Thomas Brian Orezine v. State

Opinion issued October

20, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00731-CR

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Thomas Brian Orezine ,

Appellant

V.

THE State of Texas ,

Appellee

On Appeal from the

176th District Court

Harris County, Texas

Trial Court Case No.

1260947

MEMORANDUM

OPINION

Convicted

by a jury of the felony offense of possession of a controlled substance [1] and

assessed punishment at four years’ confinement, appellant, Thomas Brian Orezine

asserts in his sole point of error that his counsel’s failure to ask more

questions during voir dire was ineffective assistance of counsel. We affirm.

Background

While on patrol,

Officers Turrentine and Duran of the Houston Police Department were preparing

to stop a truck being driven by Walter Pettis for expired registration when the

truck stopped in front of a known crack house.

Pulling up behind the truck, the officers exited their patrol car just as

Orezine was getting out of the passenger side of the truck. Seeing the officers, Orezine rapidly got back

into the parked truck. Officer Duron

testified that as walked up to the truck, he saw Orezine attempting to put a

crack pipe in his pocket.

Officer

Turrentine removed Pettis from the truck, and Duron removed Orezine from the

truck and searched him. Officer Duron

found a small rock-like substance in Orezine’s pocket that field-tested

positive as cocaine. After issuing him a

traffic citation, the officers released Pettis and drove Orezine across the

street to complete their paperwork and finish searching him. Office Duron then found the crack pipe that

he believed he had seen earlier.

At

trial, Orezine’s counsel began voir dire by re-emphasizing the standard to be

used by jurors: that the defendant’s guilt must be established beyond a

reasonable doubt and asking the venire members if any found that standard

personally problematic. Second, she

asked the prospective jurors about their ability to judge the credibility of

witnesses and ability to determine guilt based on police officer

testimony. Finally, she asked about

their ability to assess a maximum penalty of twenty years.

Following

voir dire and the exercise of the litigants’ respective strikes, the court inquired

whether there were any objections to the seating of the jury. The reply from both counsels was “none,” and the

jury was then sworn and seated.

Officers

Turrentine and Duran testified for the State. State’s Exhibits 1 and 2, the ‘rock’ and the

crack pipe obtained from Orezine, were admitted without objection. Brittany Smith, a criminalist with the

Houston Police Department, testified that the State’s Exhibit 2, contained 0.2

grams of crack cocaine. Testifying on

his own behalf, Orezine said that he had never had a problem with drugs and the

drugs and pipe were not his and that the police were using him in their

attempts to detain Pettis, with whom the police had several prior encounters.

The jury found Orezine

guilty of felony possession of a controlled substance. While the State asked for the maximum penalty

of twenty years, the jury assessed his punishment at four years’ confinement. Orezine timely filed his notice of appeal.

In his sole point of

error, Orezine contends that his trial counsel’s failure to ask questions of

consequence to venire members violated his right to effective assistance of

counsel.

Standard

of Review

A

defendant’s right to reasonably effective assistance of counsel does not mean

errorless counsel. Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); cf. U.S.

Const . amend. VI; Tex. Const .

art. I, § 10. Finding that there was ineffective

assistance of counsel requires that (1) counsel’s performance fell below an

objective standard of reasonableness and (2) the deficient performance

prejudiced the result. Strickland v. Wash. , 466 U.S. 668, 687 ,

104 S. Ct. 2052, 2064 (1984). There also

need be “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at

694 , 104 S. Ct. at 2068 . “Reasonable

probability” means that it is sufficient to undermine confidence in the

outcome. Id. ; see also Bone v. State , 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002). Failure to make a

showing of either prong of the Strickland

standard defeats a defendant’s ineffectiveness claim. Thompson

v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

The

Strickland standard is also highly

deferential. Strickland , 466 U.S. at 689 , 104 S. Ct. at 2053 . There is a strong presumption that counsel’s

conduct falls within a wide range of reasonable assistance or that counsel’s

behavior was sound trial strategy. Robertson , 187 S.W.3d at 482 (citing Strickland ,

466 U.S. at 689 , 104 S. Ct. at 2065 ). To

prevail, an appellant must show his counsel was ineffective by a preponderance

of the evidence. Robertson , 187 S.W.3d at

483 .

