On March 25, 1998, a Harris County jury convicted the appellant of the intentional murder of Mansoor Bhai Rahim Mohammed while in the course of committing or attempting to commit robbery on December 5, 1996. Tex. Penal Code § 19.03(a)(2). Pursuant to the jury's answers to the special issues in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial court sentenced the appellant to death. Art. 37.071, § 2(g). (1) Direct appeal to this Court is automatic. Art. 37.071, § 2(h). The appellant raises ten points of error. He does not contest the sufficiency of the evidence. We affirm.
In his first point of error, the appellant argues that the trial court should have sustained his objection to Officer Milton F. Waters's testimony that he believed the appellant was telling the truth when the appellant professed his "philosophy of life." (2) At trial, the appellant objected to Waters' testimony on the ground that it was speculative. In his brief, he argues that Waters' testimony constituted improper expert testimony as to the truthfulness of the appellant's statement. Because his trial objection does not comport with the issue raised on appeal, he has preserved nothing for our review. Tex. R. App. Proc. 33.1(a); Knox v. State, 934 S.W.2d 678, 687 (Tex. Crim. App. 1996); Barnes v. State, 876 S.W.2d 316, 325 (Tex. Crim. App.), cert. denied, 513 U.S. 861 (1994). We overrule point of error one.
In his second point of error, the appellant alleges that the trial court violated the Fifth and Fourteenth Amendments by refusing defense counsel's request to investigate the core prejudices behind one juror's statement, "poor little black boy," following the testimony of Tommy Collier. During the punishment phase, Collier, a character witness for the appellant, testified that the appellant was active in his church, that the appellant's life was worth sparing, and that Collier did not agree with the appellant's "philosophy of life." As Collier left the stand, one juror allegedly remarked "poor little black boy." Both Collier and the appellant are African-American. Collier testified outside of the jury's presence that a male juror had made the statement, although Collier could not identify the juror. The trial court refused defense counsel's request to question each of the male jurors individually about the statement.
For obvious reasons, we have long held that voir dire examination is the time to uncover potential prejudice or bias in prospective jurors during voir dire, and that a defendant who begins the inquiry in the middle of the trial is not acting timely.
[D]efense counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror's inability to be impartial, truthful, and the like. Unless defense counsel asks such questions, we must hold … that the purportedly material information which a juror fails to disclose is not really "withheld" so as to constitute misconduct which would warrant reversal.
Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980), overruled on other grounds, Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984); see Gonzales v. State, 3 S.W.3d 915, 916-17 (Tex. Crim. App. 1999). Because defense counsel did not diligently question the jurors about racial bias during voir dire, an alleged bias manifested later does not constitute juror misconduct.
Perhaps more importantly, the statement that the witness heard is not a clear manifestation of racial bias against the appellant. To begin with, it is not clear whether the statement referred to the witness or the appellant. If it did refer to the appellant, it is not clear whether it was sincere or ironic. If it was ironic, it is not clear that racial animosity was its gravamen. It seems at least possible that it could have been a skeptical summary of the witness's depiction of the appellant, which was markedly different from the other evidence that the jury had heard about his character. That is, the remark could have been the juror's opinion that the witness wanted the jury to see the appellant as just a poor, little, black boy.
Therefore, we do not sustain the appellant's argument that the trial court violated the Fifth or Fourteenth Amendments in refusing to allow counsel to probe any alleged racial bias through mid-punishment phase questioning. We overrule point of error two.
In points of error three, four, seven, eight, nine, and ten, the appellant contends that trial counsel rendered ineffective assistance under the federal and state constitutions. Because we have adopted the federal standard for reviewing claims of ineffective assistance of counsel under the corresponding provision of the Texas Constitution, Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986), we will analyze both federal and state constitutional claims under Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must first demonstrate that his trial counsel rendered deficient performance, proving by a preponderance of the evidence that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88 McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993). Secondly, he must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also Williams v. Taylor, 529 U.S. 362, 390-95 (2000) (reaffirming Strickland's prejudice standard as the proper standard in most cases). In assessing claims of ineffective assistance of counsel on direct appeal, this Court has indulged a strong presumption that counsel's actions fall within the wide range of reasonable professional assistance, absent evidence to the contrary. Busby v. State, 990 S.W.2d 263, 268-69 (Tex. Crim. App. 1999), cert. denied, 520 U.S. 1081 (2000); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Furthermore, the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Strickland, 466 U.S. at 690.
