Affirm and Memorandum Opinion filed November 22, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00732-CR

ANTHONY DERON CARR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1411110

M E M O R A N D U M O P I N I O N

Anthony Deron Carr appeals his conviction for possession with intent to 

deliver more than four but less than two hundred grams of cocaine. See Tex.

Health & Safety Code § 481.112(A) (West 2015). Appellant raises three issues for 

review: (1) whether the evidence was legally sufficient to support his conviction; 

(2) whether forgoing factual-sufficiency review violates the Constitutional 

guarantees of equal protection and due process; (3) whether the trial court’s 
2

admission of testimonial hearsay statements from an undisclosed informant

violated his Constitutional rights to confrontation and due process; and (4) in the 

alternative, whether he received ineffective assistance of counsel. We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

During December 2013, the Harris County Sherriff’s Department received 

an anonymous tip that appellant was involved in drug activity. Acting on the tip, 

Deputy Anthony Thompson parked his unmarked car at a nearby church to observe 

appellant at a residence. For approximately one hour, Deputy Thompson observed 

foot traffic consistent with drug distribution. Numerous people stopped at the 

residence for a few minutes and then left. Appellant remained in the residence 

during this time. Deputy Thompson did not observe any hand-to-hand drug 

transactions. 

Morris Williams and another individual arrived. Deputy Thompson did not 

know whether they entered the residence. When appellant and the two individuals

began to leave the property, Deputy Thompson, and his back-up, moved in to 

detain them. Appellant remained while the other individuals fled on foot. Deputies 

found Williams hiding in a nearby trailer. The other individual was not located.

Deputies did not search the trailer. Deputies detained appellant and Williams 

together in the patrol car.

Deputy Thompson asked appellant about the residence and told appellant 

what he observed during his surveillance. Appellant said he did not live at the 

residence and that it belonged to his uncle. Deputy Thompson later learned that 

appellant’s uncle was deceased. Deputy Thompson then approached the residence

and smelled the odor of marijuana. This prompted Deputy Thompson to ask 

appellant about the odor. Appellant admitted that somebody was smoking 

marijuana at the residence. Deputies subsequently obtained a search warrant for the 
3

residence based on the marijuana odor and activity Deputy Thompson observed

that morning.

The dash cam video in the patrol car recorded conversations between 

appellant and Williams while they were detained. Appellant’s statements reveal 

that he was frustrated and nervous, and that there was something significant about 

a box inside the house. Williams told appellant that there was drugs and money in 

the Buick. Deputies did not search the Buick.

Upon searching the residence pursuant to the search warrant, deputies 

recovered a total of fifty-two grams of cocaine. Six grams of powder cocaine was

hidden in a teddy bear. The remaining cocaine, in the form of crack, was found in 

a cereal box. Deputies found men’s clothing and mail addressed to appellant in the 

same room as the teddy bear that hid the six grams of powder cocaine. The crack 

cocaine in the cereal box appeared to be prepared for distribution. Only law 

enforcement personnel were present when the residence was searched. When 

deputies searched appellant, they found no drugs, money, or firearms. Appellant 

did not appear to be under the influence of any drugs.

A jury convicted appellant of possession with intent to deliver cocaine. 

Jurors assessed punishment at twenty years’ confinement in the Institutional 

Division of the Texas Department of Criminal Justice. Appellant timely filed a 

notice of appeal.

II. ANALYSIS

A. Factual Sufficiency 

We first address appellant’s second issue because its resolution determines 

the standard under which we review his first. Appellant raises multiple 

Constitutional challenges to the standard of review for sufficiency of the evidence 
4

and asks this court to conduct a factual-sufficiency review of the evidence adduced 

at trial—a standard that the Court of Criminal Appeals expressly has rejected. 

Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.). As an 

intermediate appellate court, we are without power to conduct factual-sufficiency 

review because we are “bound to follow the law as declared by the state’s highest 

courts.” LeBlanc v. State, 138 S.W.3d 603, 606 (Tex. App.—Houston [14th Dist.] 

2004, no pet.) (citing Rodriguez v. State, 47 S.W.3d 86, 94–95 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d)); see also Mayer v. State, 494 S.W.3d 844, 

848 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). Although an intermediate 

appellate court’s decision “shall be conclusive on all questions of fact brought 

before them on appeal or error,” the Texas Court of Criminal Appeals has the 

authority to determine questions of law, including the standard of review that an 

intermediate appellate court must use in conducting factual review. See Tex. Const. 

art. V, § 6(a) (providing for questions of fact to be resolved by intermediate 

appellate courts); Roberts v. State, 221 S.W.3d 659, 663 (Tex. Crim. App. 2007). 

