### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

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Rochelle Reed, Appellant
v. The State of Texas, Appellee

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DISTRICT CO URT OF TRAV IS COUNTY, 390 TH J

UDICIAL DISTRICT NO. 0995185, HONORAB LE J ULIE H. KOCUREK, JUDGE PRESIDING

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4444444444 Appellant Rochelle Reed

waived a jury tr ial 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 pr ior felony con victions, was assessed at impr isonment f or t hree y ears. Appellant complains that the evidence is insufficient to sustain her conviction, the trial court er red in admitting hear say evidence, and that she was denied the e ffective assistance of trial counse l. We affirm the judg ment. A person commit s a third-degree felony if she i ntentiona llyor knowingly

threatens t o harm another by an unlawf ul act on accou nt of the other ’s serv ice as a pr ospective wit ness. Id. § 36. / 06(a)(1)(A). As amended, the indictment alleged that appellant on or about the
seven teenth dayof Au gu st 19 99 di d t

hen a nd th ere “ intentionally and knowingly threaten to har m,1 Inanother par agraph, it was alleged that appellant had previou sly been convicted of

three felony offenses. Appellant pled “ true” to these alleged prior convictions. Pr oof of any one of these prior convictions raised the punishment for the charged offense fr om a third degr ee felony to a second degree felony.

2 A “ global” point of err or, such as this, complaining of the insufficiency of the evidence does not properly raise factual sufficiency for appellate review. Marti nets v. State , 884 S. W. 2d 185, 189 (Tex. App.

—

Austin 1 994, no pet. ). “ After a cour t of appeals has determined that the evidence is lega

lly sufficie

nt un de r Ja ckson[

v. Virgin ia , 443 U. S. 307 (1979)] to support the verdict, it may proceed fur ther to r eview factual sufficiency if it is properly rais ed .” Clewis v. State , 922 S. W. 2d

126, 133 (Tex. Crim. App. 1996) (emph asis adde d); accor

d Davila v

. State , 930 S. W. 2d 641 , 648 (Tex. App.

— El Paso 1996, pet. ref’d)
. Although factual sufficiencyhas not been properly rais ed by

a se parate point of error, we wi ll, in the interes t of j ustic e, review the factual sufficiency of the evidence. 2 ov er t he ph on e, ano th er, to-wit: Eric Jeffr ies and Eric Jeffr ies’ children, by an unlawful act, to wit: by shooting Eric Jeffr ies’ children and thr eateningto blow the ir heads off in retaliation for and on account of the ser vice of th e said Er ic Jeffr ies as a pro spective witn ess. ” 1

Inher s ix te en th po in t o f e rro r, appe llant insists that: “ The judgment should be
rever sed becaus e the evi dence w as ins ufficient to

prove beyond a reasonable doubt that appellant threate ned Er ic Jeffr ies in r etaliatio n for or o n account of the ser vice of E ric Jef fr ies as a [p ros pe ct iv e] witn es s a

ga in st her. ” 2 Inreviewing the l egal suff iciency of the evid

ence, “ the relevant q

uestion is wh et her, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact cou ld have found the ess ential el ements

of the crime beyond a reasona ble doubt. ” Jacks on v. Virgin ia , 443 U. S. 307, 319 (1 979); accor d Patr ick v. State , 906 S. W. 2d 481, 486 (Tex. Crim. App. 1995) ; Geesa v. State , 820 S. W. 2d 154, 1 67 (Tex
. Crim. App. 1991) ;3

Rober son v. State , 1 6 S. W. 3d 156 , 164 (Tex. App.

— Aust in 200 0, pet. ref’d); King v. State , 1 7 S. W. 3d 7, 13 (Tex
. App.

— Houston [14th

Dist. ] 2000 , pet. ref’d). Inreviewing factual sufficiency of the evidence, we view “ all the evidence without the prism of ‘in the ligh

t most favorable to the

prosec ution
. ’” Clewis

v. State , 922 S. W. 2d 126, 129 (Tex. Cri m. App. 1996) ; Stone v. State , 823 S. W. 2d 375, 381 (Tex. App.

