TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-00-00351-CR

444444444444444

Rochelle Reed, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT

NO. 0995185, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

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Appellant Rochelle Reed waived a jury trial and entered a not guilty plea; the trial

court found her guilty of the offense of retaliation. Tex. Penal Code Ann. § 36.06 (West Supp.

2001). Appellant’s punishment, enhanced to a second-degree felony by prior felony convictions,

was assessed at imprisonment for three years.

Appellant complains that the evidence is insufficient to sustain her conviction, the

trial court erred in admitting hearsay evidence, and that she was denied the effective assistance

of trial counsel. We affirm the judgment.

A person commits a third-degree felony if she intentionally or knowingly threatens

to harm another by an unlawful act on account of the other’s service as a prospective witness.

Id. § 36./06(a)(1)(A). As amended, the indictment alleged that appellant on or about the

seventeenth day of August 1999 did then and there “intentionally and knowingly threaten to harm,
1

In another paragraph, it was alleged that appellant had previously been convicted of

three felony offenses. Appellant pled “true” to these alleged prior convictions. Proof of any one

of these prior convictions raised the punishment for the charged offense from a third degree felony

to a second degree felony.

2 A “global” point of error, such as this, complaining of the insufficiency of the evidence

does not properly raise factual sufficiency for appellate review. Martinets v. State, 884 S.W.2d

185, 189 (Tex. App.—Austin 1994, no pet.). “After a court of appeals has determined that the

evidence is legally sufficient under Jackson [v. Virginia , 443 U.S. 307 (1979)] to support the

verdict, it may proceed further to review factual sufficiency if it is properly raised.” Clewis v.

State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (emphasis added); accord Davila v. State,

930 S.W.2d 641, 648 (Tex. App.—El Paso 1996, pet. ref’d). Although factual sufficiency has not

been properly raised by a separate point of error, we will, in the interest of justice, review the

factual sufficiency of the evidence.

2

over the phone, another, to-wit: Eric Jeffries and Eric Jeffries’ children, by an unlawful act, to

wit: by shooting Eric Jeffries’ children and threatening to blow their heads off in retaliation for

and on account of the service of the said Eric Jeffries as a prospective witness.”

1

In her sixteenth point of error, appellant insists that: “The judgment should be

reversed because the evidence was insufficient to prove beyond a reasonable doubt that appellant

threatened Eric Jeffries in retaliation for or on account of the service of Eric Jeffries as a

[prospective] witness against her.”

2

In reviewing the legal sufficiency of the evidence, “the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord Patrick v. State, 906 S.W.2d 481, 486

(Tex. Crim. App. 1995); Geesa v. State, 820 S.W.2d 154, 167 (Tex. Crim. App. 1991);
3

Roberson v. State, 16 S.W.3d 156, 164 (Tex. App.—Austin 2000, pet. ref’d); King v. State, 17

S.W.3d 7, 13 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

In reviewing factual sufficiency of the evidence, we view “all the evidence without

the prism of ‘in the light most favorable to the prosecution.’” Clewis v. State, 922 S.W.2d 126,

129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.—Austin 1992, pet.

ref’d). In performing a factual sufficiency review, the courts of appeals are required to give

deference to the jury verdict and examine all of the evidence impartially, setting aside the jury

verdict “only if it is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust.” Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997) (quoting

Clewis, 922 S.W.2d at 129). Recently, the Clewis standard has been reprised, “[T]he complete

and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review

of the elements of a criminal offense asks whether a neutral review of all the evidence, both for

and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine

confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is

greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App.

2000).

We first summarize the evidence to determine its legal sufficiency of the evidence.

In 1994, Eric Jeffries, an Allstate Insurance Company agent, met appellant when she was referred

to him by an automobile dealer. Later, Jeffries introduced appellant to his friend and customer,

Fabian Jones. Jones and appellant formed a romantic relationship that lasted “approximately a

year, two years.” Appellant became pregnant, and to determine whether Jones fathered her
4

unborn child, they consulted a physician to obtain DNA tests. Appellant thought Jones had in his

apartment a file containing information about the DNA tests. In a telephone conversation,

appellant told Jeffries that she was going to get a locksmith to help her gain entrance to Jones’s

apartment so that she could get possession of that file. Unbeknown to appellant, Jeffries taped

this conversation and alerted Jones. Jones remained in his apartment and surprised appellant and

the locksmith when they entered his apartment. Jones filed charges against appellant for burglary.