In Brooks, the Court of Criminal Appeals directed intermediate courts to 

apply a single standard of review to legal- and factual-sufficiency challenges in 

criminal cases, using the Constitutional standard established in Jackson v. Virginia, 

443 U.S. 307, 319 (1979). Brooks, 323 S.W.3d 893 at 901. The Court of Criminal 

Appeals determined that the standard announced in Clewis v. State, 922 S.W.2d 

126, 133 (Tex. Crim. App. 1996), should no longer be applied to review the factual 

sufficiency of the evidence, and instructed lower courts to follow the Jackson

standard for the review of factual-sufficiency challenges. Id. In numerous later 

decisions, the Court of Criminal Appeals has reaffirmed its directive to the courts 

of appeals—not merely as a plurality of the court, but instead by its nowunanimous precedent. See, e.g., Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim.

App. 2011) (per curiam); Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim. App.
5

2010). When, in a situation such as this, the Court of Criminal Appeals “has 

deliberately and unequivocally interpreted the law in a criminal matter, we must 

adhere to its interpretation.” Mason v. State, 416 S.W.3d 720, 728 & n.10 (Tex.

App.—Houston [14th Dist.] 2013, pet. ref’d). Accordingly, we reject appellant’s 

challenge to the single standard of review announced in Brooks and overrule 

appellant’s second issue.

B. Legal Sufficiency 

Having overruled appellant’s request for factual-sufficiency review, we 

address his first issue challenging the legal sufficiency of the evidence. 

When engaging in a review of the legal sufficiency of the evidence 

supporting a conviction, we “examine all of the evidence in the light most 

favorable to the verdict and determine whether a rational trier of fact could have 

found the essential elements of the offense beyond a reasonable doubt.” Jackson, 

443 U.S. at 319; Price v. State, 456 S.W.3d 342, 347 (Tex. App.—Houston [14th 

Dist.] 2015, pet. ref’d). “Although we consider everything presented at trial, we do 

not reevaluate the weight and credibility of the evidence or substitute our judgment 

for that of the fact finder.” Price, 456 S.W.3d at 347.

(1) Knowing Possession

A person commits an offense if he knowingly possesses, with intent to 

deliver, a controlled substance. See Tex. Health & Safety Code § 481.112(A) 

(West 2015). Cocaine is a controlled substance. See id. § 481.102(3)(D). 

“Possession” means “actual care, custody, control or management.” Id. § 481 

.002(38). “In a possession-with-intent-to-deliver case, the State must prove the 

defendant (1) exercised care, custody, control, or management over the controlled 

substance, (2) intended to deliver the controlled substance to another, and (3) knew 
6

that the substance in his possession was a controlled substance. Cadoree v. State,

331 S.W.3d 514, 524 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). 

Possession need not be exclusive. Evans v. State, 202 S.W.3d 158, 162 (Tex. 

Crim. App. 2006). When, as here, the accused is not in exclusive possession of the 

place where the contraband is found, the record must contain additional facts and 

circumstances linking the defendant to the contraband.1

The Court of Criminal Appeals has provided a non-exhaustive list of

fourteen “links” that might prove possession and knowledge of contraband: 

(1) the defendant’s presence when a search is conducted; (2) whether 

the contraband was in plain view; (3) the defendant’s proximity to and 

the accessibility of the narcotic; (4) whether the defendant was under 

the influence of narcotics when arrested; (5) whether the defendant 

possessed other contraband or narcotics when arrested; (6) whether 

the defendant made incriminating statements when arrested; (7) 

whether the defendant attempted to flee; (8) whether the defendant 

made furtive gestures; (9) whether there was an odor of 

contraband;(10) whether other contraband or drug paraphernalia were 

present; (11) whether the defendant owned or had the right to possess 

the place where the drugs were found; (12) whether the place where 

the drugs were found was enclosed; (13) whether the defendant was 

found with a large amount of cash; and (14) whether the conduct of 

the defendant indicated a consciousness of guilt. 

