Matthu Gillette v. State ( 2004 )

MEMORANDUM OPINION   No. 04-03-00745-CR Matthu GILLETTE, Appellant v. The STATE of Texas, Appellee From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2003-CR-1257-A Honorable Teresa Herr, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: November 10, 2004

AFFIRMED

Appellant, Matthu Gillette, was convicted of one count of aggravated robbery. He was sentenced to fifteen years imprisonment. In three issues on appeal, Gillette asserts that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendment of the United States Constitution and Article 1, Section 10 of the Texas Constitution. U.S. Const. am. VI; Tex. Const. art. I, §10. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1.

1. Gillette argues that trial counsel was ineffective because he failed to have an investigator appointed until seven days prior to trial. Because the record is silent as to why counsel waited seven days before trial to have an investigator appointed, we will not speculate on counsel's reason for delay. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Davis v. State, 930 S.W.2d 765, 769 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). Absent of any explanation for counsel's decision, Gillette failed to overcome the strong presumption of reasonable professional assistance. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). We overrule this issue.

2. Gillette says trial counsel committed three errors in the jury selection process. First, Gillette complains that trial counsel failed to perfect error by pointing out an objectionable juror and asking for an additional challenge when the court granted the State's challenge for cause to Juror #16. Because the record is silent, we will not speculate as to why counsel acted as he did. See Jackson, 877 S.W.2d at 771; Davis, 930 S.W.2d at 769.

Gillette further argues that trial counsel erred by failing to object when the court granted the State's challenge for cause and removed Juror #28. The record shows that Juror #28 was properly excluded for cause because he could not consider the full range of punishment. See Garcia v. State, 919 S.W.2d 370, 389 (Tex. Crim. App. 1994); Fuller v. State, 829 S.W.2d 191, 200 (Tex. Crim. App. 1992).   

Gillette also complains trial counsel erred by failing to object when the trial court excused Juror #29 without statutory reason. The record implies the court acted on its own initiative because of the juror's conflicting work or vacation schedule. See Kemp v. State, 846 S.W.2d 289, 293 (Tex. Crim. App. 1992). Gillette fails to show how counsel erred by neglecting to object to the exclusion of this juror. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). We overrule Gillette's issues on jury selection.

3. Gillette argues that trial counsel was ineffective because he called the co-defendant to testify. Although the witness's testimony was ultimately both helpful and harmful to Gillette, without a record of counsel's decision-making process, Gillette cannot overcome the presumption that counsel's actions were sound trial strategy based on what counsel knew at the time. ⁽¹⁾ See Jackson, 877 S.W.2d at 771, Davis, 930 S.W.2d at 769. Accordingly, we overrule this issue. The judgment of the trial court is affirmed.

Paul W. Green, Justice

Do Not Publish

1. The co-defendant testified he had spoken to defense counsel prior to trial.