There is often a procedural problem as well. A claim of ineffective assistance of counsel often is better made by habeas corpus because an appellate record usually does not disclose relevant facts, particularly about counsel's strategic choices. This is especially so when the alleged error of counsel is one of omission. We will not apply the general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal. Jackson v. State, 973 S.W.2d 954 (Tex. Cr. App. 1998). Cf. Massaro v. United States, 538 U.S. --, 123 S.Ct. 1690, 155 L.Ed.2d 714, 71 U.S.L.W. 4310 (2003) (adopting same rule for federal courts, and resolving a circuit split).
We shall take up the appellant's points in the order in which they arose at trial.
In his ninth point of error, the appellant argues that he received ineffective assistance of counsel when the State forced defense counsel to agree to excuse Juror West. Because Juror West indicated on her questionnaire that participating as a juror in the instant case would negatively affect her schooling, the State probed her answer and discovered that she would probably have to drop her classes for the semester if she served as a juror, something she did not want to do. (3) Regardless, she said that she could still act as a fair and impartial juror. The State, defense counsel, the trial court, and the appellant then engaged in the following exchange:
[State]: I'll agree to let this lady go so she can go to school if they want to agree.
[Defense counsel]: I guess we have to agree.
[State]: I'm sorry.
[Defense counsel]: That's fine Terrance. We agree.
[The Court]: Do you agree with that, Mr. Thompson?
[The appellant]: Yes, sir.
This exchange alone does not substantiate the appellant's claim that the State coerced counsel into rendering ineffective assistance. Not only did counsel agree to excuse the juror as allowed by Article 35.05, (4) the appellant agreed to excuse the juror as well, affirmatively consenting to counsel's actions. See Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. Because counsel's actions comported with the statute and the appellant's consent, the appellant fails to show that the State forced counsel to render deficient performance, much less prejudicial performance. We overrule point of error nine.
In his tenth point of error, the appellant contends that he was denied the effective assistance of counsel when the State questioned a prospective juror outside of defense counsel's presence. After a recess during individual voir dire examination, the prosecutor initiated the voir dire examination of Juror Honc with the following exchange:
[Prosecutor]: Good Morning, Mister -- is it Honc?
[Honc]: That's correct.
Q: It's Honc. How are you doing?
A: Just fine.
Q: Again, my name is Terrance Windham. I'm real pleased to meet you, sir. You met Mr. Greenlee [defense counsel] and Connie [defense counsel] and Casey [prosecutor] yesterday. They're out right now, but they'll be back in.
The appellant cites the prosecutor's statement -- "They're out right now" -- as proof that neither defense counsel were in the court room while the prosecutor examined Juror Honc.
Counsel's statement is ambiguous as to which of the three people the prosecutor was referring, and it seems more likely that it referred to the co-counsels on both sides. Further, the record does not support the contention that both defense counsel missed Juror Honc's voir dire. Defense counsel Greenlee began his voir dire of Juror Honc immediately upon the conclusion of the prosecutor's examination. Without any additional evidence that counsel indeed missed the voir dire of Juror Honc, the appellant has failed to provide this Court enough information even to initiate a Strickland analysis. See Tex. R. App. Proc. 38.1. We overrule point of error ten.
In his seventh point of error, the appellant alleges that trial counsel rendered ineffective assistance for failing to request a charge on the lesser-included offense of murder. Without objection, the trial court's charge authorized the jury to convict the appellant of the offense of capital murder as a principal or as a party, or the lesser-included offense of aggravated robbery. The appellant argues that the jury may have believed that the appellant only knowingly caused the death of the victim, thereby entitling the appellant to a charge on the lesser-included offense of murder.
In order to establish his claim that trial counsel rendered ineffective assistance for failing to request the instruction, the appellant must show that he was entitled to an instruction on the lesser-included offense of murder. Kinnamon v. State, 791 S.W.2d 84, 97 (Tex. Crim. App. 1990) (since the evidence did not authorize submission of a murder instruction as a lesser-included offense, the appellant's trial counsel did not render ineffective assistance for failing to request it), overruled on other grounds, Cook v. State, 884 S.W.2d 485 (1994). Since Royster v. State, 622 S.W.2d 442 (Tex. Crim. App.1981), we have consistently held that the appellant must meet a two-prong test to establish his entitlement to present to the jury a charge on a lesser-included offense: "first, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense." Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993); see also Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). The second prong of the test requires that the record contain some evidence "that would permit a jury rationally to find that … he is guilty only of the lesser included offense." Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997), cert. denied, 523 U.S. 1079 (1998).
