William Franklin Owens v. State ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

William Franklin Owens

Appellant

Vs.             No. 11-01-00283-CR  -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted William Franklin Owens of the offense of sexual assault.  Upon a plea of true to the enhancement allegation, the trial court assessed his punishment at confinement for 55 years and a fine of $800.  We affirm. 

                                                                   Points of Error

Appellant has briefed five points of error on appeal. In the first two points, he contends that the trial court abused its discretion by refusing to strike for cause an unfit juror who displayed a lack of candor during voir dire and who was involved in an improper discussion outside the courtroom.  In the third and fourth points, appellant argues that the trial court abused its discretion by denying his motion for mistrial that was made with respect to the allegedly unfit juror.  In his fifth point, appellant contends that he was denied the right to effective assistance of counsel at trial. 

                                                                   Juror Conduct

The first four points of error relate to the conduct of Juror Bradley Woodruff.  After the jury had been chosen and the remaining venire members had been dismissed but before the jury had been impaneled, the trial court became aware that Juror Woodruff may have engaged in improper conduct.  The record reflects that the following discussion occurred on the morning after the jury had been chosen but before the jury had been sworn:

THE COURT:  Mr. Woodruff, we don=t know one way or the other in terms of some information that came to us.  One of the other members of the panel had called my bailiff and also called the Defense and they thought they had a conversation with you out in the hallway while we were on break striking our list.  And he said that you had had a conversation saying that you didn=t care what was said, whatever evidence was presented if he=s been indicted you were automatically going to find him guilty or if he doesn=t testify that you would automatically find him guilty.  Is that the gist of it? 

THE BAILIFF:  Yes, ma=am. 

THE COURT:  So I just need to make sure that you don=t have that position.

THE JUROR:  No.  I was actually asking a question is that almost admission of guilt if he does not testify to the other party. 

THE COURT:  But you=re not making the statement that if he doesn=t testify you=re going to find him guilty? 

THE JUROR:  No. 

THE COURT:  You understand that he has an absolute right not to testify?

THE JUROR:  Yes.  I=ve been in a similar situation myself.  Not in this kind of case, but not having to testify. 

THE COURT:  Okay.  So if he doesn=t testify you=re not going to automatically hold it against him?

THE JUROR:  No. 

Appellant=s trial counsel also questioned Juror Woodruff, who continued to explain that he Asimply asked@ a question of the other venire member:  AI was just asking him the question is that an admission of guilt to you.@  Juror Woodruff maintained that he Acould care less if [the defendant] testifies or not.  I can judge from whatever is presented before me and not have him up there.@ Appellant=s trial counsel made a motion to strike Juror Woodruff and a motion to disregard the entire jury panel and Astart all over.@  The trial court overruled appellant=s motions, and Juror Woodruff sat on the jury that convicted appellant. 

The proponent of a challenge for cause has the burden of establishing that his challenge is proper by showing that the challenged juror Aunderstood the requirement of the law and could not overcome his prejudice well enough to follow it.@ Feldman v. State, 71 S.W.3d 738, 747 (Tex.Cr.App.2002).  Juror Woodruff=s responses to both the trial court=s and trial counsel=s inquiries indicate that he understood the requirements of the law and that he would follow those requirements. Further, there is nothing in the record showing a lack of candor during voir dire.  We hold that the trial court did not abuse its discretion by refusing to strike Juror Woodruff or by refusing to grant the motion for new trial. The first, second, third, and fourth points of error are overruled. 

                                                       Effective Assistance of Counsel

In his final point, appellant contends that he received ineffective assistance of counsel at trial.  Appellant urges the following reasons for his contention: (1) the failure to preserve the issue regarding the trial court=s refusal to strike Juror Woodruff, (2) the failure to request that the trial court investigate Juror Woodruff=s fitness based on comments in which he equated an indictment with guilt, (3) the failure to preserve the issue regarding whether Woodruff=s comments prejudiced other jurors, (4) the failure to exclude various Aoutcry@ evidence as hearsay, and (5) the failure to exclude appellant=s admission to an investigator from the child protective services as an inadmissible oral confession. 

In order to determine whether appellant's trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986).  In assessing counsel's performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel's perspective at the time.  We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Stafford v. State, 813 S.W.2d 503, 508‑09 (Tex.Cr.App.1991).  Appellant is not entitled to perfect or error‑free counsel.  Isolated instances of errors of omission or commission do not render counsel's performance ineffective; ineffective assistance of counsel cannot be established by isolating one portion of trial counsel's performance for examination.  McFarland v. State, 845 S.W.2d 824 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 963 (1993). 

Since we have addressed the claims involving Juror Woodruff on their merits, we do not find that trial counsel was ineffective for failing to preserve them.  The record does not indicate that Juror Woodruff equated an indictment with guilt. Rather, it appears that the trial court initially mis-spoke about what the conversation entailed.  The bailiff and trial counsel, not the trial court, were the ones who were informed about the conversation by the venire person. Further, there is nothing in the record indicating that Juror Woodruff=s conversation prejudiced any members of the panel or that he did anything other than merely ask a question of another venire person. 

With respect to trial counsel=s failure to object to the hearsay statements made by the victim about the offense and to appellant=s oral statement, we hold that appellant has failed to meet the second prong of the Strickland test. The result of the trial probably would not have been different if counsel had excluded the hearsay and appellant=s oral statement.  The record shows that the victim, appellant=s 14-year-old daughter, testified in detail that on two separate occasions appellant placed his penis in her vagina and moved up and down.  In his handwritten voluntary statement, appellant admitted that he and some of the members of his family Awere drinking [and] all ended up on the floor.@ Appellant continued:  A[M]y Daughter ended up kissing me and...I ended up putting fingers in my Daughter...my Daughter ended up on top of me...and put my penis inside her.@  Appellant also testified at trial.  At first, he denied having engaged in any sexual activity with his daughter, but he eventually testified that he remembered his daughter being on top of him and putting his penis inside of her vagina.  Appellant has failed to show that he received ineffective assistance of counsel at trial.  The fifth point of error is overruled. 

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.

July 11, 2002                                                                           TERRY McCALL

Do not publish.  See TEX.R.APP.P. 47.3(b).                JUSTICE

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.