2004 Dickson

Dickson v. State, Not Reported in S.W.3d, 2001 WL 34736485 (Tex.Cr.App. 2004) (Direct Appeal)

Background: Defendant was convicted in the trial court, Potter County, of capital murder and sentenced to death. Defendant appealed.

Holdings: The Court of Criminal Appeals, Johnson, J., held that:
(1) juror did not withhold material information during voir dire, so as to warrant new trial;
(2) improper communication with jury by juror from defendant's prior capital murder trial did not warrant new trial;
(3) state death penalty scheme did not violate equal protection;
(4) voir dire question asking juror to state what a mitigating circumstance would be was improper; and
(5) trial counsel was not ineffective. Affirmed.

JOHNSON, J., delivered the unanimous opinion of the Court.

On September 18, 2002, appellant was convicted of the capital murder of Marie Surace. Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises five points of error. We affirm.

In his first point of error, appellant claims that the trial court erred in denying his motion for new trial based on his contention that juror Henderson withheld information during voir dire. Appellant claims that, had he known Henderson was aware that appellant had been convicted of capital murder and sentenced to death in another case, he would have used a peremptory strike to exclude Henderson from serving on the jury.

Before the trial in this case, appellant was convicted of the capital murder of Carmelo Surace and sentenced to death. Marie and Carmelo Surace were shot and killed during a robbery of their family-owned store.FN2 At the beginning of voir dire, the trial judge asked the prospective jurors whether they knew anything about this case. Several responded that they did, and the trial judge interviewed them individually. Henderson did not indicate that he knew anything about the present case at that time.FN3 However, at the beginning of individual questioning, the following exchange occurred.

FN2. Appellant's conviction and death sentence for the murder of Carmelo Surace was affirmed on direct appeal. Dickson v. State, No. 73,044 (Tex.Crim.App., delivered April 26, 2000). His post-conviction application for writ of habeas corpus challenging that conviction and sentence was denied in a written order. Ex parte Dickson, No. 47,314-01 (Tex.Crim.App., filed February 21, 2001).

FN3. Henderson did indicate in his juror questionnaire that he was familiar with some of the participants in this case.

The record reflects that, when asked whether he knew anything about the case, Henderson replied that he did and that he had learned about the case through the media. The record also reflects that appellant did not ask any questions regarding what Henderson knew about the case, though he had ample opportunity to do so. Only the state and the trial court posed those questions. If appellant wished Henderson to elaborate on his answers, he could have asked him to do so during voir dire. Henderson did not “withhold” material information during voir dire. Thus, the trial court did not abuse its discretion in denying appellant's motion for new trial. Appellant's first point of error is overruled.

B. Outside Influence

In his second point of error, appellant claims that the trial court erred in denying his motion for new trial based on his contention that the jury had “been subjected to outside influences in the form of contact having been made with one or more jurors by a third party.” Specifically, he claims that Carpenter, a juror from his prior trial, improperly communicated with some or all of the jurors in this case.

At the motion for new trial hearing, Carpenter testified that he had attended the majority of the trial in this case in order to determine whether the jury in the prior case had received all available information and because he was very interested in the case. He stated that during the proceedings he sat on the “state's side” of the courtroom near the victim's family and sat on the defense side only when the “state's side” was full. Carpenter went on to say that on one or two occasions he spoke with jurors in this case while outside smoking during a break in the proceedings.

The court reporter testified that she had witnessed Carpenter attempting to get onto an elevator with members of the jury and that she instructed him not to do so because he was not allowed to talk to them. Carpenter then told her he could do anything he wanted, and she again instructed him not to speak to the jurors. Henderson, the only juror to testify at the hearing on appellant's motion for new trial, related that he was aware that Carpenter had spoken to a juror in the hallway and that the court reporter had instructed him not to talk to the jurors. He noted that, while the jurors were aware that Carpenter had served on the previous jury, Carpenter's presence had not influenced him, or to his knowledge, any of the other jurors.

As the state pointed out at the hearing on appellant's motion for new trial, “I think everybody would feel a lot more comfortable” had Carpenter not come into contact with any of the jurors. Nevertheless, the state's lack of comfort with the situation does nothing to rebut the presumed harm from Carpenter's unauthorized communication with jurors. However, the record reflects that no particulars of the case were discussed with Carpenter. It does not reflect that the jurors were influenced by the knowledge that Carpenter had served on the previous jury. Thus, the trial court did not abuse its discretion in denying appellant's motion for new trial. Appellant's second point of error is overruled.

Ineffective Assistance

In his fifth point of error, appellant argues that he received ineffective assistance of counsel. Specifically, he claims that, during voir dire, his trial attorneys failed to object to the prosecutor's questions which committed prospective jurors to the proposition that a single “no” vote would result in a life sentence, failed to object to the prosecutor's “fishing expedition” questions, and failed to object to the prosecutor's questions which committed the prospective jurors to disregard the parole instruction in the charge on punishment. Appellant insists that such failure to object was detrimental to his ability to persuade the jury to give full weight and effect to the substantial mitigating evidence presented at trial.

When reviewing a claim of ineffective assistance of counsel, this Court utilizes the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first prong of the Strickland test, appellant must show that counsel's performance was deficient. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Under the second prong of the Strickland test, appellant must show that counsel's deficient performance prejudiced him. “This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. In other words, appellant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. There is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Id. at 689.

Counsel's reasons for not objecting to the prosecutor's questions do not appear in the record. In Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App.1999), we explained that, in order to defeat the presumption that counsel rendered effective assistance of counsel, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson at 813, citing McFarland, 928 S.W.2d at 500. Because the record is devoid of any evidence that rebuts the presumption of effective assistance, we must presume that counsel's decision not to object was reasonable trial strategy. Mallett v. State, 65 S.W.3d 59 (Tex.Crim.App.2001). Appellant's fifth point of error is overruled.

We affirm the judgment of the trial court.