Saul Alfredo Guzman v. State ( 2009 )

Affirmed and Memorandum Opinion filed September 24, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-08-00468-CR

_______________

SAUL ALFREDO GUZMAN, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1146350

M E M O R A N D U M   O P I N I O N

Appellant, Saul Alfredo Guzman, was convicted of possession with intent to deliver cocaine weighing between four and two-hundred grams.  In two issues, appellant argues that the trial court improperly limited voir dire examination and that he received ineffective assistance of counsel.  Finding no reversible error by the trial court, we affirm.

Background

Around 2:50 a.m. on December 19, 2007, Officer Bobby Smith and his partner, James Harris, encountered several men, including appellant, drinking beer in a parking lot outside of a sports bar.  Appellant hurried into the sports bar when he noticed the patrol car approaching.  The officers followed appellant into the bar. 

Once inside, the officers saw appellant remove a clear plastic bag containing a white powder from his shirt pocket and toss it into a nearby trash can.  Smith recovered the bag from the trash can while his partner detained appellant.  Testing determined that the white powder was cocaine.

Appellant was indicted for knowingly possessing between four and two-hundred grams of cocaine with intent to deliver, a second-degree felony.  See Tex. Health & Safety Code Ann. ' 481.115(d) (Vernon 2003).  During voir dire, the trial court disallowed questions pertaining to community supervision as a possible punishment because appellant had not verified his motion for community supervision on file with the court.^[1]

The day after jury selection, appellant=s counsel explained in a bill of exceptions that the motion was unsworn because he believed the clerk would verify it.  At that point, the trial court announced that it would permit appellant to swear to the motion, and appellant verified the motion.

The jury found appellant guilty of the charged offense.  At punishment, after appellant presented evidence that he had not previously been convicted of a felony, the court instructed the jury that it could recommend that appellant be granted community supervision.  The jury apparently decided against that option and instead sentenced him to seven years= imprisonment.

On appeal, appellant argues that the trial court improperly limited voir dire by not allowing him to question the jury panel about community supervision.  He also claims that he received ineffective assistance of counsel because his lawyer failed to ensure that the motion for community supervision had been verified. 

Analysis

Limitation on Voir Dire

In his first issue, appellant contends the trial court abused its discretion by limiting appellant=s questioning of the venire during voir dire.  Specifically, he claims that he was denied the opportunity to question potential jurors about their willingness to impose community supervision as a punishment in this drug-related offense.

 The most important purposes of voir dire are to expose juror bias or interest warranting challenge for cause, and to elicit information necessary for the intelligent use of peremptory challenges.  See Dhillon v. State, 138 S.W.3d 583, 587 (Tex. App.CHouston [14th Dist.] 2004, pet. struck).  A trial court may impose reasonable restrictions on the exercise of voir dire examination.  Id. (citing Caldwell v. State, 818 S.W.2d 790, 793 (Tex. Crim. App. 1991), overruled on other grounds by Castillo v. State, 913 S.W.2d 529, 534 (Tex. Crim. App. 1995)).  We review the trial court=s limitation on the voir dire process under an abuse-of-discretion standard and, as a threshold matter, must determine whether appellant proffered a proper question on an appropriate area of inquiry.  See Rhoades v. State, 934 S.W.2d 113, 118B19 (Tex. Crim. App. 1996).

Appellant points to two places in the record where his counsel allegedly attempted to question the venire about community supervision.  In the first instance, counsel said, AThe next thing I wanted to cover was punishment.  You=ve heard a lot about the range of punishment, first degree felony, 5 to 99 years.  Well, there=s another option.@  At that point, the court asked counsel to approach the bench.  A discussion took place off the record, and there was no mention of community supervision on the record.

The second alleged attempt occurred at the end of appellant=s allowed time for voir dire. Defense counsel said, AI would respectfully ask the Court for more time if they [sic] Judge would allow me to get into other areas, but if not, I understand.@  The trial court responded by saying, AThe Court=s ruled on it.@  The State argues that neither this vague exchange nor counsel=s earlier statements preserved this issue for our review because appellant failed to present the specific questions he intended to ask the venire and obtain a ruling from the trial court.  We agree.

