, appellate court must presume failure to challenge venire member was exercise of reasonable professional judgment). The point of error is overruled.

The judgment of conviction is affirmed.

 

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: April 3, 1996

Do Not Publish

t about 3:30 a.m. on June 11, 1993, University of Texas police officer Curtis Funke discovered four persons sleeping in the entryway to the Frank Erwin Center, a university building. The officer woke these individuals, informed them they were not permitted to sleep at that location, and asked them to leave. Appellant's companions complied with the officer's request but appellant refused to do so. He was ultimately arrested for criminal trespass.

Appellant contends his trial counsel was ineffective during the jury selection process. Specifically, appellant complains that counsel erroneously failed to challenge venire member James Van Pelt for cause and, as a result, was forced to use a peremptory challenge to remove Van Pelt from the jury. This alleged waste of a peremptory challenge meant that counsel could not strike venire member Edward Eichner, who ultimately served as jury foreman. In appellant's view, Van Pelt was challengeable for bias, while Eichner should have been stricken due to his unfavorable attitude toward homeless persons.

Van Pelt was a former assistant county attorney whose duties had consisted primarily of criminal prosecutions. He was a friend of one of the prosecutors in this cause. When asked by defense counsel if his prior employment and personal relationships would "create any kind of bias for you during this trial," Van Pelt replied, "Well, I think it's obviously very dishonest to say there's absolutely no bias whatsoever." But Van Pelt also stated, "As far as ultimate bias, as far as this case, I do not know the defendant. I have been a criminal prosecutor. I've also been a criminal defense [sic]. I suppose that's the most honest answer --." When told the names of the police officers who would testify, Van Pelt said he did not know them. Van Pelt indicated that he would be able to "listen to the facts of this case and judge it based on the facts" rather than on his past affiliation with the county attorney or experience as a defense attorney.

Appellant's conclusion that Eichner was an unsuitable juror is based on his response to a single question by defense counsel. When counsel asked the jury panel where a homeless person should sleep, Eichner answered, "Community shelters." Appellant asserts that this response indicated that the panelist would be unsympathetic to his defensive claim that he had a right to camp-out at the Erwin Center.

To prevail on a claim of ineffective assistance of counsel, an appellant must show that counsel made such serious errors that she was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v