Jeffries and Jones gave statements to the investigating officer and furnished him the taped

conversation between appellant and Jeffries.

When appellant was tried for that burglary, Jeffries was called as a witness.

Jeffries was present in court but did not testify because appellant entered a guilty plea; appellant

was sentenced to serve a three-year prison term. Soon after being released from prison, appellant

called Jeffries at his place of business. Jeffries testified relative to the telephone call that: “She

[appellant] said, ‘This is Rochelle. You thought I forgot about you, but I hadn’t and I’m going

to get you. I’m going to set you up like you set me up,’ and she told me that she was not going

to go after my business this time; she was going to go after me personally and my family. . . .

She said she was going to blow my . . . kids’ heads off. She felt like I set her up and was

responsible for her going to jail.”

When viewed in the light most favorable to the prosecution, this evidence was

sufficient for the trial court, as the trier of fact, to find the essential elements of the crime charged

beyond a reasonable doubt. The evidence is legally sufficient to support the judgment.
5

We review the remaining evidence to determine whether the evidence is factually

sufficient. The evidence that Jeffries was a prospective witness in appellant’s trial for burglary

of Jones’s apartment is not disputed. However, appellant vehemently denies threatening Jeffries

by telling him she would blow his children’s heads off. The State’s case was dependent upon

Jeffries’s credibility and appellant’s defense was dependent upon her credibility.

Apparently to resolve the credibility issue, evidence was offered, by both the

defense and the prosecution, that included the relationship that existed between appellant and

Jeffries for six or seven years. Appellant and Jeffries’s versions of the relationship were quite

different. Jeffries adamantly maintained that he never had a sexual relationship with appellant.

He testified that they had a business relationship in which she referred clients to him and he had

assisted her in locating a house. Jeffries testified that soon after they met, appellant told him that

Dee Brown, a Boston Celtic basketball player, wanted to marry her and wanted to buy her a house

in Austin. Jeffries said appellant paid him $500 or more a week for several weeks while he

assisted her in finding a suitable house. After looking at many houses, they found one that

appellant liked which was priced in excess of $600,000. Jeffries then obtained the help of a

realtor to assist in the negotiations for the house. When Brown was contacted concerning the

house, Brown’s lawyer responded that Brown was married and did not know appellant. Jeffries

claimed this episode damaged his reputation with the realtor.

The thirty-one-year-old appellant testified that she had three children and had lived

in Austin all of her life. She admitted that she had been convicted previously of “a few
6

misdemeanor theft by check” cases and of five felonies—“Theft by check, aggravated theft,

burglary of a habitation, food stamp fraud, securing execution by deception.”

Appellant testified she met Jeffries in October 1994 when she bought insurance for

a new car. Speaking of Jeffries, a former professional football player, she testified: “We had a

sexual relationship, but we never went out because he was married. ” This relationship began, “at

a Super Bowl party with present and past NFL football players. This was January 30, 1995 when

we first had sexual intercourse.” According to appellant, her romantic relationship with Jeffries

continued until “about 1997.” Jeffries would come to the duplex where appellant lived “on

Aberdeen off of Rundberg. ” However, Jeffries “didn’t like the idea of the maintenance man

would come into my duplex and, you know, one day I came home, I had a washer and dryer and

$100 on the bar. He didn’t like that, so he put me in a duplex in Anderson Mill at Hunter’s

Chase.” Jeffries was the property manager of the duplex to which he moved appellant. Jeffries

helped appellant register her three children in the elementary school across the street from the new

duplex. Appellant did not pay any rent for her new duplex. Sometimes Jeffries would make

appellant’s car payments. Jeffries would come to the duplex to fix the plumbing. “[W]e would

have sex. It started in the garage, over the whole house. . . . He put me up right around the

block from his house.”

Appellant testified that Jeffries’s testimony that they went around town looking at

expensive houses was total fiction. However, appellant recalled one occasion when she

accompanied Jeffries to visit one of Jeffries’ friends at the friend’s place of work. Jeffries and
7

the friend had played football together and the friend had later played for the Philadelphia Eagles.

Near the friend’s place of work, they stopped and looked at a house “that was just extravagant.”

Appellant testified that she went to Jamaica with Jeffries and a group of people

including Jeffries’s wife. After the check appellant had written to pay for her trip “bounced,”

Jeffries paid for appellant’s trip. While they were in Jamaica, “as soon as his wife passed out

from drinking, he would come get me from my room or come to my room.”

