                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-069-CR


JERRY BRIDGES                                                     APPELLANT

                                             V.

THE STATE OF TEXAS                                                     STATE

                                         ------------

           FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                         ------------

                         MEMORANDUM OPINION 1

                                         ------------

     Appellant Jerry Bridges appeals his conviction for possession of a

controlled substance with intent to deliver.2 We affirm.

     While in custody the day after his arrest, appellant signed a written

statement admitting that he had bought, used, and sold methamphetamine.



     1
         … See T EX. R. A PP. P. 47.4.
     2
         … See T EX. H EALTH & S AFETY C ODE A NN. § 481.112 (Vernon 2003).
Following a pretrial hearing, the trial court ruled the statement admissible, and

it was admitted at trial as State’s Exhibit 1. The jury found appellant guilty as

charged in the indictment and, after hearing additional evidence and argument,

assessed punishment at sixty years’ confinement.

      In point one, appellant claims that the trial court abused its discretion in

admitting State’s Exhibit 1 because it lacked a warning required by code of

criminal procedure article 38.22 section 2(a)(4) that, if indigent, the accused

has the right to an appointed lawyer to advise him before and during any

questioning.3 The State concedes in its brief that State’s Exhibit 1 lacks the

required warning, but the State argues that appellant has forfeited his claim

because he did not raise the issue with the trial court. We agree.

      To preserve a complaint for review, a party must have presented to the

trial court a timely request, objection, or motion stating the specific grounds for

the desired ruling if those grounds are not apparent from the context of the

request, objection, or motion.4 An objection preserves only the specific ground

cited.5


      3
          … T EX. C ODE C RIM. P ROC. art. 38.22, § 2(a)(4) (Vernon 2005).
      4
       … T EX. R. A PP. P. 33.1(a)(1)(A); Mosley v. State, 983 S.W.2d 249, 265
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
      5
       … See T EX. R. A PP. P. 33.1(a)(1)(A); Mosley, 983 S.W.2d at 265; Bell
v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996), cert. denied, 522 U.S.

                                          2
      At trial, appellant argued,

              Also, I would point to the Court the case 729 S.W.2d
      137(A). I believe it is the State versus Taylor. I just had it up here,
      but I’m not locating it, a case that is shockingly similar to this one
      in which the defendant was brought in and even made the
      statement that he didn’t read and write so well, such as what was
      previously proffered here. And the statement was read to him just
      as it is alleged to here, but without any other safeguards, just as it
      was here. In that case the Court ordered the statement to be
      suppressed. The Court of Appeals ordered that it be suppressed
      upon appeal. That’s a case out of Beaumont, as I recall.

            ....

      . . . and also I would – again, I was trying to pull up that case. I
      believe it was the Taylor versus State, 729 S.W.2d. It’s almost
      factually identical to the present case. And there they ordered the
      statement suppressed just for the reasons because the officers
      testified just almost as the officer did here just a few moments ago
      that, Well he said he couldn’t read or write, so he – I read along
      with him and I had him read through it, and he kind of indicated he
      under – he understood it.

      We can find no argument to the trial court that suppression was required

because State’s Exhibit 1 lacked the section 2(a)(4) warning relating to

appointed counsel. Nor is it apparent from the context of counsel’s comments

that appellant opposed admission based upon section 2(a)(4). 6 Trial counsel



827 (1997).
      6
       … In his brief, appellant cites Thibedeaux v. State, 729 S.W.2d 137
(Tex. App.—Beaumont 1987, pet. ref’d), as the case to which trial counsel
meant to refer in his comments to the trial court. But Thibedeaux deals with
section 2(b), not section 2(a)(4). See id. at 137 (“[The] complaint before us is

                                        3
argued that there should have been safeguards in place to ensure the

voluntariness of a statement made by one who could not read or write, not that

section 2(a)(4)’s warning pertaining to the appointment of counsel for indigent

persons did not appear on the face of the statement. Because appellant’s point

one does not comport with any objection raised at trial, we overrule it.