The capital murder statute under which the State indicted the appellant requires an intentional murder committed in the course of robbery. Tex. Penal Code § 19.03(a)(2). The murder charge the appellant asserts the trial court should have included requires a person to intentionally or knowingly cause the death of an individual. Id. at § 19.02(b)(1). Because the proof necessary for capital murder committed in the course of robbery includes the elements of murder, murder is a lesser-included offense of capital murder. See Art. 37.09.
The appellant admitted in a taped confession to planning the robbery of the Braeswood convenience store with the co-defendant, Sammy Butler. Upon first arriving at the convenience store, the appellant purchased a beer and left. A short time later, he and Butler returned to the store to exchange the beer. Mohammed's cousin, Mubarakali Meredia, was working behind the cash register at the time. When Meredia handed the appellant a bag for the new beer, the appellant pulled out a .25 caliber pistol and demanded all of the money from the register. Meredia opened the cash register and "began to go down" behind the counter. The appellant shot Meredia in the abdomen, and Meredia fell to the floor. The appellant then went behind the counter to retrieve the money, pistol-whipped Meredia, and shot him three or four more times. The appellant ordered Meredia to get up and hand over the money, and Meredia complied.
Meanwhile, Mohammed and a customer, who were standing at the meat counter, ducked down behind the counter when they heard the gunshots. Butler, who was standing near the front door, shot at them with a .38 caliber gun. Butler grabbed a case of lottery tickets, and he and the appellant fled the store. As they got in the car, they saw Mohammed approaching the front door of the store. According to the appellant, Butler then began shooting at Mohammed through the glass door. The confession included the following:
Q [Investigator Waters]: Okay. And, then you run outside and get in the car, and you are driving and Sammy is in the passenger side?
A [The appellant]: Yes.
Q [Waters]: And he - he shoots at the store, or is somebody coming up to the door?
A: Well, he shoots - And, the man [Mohammed] was coming up and going back. He just shot basically at the window just to make the man go run back in the store as we get away.
***********
Q [Sergeant Swaim]: Do you know how times - how many times Sammy shot at this guy? Was it once or twice, or?
A: Well, he just, you know, he shot.
***********
Q [Waters]: He shot once inside the store and once outside.
A: No, he just kept on shooting. He unloaded and I unloaded.
Q [Swaim]: Okay, you weren't - you weren't like counting the shots?
A: No.
Q [Swaim]: But, he - he was shooting at this guy?
A: Yeah.
Q [Swaim]: So you think this guy is coming out to try to see where y'all went, get a license plate number, or something like that?
A: Yeah.
Q [Swaim]: I'm assuming that's why -
A: Yeah.
Q [Swaim]: Sammy shot him. . . .
The appellant argues that Butler only knowingly committed murder by shooting at the door of the convenience store, which would not prove the intent element of capital murder, entitling the appellant to an instruction on the lesser-included offense of murder.
To decide whether defense counsel's failure to request a charge constitutes ineffective assistance, we would first have to decide whether such a failure would be below an objective standard of reasonable professional competence. As is usual in an appeal, the record does not indicate the reason for counsel's omitting to request the charge. Therefore it is not possible on this record to decide the first issue. Of course, if that issue were decided in the appellant's favor, we would still have to decide whether he was prejudiced, which would require one or two more decisions: whether the evidence would have entitled a party to a charge on the lesser-included offense of murder (a point on which we express no opinion), and, if it did, whether the outcome of the case would have been different in reasonable probability. Point of error seven is overruled.
In point of error eight, the appellant alleges that trial counsel rendered ineffective assistance in failing to object to the testimony of three witnesses who testified to the character of the victims during the guilt-innocence phase. He specifically complains of the following four exchanges between the witnesses and the State:
[State]: Did you know the people who ran that store, the clerks that worked there?
[Floyd]: Yes.
Q: And had you known them for a while?
A: Yes.
Q: What type of people were they?
A: They were nice people. If you come in the store they talked with you, smile and laugh with them. They were very nice people. I knew them.
* * *
[State]: Was he down there on the floor with you, the clerk?
[Floyd]: Yes, he was over me.
Q: On top of you?
A: Yes.