Appellant’s recollection of meeting Fabian Jones was different from that of

Jeffries’s account. She testified:

A. Me and Eric Jeffries, we just came from lunch. And Fabian came to pay his

car insurance before he went to work. And I noticed he was looking at me

and I was looking at him. So I got his telephone number off his application,

and so I called him at home, you know. And when I called him, I didn’t say

who -- I said I was Rochelle Reed with MCI. That’s how I started the

conversation. And then I was just like, “Look. I’m the girl in the white

Mustang convertible that you seen at Allstate today.” And that’s how we met.

Q. Did -- were you still in a romantic relationship with Mr. Jeffries at the time?

A. Yes.

Q. Did Mr. Jeffries become aware of your then starting to see Mr. Jones?

A. Yes. He had Mr. Jones’ address and he would come leave notes on my car

when he knew I was over there or he would call me on my cell phone while

I was upstairs in the apartment.

Q. Was he happy about your seeing Mr. Jones?

A. No.

Q. Now, during the course of all this interrelated situation, did you make

complaints with Allstate about Mr. Jeffries?
8

A. Yes.

Q. And did that have something to do with an insurance policy for your daughter?

A. Yes.

Q. And what was the situation with your daughter and your need for insurance?

A. . . . I wanted to get life insurance through Allstate for her.

. . . And Mr. Jeffries told me she got approved and everything. And I was

paying money for this policy that never existed, and when I asked him for a

copy of it, he would always say that he’ll bring it over to the house. And

finally in ‘97 I just called the Allstate business office and asked them did my

daughter have a policy and could I have a copy of it. And they told me that

my daughter was denied.

Q. So that’s what you made a complaint to some of the Allstate people about?

A. Yes.

Q. And you have also made a complaint to one of the officers that testified here

the other day?

A. Yes. I never met him physically. I guess that was him that I talked to over

the phone. I never met him physically.

Q. I believe Officer Toney or Tones, whatever?

A. Yes.

Q. Now, can you remember approximately what date, month and year was this

incident where you went into Mr. Jones’ apartment?

A. I could say it was February of ‘98.

Q. That’s --

A. I could say it’s around February ‘98.
9

Q. Okay. And ultimately there was a warrant issued and you were arrested for

that case, correct?

A. Yes, sir.

Q. All right. And you ultimately pled --

A. Guilty.

Q. -- guilty to that case and the other cases. And that was --

A. Aggravated theft.

Q. No, no. That was when?

A. That I pled guilty? July 7, 1998.

Q. Okay. And you then went to TDC or state jail?

A. I went to TDC September 4, 1998.

Q. All right. Then did you spend your whole time in the TDC unit?

A. Yes, I did. And not the whole time. I was bench warranted back June 26th,

1999 to testify against Cleve Moten.

* * * * *

Q. Yes. They were looking to see if you were aware of any illegal activities on

his part, right?

A. Yes.

Q. Now, you then got out of TDC in August, correct?

A. August 10 on a Tuesday.

Appellant testified that she served nine months in prison and found it very

unpleasant; she resolved to “do everything right.” She went to the Department of Public Safety
10

to renew her driver’s license. She found that there was another Rochelle Reed, and that there was

an unserved felony warrant for the arrest of the other Rochelle Reed. This prompted appellant

to talk to a DPS officer who explained how she could get a new driver’s license number. To drive

her car, appellant knew she would have to obtain liability insurance.

Appellant called A-1 Insurance Agency and was told to call back later. She

testified:

Q. And did you make the call again?

A. Yes.

Q. And what occurred on this call?

A. I told him that I called earlier. I gave him my name. I started to give him the

model and make of the vehicle. And then he said, “Ms. Reed.” And when

he said “Ms. Reed,” my heart dropped.

Q. And why was that?

A. Because Eric Jeffries is the only one -- male that ever called me Ms. Reed.

Q. So you identified yourself by name?

A. I told him my name.

Q. And then you stated your car, and then he interrupts with that.

A. Yes, he told me he was there by his self.

Q. Okay. So did you -- did he say who he was or did you realize?

A. I realized who he was.

Q. And were you surprised to hear his voice?
11

A. Yes. I been to that office before, but he told me he was selling Primeco

telephones.

Q. And you weren’t aware that he was selling insurance with A-1?

A. No, I thought his insurance days were over with.

Q. So then what happened and what kind of conversation took place?

A. It wasn’t much of a conversation. He told me he was there by his self and

come over for the chair. And I hung up the telephone. That was it.

Q. And what did you interpret that to mean?

A. The chair? Sex. We called it with our pet names. We called it the chair.

Q. And when had been the last time you had had any communication directly

with him?

