Joseph Sanchez v. State ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-89-227-CR



JOSEPH SANCHEZ,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 94,105, HONORABLE BOB JONES, JUDGE

PER CURIAM

A jury found appellant guilty of aggravated assault. Tex. Pen. Code Ann. § 22.02 (1989), since amended. The district court assessed punishment at imprisonment for ten years.

During an argument on the afternoon of September 23, 1988, appellant struck Annette Sanchez, his former wife, with his fists and stabbed her with a knife. Appellant does not contest the sufficiency of the evidence to sustain the conviction.

Appellant contends the district court erred by overruling his request that the jury assess punishment. This request was first made before the last defense witness testified, and was renewed after the verdict of guilt was returned.

As a general rule, a defendant who wants the jury to assess punishment must so elect in writing before the voir dire of the jury panel begins. Tex. Code Cr. P. Ann. art. 37.07, § 2(b) (Supp. 1991). Appellant made no such election in this cause. Instead, appellant relies on the last sentence of § 2(b), which provides that upon a finding of guilt "the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment."

In Toney v. State, 586 S.W.2d 856 (Tex. Cr. App. 1979), the court wrote:

Under the language of Art. 37.07, Sec. 2(b) . . . failure to make an election in writing to have the jury assess punishment is not an election to have the judge assess punishment. Rather, the failure of appellant to file an election merely means that by operation of the Code of Criminal Procedure, the court must assess punishment.

586 S.W.2d at 858. Thus, the election to have the jury assess punishment must be made before voir dire begins. The defendant who timely elects to go to the jury for punishment may with the consent of the State choose to submit the question of punishment to the court after a finding of guilt, but the defendant who fails to elect jury punishment prior to jury voir dire may not make that election after a finding of guilt.

We acknowledge that there is dicta supporting appellant's interpretation of art. 37.07, § 2(b). See Benson v. State, 496 S.W.2d 68, 70 (Tex. Cr. App. 1973). However, appellant's point of error still fails because the record does not reflect that the attorneys for the State consented to appellant's request that the jury assess punishment. There is an indication in the record that the assistant district attorneys trying this case were considering giving their consent, but such consent was never expressed. The point of error is overruled.

Appellant next complains that the trial court erred by permitting the State to question him about his deferred adjudication for an assault against his wife. The challenged question was asked during cross-examination, after appellant testified on direct that he accidentally stabbed his wife's leg while defending himself against her attack.

Q And you want this jury to believe that if you had to protect yourself, if you had to save your life if you were in as much fear as you say you were, you couldn't have subdued her if she had no weapons and you had no weapons? You're saying she could have whipped you?

A It might have happened that way. She's not what she appears.

Q And you're saying that you would not have been able to subdue her. She would have been able to whip you? Is that what you're saying?

. . .

Q And isn't it a fact that you're the one who whips up on her?

A Is it a fact that I'm the one that what?

Q That whips up on her.

. . .

A No.

Q That's not the case?

A No.

Q You don't physically whip up on her. That's not what happens.

A No.

Q You never have?

. . .

Q You've never whipped up on her?

A No.

Q Never? All right. Mr. Sanchez --

A I have.

Q That's all right.

A Yes, I have.

Q Excuse me.

. . .

Q Mr. Sanchez, you just testified you've never whipped up on Annette Sanchez. Isn't it true that you're being supervised out of Bexar County, Texas, for assaulting this very woman, Annette Sanchez?

A Yes.

Appellant points out that the Bexar County deferred adjudication was not a conviction with which he could be impeached under Tex. R. Cr. Evid. Ann. 609 Pamph. (1991). See Green v. State, 663 S.W.2d 145 (Tex. App. 1983, pet. ref'd). Nor can it be said that appellant "opened the door" to the impeachment by his answers to the prosecutor's questions. After first denying it, appellant admitted "whipping up" on his former wife; there was nothing to impeach. Moreover, the State may not use cross-examination to prompt or maneuver a defendant into making a statement on a collateral matter for the purpose of impeaching him with otherwise inadmissible evidence. Martinez v. State, 728 S.W.2d 360 (Tex. Cr. App. 1987); Shipman v. State, 604 S.W.2d 182 (Tex. Cr. App. 1980). However, appellant did not object to the prosecutor's question as being improper impeachment, and this contention was not preserved for review.

We are satisfied that the error was harmless in any event. Tex. R. App. P. Ann. 81(b)(2) (Pamph. 1991). That the marriage of Joseph and Annette Sanchez was marred by frequent and violent arguments was established through the testimony of both principals. There was also testimony that appellant often struck his wife during these arguments (and that occasionally she struck him) and that the police were sometimes called to intervene. Under the circumstances, we conclude that the objectionable impeachment did not contribute to the finding of guilt.

In his two remaining points of error, appellant contends that he did not receive effective assistance of counsel at trial. Appellant relies primarily on the opinion in Ex parte Walker, 794 S.W.2d 36 (Tex. Cr. App. 1990). In that case, trial counsel was found to be ineffective for failing to timely file the defendant's written election to have the jury assess punishment. The evidence in Walker showed that prior to trial the attorney informed the defendant that the judge assessed harsh punishments, advised the defendant to go to the jury for punishment, and prepared a written election for the defendant's signature, but then failed to timely file the election.

In the cause before us, counsel informed the court that he "always" filed a jury election, that he "certainly intended" to file one in this cause, and that "he [appellant] wanted it that way." It cannot be concluded from these general remarks that counsel was guilty of the neglect of duty demonstrated in Walker. The circumstances surrounding counsel's belated effort to elect jury punishment are too sketchy to warrant a finding of ineffectiveness on this ground.

As further evidence of ineffectiveness, appellant points to counsel's failure to object to the State's use of the Bexar County deferred adjudication for impeachment. We have already determined that this was, at most, harmless error. It follows that the result would not have been different but for this error by counsel. Strickland v. Washington, 466 U.S. 668 (1980); Hernandez v. State, 726 S.W.2d 53 (Tex. Cr. App. 1986).

The performance of trial counsel must be judged by the totality of the circumstances rather than by isolated acts or omissions. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Cr. App. 1986). That another attorney might have pursued a different course of action at trial will not support a finding of ineffectiveness. Walston v. State, 697 S.W.2d 517, 519 (Tex. App. 1985, pet. ref'd). The burden of proving ineffective assistance of counsel by a preponderance of the evidence rests upon the convicted defendant. Moore v. State, 694 S.W.2d 528, 531 (Tex. Cr. App. 1985). Appellant has not met that burden.

The judgment of conviction is affirmed.

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Affirmed

Filed:  August 14, 1991

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