Brian Keith Hollek v. State ( 2017 )

NUMBER 13-16-00402-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BRIAN KEITH HOLLEK, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 274th District Court of
Hays County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras1, and Longoria
Memorandum Opinion by Justice Longoria
Appellant Brian Keith Hollek challenges his conviction for assault on a public
servant, a third-degree felony. See TEX. PENAL CODE ANN. § 22.01(b)(1) (West, Westlaw
through 2015 R.S.). We affirm.
1 Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et
seq. (West, Westlaw through 2015 R.S.).
I. BACKGROUND2
On May 21, 2015, Officer Daniel Crook of the San Marcos Police Department
initiated a traffic stop of a pickup truck he observed going the wrong way down a one-way
street. As he approached the vehicle, Officer Crook observed a revolver on the front seat
next to the driver’s thigh. Officer Crook removed the driver, appellant, from the vehicle
and began to place him in handcuffs. Appellant resisted and fought with Officer Crook
for several minutes before escaping on foot. Roy Moore,3 the front-seat passenger,
remained at the scene. Appellant was arrested several days later when he went to the
animal shelter to reclaim the dogs which were in the back of the truck.
The State charged appellant by indictment with one count of assault on a public
servant. See id. The case was tried to a jury. At the beginning of trial, the court admitted,
as State’s Exhibit 1, the video recordings from the dashboard camera and the backseat
camera in Officer Crook’s vehicle. The trial court then allowed the State to publish the
first ten minutes of the dashboard camera video. The video from the backseat camera,
which was admitted but not published to the jury, depicts a conversation between Officer
Crook and Moore regarding whether one of the substances Officer Crook found in
appellant’s truck was methamphetamine. The jury returned a verdict of guilty, and the
trial court assessed a sentence of three years’ imprisonment in the Texas Department of
Criminal Justice and no fine. This appeal followed.
2 This appeal was transferred to this Court from the Third Court of Appeals in Austin pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2015 R.S.). We are unaware of any conflict between our precedent and that of
the Third Court of Appeals regarding the issues raised in this appeal. See TEX. R. APP. P. 41.3.
3 Moore is also referred to in the record as “James Moore.”
2
II. DISCUSSION
Appellant argues in two issues: (1) the venire panel was not sworn before the start
of voir dire; and (2) he received ineffective assistance of counsel.
A. Venire Oath
In his first issue, appellant argues that the trial court failed to swear the jury panel
before the beginning of voir dire in violation of the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 35.02 (West, Westlaw through 2015 R.S.). The
State responds that we must presume that the jury was properly empaneled and sworn
because the record does not affirmatively reflect otherwise. See TEX. R. APP. P.
44.2(c)(2).
The Texas Code of Criminal Procedure requires the court to administer an oath to
the jury panel before the beginning of voir dire. TEX. CODE CRIM. PROC. ANN. art. 35.02.
This provision ensures that any statements or answers by prospective jurors during voir
dire are given under oath. Duffy v. State, 567 S.W.2d 197, 200 (Tex. Crim. App. 1978).
We must presume on appeal that the jury was properly empaneled and sworn unless the
matter was disputed in the trial court or the record affirmatively shows the contrary. TEX.
R. APP. P. 44.2(c)(2); Faison v. State, 59 S.W.3d 230, 237 (Tex. App.—Tyler 2001, pet.
ref’d). A silent record does not amount to the necessary “affirmative” showing. See
Osteen v. State, 642 S.W.2d 169, 171 (Tex. Crim. App. 1982); Duffy, 567 S.W.2d at 201.
We agree with the State that the presumption that the jury was properly empaneled
and sworn has not been rebutted in this case. See TEX. R. APP. P. 44.2(c)(2).4 Appellant
4 Appellant argues that the presumption in Rule 44.2(c)(2) is inconsistent with the Legislature’s
requirement that the trial court administer an oath to the venire panel before the start of voir dire. See TEX.
R. APP. P. 44.2(c)(2). He reasons that if we presume that the trial court administered the oath “even though
the record reflects otherwise” it would violate the Legislature’s clear intent in enacting the oath requirement.