      We overrule point two for the same reason.        In point two, appellant

claims that the admission of State’s Exhibit 1 violated the Fifth Amendment of

the United States Constitution and Miranda v. Arizona,7 but he did not raise this

objection in the trial court.   Therefore, the complaint is not preserved for

review.

      In points three and five, appellant argues that State’s Exhibit 1 was

involuntary because appellant is mildly mentally retarded and did not knowingly,

intelligently, and voluntarily waive his article 38.22 and Miranda rights.

      We review a trial court’s ruling on a motion to suppress under a

bifurcated standard of review.8 In reviewing the trial court’s decision, we do




that the confession did not comply with T EX. C ODE C RIM. P ROC. A NN. art.
38.22(2)(b) (Vernon 1979).”).
      7
          … 384 U.S. 436, 86 S. Ct. 1602 (1966).
      8
     … Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

                                       4
not engage in our own factual review. 9 The trial judge is the sole trier of fact

and judge of the credibility of the witnesses and the weight to be given their

testimony.10     Therefore, we give almost total deference to the trial judge’s

rulings on (1) questions of historical fact, even if the trial court’s determination

of those facts was not based on an evaluation of credibility and demeanor, and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility

and demeanor.11 But when the trial court’s rulings do not turn on the credibility

and demeanor of the witnesses, we review de novo a trial court’s rulings on

mixed questions of law and fact.12 When the trial court makes explicit fact

findings, we determine whether the evidence, when viewed in the light most

favorable to the trial court’s ruling, supports those fact findings. 13 We then

review the trial court’s legal ruling de novo unless its explicit fact findings also


      9
       … Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best
v. State, 118 S.W.3d 857, 861 (Tex. App—Fort Worth 2003. no pet.).
      10
        … State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State
v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
      11
        … Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App.
2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002);
State v. Ballman, 157 S.W.3d 65, 68 (Tex. App.—Fort Worth 2004, pet. ref’d).


      12
      … Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);
Johnson, 68 S.W.3d at 652–53.
      13
           … State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006).

                                         5
dispose of the legal ruling.14 We must uphold the trial court’s ruling if it is

supported by the record and correct under any theory of law applicable to the

case even if the trial court gave the wrong reason for its ruling.15

      When the suppression issue was litigated at a pretrial hearing and again

during trial, we consider evidence from both parts of the record in determining

whether the record, viewed in the light most favorable to the trial court’s

findings, supports those findings. 16

      Whether a written statement is voluntary is determined by examining the

totality of the circumstances surrounding its acquisition.17 An accused’s mental




      14
           … Id. at 819.
      15
       … State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert.
denied, 541 U.S. 974 (2004).
      16
       … See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.), cert.
denied, 519 U.S. 1043 (1996).
      17
        … Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985)
(overruled on other grounds by Mosely v. State, 983 S.W.2d 249, 264 n.18
(Tex. Crim. App. 1998).

                                        6
retardation can figure into the voluntariness inquiry.18 Illiteracy, too, is relevant,

but does not demand a finding of involuntariness.19

      The record shows the following:

•     Appellant was sixty-one years old and for a number of years had owned

      and operated a business.

•     After appellant was arrested in a buy-bust operation, officers found

      $1,020.00 in cash and a small plastic bag of methamphetamine in his

      pockets.

•     The night of his arrest, appellant telephoned Lieutenant David Scott

      several times from jail.

•     The next day, Officer Jeff Davis went to the jail to talk to appellant and

      see what he wanted.

•     When Officer Davis arrived, appellant appeared depressed, expressed

      remorse, and asked whether Lieutenant Scott was upset with him and

      what was going to happen.



