1 509 U .S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (19 93). NO. 07-03-0216-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D APRIL 22, 2004

______________________________ JONATHAN SHA NE ROSS PEAKE, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 359 TH DISTRIC T COURT O F MONTGOM ERY COUNTY; NO. 01-08-05233-CR; HON. JAMES KEESHAN, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, REAVIS, and CAMPB ELL, JJ. Appellant

Jonathan Sha ne Ros s Peake appeals h is convi ction for agg ravated robb ery. Through tw

o issues, hecontends that 1) the trial court abused its discr etion when itadmi tted into ev iden ce ex pert fing erprint test imon y i n vi olat ion of Daubert v. Merril l Dow Pharmaceutical, Inc. 1 and its prog eny, and 2) he received ineffective assistance of counsel. We af firm the judgment of the trial cour t.2 Background On May 10, 2002 , a black man ( Tywon Lang) knocked on the door of the home of Richard Blackmoore who recognized the man as someo ne who had co me to his door several d ays before w ith a whi te man (later identified as appel lant). Lang asked to mow Blackmoore’s lawn. Bl ackmoore de ni ed the request . When Lang departed, he failed to shutthe gate to theyard. F earing tha t his dog wou ld escape, Blac kmoore went out the frontdoor sever

al minutes late r to rectify Lang’s default. At that poi nt, he was confronted by both Lang and appellant. The latter was weari ng a ski mask and h ad a gun w hich he used to force his w

ay into the residence. The men tied up Blackmoore with a dog leash and took a Rolex

watch and s ome cash. During the robbery, Blackmoore’s dog bit Lang on his leg. Lang and a ppe llan t att emp ted t o lea ve the scene in a red pickup, l ater identified to be owned by appellant’s mother, but the eng ine would notstart. In at tempting to start the vehicle, Lang pushed the p ickup and appell ant steered. While doing s o, the y were observed by a nei ghb or, My ra N ash. Lang subs equ entl y l eft the vehicl e, was sto pped by police on foot, admitted his involvement in the robbery, and showed police where to fin d the watch. Sotoo did he t es tify at appell ant’s trial and express ly incul pate himself and appellant. Issue One - Expert Testimony In his first

issue, appell ant complains about the admission i nto evidence of testimony

regarding fingerprint

analysis conducted by a purported expert. It was allegedly inadmissible because it w as “hard to s quare w ith Daubert. ” We overrule t he issue for it
was waived.3

During t rial, appell ant complained of the r eliability of the expert testimony wit h respect to palm print

analysis, while on appeal, he complains ofthe testimony with respect to fingerprint

analysis . Furthermor

e, counsel for appel lanttook care to distinguish between the two subje cts below

. Thus, given that the object ion uttered below does not comport w ith the issue asse rted on appeal, t he purported error wasand is wa ived. Massey v. State, 933 S.W.2d 141, 157 (Tex. Crim. App. 1996). Issue Two - Ineffective Assistance I n h is second is sue, appellant contends his trial counsel was ineffective since he failed to object to th e identification of him as one of the robbers by Blackmoore and N ash. We overrule the issue. The standard by

which w e review ineffecti ve a ssistance of counsel claims is well established. Thus, we wi ll no t repeat it, bu t cite the par ties to Strickland v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed .2d 674 (1984), Tong v. State , 25 S.W.3d 707 (Tex. Cri m. App. 2000), cert. denied, 532 U. S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001), and Herna ndez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) for an explanation of same. Furt her, c laimsof ineffe ctive assistance must be firmly foun ded in the record. Rios v. Stat e, 990 S.W .2d 382, 385 (Tex. App.– Amarillo 1999, no pet.). With regard to the in-court identification by Blackmoor e, appella nt fails to explain why the testimony

was inadmi ssible. He simply states that it “was s o objectionable the . . . Courtfelt it necessa ry to at tempt to clarify”it. Furthe rmore, the spec ific objection that counsel was purportedly require d to make goes unmentioned, as does any au thority supporting the conclusion that the evidence was inadmissible. Thus, we are left to guess atthe reasoning underlyi ng appellant’s claim and a t the legit imac y of t hat r easo ning, if an y.4

And, because of that, t he complai nt was w aived due to i nsufficient briefing

. See Garcia
v. State , 887 S.W.2d 862, 880-81 (Tex. C rim. App. 1994), overruled i n part o n oth er grounds by Hamm ock v. State, 46 S.W .3d 889 (Tex. Crim. App. 2001) (overruling the claim thatcounsel was ineffectiv e due to his failure to object since the app ellant failed to explain “how counsel mig ht have kept t he statement out”) ; Melonson v. St ate , 942 S.W.2d 7 77 , 782 (Tex. App.–Beau mont 1997, no pet.) ( hol ding tha t an appellant must not only specifically ide ntif

y the deficiencies

in counsel’s performance but also identify the specific objection that shou ld ha ve been made and provide aut hority in support of his argument that the objection would have been meritoriou s). As to the out -of-co urt identification by Nash, we also find it to be insu fficiently b riefed. Appellant had t he burden to prove not only t hat counsel’s performan ce wa s deficient bu t also that the deficiency pr ejudiced him. Tong v. State , 25 S.W.3d at 712. While the former element is addres sed at bar, the la tter is not. Nowhere does appellant end eavor

to explai n how tri al counsel’s perceive d failure to attempt to suppres s Nash’ s testimony

created a reas onable probabil ity that but for the supposed error the result would have been different. This i s of dire import in view of Lang’s testi mon y and the o ther evidence directly

inculpating appellant. And, given t hat the burden li es with “ [a]ppellant . .

. [to] prove both prongs of [the test] by a preponderance of the evidence i n order to pr evail,” id. (emphasis added) , we have no duty to uni laterally fill the void appellant l eft. Accordingl y, the judg ment of the trial court is affirmed.
Brian Quinn Justice Publish.