— Austin 1 992, pet. ref’d)
. In perfor ming a factual sufficiency review, the courts of appeals are r equired to giv e deference to the jury ver dict and examine all of the evidence impartially, setting as ide th e j ury verdict “ only if it is

so contrary to the ov erwhelming we ig ht of the ev id ence as to be cle arly wrong and unjus

t. ” Cain v. State , 958 S. W. 2d 404 , 410 ( Tex. Cri m. App. 1997) (quoting Clewis , 922 S. W. 2d at 129). Recently, the Clewis standard has been

reprised, “ [T]he complet e and co rrec t s ta ndard a re vi ewin g c ou

rt must follow

to conduct a Clewis

factual sufficiency review of the elements of

a crimin al

of fe ns e a sks w

heth er a neutral r eview of all the evidence, both for and against the finding, demonst rates that the

proof of guilt is s o obvious ly weak a s to undermine confidence in the

jury’s determination, or the pr oof of guilt, although adequa te if taken

alone, is greatly outwe ighe d by c ontrary proof. ” Johnso n v. State , 23 S. W. 3d 1 , 11 (Tex. Cri m. App. 2000)
. We first summar ize the evidence to determine its legal sufficiencyof the evidence. In1994, Eric Jeffries, an Allst ate Insurance Company agent, met appellant when she was referred to him b y a

n a utom ob il e dea

ler. La ter, Je ff rie s i nt rod uc ed ap pe ll an t t o his fri end a nd cu st om er, F abian Jones
. Jones

and appe llant formed a romantic relationship

that lasted “ approximately a ye ar, tw o year s. ” Appellant became pregnant, and to determine whether Jones father ed her4

un bo rnchild, they cons

ulted a ph ysicia n to obtain

DNA tests. Appellan

t thought J

ones ha d in his apartment a file containing infor mation about the DNA tests. In a telephone conversation, appella nt told Je ffries that she

was goi ng to get a

locksmi th to help her gain entr ance to Jones ’s apartment so that

she could get possess ion of that file. Unbeknown to appellant, Jeffries taped this conversation andalerted Jones. Jones remained in his apartment and surpr ised appellant and the locksmi

thwhen the

y entered his

apartment. Jones filed charges against appellant for burglar y. Jeffries and Jones gave statements to the investigating officer and fur nished hi m the taped
conver sation between appellant an d Jeffr ies.

When appellant was tried for t hat burglar y, Jeffries was called as a wi tness. Jeffries was present in court but did not testify because appellant entered a guilty plea; appellant
was sentenced to serve a three-year prison ter m. Soon after being r eleased from pri son, appellant called Jeffries at his place of business. Jeffries testified r elative to the telephone call that: “ She [appellant] said, ‘This is Rochelle. You thoughtI 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 per sonally 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 pr osecution, this evi den ce was sufficientfor the tr ial court, as the t rier of fact, to find the essential elements of the crime charged beyond a reasonable

doubt. The eviden

ce is le gally sufficient to s upport the judgme

nt.5 We review the remainin

g evidenc e to dete

rmine whether the ev

idence i s factua

lly sufficient. The evidence that Jeffries was a prospective witn es s i n a pp el la nt ’stri al fo r bu rgl ary 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 ca se was dependent upon Jeffries’s credibili ty and appellant’s defense was de pendent upon her credibil ity. Ap pa re ntly to resolve the credibility i ssue, evidence was offered, by both th e defense and the prosecution, that inc luded the relationship that existed between appellant and Jef fries for six or seven years. Appellant and Jeffries’s versions of the r elationship were quit e different. Jeffries adamantly maintained that he never had a s exual relation ship with appe llant. He testified that they

had a bus iness

relationship

in which s

he 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 B rown, a

B oston Celtic b asketball pl ayer, wanted to ma rr y her and wanted to buy her a house inAu st in
. Je ff rie s s ai d a

