in the Matter of the Marriage of Deborah Woodruff and Bruce Woodruff and in the Interest of Christina Woodruff, a Child ( 2002 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-01-00088-CV ______________________________



IN THE MATTER OF THE MARRIAGE OF DEBORAH WOODRUFF AND BRUCE WOODRUFF, AND IN THE INTEREST OF CHRISTINE WOODRUFF, A CHILD

---

On Appeal from the 402nd Judicial District Court Wood County, Texas Trial Court No. 2001-009

---

Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

Deborah Woodruff and Bruce Woodruff have filed a joint motion asking this Court to reverse and remand Bruce Woodruff's appeal from their divorce in order for an agreed judgment to be entered in the court below. The parties have stipulated that reversible error occurred in the trial, but further stipulate and agree that the case has been settled and that, on remand, the agreed judgment should be entered by the trial court. They have further agreed that, on remand, costs regarding the appeal shall be adjudged against the party incurring same.

Pursuant to Tex. R. App. P. 42.1, the appeal is dismissed and the cause remanded to the trial court for entry of judgment in accordance with the agreement of the parties.

Donald R. Ross

Justice

Date Submitted: April 11, 2002

Date Decided: April 11, 2002

Do Not Publish

ath test on their refusal alone?" \ Standefer v. State, 59 S.W.3d 177, 183 (Tex. Crim. App. 2001). The Texas Court of Criminal\ Appeals held (1) defense counsel\'s question was a commitment question, and (2) the prospective\ juror\'s answer would not lead to a valid challenge for cause. Id. at 182. Accordingly, the Standefer\ court found the trial court properly excluded the defense attorney\'s voir dire question. Id. at 183.

\

                                    The issue raised by footnote 28 of Standefer concerned (1) whether the State is seeking to\ identify jurors that would hold it to a higher burden of proof, and (2) whether the State has made any\ additional attempts to identify that the juror has a bias or prejudice against law on which the State\ is entitled to rely. Id. at 183 n.28 (citing Garrett v. State, 851 S.W.2d 853, 859–60 (Tex. Crim. App.\ 1993)). Because the issue presented in footnote 28 was not central to the majority\'s holding in\ Standefer, we do not feel bound to reach the same result as that proposed by Standefer\'s footnote 28. \ Further, the footnote conflicts with the holding in Barnard, which was not specifically overruled or\ addressed.

\

                                    We further note that four judges on the current Texas Court of Criminal Appeals dissented\ in Standefer, and at least one scholar has questioned the "problematic ramifications of footnote 28"\ in Standefer. See John R. Gillespie, Fear of Commitment? In Standefer v. State the Texas Court of\ Criminal Appeals Clarifies the Role of Commitment Questions in Jury Selection in Criminal Trials,\ 54 Baylor L. Rev. 581, 591–601 (2002).

\ ' var WPFootnote7 = '

We note that , Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993), Barnard v. State,\ 730 S.W.2d 703 (Tex. Crim. App. 1987), and Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App.\ 1985), have never been overruled. We must, therefore, follow those cases as binding precedent\ issued by this State\'s highest criminal court.

\ ' var WPFootnote8 = '

At least one court of appeals has held that a court reporter\'s failure to record bench\ conferences presented, in that case, nonreversible, nonconstitutional error. See Mitten v. State, 79\ S.W.3d 751, 764 (Tex. App.—Corpus Christi 2002, pet. granted) (citing Tex. R. App. P. 44.2(b)).

\ ' function WPShow( WPid, WPtext ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'visible'" ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( ", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" ); floatwnd.document.open( "text/html", "replace" ); floatwnd.document.write( "

\r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( "

\r\n" ); floatwnd.document.write( WPtext ); floatwnd.document.write( '
Close'); floatwnd.document.write( "

" ); floatwnd.document.close(); floatwnd.focus(); } } function WPHide( WPid ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'hidden'" ); }

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00143-CR

______________________________

JAIME MEDINA, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the Criminal District Court 4

Dallas County, Texas

Trial Court No. F-0153002-VK

---

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

            A jury found Jaime Medina guilty of murder. Based on the jury's punishment recommendation, the trial court sentenced Medina to thirty-five years' imprisonment. On appeal, Medina challenges the evidence as factually insufficient to support his conviction and contends he received ineffective assistance of counsel. We affirm.

