Yvette Zachery v. State

Affirmed and Memorandum Opinion filed January 20, 2009

Affirmed and Memorandum Opinion filed January 20, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-01050-CR

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YVETTE ZACHERY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1089832

M E M OR A N D U M   O P I N I O N

Appellant Yvette Zachery appeals her conviction for aggravated assault with a deadly weapon, claiming reversible error by virtue of comments made during voir dire as to the State=s burden of proof Abeyond a reasonable doubt@ and the State=s cross-examination of her during the punishment phase as to her responsibility for the offense.  To the extent that her trial counsel waived error on these two issues by failing to object at trial, appellant also claims ineffective assistance of counsel.  We affirm.

I.  Factual and Procedural Background

Appellant was charged with aggravated assault with a deadly weapon, to which she pleaded Anot guilty.@  The jury found appellant guilty as charged and assessed punishment at four years= confinement. Appellant filed a motion for new trial, which was overruled by operation of law; however, no grounds for new trial were stated within the motion.  In four issues, appellant now challenges her conviction.

II.  Issues and Analysis

A.      Did the trial court err during voir dire in explaining to the jury the State=s burden of proof?

In her first issue, appellant complains that during voir dire the trial court explained the State=s burden of proof in a way that invited the jury to adopt a standard less demanding than what is constitutionally required, as set forth below:

[TRIAL COURT]:  Let me talk about something else now for a few minutes.  The burden of proof.  What does that mean?  That means how much evidence the State has got to produce for you to convict.  That civil case down here[,] . . . that=s a civil case where they want money . . . .  That=s a civil matter.  It=s by a preponderance of the evidence.  Lawyers like to talk about it balancing the scales of justice.  You tip it a little bit, you win.

The next level, which is more proof, that my brother brought into existence when he was a judge down in Galveston . . . .

. . . [It] became what we now call clear and convincing evidence.  Something more than a preponderance of the evidence.  In all criminal cases, every criminal case, from a traffic ticket, all the way up to capital murder where they=re trying to take someone=s life, the burden of proof is beyond a reasonable doubt.

Ladies and gentlemen, I won=t give you a definition of that. You will know when you=re convinced that someone has violated the law and the State has proven each and every element beyond a reasonable doubt.  You will know it.  . . .

The trial judge continued to explain that the burden was not proof beyond all doubt or proof beyond a shadow of a doubt as television shows sometimes portray.  The prosecutor, during voir dire, explained the burden does not require certainty, equating certainty with being 100 percent certain.  The prosecutor then asked venire members whether they would require certainty over Abeyond a reasonable doubt.@

The trial court gave the following instructions in the jury charge:

The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant=s guilt after careful and impartial consideration of all the evidence in the case.

The prosecutor has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.

It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution=s proof excludes all reasonable doubt concerning the defendant=s guilt.

In the event that you have a reasonable doubt as to the defendant=s guilt after considering all the evidence before you, and these instructions, you will acquit her and say by your verdict ANot guilty.@

Appellant acknowledges on appeal that her trial counsel did not object to the statements made by the trial judge and prosecutor during voir dire.^[1] Without a contemporaneous objection, a defendant generally waives error, and a reviewing court may only review fundamental errors that may occur during voir dire.^[2] See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (reviewing trial judge=s comments made during trial); Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.) (applying standard that trial judge=s comments in voir dire must have tainted the appellant=s presumption of innocence to be fundamental error); see also Tex. R. Evid. 103(d).  

The trial judge=s comments did not belie an improper standard.  Moreover, the burden of proof as discussed in voir dire did not differ from the jury-charge instructions, which placed the burden squarely on the State and required a presumption of innocence until the State met its burden.  Presuming, as the Blue plurality concluded, that a trial judge=s comment which taints the defendant=s presumption of innocence in front of the venire or vitiates the impartiality of the jury is fundamental error requiring no objection, the complained-of comments by the trial judge do not rise to such a level.  See  Jasper, 61 S.W.3d at 421(holding that, even under reasoning of Blue plurality, trial judge=s comments would not rise to the level of fundamental error); Ganther v. State, 187 S.W.3d 641, 650B51 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (concluding that, even if court of appeals were bound by Blue plurality, trial judge=s comments during voir dire did not rise to the level of tainting the presumption of innocence or vitiating the impartiality of the jury); Rogers v. State, 795 S.W.2d 300, 306 (Tex. App.CHouston [1st Dist.] 1990, pet. ref=d) (holding that trial court=s comments differentiating the burden of proof from the way television shows portray a burden or indicating that Athe bottom line is going to be what reasonable doubt is to you,@ were not fundamental error).  Therefore, even under the reasoning of the Blue plurality, the comments in this case would not constitute fundamental error that would obviate the need to object in the trial court.  See  Jasper, 61 S.W.3d at 421; Ganther, 187 S.W.3d at 650B51; Rogers, 795 S.W.2d at 306. We overrule appellant=s first issue.

B.      Did the prosecutor=s cross-examination in the punishment phase improperly force appellant to choose between competing rights when appellant was asked whether she accepted responsibility for the offense?

In her third issue, appellant alleges that her rights were violated in the punishment phase of trial, when the prosecutor improperly and repeatedly attempted to force her to accept responsibility for the charged offense. Relying on what he calls the ADeGarmo doctrine,@^[3] appellant alleges that, during cross-examination, the prosecutor improperly forced her to choose between competing rights at punishment, i.e. risking perjury if she admitted guilt or seeking the jury=s sympathy to procure a lesser punishment, or forfeiting her right to appellate review of error during the guilt/innocence phase.

