NO. 07-06-0156-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D AUGUST 15, 2006

______________________________ MICHAEL JESUS COY, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY; NO. 70317 2; HONORA BLE MICH AEL DEN TON, JUDG E

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORAND UM OPINION Following a ple a of n ot guilty, appellant, Michael Jesus Coy, was convi cted of assaultbybodily injury and sentenced to one year confin ement and a $4,000 fine, probated in favor of one year community supervision. Presenting three issue s, appellant contends (1) the hearsay statements of the victim admitted over his objection violated his right t o2

confrontation under

the United States Constitution, (2) he was denied effective assistance of counsel, and (3) the evidence was factually insuffic ient to s upport hi s convic tion. We affirm.
In J une 2005, appellant was arrested and charged w ith assaulting his wife du rin g a disputeat the co uples’ h ome. Despite multiple subpoenas, the victim failed to appear for trial. The State proceede d with its case by offering the victim’s statements through the testimony of

the two police officers who investigated the compl aint. Counsel for appellant objected to hearsay; however, the court admitted the testimony under the excited utterance exception of Rule 803(2) of the Rules of Evidence. Appellant was subsequently convicted of the offense. Byhis first issue, appellant contends that by admittin g the vic

tim’s out-of-court statements, the trial court violated the Confrontation Clauseof the Sixth Amendment to the United States Constitution. Although he concedesthat he did not object on constitutional grounds at trial, appellant main tains that because the State mentioned the case of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed .2d 177 (2004), he was not required to make aseparateConfrontation Cla use objec tion. We disagree

. As a prerequisi te to app ellate re view, a d efendant must makea timely

request, objection, or motion stating the groun ds with s ufficien t specifi city to apprise the trial co urt of his complaint. Tex. R. App. P. 33.1(a). The purpose of this requirement “isto give to the trial court or the opposing party the opportunity to correct the error or remove the basi s for3

the objection.” Martinez v. State, 22 S.W.3d 504, 507 (Tex.Cr.App. 2000). Recently, the Court of Criminal Appeals has made it clear that an objection to hearsay does not preserve error on Confrontation Clause grounds. Reyna v. S tate, 168 S.W.3d 173, 179 (Tex.Cr.App. 2005); Paredes v. State, 129 S.W.3 d 530, 53 5 (Tex.C r.App. 20 04). In addition, objections belowthat do not comport with those u ttered on appeal are generally not preserved for review. Wilson v. State, 71 S.W.3d 346 , 349 (Tex.Cr.App. 2002). Consequently, appellant’s first issue presents nothing for review and is overruled. Alternatively, by his second issue, appella nt argues that beca use coun sel fail ed to preserve error on Confrontation Clause grounds, he received in effective assistance of counsel. We disa gree. Ineffectiveness of couns el is re vie wed under the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (198 4). Unde r Strickland , a defendantmust esta blish (1 ) counsel 's perform ance was deficie nt (i.e., fell b elow 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 proceeding would h ave been differen t, a reasonable probability being a probability suf fici ent to undermine confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003); Hernandez v. State, 726 S.W.2d 53 , 55 (Tex .Cr.App. 1 986). In other words, appellant must demonstrate by a preponde rance of the evidence that the deficient performance prejudiced his defens e . Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002); Thompson v. State, 9 S.W.3d4

808, 813 (Tex .Cr.App. 1999). Failure to make the required showing of either deficient performance or suffic ient prej udice de feats th e ineffe ctivenes s claim. Thompson , 9 S.W.3d at 814 (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 omissions of trial counsel

. Id. Although the cons tituti onal rig ht to coun sel ensu res the ri ght to reasonablyeffective counsel, it does not guarantee errorless counsel whose competency or accuracy of representation is to be judged b y hindsi ght. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Cr.App. 1984); Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr. App. 199 3). Furthermore, ap pellate review of trial counsel's representation is highly deferential and presumes thatcounsel's conduct fell within the wide range of reasonable and professional representation. See e.g. , Andrews v. State, 159 S.W.3d 98, 101 (Tex.Cr.App. 2005); Bone
v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002). To defeat the presumption of reasonable profe ssional assistance, any allegation of ineffectiveness must be firmly foun ded in th e record. Thompson , 9 S.W.3d at 813-14.
In the present case, the record fails to demonstrate counsel’s performance fell below an objective standard of reasonableness. Counsel vigorously cross-examined the State’s witnesses, attempted to di scredit their version of events, and repeatedly attacked the State’s failureto produce the photographs of the victim’s injuries. He also made pe rtinent o bjections throughout the trial, most notably, he lodged a valid , albeit unsuccessful, hearsayobje ction und er the Rules of Evidence prior to the introduction of the witnesses out-of-cou rtstatement s. Contra ry to appe llant’s assertion , there ar e a number

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conceivable reasons why coun sel migh t have de clined t o object on confrontation grounds. For example, as the S tate points out, he may have simply believed that the testimony was admissib le, makin g an obje ction in appropri ate. SeeThompson, 9 S.W.3d at 814.
Based on the re cord befo re us and provide d the pre sumpti on that trial counsel's conductfalls within the wide range of reasonabl e and professional repres entation, no reversible error

is demon strated. See Bone, 77 S.W.3d at 833; Mallett v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001). Appellant’s second i ssue is overruled. Byhis thir

d issue, a ppellan t claimsthat without the victim’s hearsay statements, the State’s evidence is factu ally ins ufficien t to support his convicti on. Howe ver, we cond uct a factual sufficiency analysis by considering all the evidence before the jury—whether proper or improper—so that we ca n make an assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Cr.App. 1996). Because we cannot conduct a sufficiency reviewwithout considering the victim’s out-of-court statements, appellant’s third poin t presentsnothing for review and is overrul ed. Fuller v State, 827 S.W.2d 919, 931 (Tex.Cr.A pp. 1992 ). Accordingly, the trial court’s judgment is affirmed.
Don H. Reavis Justice Do not publish.