                                               NO. 07-02-0320-CR

                                        IN THE COURT OF APPEALS

                               FOR THE SEVENTH DISTRICT OF TEXAS

                                                  AT AMARILLO

                                                      PANEL E

                                          FEBRUARY 7, 2003
                                   ______________________________

                                         CARLOS WAYNE TOOMBS,

                                                                           Appellant

                                                            v.

                                           THE STATE OF TEXAS,

                                                        Appellee
                                _________________________________

                  FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                            NO. 44,997-E; HON. ABE LOPEZ, PRESIDING
                               _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

          Appellant Carlos Wayne Toombs appeals from his conviction for sexual assault of

a child. The two issues before us concern his Sixth Amendment right to confront the

witnesses and evidence presented against him and the effectiveness of his trial counsel.

We overrule each issue and affirm the judgment of the trial court.




          1
             Joh n T . Boyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T EX . G O V ’T
C ODE   A N N . § 75.002(a )(1) (V erno n Su pp. 2003 ).
                         Issue One – Right to Confront Witnesses

         In his first point of error, appellant contends that he was denied his right to confront

two police officers that the State purportedly subpoenaed to testify. The officers did not

appear at trial. Furthermore, it was determined that the officers had not actually been

subpoenaed. Nevertheless, the parties entered into a stipulation regarding the substance

of the officers’ testimony, and counsel for appellant read it to the jury. Because the officers

did not appear and their testimony was presented through stipulation, appellant now

believes that he was denied his Sixth Amendment right to confront them. We overrule the

issue.

         To the extent appellant complains of being unable to confront the two officers

because they did not appear to testify, he was not deprived of the right at issue. It is

axiomatic that the right to confront applies to evidence presented, or witnesses who testify,

at trial. If the evidence is not presented or the witnesses do not testify, there can be no

violation of the right to confront. Simply put, one cannot be said to have been denied a

right to test evidence or witness testimony that was never tendered at trial. See Chavez

v. State, 508 S.W.2d 384, 386 (Tex. Crim. App. 1974) (the accused was not denied his

right to confront and cross-examine a witness against him when she did not appear and

testify at trial and none of her prior testimony was introduced).

         To the extent appellant suggests that he was denied the opportunity to confront the

two officers since they effectively testified via the stipulation, we conclude that the doctrine

of invited error applies. There is no evidence that either litigant was forced or coerced into

executing the stipulation. Nor does anyone so contend. Nor does the record illustrate (or

anyone contend) that the substance of the stipulation would have been admitted if the

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stipulation was not executed. Thus, by executing the stipulation with the State when

obviously knowing that the officers were not present to be questioned, appellant invited

the situation about which he now complains (i.e. the inability to cross-examine the officers’

testimony proffered through the stipulation). Having invited or created the situation, he is

estopped from complaining about it. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim.

App. 1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000)

(discussing the doctrine of invited error).2

                                 Issue Two –Effectiveness of Counsel

         Next, appellant asserts that his attorney was ineffective because he did not secure

a ruling upon his motion for mistrial. Counsel moved for mistrial after it was discovered that

the two officers mentioned in the preceding issue did not appear to testify. We overrule

this issue as well.

         As has been the rule for some time, claims of ineffectiveness must be firmly founded

in the record. Rios v. State, 990 S.W.2d 382, 385 (Tex. App.—Amarillo 1999, no pet.).

Implicit in this is the need to prove, among other things, that the act complained of actually

occurred. And, since the act complained of is counsel’s purported failure to secure a ruling

upon his motion for mistrial, the record must show that the court did not rule on it. Yet, the



         2
            Appellant sta tes in his brief that the “fact that [his] attorney signed the written stipulation does not give
[sic] evidence that [he] . . . was a willful participant in giving up his constitutional right.” That may be true.
How ever, neither at trial or in his brief did he contend that he 1) did not know of the stipulation, 2) did not agree
to it, or 3) did not agree to waive any right to confront the abs ent officers. Nor do es the rec ord illustrate that
the execution of the stipulation was anything other than voluntary. Appellant also fails to challenge the
auth ority of his attorney to execute the stipulation on his beh alf. Given the lack of such a c hallenge, we have
no basis upon which to conclude that appellant was not voluntarily bound by the stipulation his attorney signed
wh ile rep resentin g him at trial. See O rellana v. State, 706 S.W .2d 660, 661 (Tex. Crim. App. 1986) (holding
that even though the appellant did not personally sign the “reset” forms, he was bound by the forms unless
the re cord reflected that coun sel was n ot authorized to sign the m ).

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record before us fails to do so. Indeed, in open court, counsel wanted it “noted for the

record” that he requested a mistrial and that he expressly “except[ed] to the denial of our

motion . . . .” (Emphasis added). This came after the court had conducted “in camera

conversations” with the attorneys about the situation. Counsel’s act of “except[ing]” to the

“denial of [the] motion” for mistrial is some evidence from which one can reasonably infer

that the motion was actually denied. At the very least, we cannot say the record firmly

illustrates that the trial court failed to rule on the motion. And, because the record does not

so illustrate, we cannot say that appellant established that his attorney failed to secure a

ruling on the motion. Consequently, the claim of ineffectiveness is not firmly founded in

the record before us.

       Accordingly, the judgment of the trial court is affirmed.



                                                   Brian Quinn
                                                      Justice

Do not publish.




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