We do not reach the merits of appellant=s argument, because appellant=s contention on appeal does not comport with the objection she lodged at trial.  See Tex. R. App. P. 33.1.  When the State first asked whether appellant accepted responsibility for the incident, appellant did not lodge an objection.  When the State asked for a second time whether she accepted responsibility, appellant then objected on the grounds of Aasked and answered.@  To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint.  Tex. R. App. P. 33.1(a); Saldano, 70 S.W.3d at 886B87.  Moreover, the complaining party=s appellate contention must comport with the specific objection made at trial.  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).  An objection grounded on one legal basis may not be used to support a different legal theory on appeal.  Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).  Appellant has not cited and we have not found any place in the appellate record showing that appellant raised this issue in the trial court.  Therefore, appellant has failed to preserve error.  See Wilson, 71 S.W.3d at 349.  Accordingly, we overrule appellant=s third issue.

C.      Did appellant receive ineffective assistance of counsel by virtue of her trial counsel=s failure to object?

In appellant=s second and fourth issues, she complains she received ineffective assistance of counsel when her trial counsel failed to object to the circumstances involved in her first and third issues.  According to appellant, her trial counsel should have raised a contemporaneous objection to the comments during voir dire and objected to the prosecutor=s cross-examination of appellant in the punishment phase based on what he calls the ADeGarmo doctrine.@

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon 2005).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland, 466 U.S. at 688B92, 104 S. Ct. 2064B67.  Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). 

In assessing appellant=s ineffective-assistance claims, we apply a strong presumption that trial counsel was competent.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim.  Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy.  See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).  On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  The motion for new trial filed in this case did not state any grounds for new trial, and the motion was overruled by operation of law.

The record in this case is silent as to appellant=s trial counsel=s reasoning or strategy, and we cannot speculate as to the reasoning underlying appellant=s trial counsel=s actions.  See Stults, 23 S.W.3d at 208.  Even presuming without deciding that an objection would have been proper as to any comments made during voir dire, on this silent record, appellant has not rebutted the strong presumption that her trial counsel=s failure to object was strategic.  See Rogers, 795 S.W.2d at 306B07 (concluding that a trial counsel=s failure to object to trial judge=s and prosecutor=s voir dire statements involving reasonable doubt stemmed from professional judgment). Likewise, as for trial counsel=s failure to object to the prosecutor=s cross-examination of appellant during the punishment phase, appellant must demonstrate that had she objected, the trial judge would have committed error in refusing to sustain the objection.  See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).  Appellant cannot meet this burden because the prosecutor=s questions presented no more than the usual risk a defendant assumes when taking the stand to testify. Vaughn v. State, 888 S.W.2d 62, 74 (Tex. App.CHouston [1st Dist.] 1994), aff=d, 931 S.W.3d at 569.  ATo take the stand and maintain her innocence in light of the probability that the jury will see her as unrepentant or even defiant was a voluntary tactical decision by appellant and her counsel.@  Vaughn, 931 S.W.2d at 568. Because appellant cannot demonstrate that the trial judge would have overruled an objection to this line of questioning, she cannot demonstrate that her trial counsel=s failure to voice the complaint in her third issue was not strategic.  See Vaughn, 888 S.W.2d at 74 (A[A] ruling on appellant=s hypothetical objection [would be] extremely uncertain.@).  Accordingly, appellant has failed to satisfy Strickland=s first prong. Therefore, we overrule appellant=s second and fourth issues.

Having overruled appellant=s four issues, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Frost, Brown, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant complains that during voir dire, the State built upon the trial judge=s comments in explaining its burden of proof.  To the extent that appellant challenges the prosecutor=s comments, appellant did not object to any of the State=s comments during voir dire.  See Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886B87 (Tex. Crim. App. 2002).  Therefore, appellant waived error as to his complaint regarding any comment made by the State during voir dire.  See Beltran v. State, 99 S.W.3d 807, 811B12 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (concluding prosecutor=s comments improper, but that appellant waived error by failing to object).

^[2]  Appellant complains that the trial court=s comments during voir provided the only instruction on what the burden of proof means.  Accordingly, appellant urges this court to forgo the contemporaneous objection requirement and apply the principles associated with jury-charge error, as set out in Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984), to commentary made during voir dire as a way of determining that egregious harm resulted.  However, appellant offers no binding authority to support this argument.   See Tex. R. App. P. 38.1(h).  We decline to accept this proposition.

^[3]   See DeGarmo v. State, 691 S.W.2d 657, 660B61 (Tex. Crim. App. 1985) (defendant who did not testify at guilt-innocence phase, but admitted at punishment phase of trial to committing the murder, may not bring sufficiency challenge on appeal); limited by  Leday v. State, 983 S.W.2d 713, 724B25  (Tex. Crim. App. 1998) (DeGarmo applies to waiver of sufficiency challenge but cannot be used to find waiver of fourth-amendment exclusionary rule during guilt-innocence phase of trial and listing other fundamental guaranties that cannot be waived by admission at punishment phase of trial); and Reyes v. State, 994 S.W.2d 151, 153 (Tex. Crim. App. 1999) (defendant=s admission of guilt at punishment phase can waive sufficiency challenge but does not waive appellate review of alleged violation of right to have guilt assessed by a jury of twelve persons).