A. Before I went to TDC during the conversation with the burglary of a

habitation.

Q. And you recognize Sergeant Canales was the one that investigated that?

A. Yes, he was the detective that was on the case.

Q. And back at that point in that burglary investigation, did you acknowledge, to

the sergeant at least finally at some point, that you had been involved with

both of these individuals?

A. Yes. I told him, but he told me he already knew that.

Q. And who had he talked to prior to you?

A. Eric Jeffries and Fabian Jones.

Q. And so he seemed to acknowledge that he knew you had been romantically

involved with both of those people?

A. Yes, yes.
12

Q. Now, Rochelle, when you made this call -- let me rephrase that. At any time

did you make a call to Eric Jeffries in August of 1999 threatening him in any

manner?

A. No, sir.

Q. Is Eric Jeffries aware of your problems, criminal problems from the past?

A. Yes.

Q. So he would be aware that you have convictions from the past; is that right?

A. Yes.

Q. Would he be aware that maybe some people might doubt your word because

of that?

A. Oh, yes. He knows that. He got upset with Skip Roberts because they

believed me and he brought that up to my attention. He couldn’t believe that

they took a statement from a convicted felon.

Q. What reasons do you believe that Eric Jeffries would have to hold a grudge or

be mad at you?

A. I can answer the question? Because I turned Eric in for the money at Allstate.

He was not only using me, he was trying to blame his secretary for stealing

money. He had just gotten in a real financial bind.

Q. And was he mad that you ultimately finally ended the sexual relationship you

had with him?

A. Yes, I couldn’t take it no more.

Q. And do you know whether or not he ever revealed any of this to his wife?

A. I don’t think -- if he’s denying it to you all, I know he denied it to his wife.

As appellant was about to finish her testimony, she was asked:
3 Appellant later confessed that her second statement that she had been raped was untrue.

She was trying to make Jones feel sorry for her.

13

Q. Now, Rochelle, obviously you know that there’s -- from your past history, at

least in the last 10 years or so, there are many reasons why this judge might

have doubts to believe your word; is that right?

A. Right.

Q. And is there any reason in particular that you think, why should she believe

your word in this case?

* * * * *

A. In the past when I have done bad things and made up things and got a plot and

I contacted Eric Jeffries, I got taped. And I wouldn’t have called Eric again

and threaten his kids, knowing he could possibly tape me again. And when

he asked me to come by the office, I knew that that was not the place to go

because when I went to TDC, I knew when I got out I had to make a change

and going back to old habits was going to land me right back in TDC. And

I did not want to go over to Eric Jeffries’ office when he asked me to come

over there. I know I committed crimes. I pled guilty to all of those. I did

my time, and when I got out of TDC, I never wanted to go back to jail, ever.

Michael Canales a detective with the Austin Police Department investigated the

“unique” burglary of Fabian Jones’s apartment. Canales interviewed and obtained statements

from Jones, Jeffries, and appellant. Canales had the taped conversation between appellant and

Jeffries in which appellant told Jeffries of her plan to enter Jones’s apartment to obtain DNA

reports. After appellant made her first sworn statement denying that she entered Jones’s

apartment, Canales testified he played a portion of the tape for appellant. Appellant became

nervous and said she would change her earlier statement and tell the truth. In her second

statement, appellant stated that she entered Jones’s apartment because she had been raped. 3

 Later
14

appellant called Canales and told him Jeffries had threatened her. In his interview with Canales,

Jeffries told Canales that he was concerned that appellant would retaliate against him. Canales

affirmed that it was clear that the burglary “was based on these DNA records.” The DNA records

that Canales saw “appeared to be DNA records between Ms. Reed and Mr. Jones.” Canales

testified that he was familiar with appellant’s reputation for telling the truth and that he “wouldn’t

put much credibility on it.”

Troy Gay, an Austin Police Department employee, testified that on August 19,

1999, he had a conversation with appellant. Appellant wanted to renew her complaint of

aggravated assault against Fabian Jones. After making her original complaint about this alleged

offense, appellant asked that the case be closed because she was “pregnant” and because there

were “some complications.” Because it was still within the statute of limitations, Gay reopened

the case and assigned it to another detective.