Q: Was it like he was shielding you, trying to protect you?
A: Yes.
* * *
[State]: Did you know the clerks that worked there?
[Scott]: Yes.
Q: Were they pretty good people?
A: Yes.
* * *
[State]: Did you know that clerk?
[Brown]: I've seen him from going in the store.
Q: Okay. And was he always pretty nice to you when you went in the store?
A: Yes, very.
The appellant relies on Texas Rule of Evidence 404(a)(2) for the proposition that the State may not introduce victim character evidence unless it specifically rebuts evidence that the victim was the first aggressor. In fact, Rule 404(a)(2) disallows evidence of a person's character or trait of his character "for the purpose of proving action in conformity therewith on a particular occasion, except . . . to rebut evidence that the victim was the first aggressor" (emphasis added).
Again the record does not disclose the reason why counsel did not object, which may have been strategic. If the omission was below the standard of reasonable professional competence, there would remain two questions: whether the evidence was introduced to prove that the victims acted in conformity with their character, rather than to establish the witnesses' general familiarity with the convenience store and its clerks, and whether a successful objection would have affected the outcome of the trial in reasonable probability. We overrule point of error eight.
In his third point of error, the appellant argues that his trial counsel lessened the State's burden of proof on the appellant's extraneous offenses, ensuring an affirmative answer to the future dangerousness special issue. (5) See Art. 37.071, § 2(b)(1).
During defense counsel's closing argument on punishment, he stated:
And in the State of Texas - which may very well be different than other states - you're allowed to hear evidence of unadjudicated extraneous offenses; and, so, the State brought you seven of those, two of which were capital murders.
Now, your role in that particular process, in terms of viewing the extraneouses, is not to find [the appellant] guilty of extraneous offenses. That may or may not be for another jury to decide. Your duty and responsibility - the information was given to you to help you, if it does, in trying to answer the notion of whether or not this young man would be a threat in the future.
The appellant argues that counsel alleviated the State's burden of proof on extraneous offenses, when, in fact, counsel explained to the jury that its role was not to render a verdict on the extraneous offenses but to consider them in assessing the special issues - a true statement.
It seems unlikely that the argument would have such an effect, especially since it was not contrary to the court's charge:
[Y]ou may consider such evidence only if the extraneous crime or bad act has been shown by the State beyond a reasonable doubt to have been committed by the defendant. . . . The presumption of innocence alone is sufficient for you to find that the defendant did not engage in the extraneous offense or act of misconduct that has been placed in evidence unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt or responsibility therefor after careful and impartial consideration of all the evidence in the case. [Emphasis added].
Because the appellant has failed to establish that trial counsel rendered deficient or prejudicial performance, we overrule point of error three.
In point of error four, the appellant argues that trial counsel rendered ineffective assistance of counsel by lessening the State's burden of proof on the second special issue. (6) During punishment phase closing arguments, counsel Williams paraphrased the second special issue as requiring the jury to determine whether the appellant was "responsible for the killing in some kind of way." The appellant believes that counsel's statement alleviated the State's burden of proof on the second special issue, a trend since voir dire. (7)
Our view of the record is that counsel adhered to a strategy first manifested during voir dire, when he concentrated his questioning regarding the special issues almost exclusively on future dangerousness and mitigation. Likewise, during closing arguments on punishment, counsel Williams merely paraphrased the second special issue following counsel Greenlee's fuller explication.
Absent evidence to the contrary, we must presume that counsel strategically decided to avert attention from the second special issue throughout trial, first during voir dire, (8) and later in punishment phase closing arguments. See Busby, supra. It would be a reasonable strategic decision that the other special issues were more likely to swing in the appellant's favor, and that counsel should avoid repetition of an issue that, in light of the jury's guilty verdict, was weak. Because we conclude that counsel's actions conformed with trial strategy, we overrule point of error four.
In points of error five and six, the appellant argues that the trial court lessened the State's burden of proof on the second special issue by explaining to the jury during voir dire that it need find only that the appellant should have anticipated the victim's death to answer the second special issue affirmatively, in violation of the state and federal due course of law and fair trial provisions. (9) The appellant failed to object to the trial court's voir dire of the jury, therefore failing to preserve this error for review. Tex. R. App. Proc. 33.1(a); Knox, 934 S.W.2d at 687; Barnes, 876 S.W.2d at 325. We overrule points of error five and six.
Finding no reversible error, we affirm the judgment of the trial court.
