Opinion filed April 26, 2012



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 1 0

- 00 113

- CR

__________ LAURA SUZANNE WEAVER , Appellant

V.

STATE OF TEXAS , Appellee

On Appeal from the 220th District Court

Comanche County, Texas

Trial Court Cause No. CCCR

- 10

- 03247

M E M O R A N D U M O P I N I O N The jury convicted Laura Suzanne Weaver, appellant, of the offense of forgery and assessed her punishment at two years in a s tate j ail f acility and a fine of $2
, 500. We affirm. Briona Keith was a cashier at the Brookshire’s g rocery s tore in Comanche in September
2009 . While she was on duty at Broo k shire’s on September 11, 2009
, a woman came to the store to purchase a prescription . The prescription was for Vicoprofen , a narcotic pain medication containing hydrocodone
, and was in the name of Lisa Watson. The prescription had been transferred from a pharmacy in Round Rock. The woman paid for th e prescri ption with a check.2

Keith recognized the woman as someone who had been in the store two weeks earlier . At that time, the woman us ed the name “ Laura Weaver ” and produced her driver’s license with that
name on it. Keith was shown a photo lineup a nd identified a ppellant as the person who gave her
the check to pay for the prescription

. Comanche law enforcement officers contacted law
enforcement officers in Georgetown . Those officers administered p hoto lineups and two Georgetown physicians i dentified appellant , but she was known to them as Lisa Watson

. The check that a ppellant used to pay for the Vicoprofen was written on a closed account that formerly belonged to Sylvia Moyer

. Moyer is appellant ’s mother. The check was originally
written i n October 2007 to the Gatesville P.T.O. and sent to appellant ’s children for a fundraiser
at their school . The fundraiser was subsequently cancelled. Both the name of the payee on the
check and the amount of the check had been altered without Moyer’s per mission
, and she signed a forgery affidavit

. Based upon these facts, Comanche authorities arrested a ppellant , and this conviction
followed. Appellant presents us with what we take as one issue on appeal with several subparts. Appellant complains that her trial counsel was ineffective in failing to file pretrial motions
, failing to object to certain pieces of evidence
, and failing to object to various aspects of the State’s closing argument. In order to prevail on a claim of ineffective assistance of counsel
, a ppellant must show
that trial counsel ’ s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceeding would have been diff erent. Strickland v. Washington , 466 U.S. 668, 687 (1984) ; Hernandez v. State , 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Hernandez v. State , 726
S.W.2d 53, 55 (Tex. Crim. App. 1986)

. The adequacy of the attorney ’ s assistance is based upon the totality of the representation. Ex p arte Robinson , 639 S.W.2d 953, 954 (Tex. Crim. App. 1982). Effective assistance does not mean errorless counsel or one whose competency and adequacy is to be judged in hindsight. Mercado v. State , 615 S.W.2d 225, 228 (Tex. Crim. App. 1981). In addition, in matters of strategy and tactics
, the actions of defense counsel will be presumed competent. See Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) ( t rial3

record will rarely contain sufficient information to s how trial counsel’s performance was deficient in strategic or tactical realm). Counsel cannot be called ineffective merely because a given trial strategy did not work. Saylor v. State , 660 S.W.2d 822, 824 (Tex. Crim. App. 1983).
It is also unreasonable t o judge one attorney by what another might have done. Mercado , 615
S.W.2d at 228. Finally, the defendant has the burden to show, by a preponderance of the
evidence
, that counsel failed to render effective assistance. McFarland v. State
, 845 S.W.2d 824
, 8 44 (Tex. Crim. App. 1992).
Failure to File Pretrial Motions During the trial, the State asked Moyer if a ppellant had a history of prescription nar cotic abuse; she answered, “I suspect it, yes.” Appellant contends that
, if her trial counsel had requested notice under T EX

. R. E VID

. 404(b) (evidence of other crimes, wrongs or acts)
, he would have known that the State was going to offer evidence o f a ppellant ’s drug addiction.
Other than the drugs that a ppellant purchased with the forged check, Moyer’s testimony was the only evidence that a ppellant might be addicted to prescription narcotics. At the motion for new trial hearing
, a ppellant ’s tri al counsel testified that the State had an open file policy and that he
did not see the need to file an y additional discovery motions. Appellant’s trial attorney felt he had done all that was necessary and knew the evidence that the State was going to present. Appellant has not shown that counsel was ineffective when he did not file a Rule 404(b) request

.

