Beck v. State

• Decision Date: 14 July 1998
• Docket Number: No. 07-97-0447-CR,07-97-0447-CR
• Citation: 976 S.W.2d 265
• Parties: Deandre Leon BECK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 265

976 S.W.2d 265

Deandre Leon BECK, Appellant, v. The STATE of Texas, Appellee.

No. 07-97-0447-CR.

Court of Appeals of Texas Amarillo.

July 14, 1998.

Discretionary Review Refused

Oct. 28, 1998.

Law Offices of James M. Leitner, James M. Leitner, Houston, for appellant.

John B. Holmes, Jr., Eric Kugler, James Alston, Harris County District Attorneys, Houston, for appellee.

Before QUINN and REAVIS JJ., and REYNOLDS, ^* Senior Justice.

QUINN, Justice.

Deandre Leon Beck, convicted of aggravated robbery, brings this appeal. In one point of error, he argues that he was denied the effective assistance of counsel at trial and cites numerous errors allegedly committed by his trial counsel during voir dire and the guilt/innocence phase of trial as support for his claim. We overrule the point and affirm.

A. Purported Mistakes

Appellant alleges that his attorney committed the following errors during trial:

1) counsel failed to voir dire the jury on the range of punishment;

2) counsel did not voir dire the panel members about whether they could consider community supervision as appropriate punishment;

3) counsel failed to voir dire the panel members about why community supervision was available in the case;

4) counsel failed to voir dire the panel members about whether anyone was biased against appellant for being indicted for aggravated robbery;

5) counsel failed to voir dire the panel members about potential bias against blacks;

6) counsel failed to voir dire the panel members regarding whether they could follow the law regarding appellant's presumption of innocence;

7) counsel did not voir dire the panel members regarding whether they were biased in favor of law enforcement officers;

8) counsel did not voir dire the panel "concerning the law as it applied to the credibility of all witnesses as they are brought into court to testify";

9) counsel did not voir dire the panel on "the law of accomplice witnesses";

10) counsel failed to object to testimony regarding appellant's oral statements made while in custody;

11) counsel stipulated to alibi evidence, thus preventing the jury from hearing the same evidence through testimony; and

12) counsel failed to request a jury charge concerning "the law of accomplice witnesses."

B. Standard of Review

In any case analyzing the effective assistance of counsel, we begin with the presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994) (en banc). We assume counsel's actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is the appellant's burden to rebut this presumption via evidence illustrating why trial counsel did what he did. Jackson v. State, 877 S.W.2d at 771 (refusing to hold counsel's performance deficient given the absence of evidence concerning counsel's reasons for choosing the course he did); Rodriguez v. State, 955 S.W.2d 171, 176-77 (Tex.App.--Amarillo 1997, no pet.); Davis v. State, 930 S.W.2d 765, 769 (Tex.App.--Houston [1st Dist.] 1996, pet. ref'd); Kemp v. State, 892 S.W.2d 112, 114-15 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd). Without such evidence, we must assume that he had a legitimate reason for acting as he did. Id.

C. Application of Standard

1. Voir Dire

As to the failure to voir dire, we note that though appellant moved for new trial he said nothing of counsel's ineffectiveness in the motion. Thus, counsel's motives, if any, for acting as he did went undeveloped. In effect, we have nothing before us evincing the reasons why counsel opted to forego questioning the venire vis-a-vis the subjects alluded to by appellant. Given this evidence, the absence of any requirement that counsel delve into the matters raised by appellant, and the presence of evidence illustrating that counsel conducted an active voir dire, we are unable to say that appellant rebutted the presumption that counsel's actions were reasonably strategic. Jackson v. State, supra; Rodriguez v. State, supra.

Furthermore, of the issues allegedly neglected by counsel during voir dire, many, in fact, were addressed by the court or the prosecution. Indeed, the court explained to the venire that an indictment was not evidence of guilt and was nothing more than an accusation. While this may not be the equivalent of asking the panel if they had a preconceived bias against appellant since he was indicted, it certainly explained to them that the indictment was only a pleading and not evidence. Additionally, after explaining to the panel that all persons were presumed innocent, the court asked whether anyone on the venire had a problem with that. None did. The State also mentioned that appellant was deemed not guilty until it proved otherwise.

The court also explained the entire penalty range to the jury, including the availability of probation and why it was available. Then, it asked if anyone would be unable to consider probation as a possible option given the crime involved. The State also inquired if anyone on the panel could not consider the full range of punishment and further asked each juror individually if he or she could consider probation.

In addition, the court explained that law enforcement personnel should not be believed over any other witnesses simply because they are police officers. It then asked the panel members to withhold judgment on the credibility of police officers until they testified. This very issue was also addressed by defense counsel during voir dire.

It is true that no one 1) asked if anyone on the venire was prejudiced against blacks or 2) discussed the law of accomplice witnesses. Yet, we cannot say the failure to interject racial issues into the mix was indicative of unreasonable behavior, especially when appellant cites us to nothing which suggests that race played a role in his conviction. To hold otherwise would be to require defense counsel in every case involving a member of a minority group to ask the panel if they were prejudiced against that group. The constitution does not require us to undertake such micro-management of trial counsel's actions.

As to the matter of accomplice witness testimony, it could well be that counsel avoided the subject to deflect attention from his client's written confession of guilt. Indeed, it is quite conceivable that if counsel suggested that the testimony of a purported accomplice was alone insufficient to convict, the State would have responded by citing to the presence of the confession (which confession would have provided the requisite corroboration of the accomplice's testimony). Thus, we are unable to say that avoiding the potential land mine somehow rendered counsel ineffective.

2. Oral Statements

The "oral statements" in question was actually one in number, and it involved appellant informing an interrogating officer that he was playing basketball at the time of the assault. The remainder of the "statements" consisted of the officer testifying that the details of appellant's involvement in that activity went unmentioned. As to the former, it tended to buttress appellant's alibi that he was elsewhere when the crime occurred, and that may be the very reason why counsel opted not to object to it. In any event, the absence of evidence regarding counsel's reason for remaining silent...