pp el la nt pa id him $ 50 0 o r mo re a

we ek fo r s ev era l weeks while he assisted her in finding a s

uitable house. After looking at ma ny house s, th ey found one that appellant liked which was priced in excess of $600, 000. Jeffries then obtaine d the h elp o f a realtor to a ssist in the negotiations for the house. When B rown was contacted concerning the house, B rown’s lawyer responded that Brown was married and did not know appellant. Jeffries cl aime d t hi s e pi so de da mage d his

rep ut at io n w it h t he rea lt or. The thirty-one- year-old appellant testified that she had three childr en and had lived inAustin all of her life. She admitted that she had bee n convict ed previously of “ a few6

misdemeanor t heft by che ck” cases and of five fe lonies—

“ Theft by che ck, aggravated theft, burglar y 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 S up er Bow l p art

y w it h p res en t a nd pa st NFL f oo tb al l p la

yers . Th is

wa s J an ua ry30, 1995 when
we first had sex

ual intercourse. ” According to appellant, her r omantic relationship with Jeffr ies continued until “ about 1997
. ” Je ff ries 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 washerand dryer and $100 on the bar. He didn’t like that, so he put me in a duplex in Anderson Mill at Hun ter’s Chase. ” Jeffries was the proper ty manager of the duplex to which he moved appellant. Jeffries helped appellant register her th

ree chil dre n in t he el em en ta ryschool across the street from the new duplex. Appellant did not pay any rent for her new duplex. Sometimes Jeffries would make appe llant ’s car pay ments. Jeffries woul d come to t he duplex to fix the plu

mbing. “ [W]e would have sex. It started in the gar age, over the whole h ouse. . . . He p ut me up right ar ound the block from his house. ”

Appellant testified that

Jeffries’s testimony that they wentaround town looking at expensive ho us es

wa s t ot al fi ct io n. How ev er, a ppellant recalled one occasion when she accompanied

Jeffries to visit one of Jeffr ies’ friends at the friend’s place of work. Jeffries and7

the friend had played football together and the fr iend had later played for the P hiladelph ia Eagles. Near the friend’s place of work, they sto

pped and looked at a house “that was just

extravagant. ” App ellant tes tified that s he went to

Jamaic a with Je ffries and a group of pe ople including Jeffries’s wife. Aft er the check appellant had written to pay for her tr ip “ bounced, ” Jeffries paid for appellant’s tr ip. While they wer e in Jamai ca, “ as soon as his wife passed out from drinking, he would c ome get me from my room or come to my room. ” Appe llant ’s recoll ec tion of meeting F abian Jones was different f

rom that of Jeffries’s account. She testified:
A. Me and Er ic Jeffr ies, we just came from lunch. And Fabian came t o pay his car insu rance before he we nt to work. And I notice d 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, youknow. And when I called him, I didn’t say who -- I said I wa s Roch ell e Reed with MCI. That’s how I started the conversation. And then I was just like, “ Look. I’m the gir l in t he w hite Mustang convertible that you se en at Alls tate 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 M r. Jeffr ies become awar e of your then star ting to see M r. Jones? A. Yes. He had Mr. Jones’ address and he would come leave notes on my car wh en he kn ew I w as ov er t here or he would ca

ll me on my c ell phone

while I was ups tairs in the ap artment. Q. Was he happy about your seeing Mr
. Jones? A. No. Q. Now, during the co ur se of all this interr elated situation, did you make complaint s with Allstat e about Mr
. Jeffr ies?8

A. Yes. Q. And did that ha

ve some thing to do with an insurance policy for yo ur dau gh ter? A. Yes. Q. And what was the situation

with your daughter and your need for insur ance? A.
. . . I w an

te d to g et li fein su rance th rou gh Al ls ta te fo r he r.

