RAMON CABRERA v. THE STATE OF TEXAS--Appeal from 214th District Court of Nueces County

NUMBER 13-01-181-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

RAMON CABRERA,   Appellant,

v.

THE STATE OF TEXAS  , Appellees.

On appeal from the214th District Court

of Nueces, County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Chief Justice Valdez

Appellant, Ramon Cabrera, appeals from a jury conviction for murder. Appellant argues through four issues: (1) trial counsel allowed an unqualified juror to be seated and thereby denied him effective assistance of counsel; (2) the seating of an unqualified juror denied appellant due process and equal protection of the law; (3) the seating of an unqualified juror denied appellant a fair and impartial jury; and, (4) the trial court erred in failing to grant appellant=s motion for mistrial following the display of prejudicial photographs to the jury. We affirm.

Factual and Procedural History

On October 15, 1999, several persons had been drinking at the home of David Saenz. Appellant requested that Saenz, a musician, play a particular song. After Saenz said he was not familiar with the song, he and appellant argued. Freddie De Leon, Saenz=s friend and neighbor, testified that appellant pulled out a gun and shot Saenz. Appellant fled, but was later arrested. The gun and two boxes of ammunition were recovered from his vehicle. Appellant was transported back to the scene, where he was identified by several witnesses.

The jury found appellant guilty of murder and assessed his punishment at ninety-nine years confinement in the penitentiary, rejecting his request for probation.

Unqualified Juror

By issues two and three, appellant complains of the seating of an unqualified juror, Aurlie Strealy, who stated that she could not consider probation in a murder case. Appellant asserts that the seating of Strealy, an unqualified juror, denied him due process of law, equal protection, and a fair and impartial jury.

The constitutional right, asserted by appellant, to fair and impartial jurors is not absolute, and may be waived if not preserved in some fashion at trial. See Delrio v. State, 840 S.W.2d 443, 445-46 (Tex. Crim. App. 1992). In order to preserve error on a challenge for cause, the defendant must demonstrate on the record that: he asserted a clear and specific challenge for cause; he used a peremptory challenge on the complained of venireperson; all his peremptory challenges were exhausted; his request for additional strikes was denied; and, an objectionable juror sat on the jury. Rosales v. State, 4 S.W.3d 228, 232 (Tex. Crim. App. 1999); Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996).

In the present case, appellant failed to challenge Strealy for cause, nor did he exercise a peremptory strike against her. Having failed to preserve error, we overrule issues two and three. Tex. R. App. P. 33.1.

Ineffective Assistance of Counsel

Appellant complains, in issue one, that he was denied effective assistance of counsel when his trial counsel allowed an unqualified juror to be seated.

In determining whether an accused received ineffective assistance of counsel, we apply the Strickland test. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1984) (adopting Strickland as appropriate standard under Texas law). The Strickland test consists of two prongs: (1) trial counsel's performance fell Abelow an objective standard of reasonableness;@ and (2) the deficient performance prejudiced the defense by a Areasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.@ Strickland, 466 U.S. at 694. AA reasonable probability is a probability sufficient to undermine confidence in the outcome.@ Id. Appellant must show ineffective assistance firmly rooted in the record. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994); Paz v. State, 28 S.W.3d 674, 676 (Tex. App.BCorpus Christi 2000, no pet.). The appellant must prove both prongs of the Strickland test by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). In determining whether there was ineffective assistance of counsel, the court must consider the trial as a whole as opposed to isolated incidents of counsel's performance. Id. When the record is silent as to why appellant=s trial counsel failed to challenge a particular venire member for cause, the appellate court must assume that trial counsel was exercising reasonable professional judgement and taking an acceptable risk. See Jackson, 877 S.W.2d at 771; Delrio, 840 S.W.2d at 447.