Evans, 202 S.W.3d at 162 n.12; see also Flores v. State, 440 S.W.3d 180, 188 

(Tex. App. —Houston [14th Dist.] 2013), judgment vacated on other grounds, 427 

S.W.3d 399 (Tex. Crim. App. 2014). The links analysis “protects the innocent 

 

1 Appellant contends that the State failed to prove exclusive possession of the house. The 

record supports, and the State does not contest, this conclusion. Therefore, the record must 

contain additional facts and circumstances which link appellant to the cocaine. Poindexter v. 

State, 153 S.W.3d 402, 406, 408 (Tex. Crim. App. 2005) (internal quotations omitted), overruled 

in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173, n.32 (Tex. Crim. App. 

2015). 
7

bystander . . . from conviction merely because of his fortuitous proximity to 

someone else’s drugs.” Evans, 202 S.W.3d at 161–62. The number of links is not

dispositive, “but rather the logical force of all the evidence, direct and 

circumstantial.” Id. at 162. Additionally, “[t]he absence of various links does not 

constitute evidence of innocence to be weighed against the links present.” Flores, 

440 S.W.3d at 189 (quoting Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d)).

Factor (1) favors a link. When, as here, the searched location is in the same 

condition as when the defendant was last present, this factor may favor a link. See 

Haggerty v. State, 429 S.W.3d 1, 7 (Tex. App.—Houston [14th Dist.] 2013, pet. 

ref’d) (defendant was present for purposes of links analysis, despite not witnessing 

search, because the house “would have been in the same condition as it was when 

appellant left and locked the door”).

Factors (2), (3), (4), and (5) do not link appellant to the cocaine. The 

contraband was not in plain view. Appellant was outside of the home and not in 

close proximity to the cocaine. Deputy Thompson testified that appellant did not 

appear to be under the influence of drugs, and appellant did not possess any 

contraband or cocaine when he was arrested.

Appellant contends that factor (6) does not favor a link because he made 

incriminating statements about marijuana but not cocaine. We disagree. Appellant 

admitted to marijuana use at the house and made several statements that, in 

context, link appellant to the cocaine. Appellant referenced a box. He also stated,

“Things are about to get deeper than rap,” and “I should had these folks shoot me.” 

Deputy Thompson testified to the significance of this first statement: “It could 

mean, I’m going to get into some really deep trouble, or, I might spend some time

[in prison].” A jury could reasonably infer, based on appellant’s statements, that 
8

appellant knew about, and was linked to, the cocaine hidden in the box. Factor (6) 

favors a link.

Factors (7), (8), and (9) do not link appellant to the cocaine. Appellant did 

not attempt to flee or make furtive gestures. The record does not indicate whether 

the cocaine had an odor.

Factor (10) favors a link. The residence smelled of marijuana and appellant 

admitted to using marijuana. Although no marijuana was recovered, a jury could 

reasonably infer, from the odor and appellant’s admission, that marijuana 

contraband had been present. 

Factor (11) favors a link. Both parties agree that appellant had the right to 

possess the house. On the morning of the arrest, Deputy Thompson observed 

appellant stay at the residence while others came and went. Finally, police found 

appellant’s mail and male clothing inside the same bedroom where they found 

some of the cocaine.

Factor (12) favors a link because the places where the drugs were found, a 

cereal box on the kitchen counter and inside a teddy bear, were enclosed.

Factor (13) does not favor a link because the record contains no evidence 

that appellant had a large amount of money.

Factor (14), which asks whether appellant’s conduct indicated a 

consciousness of guilt, favors a link. Deputy Thompson told appellant what he saw 

appellant do during his surveillance. While appellant and his associate Williams 

were detained in the patrol car, appellant said, “The man say he be seeing me all 

morning. That’s how I know no one's paying attention. He ain’t lying. He told me

every move I made.” Williams said “Blue” had the money and appellant replied 

that he was not concerned about the money, which was “petty shit” compared to 
9

what the police were after. Appellant told Williams that police were obtaining a 

warrant, and then said: “Things are about to get deeper than rap.” Appellant 

indicated that there was something special about a box in the house and police 

found the majority of the cocaine in a cereal box. He also commented “I should 

had these folks shoot me.” From these facts, a jury could reasonably infer that 

appellant was conscious of his guilt.

In sum, Deputy Thompson observed appellant remain at the residence while 

other people were frequently coming and going in a high-crime neighborhood.

When deputies executed the search warrant, the house was in the same condition as 

when appellant was last there, and only the deputies were present. Police found 

crack cocaine enclosed in the cereal box on the kitchen counter and appellant 

indicated, while detained, that there was something significant about “a box.”

