Oscar Osvaldo Duarte v. State ( 2006 )

Opinion issued April 20, 2006

In The

Court of Appeals

For The

First District of Texas

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NO. 01-04-00990-CR

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OSCAR OSVALDO DUARTE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 979048

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MEMORANDUM OPINION

          A jury convicted appellant, Oscar Osvaldo Duarte, of delivery of less than one gram of cocaine and assessed punishment at 210 days’ confinement and a $200.00 fine. In three points of error, appellant contends (1) his trial counsel was ineffective, (2) the State conducted improper voir dire, and (3) the State used evidence outside of the record in closing argument during the punishment phase of trial. We affirm.

BACKGROUND

          On February 27, 2004, an undercover police officer pulled his car into a parking lot of a nightclub and noticed appellant and another man sitting inside of a car. The undercover officer parked near appellant’s car, and appellant got out of his car and asked the officer what he was looking for. The officer indicated he was looking for cocaine and handed appellant $20. Appellant handed the money to the other man in appellant’s car, the passenger entered the nightclub, returned with the cocaine, and handed it to appellant. Appellant then handed the cocaine to the undercover officer. After the officer left the scene with the cocaine, he notified nearby uniformed officers who arrested appellant for delivery of less than one gram of cocaine.

INEFFECTIVE ASSISTANCE OF COUNSEL

          In his first point of error, appellant contends his trial counsel was ineffective in filing an election requesting jury sentencing and a motion for community supervision. Because this is a state jail felony under Section 12.35 of the Texas Penal Code, appellant contends that the jury was precluded from recommending community supervision under Article 42.12, section 4(d)(2) of the Texas Code of Criminal Procedure. Appellant contends that filing these mutually exclusive motions constituted ineffective assistance of counsel.

          Under Strickland v. Washington, to prevail on an ineffective assistance of counsel claim, the applicant must show that (1) counsel’s performance was deficient by falling below an objective standard of reasonableness and (2) there is a probability sufficient to undermine the confidence in the outcome that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable assistance,” and that “the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164 (1995)).

          Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance. Id. 466 U.S. at 690, 104 S. Ct. at 2066. An appellant must overcome this presumption. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). This Court will not engage in speculation about trial counsel’s reasoning or strategy. See Bone, 77 S.W.3d at 835; see Gamble, 916 S.W.2d at 93.

          Here, appellant has failed to show why trial counsel’s mere filing of potentially inconsistent motions constitutes ineffective assistance of counsel. Trial counsel’s actions may have been strategic in nature. By filing both motions, trial counsel covered both options available to appellant, leaving the ultimate decision for a later point in time, and appellant fails to show why this constitutes ineffective assistance of counsel. Considering that appellant complains of the mere filing of the motions, to hold trial counsel ineffective for these actions would call for speculation, which we decline to do. See Bone, 77 S.W.3d at 835; see Gamble, 916 S.W.2d at 93. Accordingly, we overrule appellant’s first point of error.

JURY VOIR DIRE

          In his second point of error, appellant contends the State conducted improper jury voir dire when it used a hypothetical fact situation in its voir dire where the hypothetical was factually specific to the case on trial. Appellant did not object to the alleged prosecutorial misconduct. By failing to object to the State’s voir dire statements, appellant has presented nothing for review. See Jenkins v. State, 870 S.W.2d 626, 629 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Having failed to preserve the alleged error, appellant presents nothing for review. Tex. R. App. P. 33.1(a). We overrule appellant’s second point of error.

JURY ARGUMENT

          In his third point of error, appellant complains that, during the punishment phase of trial, the State improperly urged the jury to return a punishment verdict based on evidence outside of the record. During argument, the State commented “[y]ou also have to think about what this type of activity leads to in our community. And it’s okay to talk about those things when you’re back there deliberating. You have drive-by shootings that are caused by drug trafficking and by the delivery of drugs.” Appellant timely objected that the reference to drive-by shootings was outside of the record, and the trial court overruled the objection.

          Approved areas of general prosecutorial argument are (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (citing Hathorn v. State, 848 S.W.2d 101, 117 (Tex. Crim. App. 1980)). We conclude the State’s argument amounts to nothing more than a plea for law enforcement and are not improper. Morrow v. State, 757 S.W.2d 484, 494 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (finding the following argument to be a proper plea for law enforcement: “when is the last time you talked about the fact that drugs are killing this society? Figuratively and literally killing this society.”); see also Shippy v. State, 556 S.W.2d 246, 257 (Tex. Crim. App. 1977) (finding the following argument to be a proper plea for law enforcement in a capital murder case: “we have got to deter other people who might commit burglary, robberies, whatever crimes.”). We overrule appellant’s third point of error.

          Accordingly, we affirm the judgment of the trial court.

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Alcala.

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