We begin our analysis with a rebuttable presumption that counsel is better positioned than the appellate court to judge the pragmatism of the particular case and that he made all significant decisions in the exercise of reasonable professional judgment. Delrio, 840 S.W.2d at 447. The presumption may be rebutted by evidence in counsel's reasoning, or lack thereof. Jackson, 877 S.W.2d at 771.

In the present case, appellant failed to challenge the effectiveness of trial counsel by a motion for new trial or otherwise at trial. Therefore, no testimony from the trial attorney concerning his strategy is available. Whether or not to grant probation was not the only disputed issue in the present case, and Strealy may have otherwise appeared to be a favorable juror with regard to unwillingness to convict or leniency with regard to the length of sentence. The record does show that she would not look unfavorably towards a defendant who did not take the stand in his own defense.

Performance of counsel cannot generally be adequately examined based on a trial court record. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.BHouston [1st Dist.]1994, pet. ref'd). A proper review should focus on a record specifically targeting the conduct of trial counsel. Id. Such a record is best developed during a hearing on application for writ of habeas corpus or motion for new trial. Id.; see Jackson, 877 S.W.2d at 772 (Baird, J., concurring). To find that trial counsel was ineffective based on a record silent as to why trial counsel conducted the trial as he did would call for speculation, which we are not permitted to do. See Jackson, 877 S.W.2d at 771; Lozada-Mendoza v. State, 951 S.W.2d 39, 44 (Tex. App.BCorpus Christi 1997, no pet.).

Accordingly, in the present matter, it would be improper speculation to hold that the only effective course of action for trial counsel would have been to challenge Strealy for cause and eliminate her from the jury. See Jackson, 877 S.W.2d at 771. Therefore, we hold appellant has failed to demonstrate ineffective assistance of counsel and his first issue is overruled.

Prejudicial Photograph

By his fourth issue, appellant alleges that the trial court erred in failing to grant a mistrial following the display of a prejudicial photograph to the jury. The trial court excluded from evidence a close-up photograph of the wound to the victim=s face, which was later shown to the jury by a witness for the State. The trial court sustained appellant=s objection and instructed the jury to disregard their view of the photograph, but denied appellant=s request for a mistrial

A trial court=s denial of a mistrial is reviewed under an abuse of discretion standard. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000); Cano v. State, S.W.3d 99, 109 (Tex. App.BCorpus Christi 1999, pet. ref=d). Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors, and the determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Wood, 18 S.W.3d at 648. A mistrial is required only when the error is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors by an instruction to disregard. Id.; see also Cano, 3 S.W.3d at 109 (mistrial is an extreme remedy). There is an appellate presumption that an instruction to disregard the evidence will be obeyed by the jury, except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987); Thompson v. State, 612 S.W.2d 925 (Tex. Crim. App. 1981).

With regard to the impression produced by gruesome photographs of the victim, in the related context of an initial determination by the trial court as to whether the probative value of the photographic evidence is substantially outweighed by the danger of unfair prejudice, the trial court must consider a host of factors. Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999). These factors include: the number of photographs; the size of the photograph; whether it is in color or black and white; the detail shown in the photograph; whether the photograph is gruesome; whether the body is naked or clothed; and, whether the body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the appellant=s detriment. Tex. R. Evid. 403; Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000); Ladd, 3 S.W.3d at 568.

In the present case, appellant has failed to make the photograph a part of the appellate record by bill of exception or otherwise. See Tex. R. App. P. 33.2. Accordingly, the appellate court is unable to examine the above factors or to evaluate the potential harm caused by the photograph. The trial judge, however, considered the prejudice caused by a casual view of that exhibit by the jury and determined that an instruction would be sufficient to cure the harm. Gardner, 730 S.W.2d at 696. Accordingly, we are unable to say that the trial court abused its discretion in denying the mistrial. Appellant=s fourth issue is overruled.

The judgment of the trial court is AFFIRMED.

ROGELIO VALDEZ

Chief Justice

Do Not Publish.

Tex. R. App. P. 47.3

Opinion delivered and filed

this 21st day of November, 2002.