Appellant had the right to possess the house and his property was in the bedroom 

where police found some of the cocaine.2 Once police detained appellant and 

informed him that they were getting a search warrant, appellant became upset and 

made statements to Williams indicating that he knew of the contraband and that he 

would face serious criminal charges. From these facts, a jury rationally could have 

concluded that appellant exercised the requisite care, custody, control, or 

management over the contraband and that appellant knew the substance possessed 

was contraband.3

 

2

The record does not contain any evidence of shared possession of the bedroom.

3 Appellant equates this case with Medina, a case where there was legally insufficient 

evidence to support a conviction for possession of cocaine. Medina v. State, __ S.W.3d __, 2011 

WL 6013094 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, no pet.). This case is distinguishable 

from Medina. There, Medina was not present at the house when the drugs were found, the drugs 

were found in the living room near two other present individuals, and Medina was absent from 

the house for at least four hours prior to the search. Id. at *4–7. Further, while police observed 

Medina engaging in hand-to-hand suspected drug transactions during previous surveillance on 

the residence, those transactions were unconfirmed and no transactions took place on the date of 
10

Appellant argues that there is sufficient evidence linking Williams to the 

cocaine. For instance, Williams admitted to stashing drugs in the Buick, he could 

have been inside the house, and he attempted to evade deputies. This scenario is a 

possible inference from the evidence, but it is not the only possible inference. 

When the record supports conflicting inferences, we presume that the jury resolved 

the conflicts in a manner supporting its verdict and defer to that determination.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

(2) Intent to Deliver

“Deliver” means to transfer, actually or constructively, to another a 

controlled substance.” Tex. Health & Safety Code § 481.002(8) (West 2015). 

Expert testimony by an experienced law enforcement officer, as used in this case, 

may help establish an accused’s intent to deliver. See Mack v. State, 859 S.W.2d 

526, 529 (Tex. App.—Houston [1st Dist.] 1993, no pet.). Quantity may show that a 

defendant intends to distribute narcotics rather than just possess it for personal use. 

Poindexter, 153 S.W.3d at 412.

The amount of drugs seized and its packaging provided evidence of intent to 

deliver. Deputy Thompson testified that the cocaine’s packaging and the manner in 

which it was cut indicated that it was prepared for distribution. Deputy Thompson 

estimated the street value of the crack cocaine and powder cocaine at 

approximately $600 and $75, respectively. Based on his experience in the field, 

Deputy Thompson testified that appellant did not appear to be a crack addict. From 

 

the arrest. See id. In sustaining Medina’s sufficiency challenge, the court focused on the fact that 

another person with a right to possess the residence was present at the time the officers entered, 

and there were no other links. Id. at *5. Here, by contrast, police immediately detained appellant 

and his two associates as they were leaving the house, nobody was present inside the house 

during the search, and appellant made statements strongly indicating frustration and guilt.

Furthermore, police here executed the search warrant on the same day of Deputy Thompson’s 

surveillance.
11

these facts, a juror rationally could have concluded that appellant did not possess 

the drugs for personal use, but for delivery. 

Viewing the evidence in the light most favorable to the verdict, we hold that 

the evidence was legally sufficient to support the jury’s verdict that appellant

possessed and intended to deliver cocaine. We overrule appellant’s first issue.

C. Hearsay

In his third issue, appellant contends the trial court violated his rights to due 

process, confrontation, and cross-examination when it (1) admitted testimonial 

hearsay from an anonymous tipster and (2) denied disclosure of the tipster’s 

identity. 

(1)Hearsay and Right to Confrontation

Appellant argues that the anonymous tipster’s out-of-court statement is 

testimonial hearsay. The hearsay was revealed to the jury within this exchange 

between Deputy Thompson and the prosecutor: 

Q: Let me stop you there. What led you to start investigating this

residence?

A. An anonymous tip.

...

Q. Where did that anonymous tip come from?

A. Anyone can call our database or our office and leave information 

on drug activity.

...

Q. So after receiving an anonymous tip, what did you do?

A. Once I found out who the target was, I started to do my homework 

on who he was and where he lived at. And I already had the target 

location, I’ve just got to make sure that this is where he hangs out at 

and where all the drug activity is taking place.

Q. So the information you got was not that somebody was doing 
12

drugs, it was specifically that the defendant was doing drugs?

