### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00292
- CR

John Michael Poncio , Appellant

v. The State of Texas, Appellee

FROM THE 22ND DISTRICT COURT OF HAYS COUNTY NO. CR -19-4076-A , THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellant John Michael Ponci o challenges his conviction for third

- degree felony offense assault

— family violence by repeat offender

. Tex. Penal Code § 22.01

. After finding him guilty , the jury assessed punishment at eight y ea rs ’ imprisonment. Id. § 1 2.34

. In Poncio’ s first issue on a ppeal, he contends that his trial counsel was ineffective . In h is second issue, he contends that the ju ry charge ’ s application parag raph on the defense of consent contained reversible error

. Ba sed on the reasons stated below, w e affi rm th e trial court’ s judgment

.
BACKGROUND 1
Poncio’ s then-g irlfriend Natalie Garza testified that she and Poncio started arguing while riding in the backseat of Poncio’ s sister ’ s car
. The sister ’ s boyfriend was driving, and the sister was in the passenger seat. After Poncio motion ed like he would hit her, Garza said

1 We limit our discussion of the fac ts to those necessary for the reso lution of the pres ented issues.2 “ hit me. I dare you

. ” Garza testified that Poncio then hit her. Garza explained that she did not think that he would hit her and that her word s w e re not intended to give her consent to him hitting her hard enough to break her nose. S h e testified that she knew h er nose was broken because she felt “ what felt like hot water just pouring down into [her] shirt. ” She testified that there was a smell a n d t aste of metal in her mo ut h. The driver of the car returned Garza to where they had picked her up so that she could get a ride home from a friend

. Garza ’ s friend drove her
to the friend ’ s grandmother ’ s hous e where they helped her clean u p. The next d a y , her friend took her home . After spe aking with h er mother , Garza called 911 and reported what had happened

. She was treated by EMS and then went to the hospital. The nurse practitioner that treated Garza at the hospital testified that Garza ’ s nose wa s br oken. After hearing all the evidence , the jury fo und Poncio guilty of assault

— family violence as a repeat offender and assessed punishment as eight years ’ imprisonment.

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL In his first issue , Po ncio conten ds t hat his trial counsel was in effective for failin g
to strike venireper son two 2 for cause.

Standard o f Review To p r evail o n his claim of ineffecti ve ass istance of counsel, Poncio must prove by
a prepon deranc e of the evi dence that: (1) hi s cou n sel ’ s perfo rmance was d eficient, a nd (2) the deficiency prejudic ed his defense. Strick land v. Was hington , 466 U

. S. 6 68, 687 (19 84); Hernandez v. State , 988 S. W.2 d 77 0, 772

– 74 (Tex. Crim. Ap p
. 1999)

. T he review of a tri al

2 We refer to the relevant venireperson and juror by his as si gned venire panel n umber.3 co unsel ’ s representation on an ine ffectiv e - a ssistance c h allenge is highl y deferential to coun sel ’ s professional judgm ent. Strickland , 466 U.S . at 689

. To me et the first prong of the Stri ckla n d test , Poncio must ove rcome a strong presumption that hi s cou nsel ’ s conduct falls within t h e wi de range of re asonably p ro fessi onal assistance. Id. “[ A]ny allegation of ineffective as sist anc e mu st be fi rmly founded in t he recor d, and the record must a ffi rmatively demonstrate the alleged ineffectiveness.” Thom pson v. State , 9 S.W.3d 808, 814 ( T ex. Crim. Ap p. 1 999)

. Gen er ally, a r eviewing cour t w ill not speculate about counsel ’ s trial stra tegy. Mayhue v . St ate , 969 S.W. 2d 503, 511 (Tex. App.

— Austin 19 98, no pet.)

. W h en the re i s a n absence of evidence in the r ecord of counsel ’ s reasons for t he challenged condu ct, w e “ will not conclude the challenged conduct constituted deficient performance unless the co nduct was so outr ageous that no competent attorney w ould have engaged in it. ” Garcia v. State , 57 S.W.3d 436 , 440 (Tex. Crim. App. 2001)

. “ A s ubsta ntial risk of failure a ccompanies an appellant ’ s clai m of ineffective assistance of cou nsel on direct app ea l

. ” Thompson , 9 S.W.3d at 813

. Generally, “ [a] pro per record is best dev eloped in a habeas corpus proceedin g or in a motion for new trial h ea r ing

. ” Salazar v . State , No. 14

- 06

- 00877

- CR,
2008 WL 361527, at *2 (Tex. App.