      18
        … Delao v. State, 235 S.W.3d 235, 241 (Tex. Crim. App. 2007) cert.
denied, 128 S. Ct. 1128 (2008); Penry v. State, 903 S.W.2d 715, 744 (Tex.
Crim. App.), cert. denied, 516 U.S. 977 (1995); Sosa v. State, 769 S.W.2d
909, 915 (Tex. Crim. App. 1989) cert. denied, 529 U.S. 1056 (2000); see
Arizona v. Fulminante, 499 U.S. 279, 286 n.2, 111 S. Ct. 1246, 1252 n.2
(1991).
      19
           … Westley v. State, 754 S.W.2d 224, 229 (Tex. Crim. App. 1988).

                                          7
•   Officer Davis told appellant that he would like to take his statement to

    get his version of what had transpired the previous day, and appellant

    agreed.

•   At the booking-desk computer, Officer Davis pulled up a form, and

    appellant was able to read along as Officer Davis read him his Miranda

    rights less the right to appointed counsel.

•   Appellant acknowledged that he understood his rights, agreed to waive

    them, signed a waiver to that effect, and gave a statement that Officer

    Davis typed and appellant signed.

•   Appellant told Officer Davis that he had attended school through seventh

    grade and could read “pretty good” but not spell.

•   Officer Davis made no promises or threats to appellant, and in giving the

    statement, appellant appeared to know what he was doing.

•   After the statement was prepared, appellant read it back to Officer Davis.

•   Dr. Leon Peek, a psychologist, performed several tests on appellant, and

    testified both at the pretrial hearing and before the jury at trial.

•   Dr. Peek concluded that appellant had an IQ of 58, was mildly mentally

    retarded, and could not “read for information,” which meant that

    appellant could understand words as he heard them but would have

    difficulty understanding their meaning and importance.

                                      8
•     One of the tests showed that appellant was malingering and not making

      his best effort in taking the tests, and Dr. Peek believed that the other

      scores, including appellant’s IQ, were underestimates.

•     The trial court, based upon its observation of appellant’s behavior and

      demeanor, found that appellant displayed no indications of mental

      incapacity such as that his statement would not have been voluntarily

      made.

      Having reviewed the trial court’s findings in the appropriate light, the

evidence presented at the suppression hearing, and the evidence presented at

trial, we hold that the trial court did not abuse its discretion in finding that,

under the totality of the circumstances, appellant’s statement admitted as

State’s Exhibit 1 was voluntary. We overrule appellant’s points three and five.

      In point four, appellant contends that the trial court abused its discretion

in admitting State’s Exhibit 1 because it “contained references to inadmissible

extraneous offenses and its probative value was outweighed by its prejudicial

effect.”

      State’s Exhibit 1 contained a list of persons to whom appellant admitted

he has sold methamphetamine. It also contained appellant’s admissions that

he has bought approximately a half-ounce of methamphetamine every week for




                                        9
the last three years, that he uses about a quarter-ounce every week, that he

sells the rest, and that he sells enough methamphetamine to support his habit.

      Admissibility of evidence is a matter within the trial court’s discretion.20

As long as the trial court's ruling admitting evidence was within the “zone of

reasonable disagreement,” there is no abuse of discretion and its ruling will be

upheld.21

      Evidence of “other crimes, wrongs or acts” is inadmissible in a criminal

case to prove that the defendant acted in conformity with his character to

commit crimes.22       Evidence of other bad acts may be admissible, however, if

it has relevance apart from its tendency to prove that the defendant acted in

conformity with his character.23 Evidence that logically serves to establish

some elemental fact, such as identity or intent; or that tends to establish some

evidentiary fact, such as motive, opportunity or preparation, leading inferentially

to an elemental fact; or evidence that rebuts a defensive theory may be




      20
           … Montgomery v. State, 810 S.W.2d 372, 378–79 (Tex. Crim. App.
1990).
      21
           … Rachal, 917 S.W.2d at 807.
      22
           … T EX. R. E VID. 404(b).
      23
           … Montgomery, 810 S.W.2d at 388 (op. on reh’g).

