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Click here for the full text of this decision FACTS:After the state conducted its voir dire, defense counsel addressed the venire but did not ask any questions. In his comments, defense counsel stated that he had listened to the prosecutor for approximately two hours and that she had covered everything, including the defense side of the case. Although defense counsel exercised all ten of his peremptory challenges, two of those challenges were used on prospective jurors who had previously been excused by the trial court. Appellant was convicted of aggravated sexual assault of a child under age fourteen and sentenced to ninety-nine years in prison. Although a motion for new trial was filed and an ineffective assistance of counsel claim was raised in the motion, no complaint was made with regard to the voir dire conduct, and no hearing was held on the motion. On appeal a complaint was made about the voir dire conduct. The court of appeals held that this conduct constituted deficient performance, because there was no possibility that it could have been based on legitimate trial strategy. The court explained the importance of voir dire, held that the failure to ask questions amounted to no assistance to the defendant, and held that no conceivable trial strategy would permit counsel to waive voir dire. The court of appeals found the failure to ask questions to be deficient in light of the need for fair and impartial jurors and the tendency of questioning to elicit answers that form the basis for a challenge for cause or provide a gender or race-neutral reason for exercising a peremptory challenge. The court of appeals further believed that the failure to examine the panel prevented the defense from ascertaining whether some members of the venire could not consider the full range of punishment. The court observed that appellant was eligible for community supervision, and while the state did explain the range of punishment as being “probation up to ninety-nine years or life” and asked the prospective jurors if they could consider the full range of punishment, the court of appeals felt that the state did not clearly inquire into whether prospective jurors could consider probation as a sentencing option. The court of appeals also found that its deficient performance holding was required by defense counsel’s use of peremptory strikes on two previously excused prospective jurors. The court of appeals characterized those strikes as “wasted” and found that they cast “extreme doubt on whether [defendant's] counsel was actively participating in the adversarial process to ensure a just and fair trial.” HOLDING:Reversed and remanded. “Despite the court of appeals’s characterization of counsel’s conduct as “no assistance,” 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. Defense counsel’s articulated reason for declining to ask questions that the prosecution’s questioning adequately covered the defense’s concerns could be a legitimate trial strategy under the appropriate circumstances.” Counsel might have been afraid that more punishment-oriented jurors could influence other jurors; he may have been satisfied with the composition of the panel; he may have refrained from asking questions about probation to avoid giving the state more information on which to exercise peremptory challenges; he may have believed that such questioning would be perceived as admitting there was credible evidence of guilt; or he may have had any combination of these reasons. Counsel might have believed that the facts of this aggravated assault of a child case were so severe that there was little or no possibility of appellant receiving probation upon conviction. These proposed reasons are speculative, the court states, but that is the problem with trying to evaluate an ineffective assistance claim in which defense counsel has not been given an opportunity to respond, and why such claims are usually rejected. OPINION:Keller, P.J., delivered the court’s opinion. CONCURRENCE:Price, J., filed a concurring opinion, in which Cochran, J., joined. “I agree with the majority that the record in this case is inadequate for us to resolve the appellant’s ineffective assistance of counsel claims. I write separately to explain the difference between this case and Andrews v. State [No. PD-993-03 (Tex. Crim. App. delivered Mar. 23, 2005)]. “In Andrews, defense counsel failed to correct a misstatement of the law that was harmful to his client. There was no possible reasonable trial strategy that would lead defense counsel to choose to remain silent. Thus, counsel’s reasons, if any, were unnecessary to resolve the ineffective assistance of counsel claim.” DISSENT:Holcomb, J., filed a dissenting opinion, in which Meyers, J., joined. “I respectfully dissent. I would hold that trial counsel’s errors were such that appellant’s claim of ineffective assistance of counsel is properly reviewable on direct appeal. See Thompson v. State, 9 S.W.3d 808, 814 n.6 (Tex. Crim. App. 1999). I would further hold that trial counsel’s performance was deficient and tantamount to no counsel at all.”

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