— Houston [14th Dist.] Feb. 12, 2008, no pet.) (mem . op., not designated for publication ).

Discussion
W hile defense coun sel was con ducting voir dire, he asked if there was “ anybody in this sid e of the room th at we haven ’ t talked to you already who fe els that I need to prove my client innocent? Mr.? ” Venireperson two stat ed his last name . Defense counsel then replied, “oh, okay. ” There was no follow

- up question of the v en ireperson on this top ic

. The4 v en irep erson was not struck for cause or by pre e mptory s t rik e by either side . Rather , he was empaneled and served on the jury.
O n appe al, Poncio contends that this ex change establishes that v en ireperson two should have been stru ck fo r cau se bas ed on an inabi lit y to follow the law and that trial counsel ’ s failu r e to move to str ike him constitutes ineffective assistance

. However, it is not cl ea r from the record that v enireperson two was communicating t hat he could not apply t he pr esump tion of in nocen ce
. See T homps on , 9 S.W.3d at 813 (“Any allegation of ine f fectiveness must be firmly founded in the re cord, and the record must affirmatively demonstrate the alleged ineffectiveness .”). T hroughout the defense ’ s voir di re, trial counsel was engaging with venirepersons t hat we r e not a ns wering the question in the affirmative and instead were e xpress ing the opposit e or were not a ctually responding at all and either were called on at random or due to a m iscommunication of non

- verbal signals. We cannot
t e l l fr om the record w hy tri a l counsel asked v enireperson two for his name, or if there was some type of off the record communication by the v en ireperson , like a head shake or hand gesture , tha t communicated something to counsel other than an inability to app ly the la w. Any ass umption of b ias is not supported by the record , and therefore, Poncio has failed to meet his burden. See
McC ain v. State 995 S.W.2d 229, 245 (T ex . App.

— Houston [ 14th Dist.] 1999, pet. r ef ’ d) (de termin ing that ap pellant failed to meet S trickland sta ndard w here re cord did not establish that venireperson “ should have been struck for cause ” ). Further , even if v en ireperson two was subject to a challenge

- for

- cause, Poncio has
not overcome the presumption t hat counsel ’ s actions were an exercis e of reasonable prof essional judgment because the record is silent on counsel ’ s reasons for not moving to strike v en ireperson
two for caus e
. See Strickland , 466 U.S. at 689

. Po ncio contends that trial counsel could not5 have had a reasonable trial strateg y because there i s n o reasonable trial strategy for not strik ing a biased juror a nd that all t he other jurors who said they would require the defendant to prove his own inn o cence were struck for cause.
Even in circumstan ces in w hich the record did establ ish some type of bias , a defense counse l ’ s decis ion to not move to strike a juror for bias, even when the juror directly states they are unable to be impartial, does not a utomatically amount to ineffective assistance. Delrio v. State , 840 S.W.2d 44 3 , 44 5

– 4 7 (Tex. Crim. App. 19 92) (noting that c ounsel ’ s

“ [w] aiver of his client ’ s right to insist that every juror in the case be in all things fair and
i mpartial may in counsel ’ s best professional judgment have been an acceptable gamble ” ) ; see also Hebert v. Sta te , 489 S.W.3d 15, 23 (Tex. App.

— Housto n [14th Dist.] 2016, no p et.) ( n oting that “ [d] ecisions relating to challenging prospective jurors for cause or striking prospective jurors are strategic and tact ical ” )

. 3
Poncio contends that trial counsel no t askin g v en ireperson two follo w up
q uestions to confirm his abil ity to apply the presumption of innocence demonstrates a lack of strategic decision making and further demonstrates counsel ’ s deficient performance . However, the C o urt of Criminal Appeals has previ ousl y considered and rej ected th is contention when the

rec ord is silent regarding counsel ’ s reason for the conduct

. Specifically, the C ourt of Criminal Appeals has held that when a d efense attorney d i d not ask any questions during voir dire the conduct wa s no t so outrageous that no competent attorney would have engaged in it and an

3 Poncio cites United State s v. Martinez

- Salazar , 528 U.S. 304, 314 (2000) , in support of his contention “ that trial counsel seati ng a b iased juror ca nnot be a discreti onary or strategic de cision

