                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00314-CR


CHRISTOPHER REMSNYDER                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1297664D

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Christopher Remsnyder appeals his conviction for theft of

property valued between $1,500 and $20,000. In two issues, Remsnyder argues

that the prosecutor improperly questioned a veniremember and that his trial

counsel rendered ineffective assistance of counsel. We will affirm.

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       See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      The facts of the underlying charge in this case are not in dispute. Rather,

the two issues that Remsnyder brings on appeal revolve around the prosecutor’s

questioning of a veniremember and his own trial counsel’s actions upon learning

that a juror had commented to the jury panel regarding Remsnyder’s guilt. Thus,

this opinion will address facts only relevant to these two issues.

      During voir dire, after veniremember Miller had expressed his inability to

consider assessing a ten-year sentence for theft of something valued at $1,500,

the following colloquy took place:

      [Prosecutor]: What if the person has more history than just these
      two priors?

      [Veniremember Miller]: Well, yeah. I mean, that’s what I’m saying.
      I didn’t know that you could bring up the history.

      [Defense Counsel]: I object. I object, Your Honor. I object.
      Improper commitment – improper commitment question. I also
      object because it’s suggestive of extraneous offenses. I object.

      THE COURT: All right. Overruled.

      [Prosecutor]: Thank you, Judge. It’s not fair to you because you
      don’t know the circumstances, you know. And so I know it’s not fair.
      But what I ask you is, you don’t -- you don’t know the full story. Is
      there a situation in which you think this person -- say this -- think of
      something truly heinous. Say this person stole from a charity. Say
      they stole, you know, $20,000 from a charity, and they’ve been
      convicted twice of having a state jail felony. Could -- is that a
      situation in which you would consider the full range, or is it no matter
      what, you could never consider the full range?




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      Later, after the State had concluded presenting evidence at the guilt-

innocence phase of trial, the following colloquy took place outside of the jury’s

presence:

      [Defense Counsel]: I move for mistrial. It appears that the jurors
      are engaging in unauthorized deliberation. Apparently, one of them
      has said, Why are we going through this, and said it in front of
      others, [i]t's him on the video. I suppose he could privately think
      that, but doing that with the jurors is unauthorized deliberations [sic],
      so I move for mistrial.

      THE COURT: All right. That’s going to be denied. I brought that fact
      up to both sides yesterday when one of my bailiffs told me that one
      of the jurors had, after looking at the video, wanted to -- couldn't
      understand his defense. And I made a point of talking to the whole
      jury panel, tell them that they’re not to discuss the case among
      themselves, shortly before I allowed them to leave, of course. And I
      also told them not to talk to their families once they reached home
      because the trial was still, you know, going on, and it would be
      improper to discuss anything about the case among themselves or
      with anybody else. And they all assured me that they would not do
      this. So I think that we're okay. As such, I will deny your motion.

      After the jury returned a verdict of guilty and the punishment phase of trial

concluded, the jury assessed punishment at ten years’ confinement and a $2,500

fine. The trial court entered judgment accordingly, and this appeal followed.

            III.   THE PROSECUTOR’S QUESTIONING DURING VOIR DIRE

      In his first issue, Remsnyder argues that the trial court erred by overruling

his objection to the prosecutor’s statement asking veniremember Miller, “What if

the person has more history than just these two priors?” Remsnyder argues that

this question was both an improper commitment question and that this question

“improperly revealed to the jury that [Remsnyder] had other criminal offenses in



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his background that [the State] could not discuss with the panel at that time.” To

buttress his argument, Remsnyder argues, “Any doubt that the prosecutor

intended to poison the well should quickly be removed when one considers . . .

[the prosecutor’s] next line of questioning.” Specifically, Remsnyder emphasizes

the prosecutor’s follow-up question to veniremember Miller, “But what I ask you

is, you don’t -- you don’t know the full story.”

      The State argues, among other arguments, that Remsnyder forfeited any

potential complaint for appeal because “he failed to object at the earliest possible

opportunity.” We agree with the State.

      To preserve error under our rules of evidence, an objection must be made

“as soon as the ground for objection becomes apparent.” Dinkins v. State, 894

S.W.2d 330, 355 (Tex. Crim. App.), cert. denied, 516 U.S. 832 (1995); see also

Tex. R. App. P. 33.1(a).       “[I]f a question clearly calls for an objectionable

response, a defendant should make an objection before the witness responds.”