I. Background

            Several of the witnesses at trial were related to either Medina or the victim. Javier Gonzalez was shot and died in the living room of the home of Sebastian Pinales and Mary Lua. Pinales and Lua lived in one half of a duplex located on Hudson Street in Dallas, Texas. Rosemary Coronado and her husband, Pinales's parents, lived in the other half of the duplex.

            Pinales was murdered before the trial of the case now on appeal. Lua, however, was at home during Gonzalez' murder, although she was in her bedroom at the time of the shooting. Chase Tuley, however, was in the living room with Gonzalez, Pinales, and Medina at the time Gonzalez was murdered. As for Coronado and her husband, they were inside their half of the duplex when they heard gunfire erupt from next door. They left their home to investigate what was happening next door.

II. Factual Sufficiency

            In his first point of error, Medina contends the evidence is factually insufficient to support his conviction. Medina argues that testimony of the State's witnesses contains too many internal and external inconsistencies, and the State's decision to parade the victim's relatives in front of the jury invoked sympathy for the victim, which prompted the jury to blame Medina for Gonzalez' death, rather than acquit Medina for lack of inculpatory evidence.

            A factual sufficiency review dictates that we review the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); see also Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In determining the factual sufficiency of the evidence to establish the elements of the offense, we may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 129. Additionally, we must be mindful of the jury's role in determining witness credibility and what weight should be given to evidence or testimony that conflicts with other evidence or testimony. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997).

            The indictment charged Medina with intentionally and knowingly murdering Gonzalez by shooting Gonzalez with a gun. See Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2004). The indictment alternatively alleged Medina murdered Gonzalez by committing an act clearly dangerous to human life (shooting Gonzalez with a gun), thereby causing Gonzalez' death. See Tex. Pen. Code Ann. § 19.02(b)(2) (Vernon 2004).

            The forensic evidence admitted at trial showed Gonzalez was shot five times, including once to the lower back. This latter shot severed Gonzalez' aorta, resulting in his death. Police also analyzed "hand wipings" from Pinales, who had died before trial. Laboratory tests of those samples showed positive results for the presence of two of the three elements commonly associated with gunpowder residue. These samples did not, however, register sufficient quantities of the third element for the analyst to confirm the presence of primer gunshot residue on Pinales' hands. The laboratory analyst opined that the hands of someone who had not fired a gun, but later handled a weapon that had been fired, might test positive for gunpowder residue because powder that was deposited on the gun during its firing could be transferred to the hands of anyone who later handled that weapon. Thus, neither the absence nor presence of minor amounts of all three metals would, by itself, be sufficient to prove that the tested individual had actually fired the weapon.

            When the police arrived at the scene of the shooting, several people said they did not see who shot Gonzalez. At trial, however, those witnesses changed their stories and gave testimony that inculpated Medina as the shooter. One such person was Lua. According to Dallas Police Officer Chauncey McBride, Lua initially told police she did not know who had shot Gonzalez. Lua also told police that Pinales was not near Gonzalez at the time he was murdered. But at trial, Lua admitted to the jury she had lied to police. Pinales was in the room with Gonzalez when he was killed. After Lua heard the gunshots, she went to the front room. She had, in fact, seen Medina, with a gun in his hand, standing over the slain Gonzalez and digging through Gonzalez' pockets.

            Coronado also told the police she did not know anything about the shooting. At trial, however, she testified she heard the first few shots and ran next door because she was worried about the occupants. Coronado then told the jury she saw Medina fire two or three more shots at Gonzalez.