. . . And Mr. Jeffries told me she got approved and ever ything. And I was paying money for this policy that never exis te d, and

wh en I a sk ed him f or a copyof it, he would always say that he’ll bring i t over to the house. And finally in ‘97 I just called t he Allstate bu siness office andasked them did my daughter have a policy andcould I have a copy of it. And they told me that my daughter was denied. Q. So tha

t’s what you made a

complain

t to some of the Allstate peo

ple about? A. Yes. Q. And you have also made a co mp la in t t o o ne of th e o ff ic ers th at te st if ie d h ere 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 b el ieve

Of fi ce r To ney o r To ne s, wha

tever? A. Yes. Q. Now, can you remember appr oximately what date, month and year was this incident where you wen

t into Mr. Jones ’ apartment? A. I could say it was Febr uary of ‘98. Q. That’s

-- A. I could say it’s around F ebruar y ‘98.9

Q. Okay. And

ultimate ly ther e was a

warr ant issued and you were arrested for that cas e, correct? A. Ye s, si r. Q. All right
. And y ou ult imate ly ple d -- A. Guilty. Q. -- guil

ty to t hat c ase and t he ot her cas es. And that wa s -- A. Aggravated theft. Q. No, no. That was when? A. That I pled guilty? July 7, 1998. Q. Okay. And you the

n went to TDC or state ja il? 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. Ye s. They w ere

looking to see if you were aware of any illegal activities on his part, right? A. Yes. Q. Now, you then g ot out of TDC in Augus t, correct? A. August 10 on a Tuesday. Appellant testified that she ser ved nine mon ths in pri son a nd fo un d i t v ery unpleas ant; she resolv ed to “ do everything right. ” She w ent to the Department of Public Sa fety10

to renew her driver’sli ce ns e. Sh e f

ou nd th at th ere was another Rochelle Reed, and that there was an unserved felony warr ant for the ar rest 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.

App ellant 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 o ccurred on this ca ll? 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 dr opped. Q. And why wa s that? A. B ecause 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 state d your car, and then he interrupts with tha t. A. Yes , he to ld me he was there by his s elf. Q. Okay. So did you -- did he say who he was or did you realize? A. I r ealized who he was. Q. And were you surpr ised to hear his voice?11

A. Yes. I been to that office before, but he told

me he wa s sell ing Prim ec o 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 wha t kind of conversation took place? A. It wasn ’t much of a c onversation. He told me he was there by his self and come ove r for the chair. And I hung up the telep hone. That was

it. Q. And what did you interpr et that to mean? A. Th e cha

ir?S ex . We

ca ll ed it with ou r pet n am es . We

ca ll ed it th e cha ir. Q. And when had been t he last time you ha

d had any

communic ation directly with him? A. B ef ore I we nt to TDC du ring the conv ersati on wit

h the burglary of a habitation. Q. And you recogn

ize S ergeant Canale s 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 burglar y investigation, did you acknowledge, to th e sergean t at leas

t finally at s ome point, that you ha d been involved with both of t hese individ uals? A. Yes. I told him, but he told me he already

knew tha t. Q. And who had he talked to prior to you? A. Er ic Jeffr ies and F abian Jones. Q. And so he s eemed to

acknowl edge tha

t he knew

you had be en romanticall y involved with both of those people? A. Yes, yes.12

Q. Now, Rochelle, when you made this ca

ll -- let me rephrase that. At any time did you make a

call to Eric Jeffries in August of 1999 thr eatening him in any ma nn er? A. No , si

r. Q. Is Eric Jeffries awa

re of your problems, criminal problems from the pa st? A. Yes. Q. So he would beaw are that you ha

ve convic tions from the pa st; 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 broug ht tha t up to my att ention. He coul dn’t

believe that they took a statement from a convicted felon. Q. What reasons do youbelieve that Eric Jeffr ies would have to hold a grudge or be mad at you? A. I can answer the question? B ecause I turned Er ic in for the money at Allstate. He was notonly 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 ultimate ly finally ended the sexual relationship you had with h

im? A. Yes, I couldn’t take it no more. Q. And do you know whether or not he ever r evealed 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 aske d:3 Appellant later confessed that her second statement that she had been rapedwas untrue. S he wa s t ryi ng to ma ke Jone s f ee l s orry fo r he r. 13 Q. Now, Rochelle, obviously you know that there’s -- fr om your past history, at least in the last 10 years or so , th ere are many r easons why this judge might have dou bts to be lieve you