3
did not object in the trial court, and the record is silent regarding whether the oath was
administered to the jury panel. Appellant argues that the record’s silence constitutes an
affirmative showing that the oath was not administered because the court reporter was
“meticulous” and would have included the swearing of the venire panel if it actually
occurred. But even if the creation of the record was as meticulous as appellant argues,
the venire panel could have been sworn earlier, before the arrival of the judge and the
court reporter. Appellant has demonstrated only that the record is silent, not that it
affirmatively shows that the jury panel was not sworn. We conclude that appellant has
not overcome the presumption that the jury was properly empaneled and sworn. See
Osteen, 642 S.W.2d at 171; see also Stiggers v. State, No. 05-97-01373-CR, 2000 WL
150851, at *2 (Tex. App.—Dallas Feb. 14, 2000, no pet.) (mem. op., not designated for
publication) (rejecting the argument that the absence of a notation in the record that the
jury panel was sworn was affirmative proof the oath was not administered). We overrule
appellant’s first issue.
B. Ineffective Assistance of Counsel
Appellant argues in his second issue that his trial counsel was constitutionally
ineffective for failing to object to the admission of the recordings from the cameras in
Officer Crook’s police vehicle.
We evaluate a claim that trial counsel was ineffective under the two-part standard
established by the United States Supreme Court in Strickland v. Washington. 466 U.S.
See TEX. CODE CRIM. PROC. ANN. art. 44.33(a) (West, Westlaw through 2015 R.S.) (providing that rules
promulgated by the Texas Court of Criminal Appeals may not be inconsistent with the Texas Code of
Criminal Procedure). We do not address this part of appellant’s argument because, as we explain in greater
detail in the body of this opinion, the record does not affirmatively reflect the oath was not administered but
is actually silent on the matter.
4
668, 687 (1984). To obtain reversal under Strickland, a defendant must show by a
preponderance of the evidence both that: (1) his counsel performed deficiently; and (2)
the deficient performance prejudiced the defendant’s case. Id.; see Cox v. State, 389
S.W.3d 817, 819 (Tex. Crim. App. 2012).
A defendant establishes the deficient-performance prong by showing that the
quality of his counsel’s professional assistance fell below an objective standard of
reasonableness. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012). The
prejudice prong is established by showing that there is a reasonable probability that the
result of the trial would have been different if it was not for counsel’s unprofessional
conduct. Id.; Cox, 289 S.W.3d at 819. A reasonable probability is one sufficient to
undermine confidence in the outcome of the trial. Ex parte Napper, 322 S.W.3d 202, 248
(Tex. Crim. App. 2010).
Appellant argues that his counsel was unaware of the conversation between
Officer Crook and Moore and that it was deficient performance for counsel to not review
the entire video. Appellant asserts that his counsel must have been unaware of the
conversation because he later successfully objected to similar evidence, photographs of
the drugs seized from appellant’s car. Regarding prejudice, appellant asserts that
counsel’s failure to object was prejudicial because the jury could have reviewed the video
and convicted him because he was carrying illegal drugs. The State responds that it was
not deficient performance for counsel to treat the discussion on the video and the pictures
of the narcotics differently. The State further argues that there was no prejudice because
the jury never saw the conversation between Officer Crook and Moore.
5
We agree with the State regarding the prejudice prong. Even if trial counsel’s
performance was deficient, appellant is unable to show that the deficient performance
prejudiced him.5 The record reflects that the State published to the jury only the first ten
minutes of the dashboard camera video. The State did not publish any part of the video
containing the conversation between Officer Crook and Moore, and the jury did not send
out any notes during its deliberations asking to see the video. Without seeing that portion
of the video, the jury could not hold its contents against appellant. On this record, we
conclude appellant is unable to show a reasonable probability that the outcome of the trial
would have been different but for his counsel’s failure to object. See Cox, 289 S.W.3d at
819. We overrule appellant’s second issue.
III. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
2nd day of February, 2017.
5 We address the prejudice prong first because it is dispositive. See Cox v. State, 389 S.W.3d 817,
819 (Tex. Crim. App. 2012) (observing that courts may address either prong of the Strickland test first); see
also TEX. R. APP. P. 47.1.
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