Our

examination of trial counsel’s performance is based on “the totality of the

representation.” Id . To do so, we examine the

trial record from counsel’s perspective at the time of trial, and every effort

must be made to eliminate the distorting effects of hindsight. Id.

(citing Strickland , 466 U.S. at 689 ,

104 S. Ct. at 2065 ). We cannot speculate

as to reasons supporting counsel’s behavior, and allegations of ineffectiveness

must be firmly founded in the record. Harrison v. State , 333 S.W.3d 810, 813

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (citing Bone , 77 S.W.3d at 835 ). Absent

such reasons in the record for counsel’s challenged conduct, an appellate court

should not find deficient performance unless the conduct was so outrageous that

no competent attorney would have engaged in it.

Goodspeed v. State , 187 S.W.3d

390, 392 (Tex. Crim. App. 2005). While

appellate courts should be hesitant to conclude that counsel provided

ineffective assistance based on one error, “it is possible that a single

egregious error of omission or commission by appellant’s counsel constitutes

ineffective assistance.” Thompson , 9 S.W.3d at 813 .

Counsel’s

Performance

The record below

yields no insight as to counsel’s voir dire strategy. Failure to pose certain questions during voir

dire does not necessarily mark counsel as ineffective. See

Harrison , 333 S.W.3d at 814 (“The failure to ask questions appellant’s

counsel believed to be important does not mean that counsel’s conduct was

deficient; nor does the lack of such questioning amount to behavior that is so

outrageous, no competent attorney would have

engaged in it.”) (internal citations omitted); see also Jackson v. State ,

491 S.W.2d 155, 156 (Tex. Crim. App. 1973) (“The length of the voir dire

examination could have very well been dictated by trial strategy. . . . We find

no merit in the complaint that counsel was ineffective . . . .”); Goodspeed , 187 S.W.3d at 392 (“We cannot conclude that the failure to ask any

questions in voir dire constitutes conduct so outrageous that no competent

attorney would have engaged in it.”).

Our

review of the record with an eye towards the totality of the representation

does not suggest that Orezine’s counsel was ineffective. Counsel’s voir dire included a question about

the reasonable doubt standard, police officer testimony and credibility, and

assessment of a maximum punishment. The

legal concepts about which Orezine’s brief now sets out as those from which

voir dire questions should have been formulated and asked (i.e., presumption of

innocence, proof of guilt beyond a reasonable doubt, the indictment as evidence

of guilt, and credibility of a criminal defendant) had been addressed generally

by the trial judge. Trial counsel

successfully struck venire members for cause, cross-examined State’s witnesses

and, in closing arguments, challenged the credibility of the State’s witnesses.

Finally,

trial counsel’s presentation of the

case was at least sufficiently successful to have engendered in the jury

a modicum of mercy when it rejected the State’s request for the full twenty-year

prison term and sentenced Orezine to four.

Applying

the strong presumptions and other measurements of the Strickland standard, we can only conclude that Orezine has failed

to show by a preponderance of the evidence that his counsel’s conduct fell

below an objective standard of reasonableness.

Conclusion

We affirm the judgment of the trial

court.

Jim Sharp

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R. App. P. 47.2(c)

[1] Specifically, Orezine was convicted of

possessing less than one gram of cocaine, a Penalty 1 Group controlled

substance. See Tex. Health & Safety

Code Ann § 481.102(3)(D) (West 2010) (identifying cocaine as

Penalty 1 Group controlled substance); Tex.

Health & Safety Code Ann. § 481.115(a), (b) (West 2010) (identifying possession of less than one

gram of Penalty Group I substance as state-jail felony).