1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sit ting by a ssignmen t. NO. 07-03-0493-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E AUGUST 29, 2005

______________________________ RAY GUTIERREZ, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 154TH DISTRICT COURT OF LAMB COUNTY; NO. 3729; HONORAB LE FELIX KLEIN, J UDGE

_______________________________ Before QUINN, C.J., REAVIS, J., and BOYD, S.J. 1
MEMORAND UM OPINION
F ollowing a plea of not guilty, appellant Ray Gutierrez was convicted by a jury of delivery of a control led subs tance, en hanced, a nd punis hment was assessed at 99 yea rs confinem ent. Presenting two issues, appellant questions (1) the sufficiency of the evidence2

to support

his conviction and (2) whether he was afforded effective assistance of counsel under the Six th and Fo urteenth Amendmen ts of the U nited Sta tes Const itution. We affirm.
On the morni ng of December 3, 2 002, Alex Ojeda, a narcoti cs office r, m et wit h a confidential informant (CI) to prepare for a controlled buy. He thoroughly searched the CI’s
car and his person before giving him an audio recording device and $80 to purchase cocaine from appellant. According to the evidence, the CI d r ove t o appellant’s trailer house, knocked on the door, and entered. Moments later, both ex ited and entered the CI’s
car. T hey drove to another residence where appellant en tered alone, exited sho rtl y thereafter, returned to the CI’s car, and drove back to appellant’s trailer h ouse. After the CI purchased $80 worth of coc aine from appellant, he proceeded to a predetermined location to meet Of

ficer Ojed a and tur n over the cocaineand aud io record ing. Appellant

maintains by his first issue that the evidence is factually insufficient under article 38.141 of the Texas Code of Criminal Procedure to support his c o nviction . We disagree.
Adefendant may not be convicted of an offense under ch apter 481 of the Tex a s Health and Safety Code on the testimony of a person who is not a licensed peace officer
or a special investigator but who is acting covertlyfor lawenforcement unless the testimony is corroborated byother evi dence ten ding toconnect the defendant wi th the offe nse. Tex. Code Crim. Pro c. Ann. a rt 38.1 41(a) (Ve rn on 2005). Additionally, corroboration is not2 Appellant filed a partial r

eporter’s record co ntaining excerpts of testi mony fro m Officer Alex Oje da, th e confidential informant, a chemist, and a victim’s assistant coordina tor. A sufficiency challenge cannot be raise d with a partial record. See generally Greenwood v. State, 823 S.W.2 d 660, 661 (Tex.Cr.App. 1992) (interpreting former Rule 53(d), now 34.6(c)(5) of the Texas Rules of Appellate Procedure). Also, appellant did not inclu de a stateme nt of issu es to be p resented on appea l as requ ired by R ule 34.6 (c)(1). Although appellant’s challenge is to the sufficien cy of corroboration, a review of all testimony is still necessary. By order dated June 23, 2005, this Court order ed appell ant to make arrangements for preparat ion of th e entire reporter’ s record on or before July 15, 2005. On August 15, 2005, the court reporter filed a motion for ex tension of time indicating appellant

had not yet made arrangements for t he supplemental reporter’s record. The motion was denied and the appeal proceeded on course. Althoug h appell ant’s fai lure to provide the entire re cord cons titutes waiver of his suffi ciency complaint , we nevertheless will reviewthe excerpts of Officer Ojeda’s testimony to determine whether there is sufficient corroboration of the CI’s testimony. 3 sufficientfor the purposes of this article if it only s hows the

commissi on of theoffense. Id

. at (b). Although appellant frames his issue as a factual sufficiency challenge, corroboration is not revi ewed und er t hat standard. Dennis v. State, 151 S.W.3d 745, 748-49 (Tex.App .–Amarillo 2004, pet. ref’d), citing Cantelon v. State, 85 S.W.3d 457, 460 (Tex.App.–Austin 2002, no pet.). Rather, in reviewing sufficiency of corroboration of testimony of a confidentia l informa nt, we eliminate the informant’s testimony from consideration and examine the record to see if other inculpa tory evid ence tend s to connect the accused with commission of the offense. 2 Young v. State, 95 S.W.3d 448, 451 (Tex.App.–Houston [1st Dis t.] 2002, pet. ref’d ). The “te nds-to-co nnect” standard does not prese nta high t hreshold