En Banc.
Delivered: June 25, 2003.
Do not Publish.
1. Unless otherwise indicated, all future references to Articles refer to the Texas Code of Criminal Procedure.
2. During an audiotaped statement to the police admitted at trial, the appellant professed his "philosophy" behind killing foreign convenience store owners, in part:
[W]hen I found out that my girlfriend she was pregnant, you know, a lot of pressures come
on me. So, I began to talk to God . . . and a lot of things that we have done, you know,
I don't want people to think that I'm crazy. I don't want you to look at me and say that
he got a mental problem 'cause don't nobody know God's heart on how it is. Don't
nobody know what God puts on a man heart. Only that man and God knows that he
comes together with, you know. So, it's just like I wasn't going out to just rob people for
money and to hurt them. It wasn't that; it was I was looking at my people how we can be
here all our lives. We can't get a job unless somebody help us out. We can't get it on our
own selves. Or, you never hear about our people in the news talking about positive black
people too much, unless, it is, unless you're a singer or you in sports and stuff like that.
You never hear the positive things. . . . You know, you never hear the positive things about
vice-presidents, or, or like, like in big major companies you never hear the things about
accountants, you know, you know different, different positions that a lot of people get
credit for that you never hear black people getting credit for. And it's funny how other
people can come from other countries, come to this country, the government give them
money to start off, give 'em money, enough money to send their children to schools, where
we got children here, we got people here, you know, that, that want opportunities to go
to school, want to have start, you know, money to start off a small business, you know,
stuff like that. You can't get that kind of stuff being as an African-American because if
people say you can, you can't 'cause I'd have tried it. My credit, before my credit, you
know, just ever got messed up, I tried to get a grant. You know, I'd had, never had no
bad credit, never had no loans to go to school and stuff like that. You know, opportunities
just like that never came to me. And, so you know, I look at it, they [Japanese, Chinese,
Vietnamese, and Middle Eastern people] come to our country. They come in our
communities. They spend our money. . . . 'cause, you know, they come over here, they
not giving back to our communities that you're taking from. And when we come to your
stores, ah they, we go in their stores, they watch us, they, they always following us thinking
we gonna steal 'cause we black. You know it's the point that you can't feel comfortable
when you spending your own money. You know, and you going in their store 'cause you
can't help but go to their store 'cause it's in our community. But when you have black-owned stores and stuff like that, you never get 'em in our community 'cause it's never that
opportunity for black people to have their own stores. . . . So, it wasn't that I was robbing
them for their money - it was just a point, how can you come in our neighborhoods and
do us like that and think we not God's people. . . . The only image that you get from a
black person on the news is, is robbing, killing, and stuff like that. That's all you see. But
in God's heart and in God's eye, who's to say that's wrong? Who's to say that God put
you in a store, to own that store, and you made promises to Him and by you disobedient
to him that he won't punish you for it 'cause He will. Regardless if it's gonna be me, using
me, it's gonna be somebody that you gonna get punished for. And in your heart, you know
you being punished. . . . You know you just been judged. . . . [Sic et passim].
3. If Juror West did not want to serve, she was entitled to an exemption. 4. Article 35.05 states: "One summoned upon a special venire may by consent of both parties be
excused from attendance by the court at any time before he is impaneled."
5. The appellant also alludes to a due process violation. Not only has the appellant inadequately
briefed this point, to address it would render all of point three multifarious. 6. In the instant case, the trial court submitted to the jury the second special issue, pursuant to
Article 37.071, § 2(b)(2):
Do you find from the evidence beyond a reasonable doubt that [the appellant], the
defendant himself, actually caused the death of Mansoor Bhai Rahim Mohammed, on the
occasion in question, or if he did not actually cause the death of Mansoor Bhai Rahim
Mohammed, that he intended to kill Mansoor Bhai Rahim Mohammed or another, or that
he anticipated that a human life would be taken?
7. The appellant also argues that co-counsel's statements - "And there are just a few things I
want to point out to you. I don't know what they could be. [Lead counsel] really covered just about
everything we need to talk to you about." - alleviated the State's burden of proof on the second special
issue. He fails to offer this Court any reasoning for this claim, nor can the Court glean one. 8. The appellant cites several instances of the State's and trial court's voir dire where the
appellant believes defense counsel should have objected. Further, he believes defense counsel should
have more fully explicated the issue during his own voir dire of the jurors.
9. T