r word; is that right? A. Right. Q. And is there any reas on in

particular that you th

ink, why shou

ld she believe your wor d in this case? * * * * * A. Inthe past when I have done bad things and made up things and got a plot and I contacted Er ic Jeffr ies, I got taped. And I wouldn’t have called Eric aga in and threaten his kids, knowing he could possibly tapeme again. And when he asked me to come by the office, I knew that that was not the place to go because when I wen

t to TDC, I knew whe

n I got out Ihad to make a change and going back to ol d habits

was goi ng to land me right back in TDC
. And I did notwant to go over to Eric Jeffries’ office when he a sked me

to come over there. I know I committed crimes. I pled guilty to all of those. I did myti me , and w

hen Igo t o ut

of TDC , I n ev er w an

te d to g o b ack to j ai l, eve r.
Michael Canales a

detective with the

Austin Police

Department i nvestig ated the

“ unique” burglar y of F abian Jones’s apar tme nt. Ca nales i

nterviewed a

nd obtaine d state

ments f rom Jones , Jeffries, and appe llant. Canales had the ta ped conv ersation bet

ween ap pellant an d Jeffries in which appel lant tol d J eff ries of h er pl an

to e nte r Jo ne s’ s a

pa rtment t o obta in DNA
r epor ts. Aft er appe llant made her first sworn statem ent denyi ng tha t she ente red Jones’s apartment , Ca nales t

estified he playe d a portion of the ta pe for appellan

t. Appellan

t became
nervous and said she would change he r ea rli er s tatement and tell the truth. In her second stateme nt, appellant stated that she entered Jones’s a partment because she had been raped. 3 Later14

appellant called Canales and

told him Jeffr ies had thr eatened her
. In his int ervi ew with C anales, Jeffries told

Canales that

he was concerned that appellant would retaliate against him. Canales affirmed that it was cl ear th at the bur glar y “ was based on these DNA r ecords. ” The DNA r ecords that Canales saw “ appeared to be DN A recor ds betwee n Ms. Reed and Mr. Jones. ” Canales testified that he was familiar with app ellant’s reputation for telling the truth and t hat h e “ would

n’t put much credibility on it. ”

Troy Gay, an Austin Police Depar tment employee, testified that on August 19 , 1999, he had a conversation with appellant. Appellant wanted to renew her complaint of aggravated assault against F abian Jones. After making her or iginal complaint about this alleged offense, appellant asked that the ca se be closed be ca us e s he wa s “pre gn an

t” an d b ec au se

th ere
we re “ some complications. ” B ecause it was still within the statute of limitations, Gay reopened the case and ass igned it to another detective.

Daniel Toney, a detective with the Austin Police Departme nt, testif ied that on March 20, 1998, appella

nt called him wanting h

imto 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 pai d this amount of money over a per iod of about two years to Jeffr ies to pay insurance prem iums, but that Jef fr ies had not app lied the mo ney for insur ance pr emiums. B ecause appellant had not furnished any doc umentation to support her claim, Toney testified, the investigation was suspe

nded until appellant furnished mor e evidence. Nelson Roberts, an agency manager for Allstate Insurance Company, testified that he had been Jeffries’s agen cy manag er from May 1996 until Jeffries l eft the com pany in15

September

1997. Roberts testified that Jeffries’s r eputation for tr uth and veraci ty was bad. Robe rts’s own opinion of

Je ff ri es had not been i nfluenced by appellan t’s complai nts against Jeffr ies. SergeantAaron Ar d, a DPS of ficer, testifie d that in Au gust 199 9 he met wi

th appella nt. Appellant inquired about having her driver’s license number changed. Ard discussed with appellant the documentation necess ary for her to have her driver’s license number changed. Ard assumed that appellant

would return with

the n ece ssa

ry docum enta

tion t o hav e her drive

r’s license number changed, but she did not retur n.

Inour neutr al review of all of the evidence, we do not find that the proof of guilt is so obvious ly we ak as

to und ermine c onfide

nce i n the trial court’s determination of guilt, or that although a

dequate if taken al one, is greatly outweighed by contr ary pr oof. Therefor e, we hold that the evidence is factually sufficient to support the judgment of the trial cour t. Ap pella nt’s sixteenth point of err or is over ruled.