. Cantelon , 85 S.W.3d at 461. We view the corroborat in g evidence in the l ight most

favorabl e to the verdict. Id

.4

Officer Ojeda testified he thoroughly searched appellant and his car prior to giving him the $80 to make the buy. From an unmarked car, h e observe d the CI’ s movemen ts throughoutthe entire tran saction. Other than contact with appellant, the CI was not involved with anyone else. Although Ojeda did not visually observe the transfer of cocaine which occurred in the CI’s car, he heard the transaction on the audio recording. Appellant and th e CI spoke in Spanish and Ojeda testified to being fluent in Spanish. Specifica lly , he heard appellant ask the CI how much “soda,” which isslang fo r cocaine , he wish ed to purchase. He was also able to ide ntify the CI’s voice on the audiorecording and dis cern the difference between his voice and appellant’s voice. After the transfer, Ojeda observed appellant

exit the CI’ s car. T he CI then drove away from appellant’s driveway to a predetermined location to hand over the cocaine and audio recording to t he office r. Considering the low threshol d for meet ing the “ tends-to-connect” s tandard, w e conclude the evidence present

s sufficient corroboration that appellant committed the offense. Issue one is o verruled

. Byhis second issue, appellant raises ineffective assistance of counse l. Specifically, he alleges trial co unsel wa s ineffec tive for f ailing to file amotion to disclose the identity of the confident ial informant, obtain a ruling on a motion to su ppress, and improper investigation of the facts.
A claim of ineffectiveness is review ed under th e standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (198 4). Und er Strickland , a5

defendant must establish that (1) counsel’s performance was defi cient ( i.e. , fell below an objective standard of reason ablenes s), and (2 ) there is a reasonable probability that but for counsel’s deficient performance, the result of the proceed ing woul d have be en differ ent,
a reason able probability being a probability sufficient to undermine confidence in the outcome. Rylander v. State, 101 S.W.3 d 107, 11 0 (Tex.C r.App. 20 03); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson v. State, 9 S.W.3d 80 8, 814 (T ex.Cr.Ap p. 1999), citing Strickland , 466 U.S. at 700.
The adequacy of defense counsel’s assistance is based upon the totality of the representation rather than by isolated acts or omissio ns of tria l counse l. Id . Although the constitutional rightto counsel ensures the right to reasonably effective counse l, it does not guarantee errorless counsel whose competency or accuracy of representation is to be judged by hind sight. Ingham v. State, 679 S.W.2 d 503, 50 9 (Tex.C r.App. 19 84); see also ExParte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993 ). Appellate review of trial counsel’s representation is highly deferential and pres umes that counsel’s conduct fell within the wide

range of

reasonab le and p rofession al repres entation

. See Andrews v. State, 159 S.W.3d 98 , 101 (Te x.Cr.App . 2005). See alsoBone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002). Where the alleged derelic tions areerrors of omission de hors the record rathe r th an commission revealed in the trial record, collateral a ttack may be the vehicle bywhich to devel op a deta iled record of thealleged ineffect iveness. See Freeman6

v. State, 125 S.W.2 d 505, 50 6-07 (Tex .Cr.App. 2 003). See generally Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694 155L.Ed.2d 714 (2003) (stating that when a claim of ineffectiveness is raised on direc t appeal , a trial record is usually not developed for establ ishing s uch a cla im). Anyallegation of ineffectiveness must be fir mly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson , 9 S.W.3d at813. Where the record is silen t, we may not speculate on counsel’s performance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Cr.App. 1994); Gibbs v. State, 7 S.W.3d 175, 179 (Tex.App.–Houston [1st Dist.] 1999, pet. ref’d). Generally, the record on directappeal wil l not be suffic ient to show that counsel’s conduct was so d eficient as to meet the first prong of the Strickland standard as the reasonableness of counsel’s choices often involves facts that do n ot appea r in th e recor d. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Where, as here, appellant complains of errors of omission and only
a partial reporter’s r ecord is pr esented, we are unable to determine whether counsel’ s performance was deficient. Issue two is overruled. Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis Justice Do not publish.