            As we stated earlier, Tuley was with Medina, Gonzalez, and Pinales at Pinales' home on the night of the shooting. Tuley testified he saw Medina pick up a gun from a table and point it at Gonzalez. Tuley, being frightened, then hid behind a couch and heard five shots. When Tuley came out from his hiding place, Gonzalez was dead on the floor and Medina had fled the scene.

            On direct examination, Tuley admitted he was currently serving a prison sentence for aggravated assault with a deadly weapon. He also said he and Pinales had been "[d]rinking and getting high" during much of the day before the shooting. In fact, according to Tuley's testimony, he had drifted in and out of a drug-induced state of unconsciousness during most of the evening.

            This case turns on whether the jury believed Lua's and Coronado's earlier statements to police that they saw nothing, or instead chose to believe their testimony at trial, where they confessed their earlier lies but submitted that their trial testimony was truthful. Additionally, the jury was free to accept or reject the testimony of Tuley, a convicted felon, that he saw Medina with a gun in his hand, standing over the slain Gonzalez. As stated earlier, it is the jury who determines whether a witness' testimony is credible and what weight, if any, should be accorded to that testimony. Cain, 958 S.W.2d at 408–09. It is not the role of an appellate court, while reviewing a cold record without the benefit of observing a witness' demeanor, to supplant a jury's reconciliation of conflicts within the evidence with the court's own opinions. The evidence in this case, though conflicting, is factually sufficient. We overrule Medina's first point of error.

III. Ineffective Assistance

            In his second point of error, Medina contends his trial counsel provided ineffective assistance of counsel in three areas: (a) counsel permitted the State and the trial court to improperly commit veniremembers during voir dire, (b) counsel failed to object to improper impeachment and irrelevant victim impact evidence, and (c) counsel failed to request that all bench conferences be recorded.

            The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on a claim of ineffective assistance, an appellant must, by a preponderance of the evidence, prove: (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient representation prejudiced appellant's defense. Strickland, 466 U.S. at 688; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To meet this burden, an appellant must show that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). In other words, the appellant must prove counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. If, however, "there is at least the possibility that the conduct could have been legitimate trial strategy," then we must "defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003).

A. Commitment Questions

            Medina contends counsel provided ineffective assistance because he failed to object to certain voir dire questions asked by the State and the trial court, which Medina now contends were improper"commitment" questions. We will consider each allegedly improper question in the order it was briefed by the parties.

            First, the prosecutor asked juror number forty-two:

Say that we put on all of our evidence. All of our evidence is circumstantial evidence.

Can you convict based on that? You believe everything beyond a reasonable doubt. We have proved all the elements of the offense. Did we prove anything?

            The Texas Court of Criminal Appeals has previously affirmed a trial court's challenge for cause when a veniremember said he or she could not convict a defendant of capital murder solely based on circumstantial evidence with no eyewitnesses. Barnard v. State, 730 S.W.2d 703, 712–14 (Tex. Crim. App. 1987).

            More recently, the Texas Court of Criminal Appeals referenced this issue in Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). In dicta, the Standefer majority opined that the question, "Could you find someone guilty on circumstantial evidence alone?" was an improper commitment question. Id. at 183 n.28. In reaching such a conclusion, the court relied on its earlier decisions in Garrett v. State, 851 S.W.2d 853, 859–60 (Tex. Crim. App. 1993), and Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1985). Standefer, 59 S.W.3d at 183 n.28.

