Delrio v. State

In Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992), venire person Johnny Martinez told the trial court that he knew the defendant, who was on trial for a drug offense, from Martinez's work as an ex-narcotics officer. Martinez then stated that he could not be impartial in the defendant's trial. Defendant's counsel failed to challenge Martinez for cause or use a peremptory strike against him, and Martinez was seated on the jury. The court held that because the record was silent as to counsel's strategy, the record was insufficient to rebut the strong presumption in favor of effective assistance. Delrio, 840 S.W.2d at 447. The court noted it must "presume that trial counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that he 'made all significant decisions in the exercise of reasonable professional judgment.'" Id. (quoting Strickland, 466 U.S. at 690). The court stated that though "we would certainly expect the occasion to be rare, we cannot say . . . that under no circumstances could defense counsel justifiably fail to exercise a challenge for cause or peremptory strike against a venireman who deemed himself incapable of serving on the jury in a fair and impartial manner." Id. at 446.