                                        10
admissible.24 “‘Relevant evidence’ means evidence having any tendency to

make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the

evidence.” 25

      Appellant was tried for possession of a controlled substance, namely,

methamphetamine, with intent to deliver. Intent to deliver, therefore, is an

essential element of that offense. Those portions of State’s Exhibit 1 that

relate to appellant’s selling methamphetamine are relevant to proving this

essential element.

      Having held the evidence to be relevant, we must determine whether its

probative value was substantially outweighed by the danger of unfair

prejudice.26     To make this determination, we must consider the inherent

probative force of the proffered item of evidence along with the proponent’s

need for that evidence, and balance these considerations against the following

four factors that favor exclusion:




      24
      … See Marc v. State, 166 S.W.3d 767, 775 (Tex. App.—Fort Worth
2005, pet. ref’d); Massey v. State, 933 S.W.2d 582, 586 (Tex. App.—
Houston [1st Dist.] 1996, no pet.).
      25
           … T EX. R. E VID. 401; Marc, 166 S.W.3d at 775.
      26
           … Montgomery, 810 S.W.2d at 388–89 (op. on reh’g).

                                        11
      (1) any tendency of the evidence to suggest [a] decision on an

      improper basis,

      (2) any tendency of the evidence to confuse or distract the jury

      from the main issues,

      (3) any tendency of the evidence to be given undue weight by a

      jury that has not been equipped to evaluate the probative force of

      the evidence, and

      (4) the likelihood that presentation of the evidence will consume an

      inordinate amount of time or merely repeat evidence already

      admitted.27

      In this case, the probative force and the State’s need to admit State’s

Exhibit 1 outweigh the factors that favor exclusion. Appellant’s admission that

he regularly sold methamphetamine was compelling evidence that appellant

intended to sell methamphetamine. It would be rational for the jury to conclude

from appellant’s admission that he regularly sold methamphetamine that he

intended to sell it in this case. His admission further served to rebut appellant’s

theories that the drugs were planted on him and that the money he carried

when he was arrested had come, not from selling drugs, but from payments


      27
           … Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App.
2006).

                                        12
from his rental properties. While it was likely to be given some weight by the

jury due to its probative value, the admission had no tendency to suggest a

decision on an improper basis or to confuse or distract the jury from the main

issues. In addition, the State did not take an inordinate amount of time to

develop the evidence compared to the rest of the record, nor is there any

indication in the record that the evidence distracted the jury from consideration

of the indicted offense.

      Because the factors favoring exclusion do not substantially outweigh the

probative force of the evidence and the State’s need for it, we hold that the

trial court did not abuse its discretion in admitting evidence of appellant's

statement under rule 403. We overrule point four.

      In point six, appellant argues that the trial court abused its discretion in

failing to fully instruct the jury not to consider State’s Exhibit 1 unless it found

that all the proper warnings had been given and that appellant knowingly,

intelligently, and voluntarily waived his rights before making the statement.

      When the evidence raises a fact issue as to whether a defendant had

been warned of his rights and voluntarily waived them prior to making a

statement, he is entitled to an instruction on the voluntariness of his




                                        13
confession.28 In such cases, it is proper to include in the charge an instruction

informing the jury that if it has a reasonable doubt as to whether a defendant

knowingly, intelligently, and voluntarily waived his rights before giving a

confession, it must disregard the confession and not consider it for any

purpose. 29

      Appellant concedes that he neither requested a voluntariness instruction

nor objected to the voluntariness instruction the trial court included in the

charge. A challenge to the voluntariness of a statement is a defensive issue.30

To preserve a complaint regarding the omission of a jury instruction on a

defensive issue for our review, the appellant must make a proper objection or

request in the trial court.31 The appellant in this case did neither. Therefore,

his complaint regarding the omission of the instruction is waived. We overrule

point six.