            In Castillo, the prospective juror told the trial court he could never find someone guilty based merely on the testimony of a single law enforcement officer. Castillo, 913 S.W.2d at 531–32. The trial court granted the State's challenge for cause, presumably because the trial court concluded the juror would be unable to follow our law, which permits convictions based on circumstantial evidence. Id. On appeal, the Texas Court of Criminal Appeals held the State had failed to show the prospective juror's "categorical refusal" was predicated on something other than the veniremembers' understanding of proof beyond a reasonable doubt. Id. at 534. Without such a showing, held the court, "there is no indication the venireman cannot follow the law, . . . ." Id. Stated differently, the court found it critical that the State had not shown that the juror could put aside a bias against the testimony of a single officer and find the defendant guilty if that same juror nonetheless believed the officer's testimony established the defendant's guilt beyond a reasonable doubt. Id. at 533. The court went on to explain:

This is not to say that a venireman who maintains he would never convict on the basis of one eyewitness is never properly the subject of a State's challenge for cause. It depends upon the reason he says he would never convict. A venireman who says, for instance, that he could not convict even if he believed the State's only eyewitness, and that testimony convinced him beyond a reasonable doubt of the defendant's guilt, can be challenged for cause, Garrett notwithstanding. Such a venireman really does hold the State to a higher burden of proof than the law allows. He has an agenda of his own for conviction, but one which bears no relation to the law. If he cannot set his personal agenda aside, he should be excused at the State's demand.

Id. at 533–34.

            In Garrett, the Texas Court of Criminal Appeals reviewed a capital murder case in which the State had secured the dismissal of a prospective juror on the belief that the veniremember would not be able to follow law applicable to the case. Garrett, 851 S.W.2d at 859. (The veniremember said he could never, based solely on the facts of the crime, find a defendant was a future danger to society. Id. at 857–59.) The court held "a venireman is not subject to challenge for cause merely because he indicates he would require more evidence than the legal minimum in order to answer special issue two affirmatively." Id. at 860. The court went on to write that, if the State did not want that particular veniremember to serve on the jury, it was required to exercise one of the State's peremptory strikes, rather than rely on a challenge for cause. Id. at 861.

            In Standefer, the court reviewed a voir dire question that asked, "Would you presume someone guilty if he or she refused a breath test on their refusal alone." Standefer, 59 S.W.3d at 183. The court determined the question was a commitment question because it asked "whether the prospective juror would resolve the issue of guilt against the defendant if the juror learns a particular fact -- that the defendant has refused a breath test." Id. The court further elaborated that "[t]he facts in this question would not lead to a valid challenge for cause because a juror may permissibly presume guilt from such evidence [that the defendant had refused to give a breath specimen.]" Id.

            In the case now before us, the State's question sought to eliminate a potential juror who could not render a guilty verdict based on circumstantial evidence, regardless of whether that juror otherwise believed the defendant was guilty beyond a reasonable doubt. Such a question is not an improper commitment question, for the specific reason that it sought to elicit a bias against rendering a conviction based on evidence that otherwise satisfied the State's burden of proving guilt beyond a reasonable doubt. Cf. Castillo, 913 S.W.2d at 533–34. Medina has therefore failed to satisfy Strickland's first prong—that counsel erred. Moreover, even if the question had been improper, the record before us shows juror number forty-two, the person to whom the question was directed, was not within the range of persons from which Medina's jury was chosen. Accordingly, the record cannot support a showing of harm under the second prong of the Strickland analysis.

            Second, the prosecutor asked, "Do you think you need to see that gun [to convict someone of murder]?" In Barajas v. State, the Texas Court of Criminal Appeals wrote, "A [voir dire] question is proper if it seeks to discover a juror's views on an issue applicable to the case." 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). The court noted, however, that an otherwise proper question is impermissible if the question attempts to commit the jury to a particular verdict based on particular facts. Id.; Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). In this case, asking whether a prospective juror would require the State to produce the murder weapon might identify a juror who would require the State to bring forth more evidence than was required by law. Stated differently, such a juror might require the State to prove not only the statutory elements of the crime beyond a reasonable doubt, such a juror would further add the additional, nonstatutory element of bringing the murder weapon into the courtroom. A juror who would require the prosecution to prove more than is required by law is rightfully challengeable for cause, and it is not improper for attorneys to ask voir dire questions of prospective jurors that elicit such feelings. As such, the State's question in this case was proper. Cf. Mason v. State, 116 S.W.3d 248, 255–56 (Tex. App.—Houston [14th Dist.] 2003, pet. filed) (trial court did not err by permitting the State to ask jurors whether they would require DNA or medical evidence to convict the defendant of aggravated sexual assault or indecency). The performance of Medina's counsel, therefore, did not fall below an objective standard of reasonableness: the State's voir dire question was not improper.