To preserve error about restrictions imposed during voir dire, a party must be able to point to a specific question which the trial court has not allowed to be answered.  See S.D.G. v. State, 936 S.W.2d 371, 380 (Tex. App.CHouston [14th Dist.] 1996, pet. denied) (citing Caldwell, 818 S.W.2d at 794).  Here, the trial court never had an opportunity to rule as to one or more specific questions.  Thus, appellant has not preserved this issue for our review because he failed to obtain an adverse ruling from the trial court with regard to a specific question.  See id.

Appellant contends that his argument was preserved by a bill of exceptions made after the jury was selected.  However, like the earlier statements, appellant=s bill did not include any specific questions that appellant was prevented from asking.  Furthermore, appellant was required to make the trial court aware of his complaint while there was still an opportunity for the court to respond to it.  See Dhillon, 138 S.W.3d at 590.  Because appellant waited until after the jury was selected and the remainder of the venire released, there was nothing the trial court could have done at the time of the bill to remedy the alleged error.  See id. at 591. Therefore, appellant=s bill was untimely and failed to preserve error.  See id.  Accordingly, we overrule appellant=s first issue. 

Ineffective Assistance of Counsel

In his second issue, appellant argues that he received ineffective assistance of counsel because his attorney failed to file a properly sworn motion for community supervision prior to voir dire.  We apply a two-pronged test to ineffective-assistance claims.  See Strickland v. Washington, 466 U.S. 668, 687 (1984).  First, appellant must prove that counsel=s performance was deficient, falling below an objective standard of reasonableness.  See id. at 687B88.  Second, appellant must show that counsel=s deficient performance prejudiced his defense.  See id. at 687.  This element requires appellant to demonstrate a reasonable probability that, but for the allegedly deficient representation, the result of the proceeding would have been different.  See id. at 694.  Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence.  See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

The State argues that a finding of ineffective assistance of counsel in this case would require impermissible speculation as to the reasons for counsel=s conduct because the record is silent with regard to the trial strategy underlying the unverified motion.  We disagree. 

In his bill of exceptions, defense counsel explained that he did not verify the motion for community supervision because he Athought it would be sworn by the clerk.@  Therefore, the record in this case cannot be regarded as silent on this point because counsel was given the opportunity to explain his actions.  See Rylander v. State, 101 S.W.3d 107, 110B11 (Tex. Crim. App. 2003).         Because the record provides the reasons for counsel=s actions, we turn to the Strickland two-pronged test to determine whether appellant received ineffective assistance of counsel.  We begin with a presumption of effectiveness and cannot conclude, absent a showing of both counsel=s deficient performance and resulting prejudice, that a defendant=s conviction resulted from a breakdown in the adversarial process that renders the result unreliable.  Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 687).  Thus, if appellant fails to prove either prong, we need not address the other prong.   See Hagens v. State, 979 S.W.2d 788, 793 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d). 

Here, appellant failed to demonstrate prejudice because the trial court ultimately submitted community supervision as an option to the jury.  Accordingly, we need not decide whether counsel=s failure to verify a community-supervision motion constitutes Adeficient performance.@  See id.

Despite counsel=s initial failure to verify the motion, the trial court permitted appellant to correct the omission following voir dire and further instructed the jury at punishment that it was authorized to Arecommend that [appellant] be granted community supervision.@  We must presume the jury followed the court=s charge as given and gave fair consideration to the possibility of community supervision when deciding appellant=s punishment.  See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).

Assuming, without deciding, that counsel=s failure to verify the motion for community supervision fell below the standard of professional reasonableness, appellant has not shown that in reasonable probability the result would have been different had counsel filed a properly verified motion.  Even though appellant did not question the venire about community supervision during voir dire,^[2] the jury ultimately considered and rejected community supervision as a possible punishment.  Consequently, appellant has failed to demonstrate that counsel=s performance prejudiced his defense, and has therefore failed to prove ineffective assistance as a matter of law.  See Strickland, 466 U.S. at 694; Hagens, 979 S.W.2d at 793.  We overrule appellant=s second issue.

Conclusion

Accordingly, the judgment of the trial court is affirmed.

/s/        Kent C. Sullivan

Justice

Panel consists of Justices Seymore, Brown, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]           A defendant may be eligible for community supervision only if he files a written sworn motion with the judge before trial demonstrating that he has not been previously convicted of a felony and the jury finds that the information in the motion is true.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 4(e) (Vernon Supp. 2008). 

^[2]           The potential jurors, however, were asked during voir dire whether they would be able to consider the entire range of punishment.