A. Yes.

Constitutional claims can be waived by failure to object. Smith v. State, 721 

S.W.2d 844, 855 (Tex. Crim. App. 1986). To preserve an error for appellate 

review, a party must present a timely objection to the trial court, state the specific 

grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a). To preserve 

error where objectionable testimony is involved, a party must object every time the 

allegedly inadmissible testimony is offered. See Ethington v. State, 819 S.W.2d 

854, 858 (Tex. Crim. App. 1991); see also Rios v. State, 263 S.W.3d 1, 6 (Tex. 

App.—Houston [1st Dist.] 2005, pet. ref’d, untimely filed).

Appellant did not object to the State’s questions or Deputy Thompson’s 

testimony. Appellant cites the transcript for the out-of-jury conference to show that

he preserved this issue for appeal. However, at no point during that conference did 

defense counsel argue that the State repeated or elicited inadmissible hearsay, or 

that appellant’s Sixth Amendment right to confrontation was violated. 

Accordingly, appellant’s failure to object on hearsay and confrontation grounds at 

trial waives these arguments on appeal. See Smith, 721 S.W.2d at 855; see also

Ethington, 819 S.W.2d at 858.4

(2) Due Process Under Rule 508(c) and Brady

In his sub-issues, appellant contends he was denied the process due under 

rule 508(c) and Brady. See Tex. R. Evid. 508(c)(2); Brady v. Maryland, 373 U.S. 

83, 87 (1963). 

 

4Appellant requests reversal based on the constitutional harm standard under Texas Rule 

of Appellate Procedure 44.2(a). Appellant is not entitled to a constitutional harm analysis 

because he did not preserve this issue for appellate review. See Cosio v. State, 353 S.W.3d 766, 

776–77 (Tex. Crim. App. 2011) (stating that because defendant did not preserve his constitutionbased jury charge claim, “he [was] not entitled to a harm analysis under Rule 44.2(a)”).
13

Pursuant to rule 508(c), the State is privileged from disclosing the identity of 

a person that has furnished relevant or useful information to a law enforcement

investigation. Tex. R. Evid. 508(c)(2). The privilege is inapplicable “if the court 

finds a reasonable probability exists that the informer can give testimony necessary 

to a fair determination of guilt or innocence.” Id. “The mere filing of a Rule 508 

motion is insufficient to obtain a hearing, much less compel disclosure.” Bridges v. 

State, 909 S.W.2d 151, 157 (Tex. App.—Houston [14th Dist.] 1995, no pet.). The 

burden lies with the defendant to satisfy the terms of the exception, and this 

obligates him to establish that the information is necessary and significant. Ford v. 

State, 179 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); see 

also Bridges, 909 S.W.2d at 157 (“[T]he informer’s potential testimony must be 

shown to significantly aid appellant, and mere conjecture or supposition about 

possible relevance is insufficient.”). If the court finds that the privilege is 

inapplicable and the State claims the privilege, the court must give the State an 

opportunity to show in camera facts relevant to determining whether this exception 

is met. Tex. R. Evid. 508(c)(2). 

During his cross-examination, defense counsel learned that Deputy 

Thompson contacted the individual who provided the anonymous tip. Defense 

counsel subsequently asked Deputy Thompson for the tipster’s name. The State 

objected, claiming the confidential informant privilege. See Tex. R. Evid. 508(c).

The trial court held a hearing outside the presence of the jury. During the hearing, 

defense counsel stated that he knew about the initial anonymous tip but the State 

did not inform him that Deputy Thompson had later phoned the tipster. Defense 

counsel stated that the tipster could now be classified as an informant, and that the 

State should have disclosed this fact. Defense counsel concluded that the State 
14

violated Brady. After hearing Deputy Thompson’s testimony5and counsel’s

arguments, the trial court overruled appellant’s objection, although the defense had 

not objected before or during this conference. 

Whether the tipster remained anonymous or became a confidential informant 

is immaterial to our analysis. Appellant did not move to compel the state to 

disclose the alleged confidential informant under any of the rule 508(c) exceptions. 

Defense counsel did not argue, pursuant to rule 508, that information from the 

informant was necessary and significant.6 Defense counsel appeared to assert only 

that the State violated Brady. What is more, appellant has not cited, and the record 

does not reflect, a trial court ruling on this issue. Therefore, appellant failed to 

preserve the rule 508(c) issue for appeal. See Buchanan v. State, 207 S.W.3d 772, 

774–78 (Tex. Crim. App. 2006) (trial court motion based on constitutional 

arguments did not preserve error for statutory claims on appeal); see also Tex. R. 