Dinkins, 894 S.W.2d at 355. “If he fails to object until after an objectionable

question has been asked and answered, and he can show no legitimate reason

to justify the delay, his objection is untimely and error is waived.” Id.

      Here, assuming that the prosecutor’s questions were objectionable,

Remsnyder did not object to the prosecutor’s question of “What if the person has

more history than just these two priors?” until after veniremember Miller had

answered the question. And other than professing that his objection was timely,

Remsnyder does not offer a legitimate reason to justify his delay in objecting to


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the prosecutor’s question. Therefore, Remsnyder did not object at the earliest

possible opportunity and has not preserved his complaint regarding this question.

See Montgomery v. State, 198 S.W.3d 67, 74 (Tex. App.—Fort Worth 2006, pet.

ref’d) (“Appellant did not object to this particular question until after a

veniremember had answered the question. Thus, appellant did not object at the

earliest possible opportunity and has not preserved his complaint regarding this

question.”); see also Halprin v. State, 170 S.W.3d 111, 119 (Tex. Crim. App.

2005) (holding that appellant failed to preserve for appellate review question of

whether prosecutor improperly attempted to commit veniremember to resolving

or refraining from resolving an issue). Furthermore, Remsnyder never objected

to the prosecutor’s “next line of questioning.” See Tex. R. App. P. 33.1(a); see

also Taylor v. State, 264 S.W.3d 914, 917 (Tex. App.—Fort Worth 2008, no pet.)

(“Additionally, because the evidence [appellant] complains of came in elsewhere

without objection . . . he has also forfeited his complaints.”).    We overrule

Remsnyder’s first issue.

                           IV. ASSISTANCE OF COUNSEL

      In his second issue, Remsnyder claims that his trial counsel rendered

ineffective assistance in how he handled a juror’s statement to the jury that he

did not understand Remsnyder’s defense when a video introduced at trial

displayed Remsnyder as the assailant in this case.       Specifically, Remsnyder

argues that even though trial counsel moved for a mistrial after learning of the

juror’s objectionable conduct, trial counsel should have requested a “full hearing


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on the matter to determine the exact nature of the [juror’s] misconduct.”

Remsnyder argues that trial counsel’s failure to request such a hearing

demonstrates that trial counsel was ineffective.

      To prevail on this point, Remsnyder must show by a preponderance of the

evidence that trial counsel’s representation fell below the standard of prevailing

professional norms and that there is a reasonable probability that but for trial

counsel’s deficiency, the result of the trial would have been different. Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v.

State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d

59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of trial counsel’s representation is highly deferential, and we indulge a

strong presumption that his conduct fell within a wide range of reasonable

representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63.

      Rarely does the record on direct appeal position an appellate court to fairly

evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at

740; Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on


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direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d

at 63). To overcome the presumption of reasonable professional assistance,

“any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting

Thompson, 9 S.W.3d at 813).        It is not appropriate for us to simply infer

ineffective assistance based upon unclear portions of the record. Mata v. State,

226 S.W.3d 425, 432 (Tex. Crim. App. 2007). And we are very reluctant to

denounce a lawyer as ineffective absent an opportunity for the lawyer to explain

his actions on the record. See Rylander v. State, 101 S.W.3d 107, 111 (Tex.

Crim. App. 2003).

      For these reasons, the court of criminal appeals and this court have often

stated that ineffective assistance claims are usually best addressed by a post-

conviction writ of habeas corpus. See Lopez v. State, 80 S.W.3d 624, 630 (Tex.

App.—Fort Worth 2002), aff’d, 108 S.W.3d 293 (Tex. Crim. App. 2003).

      In this case, although Remsnyder filed a motion for new trial, he did not

assert an ineffective assistance of counsel claim in his motion to afford the trial

court the opportunity to hold a hearing and inquire into the reasons for trial

counsel’s actions. Consequently, we cannot determine whether trial counsel’s

actions were grounded in sound trial strategy because the record is silent as to

possible trial strategies, and we will not speculate on the reasons for those




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actions. See Jackson, 877 S.W.2d at 771; Patterson, 46 S.W.3d 294, 306 (Tex.

App.—Fort Worth 2001, no pet.). We overrule Remsnyder’s second issue.

                                V. CONCLUSION

      Having overruled both of Remsnyder’s issues on appeal, we affirm the trial

court’s judgment.



                                                 /s/ Bill Meier

                                                 BILL MEIER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 26, 2015




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