Jose Alberto Saiza v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00155-CR
JOSE ALBERTO SAIZA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2007-1313-C2
MEMORANDUM OPINION
A jury found Appellant Jose Alberto Saiza guilty of injury to an elderly
individual and aggravated robbery and assessed his punishment at ninety-nine years’
imprisonment and a $10,000 fine for each offense. In two points, Saiza contends that his
right to reasonably effective assistance of counsel was violated because his counsel
failed to preserve error after the trial court denied his challenges for cause as to
Venirepersons No. 23 and No. 47. We will affirm.
To prevail on an ineffective assistance of counsel claim, the familiar Strickland v.
Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535,
156 L. Ed. 2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App.
2005) (same). Under Strickland, we must determine: (1) whether counsel’s performance
was deficient, and if so, (2) whether the defense was prejudiced by counsel’s deficient
performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104
S.Ct. at 2064; Andrews, 159 S.W.3d at 101.
To preserve a complaint for appellate review and to show harm with respect to a
trial court’s denial of a challenge for cause, an appellant must: (1) assert a clear and
specific challenge for cause; (2) use a peremptory challenge on the complained-of
venireperson; (3) exhaust his peremptory challenges; (4) be denied a request for
additional peremptory challenges; and (5) identify an objectionable juror that he would
have challenged if he had had an additional peremptory challenge to use. See Busby v.
State, 253 S.W.3d 661, 670 (Tex. Crim. App. 2008); Newbury v. State, 135 S.W.3d 22, 30-31
(Tex. Crim. App. 2004); Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App. 2003);
Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002).
It is undisputed that Saiza’s counsel did not preserve a complaint about the trial
court’s denial of the challenges for cause as to Venirepersons No. 23 and No. 47. Both
Saiza and the State agree that, at a minimum, Saiza’s trial counsel did not identify an
objectionable juror that he would have challenged had he been granted an additional
Saiza v. State Page 2
peremptory challenge. However, the parties disagree as to the reason for trial counsel’s
actions.
Saiza argues that the only reason for trial counsel’s failure to preserve his
complaint was counsel’s ignorance of how to preserve the complaint. But the State
claims that the reason for not pursuing preservation was most likely respect for the
court because there were no other objectionable jurors who should have been brought
to the attention of the court. The State’s argument is strengthened by the fact that
Saiza’s brief on appeal does not identify an objectionable juror who sat on the jury. If
no objectionable juror sat on the jury, then Saiza could not have been harmed by the
trial court’s denial of his challenges for cause.
Absent a record revealing trial counsel’s strategy or motivation, Saiza has not
defeated the strong presumption that trial counsel’s actions fell within the wide range
of reasonable professional assistance. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.
Crim. App. 1999). Accordingly, we overrule both of Saiza’s points and affirm the trial
court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed November 4, 2009
Do not publish
[CRPM]
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