App. Proc. 33.1(a).

To demonstrate reversible error under Brady, an appellant must show: (1) 

the State suppressed evidence, regardless of the prosecution’s good or bad faith; 

(2) the suppressed evidence is favorable to appellant; and (3) the evidence is 

material, that is, there is a reasonable probability that, had the evidence been 

disclosed, the outcome of the trial would have been different. See United States v. 

Bagley, 473 U.S. 667, 682–83 (1985); Ex parte Kimes, 872 S.W.2d 700, 702 (Tex. 

Crim. App. 1993).

 

5 During the hearing, Deputy Thompson testified that the initial tip informed him where 

the drug activity was taking place, and after contacting the informant, he learned of appellant’s 

identity. 

6

Instead, defense counsel argued: “And I'm not saying she is a confidential informant, 

Judge. I'm saying that certainly this information should have been brought to my attention 

immediately, if not sooner.”
15

“When the evidence is disclosed at trial, the issue is whether the tardy 

disclosure prejudiced the defendant.” Little v. State, 991 S.W.2d 864, 866 (Tex. 

Crim. App. 1999); see also Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 

1999). Prejudice is not shown where the information is disclosed in time for the 

accused to make effective use of it at trial. See Little, 991 S.W.2d at 866. When 

defendant fails to request a continuance, he waives any error resulting from the 

State’s failure to disclose evidence. See Lindley v. State, 635 S.W.2d 541, 543–44 

(Tex. Crim. App. 1982); see also State v. Fury, 186 S.W.3d 67, 73-74 (Tex. 

App.—Houston [1st Dist.] 2005, pet. ref’d).

Appellant learned of the phone interview during trial. Appellant did not seek 

a postponement, move for continuance, or move to disclose the alleged informant’s 

identity under rule 508. Tex. Crim. Proc. Code art. 29.13 (West 2015); Tex. R. 

Evid. 508(c)(2). Presenting these motions would have allowed appellant time to 

address any impact of, and develop a necessary response to, the evidence. 

Appellant did not seek this relief and consequently waived any error. See Lindley, 

635 S.W.2d at 543–44.

Assuming appellant’s Brady complaint was properly preserved, it still fails. 

Appellant directs us to Bagley and argues that impeachment evidence is 

exculpatory. Bagley, 473 U.S. at 676. In Bagley, the government induced the 

witnesses to testify against the defendant. The government knew about this

impeachment evidence and withheld it from the defense. Id. By contrast, evidence 

that Deputy Thompson contacted the tipster and asked for appellant’s identity is 

not exculpatory and appellant fails to point to any impeachment evidence the State 

withheld here.

To the extent that appellant argues that he has a right to cross-examine the 

tipster for discovery of potential impeachment evidence, the United States 
16

Supreme Court has stated that “[t]here is no general constitutional right to 

discovery in a criminal case, and Brady does not create one.” See Weatherford v. 

Bursey, 429 U.S. 545, 559 (1977). Appellant therefore cannot use Brady to bypass 

rule 508 or create a new right to discovery.

We overrule appellant’s sub-issues.

D. Ineffective assistance of counsel

Appellant argues, in the alternative, that trial counsel rendered ineffective 

assistance by failing to preserve his third issue on appeal. We found that appellant 

failed to preserve the hearsay, confrontation, and rule 508 issues. We therefore 

understand that appellant claims his trial counsel was ineffective in two instances–

failing to object to Deputy Thompson’s testimonial hearsay and failing to file a 

motion to disclose the State’s confidential informant. 

To prove ineffective assistance of counsel, appellant must show by a 

preponderance of the evidence that: (1) counsel’s representation fell below an 

objective standard of reasonableness, based on prevailing professional norms; and 

(2) there is a reasonable probability that the result of the proceeding would have 

been different but for counsel’s deficient performance. Strickland v. Washington, 

466 U.S. 668, 688–92; Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 

1998). When determining whether a defendant was prejudiced, “the question is 

whether there is a reasonable probability that, absent the errors, the factfinder 

would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. 

“Appellant must prove both prongs of Strickland by a preponderance of the 

evidence in order to prevail.” Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 

2000).

