NO. 07-02-0222-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C MAY 16, 2003

______________________________ OLLIE LEE PAYNE, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 69 TH DISTRIC T COURT O F MOORE COUNT Y; NO. 3136; HON ORABLE RON E NNS, JUDG E

_______________________________ Before JOHNSON, C.J., and QUINN and REAV IS, JJ. MEMORAND UM OPINION Ollie Lee Pay ne appeals from his convicti on for possession of a controlled substa nce in an amoun t of 400 g rams or more. We affirm.2 BACKGROUND In September, 2001, Lor i Smith repor te d to t he Dumas police that appe llant Ollie Payne had sho wn her a l arge amount of drug s in the refri gerator at the house in w hi c h appellant

lived in Dumas. She reported that ap pellant told her the drugs were his and that he took her with him one evening when he was making sales of drugs. The police obtained and executed a search warrant based on Smith’s repo rt. Smith executed an aff idavit which was attached to the search warrant. Drugs were lo ca ted in the house where appellant lived and he was arrested. He signed a writ

ten confession; was indi cted by a M oore County grand jur

y for possess ion of a controlled s ubstance in an amount of 400 grams or more; was convicted; a nd was sentenced to 30 years incarceration. Appellan t presents thr

ee issues in seeking to h ave his co nviction reversed and a new trial granted: ( 1) the trial cour t committed fundamental er ror by admitting the search warrant and its accompanying affid avit from Smith into evidence in viol ation of his rig ht to confront and cross-e xamine w itnesses ag ainst him; (2) the trial cour t committed fundamental error by

admitting th e search warrant and Smith’s accompanying affidavit into evidence when no q uestion of probable cause w as before the jury ; and (3) appellant was denied effective assi stance of counsel. The State responds that admission of the warr ant and Smit h’s affi d avit was harmless er ror, appella nt’s counsel was not in effective, and appellant

has not show n prejudice from any of the actio ns allegedl y demonstrati ng ineffective assi stance.3 ISSUE ONE: AD MISSION OF SMITH’S AFF IDAVIT Smith did not testify at trial. The search warrant with Smith’s aff idavitattached was introduced into evid ence. The affidavit contai ned statements to the effect that appellant (1) was seeki ng to have sex wi th Smith, (2) offered to pay for her housing, ( 3) wanted her to smoke pot wi th him, (4) tookSmith wit h him to make drug sal es in Dumas one n ight, (5) planned to go to Los Angeles to pick u p drugs, a nd (6) showed Smith drugs which were in the refriger

ator and which appellant

claimed belong ed to him. Appell ant objected to th e affidavit on the bas is that he was unable to cr oss-examin e Smith. The State does not con test appellant’ s assertion that admission of Smith’s affidavit was error. Neverthel ess, the State maintains that admission of the aff idavit was harmless. We agree. In his confession appellant admitted to becoming i nvolved in selling and deliver ing drugs, mainly methamphetam ine, because he could no t pay his bil ls. He stated that he was “fronted” the dr ugs by others and would only keep part of the money he receiv ed from selling the fronted drug s. He denied us ing methamphetamine, but stated that he occasionally smoked marijuana

. He claimed tha t he put the dope in the ref rigerator at his house, regretted getting involved with drugs and that he was sorry for t he hurt he had caused the people hesold drugs to. The material par

ts of Smith’s affidav it’s w ere contained in appellant’ s writ ten confession which was admitted at trial. W here the same evidence is admitted elsewhere during trial no r

eversibl e error ex ists. See McFarland v . Stat e , 8 45 S.W.2d 824, 8401 Because of our disposit ion of the issue, we do not offer an y opinion on w hether

appellant’s obje ctio n was su ff icien t to p rese rve error. See T EX . R. A PP . P. 33.1(a); T EX . R. E VID . 103(a)(1); Barnum v. State , 7 S.W.3d 782, 794 (Te x.App.– Amarillo 1999, pet. refused). Further r

eference to a Rule o f App ellate Procedu re wil l be by r eference to “TRAP___”; a R ule of Evidencewill be referred to as“TRE___.” 4 (Tex .Crim.App. 1992); Johnson v. State , 803 S.W.2d 272, 291 (Tex.Cri m.App. 199 0) ; Anderson v. State , 717 S.W.2d 622, 628 (Tex.Cri m.App. 1986). Ass uming, arguendo , that admission of

the affidavit w

as error and that error w as preserved 1 so as to require a harm analysis for constituti onal error, see TRAP 44.2(a), we are convinced beyond a reasonable doubtthat information in th e affidavit which was not als o conta ined in appellant’s confession did n ot co ntrib ute t o app ella nt’s convi ctio n. Ac cord ingly, we overrul e issue one.

