stating that "we must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that he made all significant decisions in the exercise of reasonable professional judgment" and that "[d]ue to the lack of evidence in the record concerning trial counsel's reasons" for the alleged ineffectiveness, the court was "unable to conclude that appellant's trial counsel's performance was deficient"
How later courts described this case
- stating that "we must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that he made all significant decisions in the exercise of reasonable professional judgment" and that "[d]ue to the lack of evidence in the record concerning trial counsel's reasons" for the alleged ineffectiveness, the court was "unable to conclude that appellant's trial counsel's performance was deficient"
- concluding that appellant failed to meet his burden of showing that his trial counsel’s assistance was ineffective after reasoning, among other things, that “the actions of appellant’s trial counsel regarding venire members, Hartsfield and Deltoro are not material to our determination of whether appellant’s trial counsel was ineffective, since neither were seated on the jury”
- holding that presumption that defendant had received effective assistance of counsel at trial was not rebutted by silent record in case in which trial counsel’s motivation for failing to challenge or strike juror, who had expressed bias against defendant, was unknown
- holding there was no deficient performance on silent record when counsel did not challenge or strike a juror who said his prior experience of being a victim of a burglary would probably impact his impartiality in the trial of the defendant for robbery
Written by the judges who cited it.
The opinion
MALONEY, Judge,
concurring.
While it is my opinion that appellant’s trial counsel failed to satisfy an objective standard for reasonable performance, because the record lacks any evidence that the second prong of Strickland was met, I can only concur in the result.
Under the first prong of Strickland, counsel’s performance must meet “an objective standard of reasonableness”. Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Ex parte Walker, 777 S.W.2d 427, 430 (Tex.Crim.App.1989). Appellant was indicted for robbery. At voir dire, three prospective jurors who were recent victims of crime (burglary or robbery) stated that they could not be fair, but would be biased against appellant. I believe there can be no other conclusion than that the failure to strike or challenge these venireper-sons was not objectively reasonable. While counsel could conceivably have had some peculiar and unapparent reason for not striking a single prospective juror who stated he was biased against the defendant, Delrio v. State, 840 S.W.2d 443 (Tex.Crim.App.1992), it is inconceivable that counsel would have had such cause not to strike three venirepersons who stated they could not be impartial due to their bias against the defendant. See Ex parte Carillo, 687 S.W.2d 320, 324 (Tex.Crim.App.1985) (adequacy of representation viewed in light of totality).