Daniel Toney, a detective with the Austin Police Department, testified that on

March 20, 1998, appellant called him wanting him to follow up on a theft complaint she had made

March 8, 1998. Appellant had accused Jeffries of stealing $11,000 of her money. Appellant

claimed she had paid this amount of money over a period of about two years to Jeffries to pay

insurance premiums, but that Jeffries had not applied the money for insurance premiums. Because

appellant had not furnished any documentation to support her claim, Toney testified, the

investigation was suspended until appellant furnished more evidence.

Nelson Roberts, an agency manager for Allstate Insurance Company, testified that

he had been Jeffries’s agency manager from May 1996 until Jeffries left the company in
15

September 1997. Roberts testified that Jeffries’s reputation for truth and veracity was bad.

Roberts’s own opinion of Jeffries had not been influenced by appellant’s complaints against

Jeffries.

Sergeant Aaron Ard, a DPS officer, testified that in August 1999 he met with

appellant. Appellant inquired about having her driver’s license number changed. Ard discussed

with appellant the documentation necessary for her to have her driver’s license number changed.

Ard assumed that appellant would return with the necessary documentation to have her driver’s

license number changed, but she did not return.

In our neutral review of all of the evidence, we do not find that the proof of guilt

is so obviously weak as to undermine confidence in the trial court’s determination of guilt, or that

although adequate if taken alone, is greatly outweighed by contrary proof. Therefore, we hold

that the evidence is factually sufficient to support the judgment of the trial court. Appellant’s

sixteenth point of error is overruled.

In her fifteenth point of error, appellant urges that the judgment should be reversed

because the trial court erred in admitting irrelevant hearsay evidence over objection of trial

counsel. Appellant argues that the trial court 

erred in admitting evidence in the form of testimony from Michael Canales, over

objection of counsel for appellant, that Eric Jeffries as a result of his statement

implicating appellant in the burglary case, expressed concern for his safety, that

appellant was manipulative, that she would retaliate against him for helping the

police and the State, and that his demeanor indicated that he was concerned for his

safety.
16

Officer Canales was asked: “And when you took Mr. Jeffries’ statement in regard to the

burglary, did he express any concern for his safety as a result of that statement?” Canales

responded: “Yes, sir, he did.” No objection having been made, Canales was then asked:

“Specifically, what did he express to you at that time?” Defense counsel objected “on the grounds

of relevancy.” After hinting that another objection might be appropriate but no other objection

being made, the trial court observed the question called for hearsay. However, appellant never

objected on that ground. The court stated: “I am going to go ahead and let it in because I will sort

it all out. If it’s not to be considered, I won’t consider it.”

To preserve a complaint for appellate review, the record must show that the

complaint was made to the trial court by a specific, timely objection and that the trial court either

expressly or implicitly ruled on the objection. Tex. R. App. P. 33.1(a)(1), (2). Here the question

was asked and answered before counsel objected. The objection was not timely. See Dinkins v.

State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). Counsel untimely objected on the “grounds

of relevancy” but on appeal complains of hearsay. The point of error does not comport with her

trial objection even if her trial objection had been timely. Because the error complained of on

appeal does not comport with the trial objection, the complained of error was not preserved for

appellate review. See McFarland v. State, 845 S.W.2d 824, 838 (Tex. Crim. App. 1992); Rezac

v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Furthermore, the trial court’s ruling was

ambivalent and may be interpreted as sustaining appellant’s objection. For these several reasons,

the record does not show that the error complained about on appeal, if error, was preserved for

appellate review. Appellant’s fifteenth point of error is overruled.
17

In fourteen points of error, appellant contends that her trial counsel was ineffective

because counsel:

 1. failed to object to inadmissible evidence that appellant allegedly threatened

complainant in an unrelated incident;

 2. failed to object to inadmissible evidence that appellant had reported that

Jeffries had threatened her;

 3. failed to object to inadmissible evidence that appellant has asked Jeffries not

to testify against her in a prior case;

 4. failed to object to inadmissible testimony by Jeffries that appellant had tried

to influence him to withhold evidence in a prior case;

 5. failed to object to inadmissible testimony that appellant told Jeffries, the

complainant and witness, of her plans to commit a burglary;

 6. failed to object to inadmissible hearsay evidence from Canales concerning

alleged statements made by Jeffries;

 7. failed to object to inadmissible testimony from Jeffries concerning appellant’s

plan to burglarize Jones’ residence;

 8. failed to object to certain testimony from Canales on the grounds that the

admission of the evidence violated the Sixth Amendment;

 9. failed to object to inadmissible evidence from Canales concerning a statement

made by appellant in a prior case;

10. failed to object to irrelevant testimony of appellant on cross-examination

concerning a statement she gave in a prior case;

11. failed to object to inadmissible hearsay evidence of an alleged extraneous act;

12. failed to object to inadmissible irrelevant evidence;

13. elicited damaging inadmissible evidence and opened the door to other

damaging evidence;
18

14. elicited damaging testimony concerning appellant’s relationship with Jones.