ISSUE TW O: ADMISSION OF THE SEARCH WARRANT AND SMITH’S AFF IDAVIT By his second issueappellant compla ins of admission of both the search w arrant and Smith’s affidavit. He urges that neith er the existence of the warrant nor probable cause was disputed at tri al. He asser ts harm based on non-const itutional error because the error v iolated a rul e of evidence. When the State offered the warrant into ev idence, appellan t’s counsel objected to Smith’s aff idavi t, as we have discussed abov e. No objecti on was lodg ed to admission of the warr ant. As to admission of thesearch warrant itself, err

or was not

preserv ed. See TRAP 33.1(a); TRE 103(a)(1). We cannot reverseon a matter not pr esented to the tr ial court and which is first raised on appeal. See Hailey v. State , 87 S.W .3d 118 (Tex.Crim.App. 200 2).5

We have prev iously determined t hat any err or in admitti ng Smith’s a ffidavit was harmless by constitutional harm standards. For claims of non-constitutional or “other” error under TRAP 44.2(b), a judgment s hould not be ov erturned unles s after examini ng the record as a whole, the review ing court has a grave doubt that the result w

as free from the substantial influence of the error on the outcome of the proceeding

. See Burnett v. State , 88 S.W.3d 633, 637-38 (Tex.Cri m.App. 2 0 0 2 )

. We do not have a g rave doubt as to the harm of Smith’s aff idavit in regard to appellant’s conviction, for the reason s expressed in our analys is of issue one. Issue twois over ruled.

ISSUE THREE: I NEFFECTIVE ASS ISTANCE OF CO UNSEL Appellant

cites Strickland v. Washington , 466 U.S. 668, 104 S.C t. 2052, 80 L.Ed.2d 674(1984) in presentin g his thir d issue . We thus consider that his issue refe rences his right to counsel under

the Sixth Amendment to the federal co nstitution. In determining whether coun sel’s repre sent atio n was so inad equa te as to vio late a def end ant’ s Sixt h Amendment right

to counsel, Texas courts adhere to the two-pronged test enu nciated in Strickland

. See Hern and ez v. State , 726 S.W .2d 53, 56-7 (Tex.Crim.App. 19 86). There is a strong pr

esumpti on that counsel’s conduct f ell within the wide range of reasonable professional assistance. Strickland , 466 U.S. at 690. The burden is on appella nt to prove by a preponderance of the evidence that counsel was ineffective. See McFarland v . State , 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)

. The defendantmust first prove that counsel’s performance was defici ent, i.e ., that counsel’s assistance fell below an objective standard of reasonableness. Id

. If appellant has de monstrated def icient assistance of counse l, it is then necessary

that appellant affir matively prove pre

judice as a r

esult o f the defic ient6

assistance. Id . In provi ng prej udice, app ellant must pr ove a reasona ble probabili ty that butfor cou nsel’s er rors, the r esult of the procee ding wou ld have been di fferent. A reasonable probability is a probability sufficient to undermi ne confidence in the outcome. Hernandez , 726 S.W.2d at 55. Any allegatio n of ineffective ass istance of counsel must be firm ly f ounded in the record, and the record must affirmat ively demonstrate the alleged ineff ectiveness. McFarland , 928 S.W.2d at 500. Fail ure to make the requi red showi ng of either defic ient performance or sufficient prejudice de feats the inef fectiveness claim. Id

. Defense counsel should ordinaril y be accor ded an opportun ity to ex plain his or her actions before being labeled as unprofessional , incompetent or ineffective. See Bone v. State , 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). Appellant

sets out eight instances of trial condu ct which he urges warrant reversal because his counsel was ineffective. Five of the instan ces complain of trial counse l’s failure to object to matters during trial, al though th e rec ord does not contain evidence of counsel’s r

easons for not objec

ting. Appellant does not

cite authori ty or

make argument th at if trial counsel had posed the referenced objection s, the trial court would ha ve been in er ror by ov erruling the objections. To successfully present an ar gume nt th at co unse l was in eff ecti ve because of a failure to object to the State’s questioning and argument, how ever, appel lant must show thatthe trial court would have committed error in overrul ing such obj ection. See Vaughn v. State , 931 S.W .2d 564, 566 (Tex.Crim.App . 1996). And, because the record does not7

evidence trial couns el’s reasons for failing to lodge the objections, a conclusion as to those reasons would re quire spec ulation on our part – an exercise in whic h we decli ne to engage. The allegatio ns of

ineffectiveness for failure to obj ect during trial are not supported by the record. See Bone , 77 S.W.3d at 836-37. Asixth i nstance complaine d of is trial counsel’s fail ure to interv iew Lori Smith. But, appellant

points to no ev idence in the r ecord to substa ntiate his allegatio n that trial counsel failed to interv iew Smith. Nor does he point to any record evidence that an interv iew w ith Smith would have yielded an y info rmat ion wh ich wou ld ha ve benefitted appellant’ s case. Without such record evi dence ineffectivenes s of counsel is not proved. See McFarland , 928 S.W.2d at 500. The last of the instances posited as ineffective ass istance are t rial counsel ’s failures to request an i nstructed verdict and an instruc

tion limiting the jury to considering the search warrant and Smith’s affidav it for purposes of de termining probable cause. He does not cite authority or present ar

gument that an in s tructed verd ict woul d have been g ranted. Nor does he assert how a limiting instruction as to the search warrant and Smith’s affida vit would have resulted in a different result in his trial. See id .; Hernandez , 726 S.W.2d at 55. Appellant

has not prov ed either defici ent performance or suffici ent prejudice to warrant reversa l on his ineffecti ve assis tan ce cla im. Nor does h is urging inef fec tive assistance because of the “ multi tude of deficiencies”warrant reversa l. A vag ue, inarticulate sense and allegatio n that counsel could have pr ovided a bette r defense is not8

a legal basi s for finding counsel constitutiona lly ineffecti ve. See Bone , 77 S.W.3d at 836. Issue three i s overru led. CONCLUSION Having overru led a ppe llan t’s th ree is sues , we affirm the judgment of thetrial court.

Phil Johnson Chief Justice

Do not publish

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