. ” How ever, in Martinez

- Sal azar , the Supreme C o urt did not review an ineffective assista n ce of counsel claim but , rather , held that a d efendant ’ s choice to exercise a peremptory challenge to remov e a juror who should have be en e xcused for cause does not violate due process protectio ns
. I d. at 317.6 inquiry into the reasons for the conduct was ne cessary
. Goodspeed v. State , 187 S.W.3d 390,
392

– 93 (Te x. Crim. App. 2005) ( “ [W] e cannot conclude that the failure to ask any que stio n s in voir dire cons titutes conduct so out rageous that no competent attorney would have engaged in it. ” )
Here , the record on appeal is limited and does not include any evidence regarding trial counsel ’ s strategy for choosing not to move to strike v en ireperson two o r ask any follow up questions during voir dir e
. Neith er of these actions are so outrageous that no competent attorney would have e n gaged in them

. See id. Instead, an inquiry into the reasons explaining trial counsel ’ s conduct would be nec essary
. Id. A p pellate co urts are not required to speculate on possi ble trial str ategy in order to apply the presumption t hat counsel ’ s actions w ere an exercis e of reasonable professional judgment

. Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App.
1 994) . Rather, a r eviewi ng cour t generally w ill not speculate about c ounsel ’ s trial stra tegy. Mayhue , 969 S.W. 2d at 511

. Based on the record on direct appeal , we canno t conclude that trial counsel ’ s not moving to strike v en ireperson two or a sk ing follow

- up questio ns to con f i rm h is ability to follow the law regardi ng the presu mption of i nnocence was no t based on sound strateg y . S ee Lopez

v. State , 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) ( emphasizing “ that claims of ineffective assistance of counsel ar e generally not succ e ssful on direct appeal and are more approp riately
urg ed in a hearing on an application for a writ of ha beas corpus ” and noting tha t “ [u] nlike other claims rejected on direct appeal, claims of ineffective assistan ce of counsel rejected due to lack of adequ a te in formation may be reconsidered on an application f or a writ of habeas corpus ” ) ; Johnson v. State , 172 S.W.3d 6, 13 (Tex. App.

— Austin 2005, pet. ref’d ) ( n oting that appellate
courts “ rarely entertain ineffective assistance of counse l claims on direct a p peal because of an inadequate record, instead relying on collateral proce edings for such challenges ” )

. We are no t7 convinced th at u nder the f act s of th is case that trial counse l ’ s actions are so egregiou s that no compet ent attorney wou ld have ac ted similar l y . See Strickland , 466 U.S. at 689 ( “[A ] c ourt must indulge a strong p resumption that counsel ’ s conduct falls wit hin the wide ran ge of reasonable professional assistance; tha t is, the defendan t must ov ercome the presu mption that, und er the ci r cumstances, the challenged action ‘ might be considered sound tri al strategy

. ’ ” ) ; Ga rcia , 57 S.W.3d at 44 0 ( “ [ I ] n the absence o f evidence of co unsel ’ s reasons for the challenged co nduc t,

a n appellate court

. . . wil l not conclude t he challenged co nduct cons tituted def i cien t performance unless the conduct was so outrageo us that no competen t attorney would have engaged in it

. ” )

. We find insuffici ent basis in the present record to overcome the presumption that counsel exercised reasonable profession al judgment. A c cordi n gly, w e overrule Pon cio ’ s inef fective

- a ssistanc e cl a im

.
JURY CHARGE Poncio contends that the application paragraph in the jury ch arge regarding the
consent defense should have included additional factual detail.

Standard o f Review
J

ury charge error cla i ms are re viewed und er a two

- pronged t est in which t he
app ell ate court mus t determine : (1) whet her the ch arge was erron eous , a nd (2) if there was an

e rror, whether the error was h a rmf ul to t he defendant. Olivas v. State , 202 S.W.3d 1 3 7, 143

– 44 (Tex. Crim. App. 2006 ) ; A lmanza v. State , 686 S. W. 2d 157, 171 (Tex. Cr im. App. 1985 ) (op. on rehearing). A trial court err s if it does not pres e nt the jury wi th “ a written charge distinctly setting forth the law applicable to the case

. ” Tex. Code Crim. P roc . art. 36

. 1 4 ; se e also Be l l

v. State , 635 S.W.3 d 6 41, 645 (Tex. Crim. App. 2021) ( “ A trial judge is obl ig ated to instruct on8 th e law applicab l e to the case, fo r the trial judge is ultimately responsible for the accuracy of the jury charge a nd accompanying instructi o ns. ” ( cl eaned u p )). T he application portion of the jury charge, “specifies the factual circumstances under which the jury should c onvict or acquit

. . . . ” Vasquez v. State , 389 S.W.3d 361, 367 (Tex. Crim. App. 2012).