To show ineffective assistance of counsel, appellant must show that: (1) counsel’s

performance was deficient, in that counsel made such serious errors that he was not functioning

effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree

that appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Shaw v. State, 874 S.W.2d 115,

118 (Tex. App.—Austin 1994, pet. ref’d); O’Hara v. State, 837 S.W.2d 139, 143 (Tex.

App.—Austin 1992, pet. ref’d). Counsel’s performance is to be judged by the “totality of

representation” provided. Strickland, 466 U.S. at 690; Butler v. State, 716 S.W.2d 48, 54 (Tex.

Crim. App. 1986). In deciding an ineffective-assistance claim, this Court must judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed at the

time of counsel’s conduct—not by hindsight. Butler, 716 S.W.2d at 54. We must then determine,

in light of all the circumstances, whether the acts or omissions are outside the wide range of

professionally competent assistance. Strickland, 466 U.S. at 690. Appellant bears a heavy burden

to prove his ineffective-assistance claim. Id. Counsel is strongly presumed to have provided

adequate assistance and to have made all significant decisions in the exercise of reasonable

professional judgment. Id.

By failing to raise the issue of ineffective assistance of counsel in the trial court,

appellant did not waive her constitutional right to complain of ineffective assistance of counsel.

See Robinson v. State, 16 S.W.3d 808, 812 (Tex. Crim. App. 2000). However, rarely will the
19

record on direct appeal be sufficient to prove that counsel’s performance was deficient. Id. at 813

n.7; Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).

In determining whether trial counsel’s performance was deficient, we do not

speculate about counsel’s trial strategy. Blevins v. State, 18 S.W.3d 266, 271 (Tex. App.—Austin

2000, no pet.); Mayhue, v. State, 969 S.W.2d 503, 510 (Tex. App.—Austin 1998, no pet.).

Moreover, there is a strong presumption that trial counsel’s conduct was within the range of

reasonable professional assistance. Thompson, 9 S.W.3d at 814. This burden requires the

appellant to bring forward a record from which we may discern that trial counsel’s performance

was not based on sound strategy. Blevins, 18 S.W.3d at 271. Without an evidentiary hearing,

either on a motion for new trial or on a collateral attack on the judgment, rarely can it be shown

that counsel’s performance was not based on sound strategy.

This is not the rare case. Nothing in this record reveals counsel’s trial strategy in

regard to his alleged deficient performance. Although we do not speculate on counsel’s strategy,

in this case, the trier of fact had to determine whether the testimony of the complainant or the

appellant was more credible. There is testimony in the record that the reputation of both the

appellant and the complainant is such that neither was worthy of belief. Perhaps trial counsel

believed that all of the evidence about their relationship would convince the trier of fact that

appellant’s testimony was more credible. That trial counsel’s strategy was not successful is not

the test of whether he rendered effective assistance of counsel. Examination of the record on

direct appeal fails to show that trial counsel’s performance was not based on sound trial strategy.
20

We hold that appellant has not overcome the strong presumption that her trial

counsel’s strategy was reasonable. We overrule appellant’s points of error in which she claims

she did not receive effective assistance of counsel.

In her seventeenth point of error, without further argument or citation of authority,

appellant contends that “harm is established by the cumulative impact of the errors.” A point of

error based upon the cumulative effect of the errors is not a proper point of error, and presents

nothing for review. Stoker v. State, 788 S.W.2d 1, 18 (Tex. Crim. App. 1989); Hollis v. State,

509 S.W.2d 372, 375 (Tex. Crim. App. 1974); Amis v. State, 910 S.W.2d 511, 520 (Tex.

App.—Tyler 1995, pet. ref’d); Lape v. State, 893 S.W.2d 949, 953 (Tex. App.—Houston [14th

Dist.] 1994, pet. ref’d); McDuffie v. State, 854 S.W.2d 195, 220 (Tex. App.—Beaumont 1993,

pet. ref’d). Appellant’s seventeenth point of error is overruled.

The judgment of the trial court is affirmed.

 

Carl E. F. Dally, Justice

Before Chief Justice Aboussie, Justices Patterson and Dally*

Affirmed

Filed: February 8, 2001

Do Not Publish
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* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.

See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).