      28
       … Dinkins v. State, 894 S.W.2d 330, 353 (Tex. Crim. App.), cert.
denied, 516 U.S. 832 (1995).
      29
        … Bell v. State, 582 S.W.2d 800, 808–09 (Tex. Crim. App. 1979),
cert. denied, 453 U.S. 913 (1981).
      30
       … Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002);
Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.), cert. denied, 510 U.S.
837 (1993).
      31
       … T EX. R. A PP. P. 33.1; Posey v. State, 966 S.W.2d 57, 61–62 (Tex.
Crim. App. 1998)(trial courts have no duty to sua sponte instruct the jury on
unrequested defensive issues).

                                       14
      In point seven, appellant contends that his trial counsel was ineffective

in failing to object to the admission of State’s Exhibit 1 because it did not

contain proper 38.22 and Miranda warnings on its face and because counsel

failed to object to the trial court’s inadequate instruction on voluntariness.

      We apply a two-pronged test to ineffective assistance of counsel claims.32

First, appellant must show that counsel’s performance was deficient, which

requires showing that counsel made such serious errors that he or she was not

functioning as the “counsel” guaranteed by the Sixth Amendment.33 Counsel’s

performance is deficient only if it fell below an objective standard of

reasonableness measured by prevailing professional norms.34 The record must

be sufficiently developed to overcome a strong presumption that counsel

provided reasonable assistance. 35 Our scrutiny of counsel’s performance must




      32
        … Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
      33
           … Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
      34
           … Id. at 688–89, 104 S. Ct. at 2065.
      35
      … Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002);
Thompson, 9 S.W.3d at 813–14.

                                       15
be highly deferential, making every effort to eliminate the distorting effects of

hindsight.36

      Second, appellant must show that counsel’s deficient performance

prejudiced the defense; this requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial.37 Appellant must show that

there is a reasonable probability that, but for counsel’s deficiency, the result of

the trial would have been different.38

      A claim of ineffective assistance of counsel must be firmly grounded in,

and supported by, the record.3 9 When the record is silent as to possible trial

strategies employed by defense counsel, we will not speculate on the reasons

for those strategies.40

      There is a substantial risk of failure when a claim of ineffective assistance

of counsel is brought on direct appeal. 41 “Under normal circumstances, the




      36
           … Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
      37
           … Id. at 687, 104 S. Ct. at 2064.
      38
           … Id. at 694, 104 S. Ct. At 2068.
      39
       … Thompson, 9 S.W.3d at 814; Jackson v. State, 973 S.W.2d 954,
955 (Tex. Crim. App. 1998).
      40
           … See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
      41
           … Thompson, 9 S.W.3d at 813.

                                         16
record on direct appeal will not be sufficient to show that counsel’s

representation was so deficient and so lacking in tactical or strategic

decisionmaking as to overcome the presumption that counsel’s conduct was

reasonable and professional.” 42

      This case demonstrates the “inadequacies inherent in evaluating

ineffective assistance claims on direct appeal.” 43 Although appellant filed a

motion for new trial, there is nothing in the record to show that he presented

it to the trial court to afford the trial court an opportunity to hold a hearing and

inquire into the reasons for trial counsel’s acts or omissions. Consequently, we

cannot determine whether counsel’s actions were grounded in sound trial

strategy because the record is silent as to possible trial strategies, and we will

not speculate on the reasons for those strategies.44 Nor is this a case where

the trial record alone is sufficient to support appellant’s claim that counsel was

ineffective. 45   Therefore, appellant has failed to meet the first prong of

Strickland. We overrule point of error seven.


      42
           … Bone, 77 S.W.3d at 833.
      43
       … Patterson v. State, 46 S.W.3d 294, 306 (Tex. App.—Fort Worth
2001, no pet.).
      44
           … See id.; Jackson, 877 S.W.2d at 771.
      45
      … See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005);
Thompson, 9 S.W.3d at 813.

                                        17
      Having overruled all of appellant’s points of error, we affirm the trial

court’s judgment.


                                                PER CURIAM

PANEL: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 29, 2008




                                     18