Discuss ion Here, the application p aragraph o n the defense of consent instructed :
If you have fo und th at the state has proved the offense beyond a reasonable doubt, you must next decide whether the state has proved that consent does not apply to the defendant’s c onduct. To decide the i s sue of con se nt, you must determine whether the s tate has prove d, bey ond a reasonable doubt, one of the following: 1. Both that

—

a. Natalie Garza did not ef fectively consent; and b. the defendant did not reasonably believe N atalie Garza consented; or 2. The cond uc t threatened or inflicted seriou s bodily injury

. Yo u must all agree the state has proved, beyond a reasonable doubt, either element 1 or 2 list ed above. You need not agree on which of these elements the state has proved.

Poncio conte n ds that it is re ve r s i ble error that S ection 1 d id not read as follo ws : “ Both that

— a. Natalie Garza did not effectively consent when she told the defendant to h it her ; and b. the defendant did not reasonabl y believe Natalie Garza consented when she told t h e defendant to h it her

. ” (emphasis a dded)

. We disagree.9 “ A jur y charge that tracks the language of a particular statute is a proper cha rge. ” Malone v. St ate , 405 S.W.3d 917, 927 (Tex. App.

— Beaumont 2013, pet. ref’d), as c o rrected (July 1, 2013) (ci t ing Mar tinez v . St at e , 92 4 S.W .2d 693, 699 (Tex

. Crim. App. 19 96) ). Here, t he consent application paragra ph tracked the language of the consent as defense to a ssaultive cond uct statute , which reads in relevant part : “ The victim’ s effective consent or the actor’s reasonable b elief that the victim conse nted to the actor’ s cond uct is a defense to prosecution under Se ction 22.01 (Assault)

. . . if

. . . the conduct did not threaten or inflict serious bodily injury

. . . . ” T ex. Pena l Code § 22.06 (a)

. Furthe r , the application p ar agraph tracked the Texas Pattern Jury Charg e:
If you have fo und th at the state has proved the offense beyond a reasonable doubt, you must next decide whether the state has proved that consent does not apply to the defendant’s conduct

. To decide the iss ue of consent, you must d etermine whether the state has proved, beyond a reasonable doubt, either

— 1. b oth that

—

a. [ name ] did not effe ctively consent; and b. the defendant did not reasonably believe [ n ame ] consented; or 2. The conduc t threatened or in fl icted serious bodily injury. You must all agree the state has proved, beyond a reasonable doubt, either element 1 or 2 listed above. You need not agree on which of these elements the state has proved.

See State Bar of Tex a s , Texas Criminal Pattern Ju ry Charges: Crimes against Persons & Property 305 (2020). While “ the Texas Pattern Jury Charges are not ‘ l aw ’ , they are heavily reli ed upon by both the bench and bar. ” H.E. Butt Grocery Co. v. Bilott o , 928 S.W.2d 197, 19910 (Tex

. App.

— San Antonio 1996), af f

’ d , 985 S.W.2d 22 (Tex. 1998) ; s ee also Lerma v. State , No. 03

- 18

- 00578

- CR, 2020 WL 1472362, *3 (Tex. App.

— Austin March 26, 2020, pet. ref’d) (mem. op. , not designated for publication) ( same). Thus, we conclude that th e trial cour t did not err b y not su a sponte including the

w ords “ when she told the defendant to hit her ” in the consent defen s e appl ication paragraph. Because we have concluded ther e is no trial court e rror , we do not address the harm analysis in this cas e
. See Tex. R. App. P. 47

. 1 ( “ The court of appeals must ha nd down a w rit t en opin ion that is as brief as practicable but that addres ses every issue raised a nd neces sar y to f inal disp ositi on of
t he a ppea l .”)

. We overrule Poncio ’ s final issue on ap peal

.
C ONCLUSIO N
Because we over r uled both of Poncio ’ s issue s on a pp eal , we affi rm the trial
court ’ s judgment of conviction.

___ ___ ______ ______________________________ Gisela D

. Triana , Justice Before Chief Justi ce Byrne, Ju stices Triana and Theofanis Affirmed Filed: September 21, 2023 Do Not Publish