Clark Orlanda Busby v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-342-CR
CLARK ORLANDA BUSBY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Clark Orlanda Busby appeals his conviction for possession of a
controlled substance (cocaine) under one gram. In one point, Busby argues that he
received ineffective assistance of counsel. W e will affirm.
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 See Tex. R. App. P. 47.4.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Trooper Kristopher S. Hall saw a vehicle in Hood County traveling “well above
the posted speed limit of 70.” Busby was driving the vehicle, which he had borrowed
from his friend, Anna Isabelle Pico. Trooper Hall stopped the vehicle and noticed an
odor of marijuana coming from inside the vehicle. Trooper Hall questioned Busby
about the odor, and Busby admitted to having marijuana in the vehicle. The trooper
then ran a background check and discovered an outstanding warrant for Busby’s
arrest based on a speeding ticket. Trooper Hall arrested Busby, searched the
vehicle, and found a bronze-colored Brillo pad on the rear floorboard that raised
Trooper Hall’s suspicions because, according to his testimony at Busby’s trial, crack
cocaine users often use Brillo pads as filters in crack pipes. Trooper Hall then
searched the back of the vehicle and found a backpack containing some men’s
clothing and a used crack pipe, which contained a piece of Brillo pad. Trooper Hall
also found a bag of marijuana in the front of the vehicle in the ceiling area.
Busby was charged with possession of cocaine under one gram based on the
residue found in the crack pipe. A jury found Busby guilty and assessed his
punishment at two years’ confinement in the State Jail Division of the Texas
Department of Criminal Justice and a $10,000 fine. The trial court sentenced him
accordingly.
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III. E FFECTIVE ASSISTANCE OF C OUNSEL
Busby argues on appeal that his defense counsel was ineffective for not
questioning the venire panel about possible racial bias during jury selection. Busby
contends that, “[g]iven the extreme disparity of the ratio of blacks to whites in Hood
County, Texas, it seems highly likely that there are some citizens who harbor some
degree of racial prejudice.”
A. Standard of Review
To establish ineffective assistance of counsel, an appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable probability
that, but for counsel’s deficiency, the result of the trial would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas
v. State, 163 S.W .3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W .3d
59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W .3d 808, 812 (Tex.
Crim. App. 1999). 2
In evaluating the effectiveness of counsel under the first prong, we look to the
totality of the representation and the particular circumstances of each case.
2
 Because, as set forth below, the record before us does not support a
finding that Busby’s defense counsel was ineffective under Strickland’s first prong,
we do not include an analysis of Strickland’s second prong. See Strickland, 466
U.S. at 697, 104 S. Ct. at 2069 (providing that appellate courts need not address
both prongs of the inquiry if the defendant makes an insufficient showing on one
prong).
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Thompson, 9 S.W .3d at 813. The issue is whether counsel’s assistance was
reasonable under all the circumstances and prevailing professional norms at the
time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
Review of counsel’s representation is highly deferential, and the reviewing court
indulges a strong presumption that counsel’s conduct fell within a wide range of
reasonable representation. Salinas, 163 S.W .3d at 740; Mallett, 65 S.W .3d at 63.
A reviewing court will rarely be in a position on direct appeal to fairly evaluate the
merits of an ineffective assistance claim. Thompson, 9 S.W .3d at 813–14. “In the
majority of cases, the record on direct appeal is undeveloped and cannot adequately
reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W .3d at 740
(quoting Mallett, 65 S.W .3d at 63). To overcome the presumption of reasonable
professional assistance, “any allegation of ineffectiveness must be firmly founded in
the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W .3d at 813). It is not appropriate for
an appellate court to simply infer ineffective assistance based upon unclear portions
of the record. Mata v. State, 226 S.W .3d 425, 432 (Tex. Crim. App. 2007).
B. Counsel Not Ineffective
Here, Busby did not file a motion for new trial, and the record is silent as to
defense counsel’s reasoning for not questioning the venire panel about potential
racial bias. Generally, a silent record that provides no explanation for counsel’s
actions will not overcome the strong presumption of reasonable assistance. See
4
Rylander v. State, 101 S.W .3d 107, 110 (Tex. Crim. App. 2003); Edwards v. State,
280 S.W .3d 441, 445 (Tex. App.—Fort W orth 2009, pet. ref’d); see also Jackson v.
State, 877 S.W .2d 768, 772 (Tex. Crim. App. 1994) (holding record, which did not
contain counsel’s reason for not challenging admittedly biased juror, did not rebut
presumption of reasonable assistance); Beck v. State, 976 S.W .2d 265, 267 (Tex.
App.—Amarillo 1998, pet. ref’d) (noting counsel’s motives during voir dire went
undeveloped when appellant did not move for new trial).
Moreover, the record shows that defense counsel conducted a meaningful voir
dire. She extensively questioned the panel on Busby’s primary defensive
theory—that he had borrowed the vehicle from a friend and that he had not known
the contents of the back of the vehicle—by asking the panel members whether they
thought a person knowingly possesses the contents of a borrowed vehicle. Defense
counsel also questioned the panel members about whether they had family or
friends with drug problems or in law enforcement. Defense counsel’s decision not
to question the panel about racial bias could have been sound trial strategy. 3 See,
e.g., Beck, 976 S.W .2d at 267 (stating that to hold counsel ineffective for not
questioning panel on racial bias would improperly micro-manage trial counsel’s
actions); Calderon v. State, 950 S.W .2d 121, 127 (Tex. App.—El Paso 1997, no
3
 Busby is African American. Prior to trial, defense counsel filed a motion
in limine, requesting that the trial court order the State to refrain from referencing
Busby’s race or ethnicity; defense counsel clearly wanted to keep race from being
an issue at trial.
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pet.) (holding appellant failed to satisfy first Strickland prong when any number of
strategic theories could be inferred from counsel’s choices during voir dire); accord
Jackson v. State, 491 S.W .2d 155, 156 (Tex. Crim. App. 1973) (explaining that short,
ten-minute voir dire could have been dictated by trial strategy).
Based on the record before us, in light of the strong presumption of
reasonable professional assistance by defense counsel, and in the absence of any
opportunity for defense counsel to explain her motives for not questioning the venire
panel about potential racial bias, we cannot say that Busby has met his burden of
showing by a preponderance of the evidence that his defense counsel’s
representation fell below the standard of prevailing professional norms. See
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Rylander, 101 S.W .3d at 110;
Thompson, 9 S.W .3d at 813; Jackson, 877 S.W .2d at 772; Edwards, 280 S.W .3d at
445; see also Goodspeed v. State, 187 S.W .3d 390, 392 (Tex. Crim. App. 2005)
(stating that “trial counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective”). W e overrule Busby’s sole point.
IV. C ONCLUSION
Having overruled Busby’s sole point, we affirm the trial court’s judgment.
SUE W ALKER
JUSTICE
PANEL: DAUPHINOT, W ALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
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DELIVERED: April 22, 2010
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