            Third, the State asked, "If you find beyond a reasonable doubt all the evidence in a case, could you convict someone without knowing why the crime happened or a motive behind it?" The State asked that question after first telling the jury that the State does not have the duty to prove motive, a correct statement of law. See Bush v. State, 628 S.W.2d 441, 444 (Tex. Crim. App. 1982); Abshire v. State, 62 S.W.3d 857, 865 (Tex. App.—Texarkana 2001, pet. ref'd). Thus, the State's question asked the prospective juror whether he or she would require the State to prove more than what was required under the law. A juror's inability to follow the law, or a willingness to hold either side to a higher burden of proof, is a proper ground to challenge for cause. Cf. Mason, 116 S.W.3d at 255–56. Medina has failed to show counsel's performance fell below an objective standard of reasonableness by not objecting to the State's voir dire question about motive.

            Fourth, the trial court asked,

Right now is there anybody here who thinks that if they [the prosecutors] prove beyond a reasonable doubt that a firearm caused the death but they [the prosecutors] don't have the firearm itself, that you [a prospective juror] would not return a verdict of guilty under those circumstances? If so, that's fine but you need to let us know.

As explained above, to require the State to put the murder weapon into evidence adds an additional burden not otherwise required by statute. A juror who would require the State to prove more than is required by law is challengeable for cause. Id. The trial court's question was proper. Therefore, Medina has not satisfied the first prong of Strickland.

B. Victim Testimony

            Medina further argues his trial counsel provided ineffective assistance because he failed to object to improper victim impact testimony during the trial on guilt/innocence. During testimony by Armando Galindo, the victim's uncle, the State asked Galindo to identify several people sitting in the gallery. Galindo then identified the victim's family members, giving the names of each. Medina contends that no jury could "put the images and names and faces of the victim's mourning family out of their minds during the trial and objectively decide on the issue of guilt or innocence."

            Assuming, without deciding, that counsel erred, Medina has failed to show that, "but for counsel's alleged errors, the result of the trial would have been different," as required under the second prong of Strickland. Further, ineffective assistance claims cannot be based on "retrospective speculation"; they must be firmly rooted in the record. Bone, 77 S.W.3d at 835. We have reviewed the record and found no such evidence. Accordingly, Medina has failed to establish by a preponderance of the evidence he received ineffective assistance of counsel.

C. Bench Conferences

            Finally, Medina contends trial counsel provided ineffective assistance because he failed to object to the court reporter's failure to record the bench conferences that occurred during the trial. We first note the record shows Medina's counsel successfully moved to have all bench conferences recorded. Accordingly, as part of his trial strategy, counsel could have reasonably assumed the court reporter would comply with the trial court's order without the necessity of counsel's supervision.

            However, even assuming, arguendo, that trial counsel erred by not supervising the court reporter, there is no evidence in the record that, "but for counsel's error, the result would have been different." Medina filed a motion for new trial, but the motion was overruled by operation of law without a hearing. See Tex. R. App. P. 21.8. We, therefore, have no record of what was said during the unrecorded bench conferences. As such, the record before us does not provide firm evidence that, had the bench conferences been recorded, those recordings would provide evidence of a reversible error. Instead, Medina invites this Court to speculate about the maladies that occurred. This we cannot do. See Bone, 77 S.W.3d at 835.

            Medina has not shown, by a preponderance of the evidence, that his trial counsel provided ineffective assistance. The record does not support a conclusion that both prongs of Strickland's test for ineffective assistance of counsel have been satisfied. Accordingly, we overrule Medina's second point of error and affirm the trial court's judgment.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          March, 29, 2004

Date Decided:             April 9, 2004

Do Not Publish