Failure to Object to Testimony Concerning the Nature of Vicoprofen Sharon Abbey, the pharmacist at Brooks hir e’s, testified that Vicoprofen

— the drug that

a ppellant bought with the forged check

— i s a combinatio n of ibuprofen and hydrocodone. Abbey testif

ied that h ydrocodone is a “schedule three ” medication, meaning it is an abusable medication and a “highly addictive narcotic.” She te stified that there are many people who are addicted to hydrocodone and that it has a “hig h street value.” Abbey also testified that there was no reason to suspect that this was not a valid prescription an d that she filled it.
This evidence arguably is relevant to show a motive on the part of a ppellant to commit the forgery. See Taylor v. State , 920 S.W.2d 3 19, 321 (Tex . Crim. App. 1996) (extraneous offense may be admissible to prove motive). Appellant also contends that her trial attorney should have objected to the evidence on the basis that its probative value was substantially outweighed by the danger of unfair prej udice if admitted into evidence

. See T EX

. R. E VID

. 40 3.4

Although a ppellant was using two different names, there is no evidence that the prescription was
fraudulent. The evidence concerning the addictive nature of Vicoprofen could be taken as suggesting that a ppellant was abusing the drug. However, balancing the probative value of the
evidence against the unfair prejudice would have been a decision for the trial court to make had

a ppellant ’s trial counsel made the objection

. Because we may not substitut e our judgment for that of the trial court, w e cannot say that the trial court would have been required to sustain a Rule 403 objection had one been made. See Montgomery v. State , 810 S.W.2d 372, 389 (Tex. Crim. App. 199 1 ) (appellate court does not conduct a de novo review of the trial court’s decision

on a Rule 403 balancing issue ). Appellant has not shown that her trial counsel was ineffective for failing to object to this testimony. See also i d. at 389 (Rule 403 favors the admissibility of relevant evidence). Even if we were to hold that trial counsel was ineffective

— which we do

not

— a ppellant has not shown that there was a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceedin g would have been different. Strickland
, 466
U.S. at 687 ; Hernandez , 988 S.W.2d at 772; Hernandez , 726 S.W.2d at 55

. Failure to Object to Mother’s Testimony As noted above, appellant ’s mother testified that she suspected that her daughter had a history of prescription narcotic abuse. Even if we were to hold that t his is evidence of a
character trait to which a ppellant ’s trial attorney should have o bjected under T EX

. R. E VID

. 404(a), a ppellant has not satisfied the second prong of Strickland

— that there w as a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceeding would have
been different. Strickland
, 466 U.S. at 687; Hernandez , 988 S.W.2d at 772; Hernandez , 726
S.W.2 d at 55. G iven the overwhelming weight of th e evidence in favor of a ppellant ’s guilt, we cannot say that the result of the trial would have been different had trial counsel objected and successfully excluded this evidence. See Ex parte Walker , 777 S.W.2d 427, 430 (Tex. Crim. App. 1989); s ee also Fa rrar v. State , 701 S.W.2d 32, 36 (Tex. App.

— Houston [14th Dist] 1985 pet. ref’d) (isolated failures to object to certain procedural mistakes or improper evidence do not constitute ineffective assistance of counsel).

Failure to Object to the State’s Closing Argument Appellant complains about trial counsel’s failure to object to two jury arguments made by
the State. First, a ppellant faults her trial counsel for his failure to object to the State’s closing5

argument in wh ich the prosecutor stated that a ppellant’s husband was in jail for prescription
fraud. The prosecutor sai d
, “ Ladies and G entlemen, this is really a sad case. I mean her husband’s in jail for prescription fraud, she’s here, but that’s not why we are here today.”
Al though there was evid ence that a ppellant’s husban d was incarcerated
, there was no evidence
that he had been convicted of or charged with prescription fraud
, and the argument was , thus
, objectionable

. See Borjan v. State , 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). Th e argument , however , could have been to remind the jury not to decide the case based upon sympathy. Although technically objectionable, it could have be en a matter of trial strategy not to call further attention to the argument by objecting to it. Additionally, t r ial counsel might have wanted to curry the sympathy o f the jury by having this information in front of them

. Appellant has not

s how n that trial counsel ’ s representation fell below an objective standard of reasonableness
, and
neither has she shown that there is a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceeding would have been different. Strickland
, 466 U.S. at 687; Hernandez , 988 S.W.2d at 772; Hernandez , 726 S.W.2 d at 55. Second, a ppellant maintains that she received ineffective assistance from her trial attorney when he did n ot object to the State’s closing argument in which the State referred to

a ppellant’s alleged drug dependency. Even assuming that a ppellant has satisfied the first prong
of Stric kland , she has not established, g iven the overwhelming evidence of a ppellant’s guilt in
this case
, that there i s a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceeding would have been different. Strickland
, 46 6 U.S. at 687; Hernandez , 988
S.W.2d at 772; Hernandez , 726 S.W.2 d at 55.
We overrule each subpart of a ppellant’s issue on appeal.
T he judgment of the trial court is affirmed

.

PER CURIAM April 26, 2012 Do not publish. See T EX

. R. A PP

. P. 47 .2(b). Panel consists of: Wright, C.J., McCall, J., and Kalenak, J.