Inher fifteenth point of

err or, appellant urges that the judgment should be reversed because the trial cour t err ed in admitting irr elevant hearsay evidence over objection of tri al
counse l. Appellan

t argues that

the trial court

err ed in ad mi ttin g evi denc e i

n t he fo rmof testimony from Michael Canales, over objection of counsel for appellant, that Eric Jeffr ies as a result of his statement implicating appellant

in the burglar y case, expressed concern for his safety, that a ppellant was ma nipulative , that she

would retaliat

e agains t him for help ing th e 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 regar d to the burglar y, did h e e xp re ss any concern for his safety as a result of that statement?” Canales respon d ed: “ Yes, sir, he did. ” No objection having been made, Canales was then asked:

“ Specifically, what did he express to you at that ti me?” Defen se counsel objected “ on the grounds of relevancy. ” After hinting that another objection might be appropr iate but no other objection being made, the trial cour t observed the question called for hear say. However, appellant never objected on that ground. The court stated: “ I am going to go ahead and let it in be ca us e I wi ll sort it all out. If it’s not to be conside red, I won’t cons ider it. ” To preserve a complaint for appel la te review, the recor d must show that the complaint was made to th e trial court by a sp ecific, timely objection and that the trial cour t 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. Cri m. App. 1995). Counsel untimely objected on the “ grounds of relevancy” but on appeal complains of hearsay. The point of err or does not comport with her tri al obje ction even if her tr ial objection had been timely. B ecause the error complained of on ap pe al do es no t c om po rt with the trial objection, the complained of err or was not preser ved for appella te review. See McF

arland v

. State , 845 S
. W. 2d 824 , 838 (Tex. Crim. App. 1992) ; Rezac
v. State , 782 S. W. 2d 869, 870 (Tex. Cri m. App. 1990). F urther more, the trial cour t’s ruling was ambivalent

and may be interpr eted as sustaining appe llant’s objection. F or these several reasons, the record does no t show that the error complained a bout on ap

peal, if err or, was preserved for appellate review. Appellant’s fifteenth point of err or is over ruled.17 Infourteen points

of err or, appellant contends that her trial counsel was ineffective becaus e couns el:
1. failedto object

t o ina dmissi

ble evide nce that appella nt allege dly

threatened complainant in an u

nrelated incid

ent; 2. failedto object to i nadmiss ib le evidence that appellant had reported that Je ff rie s had th rea tene d h er; 3. failed to object to inadmissible evidence that appellant has asked Jeffries not to testify against her in a prior case; 4. failedto object to inadmissible testimony by Jeffries that appellant had tried to influence him to withhold evidence in a prior case; 5. fail ed

to ob je ct to in ad mi ss ib le te st im on y t ha t a pp el la nt to ld Je ff ri es, th e complainant and witness, of her plans to commit a bur glary; 6. failedto object t o inadmissi ble he arsay evidence from C anales concerning alleged statem ents made by Jef fr ies; 7. failed to ob

ject toinadmissible testimony from Jeffries concerning appe llant ’s plan to burglar ize Jones’ residence; 8. failedto object to certain testimony fr om Canales on the grounds that th e admiss ion of the e

vidence violated the Six th Amendme

nt; 9. failedto object

to inadmissible evidence from Canales concerning a statement made by appellant in a prior case; 10. failedto object

to irrelevant testi

mony of appe llant o n c ross-examination concerning a statement she gave in a prior case; 11. failedto object

to inadmissible hearsay evidence of an alleged extraneous act; 12. failed to object to inadmissible irr elevant evidence; 13. elicited

damaging inadmissible evidence and opene d the door to other damaging evidence;18

14. elicited da maging testi mony concer ning appell ant’s r elationship with Jones.
To show ineffective assistanc e of counse l, appe llant must show that: (1) coun sel’ s perfor mance was deficient, in that counsel made such serious err ors that he was not functioning effective lyas counsel; and (2) the deficient perfor mance prejudiced the defense to such a degree that appella nt was d eprived 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.

—

Aust in 199 4, pet. ref’d); O’Hara v

. State , 837 S. W. 2d 139, 143 (Tex. App.