On appeal, there is a “strong presumption that counsel’s conduct fell within 
17

a wide range of reasonable representation.” Salinas v. State, 163 S.W.3d 734, 740 

(Tex. Crim. App. 2005). “To overcome the presumption of reasonable professional 

assistance, any allegation of ineffectiveness must be firmly founded in the record, 

and the record must affirmatively demonstrate the alleged ineffectiveness.” Id.

(internal quotation marks omitted). When, as here, the record is silent regarding 

trial counsel’s strategy, we will not find deficient performance unless the 

challenged conduct was “so outrageous that no competent attorney would have 

engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

Counsel is not required to engage in the filing of futile motions. Wert v. 

State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). An 

appellant who claims that counsel was ineffective for failing to object during trial 

must show that it would have been error for the trial court to overrule the

objection. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (citing 

Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996)).

With regard to the rule 508 motion to disclose the informant’s identity, 

appellant had to establish that the information from the potential testimony was

necessary to a fair determination of guilt or innocence. See Bridges, 909 S.W.2d at

157 (“[T]he informer’s potential testimony must be shown to significantly aid 

appellant, and mere conjecture or supposition about possible relevance is 

insufficient” to overcome the State’s assertion of privilege). The record does not 

show whether appellant would have met his burden in overcoming the State’s 

assertion of privilege. Furthermore, appellant did not allege ineffective assistance 

of counsel in a motion for new trial, and the record contains no explanation for 

counsel’s conduct. In the face of a silent record, appellant has not overcome the 

presumption of reasonable professional judgment. Trial counsel therefore did not 

render ineffective assistance by failing to file a motion to disclose the informant’s 
18

identity.

We next consider trial counsel’s failure to object during the State’s direct 

examination of Deputy Thompson. State’s counsel asked: “So the information you 

got was not that somebody was doing drugs, it was specifically that the defendant 

was doing drugs?” To which Deputy Thompson responded: “Yes.” We assume, 

without deciding, that the State’s question contained inadmissible hearsay to which 

trial counsel could have objected and received a favorable ruling. Again, the record 

contains no explanation for counsel’s conduct. See Thompson v. State, 9 S.W.3d 

808 (Tex. Crim. App. 1999) (because record contained no information as to “why 

appellant’s trial counsel failed to object to the State’s persistent attempt to elicit 

inadmissible hearsay” defendant “failed to rebut the presumption that this was a 

reasonable decision”). This isolated failure to object does not present the sort of 

outrageous behavior in which no competent counsel would engage. Ingham v. 

State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (“[I]solated failure to object to

. . . improper evidence does not constitute ineffective assistance of counsel.”); 

Wert, 383 S.W.3d at 757 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (same).

Even assuming trial counsel’s isolated failure fell below an objective 

standard of reasonableness, appellant was not prejudiced by trial counsel’s 

conduct. In addressing the prejudice requirement under Strickland’s second prong, 

we may consider the totality of the evidence before the jury. Ex Parte Ellis, 233 

S.W.3d 324, 331 (Tex. Crim. App. 2007). “Some errors will have . . . a pervasive 

effect on the inferences to be drawn from the evidence, altering the entire 

evidentiary picture, and some will have . . . an isolated, trivial effect.” Strickland,

466 U.S at 695–96. Appellant contends that he was harmed by admission of the 

statement because: the State had not affirmatively linked appellant to the drugs, but 

the statement offered a link; the statement was not cumulative of other evidence; 
19

the statement corroborated the cocaine police found at the house; and that the 

State’s case was weak.

When we determined that there was legally-sufficient evidence to convict 

appellant of the charged offense, we did not consider the tipster’s statement. That 

is, appellant was charged with, and tried for, possession of a controlled substance 

based on physical evidence and testimony provided by Deputy Thompson—not 

the tipster. Additionally, the statement that “defendant was doing drugs” was of 

limited relevance to the State’s case against appellant. The statement was vague as 

to which drug, and given that appellant admitted to marijuana use at the house, it 

did little to bolster a link to possession of cocaine over the marijuana. Reviewing 

appellant’s contentions in light of the totality of the evidence, had the informant’s 

statement been suppressed, it would not have created a reasonable doubt that did 

not otherwise exist. Having failed to prove either prong under Strickland, 

appellant’s claim of ineffective assistance of counsel fails.

III. CONCLUSION

Accordingly, we affirm the judgment of the trial court. 

/s/ Marc W. Brown

Justice

Panel consists of Justices Busby, Donovan, and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b).