— Austin 1992, pet . ref’d)
. Counsel’s perfor mance is to be judged by the “ totality of repr esentation” 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 jud ge t he reasonab leness of counsel’s challenged conduct on the facts of the particular case, viewed at the time of counse l’s condu

ct— not by hinds ight. Butler , 716 S. W. 2d at 54. We must then determine, inlight of

all the cir cumstances, whether the acts or omissi on s are outside the wide range of professiona

llycompetent assistance
. Strickland, 466 U. S. at 690. Appellant bears a heavy burden to prove hi s ine ffe c tive-ass istanc e claim. Id. Counsel is strongly pr esumed to have provided adequat e assistan ce and to have mad

e all sig nificant de cisions

in the exe

rcise of reasona

ble professiona

l judgment. Id
. Byfailing to r aise the issue of ineffective assista nce of counse l in the trial cou

rt, appellant did not waive her constitutional right to complain of ineffectiv e ass istanc e of couns el. See Ro binson v

. State , 16 S. W. 3d 808, 812 (Tex. Cri m. App. 2000). However, rar ely will the19

rec ord ondirect appeal be suffici ent to prove tha t counse l’s performance was deficient
. Id. at 813
n. 7; Thompso n v. State , 9 S. W. 3d 808 , 813-1 4 (Tex. Crim. App. 1999)
.

Indetermining whether trial counsel’s perf ormance was deficien t, we d o not specu late about counsel’s trial strategy. Blevins v. State , 18 S. W. 3d 266, 271 (Tex. App.

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

— Aust in 199 8, no pet. ). Mo reo ver, there is a s trong presump tion that t rial counsel’s conduct was within the range of reasonable

pro fessi o nal assistance. Thompson , 9 S. W. 3d at 814. This burden r equires the appellant to bring for ward a r ecord fr om whichwe may discern that tri al 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 at tack on the judgmen

t, rarely can it

be shown that counsel’s perform ance was not base d on sound strategy.

This is not the rare case. Nothing in this record reveals c ounsel’s trial strategy in reg ard to his alleged

deficient perfor mance. Although we do not speculate on counse l’s strategy, inthiscas e, the trie

r of fact h ad todete

rmine wh ethe

r the tes timon y of t he compla inant or the appellant was more credible. There is testimony in t he rec ord that the reputation of both the appellant and the complainant is such that neither wa s w ort hy of belief. Per haps trial counsel believed that all of the evidence about their r elat ionshi p 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 render ed effective assistance of couns el
. Examination of the recor d on direct appeal fa

ils to show

that trial counsel’s perf

ormance was not based on sound trial strategy.20 We hold that ap pellan t has not overcome the strong pr esumption that her tr ial counsel’s strategy was reasonable
. We overrule appell ant’s poi nts of error in which s

he claims she did n ot receive effe ctive as sista nce of cou

nsel. Inher seventeenth point of err or, without further argument or citation of authority, appellant contends that “ harm is established by t he cumulati ve impact of the er ror s. ” A point of
err or based

upon the c

umulative effect of the

error s is not a proper point of err or, and presents nothing for r eview. Stoker v. State , 788 S. W. 2d 1, 18 (Tex. Crim. App. 1989) ; Hollis v

. State , 509 S. W. 2d 372, 375 (Tex. Cri m. 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. Ap p.
— Houston [14th Dist. ] 1994, pet. ref’d); McDuf fie v. State , 854 S. W. 2d 195, 220 (Tex. App.

— B eaumont 1993, pet. ref’d)
. Appellant’s seventeenth point of error is overr uled.

The judgment of the tri al court is affir med.

Carl E
. F
. Dally, Justice B efore Chief Just

ice Abou ssie, Justic es Patterson an d Dally * Affirm ed F iled: F ebruar y 8, 2001 Do N ot Pu blish21 * B ef ore Carl E
. F
. Dally, Judge (retir ed), Court of Cr iminal Appeals, sitting by assign me nt. See Tex. Gov’t

Code A nn. § 74. 003(b ) (West 1998 ).