











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00015-CR
______________________________


CASSANDRA GAIL PITTS, Appellant
Â 
V.
Â 
THE STATE OF TEXAS, Appellee


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 29,757-B


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 



Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter


MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Â Â Cassandra Gail Pitts has appealed from her conviction, on her guilty plea, of theft (habitual),
a state jail felony.   The trial court reviewed a presentence investigation report, heard evidence, and
assessed her punishment at two years' confinement in a state jail facility.  Pitts raises a single issue
on appeal arguing that her sentence was disproportionate to her offense.  We affirm the judgment
of the trial court.
Â Â Â Â Â Â Â Â Â Â Â Â Pitts was convicted of a state jail felony, which provides a punishment range of between 180
days and two years.  See Tex. Pen. Code Ann. Â§ 12.35(a) (Vernon 2003).  Thus, her punishment was
within the range authorized by statute. 
Â Â Â Â Â Â Â Â Â Â Â Â Texas courts have traditionally held that, as long as the punishment assessed is within the
range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or
unusual.  See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).  However, in
Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.âTexarkana 1999, no pet.), this Court recognized
that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment
to the United States Constitution apart from any consideration of whether the punishment assessed
is within the range established by the Legislature.  See also Fluellen v. State, 71 S.W.3d 870, 873
(Tex. App.âTexarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63, 68-69 (Tex.
App.âTexarkana 2000, pet. ref'd).
Â Â Â Â Â Â Â Â Â Â Â Â Our proportionality analysis under both the Eighth Amendment to the United States
Constitution and Article I, Section 13 of the Texas Constitution is guided by (1) the gravity of the
offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same
jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.
U.S. Const. amend. VIII; Tex. Const. art. I, Â§ 13; see Solem v. Helm, 463 U.S. 277, 292 (1983);
Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.âTyler 1996, no pet.) (evaluating appellant's Texas
constitutional claim of cruel and unusual punishment under test outlined in Solem).  Only if we find
the sentence is grossly disproportionate to the offense will we then consider the remaining factors
of the Solem test and compare the sentence received to sentences for similar crimes in the same
jurisdiction and to sentences for the same crime in other jurisdictions.  McGruder v. Puckett, 954
F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664-65 (Tex.
App.âTexarkana 1995, pet. ref'd).
Â Â Â Â Â Â Â Â Â Â Â Â Pitts did not present this issue to the trial court; therefore, she did not preserve it for our
review.  See Tex. R. App. P. 33.1(a); Jackson, 989 S.W.2d at 844.  Even if the contention had been
preserved for review, there is no evidence in the record comparing the sentences imposed on persons
in Texas with sentences imposed against defendants in other jurisdictions who committed a similar
offense.  Alberto v. State, 100 S.W.3d 528, 529-30 (Tex. App.âTexarkana 2003, no pet.); see
Fluellen, 71 S.W.3d at 873; Latham, 20 S.W.3d at 69; Davis, 905 S.W.2d at 664-65. 
Â Â Â Â Â Â Â Â Â Â Â Â We affirm the judgment.



Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Jack Carter
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Date Submitted:Â Â Â Â Â Â Â Â Â Â October 20, 2003
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â October 21, 2003

Do Not Publish

, 974 S.W.2d at 718.  The trial court heard argument from both parties
regarding the admissibility of the evidence and determined the evidence was relevant and more
probative than prejudicial.  See Montgomery, 810 S.W.2d at 377.  Therefore, in light of the foregoing
and the deference that is afforded to the trial court's decision, we conclude the trial court has not
abused its discretion by admitting evidence of the arrest.  

Limiting Instruction
 In his second point of error, Skeen contends the trial court erred by not submitting a limiting
instruction concerning the subsequent arrest.  The standard of review for errors in the jury charge
depends on whether the defendant properly objected.  Mann v. State, 964 S.W.2d 639, Â 641 Â (Tex.
Â Crim. Â App. Â 1998); Â Almanza Â v. Â State, Â 686 Â S.W.2d Â 157, Â 171 Â (Tex. Â Crim. App. 1984) (op. on
reh'g); Gornick v. State, 947 S.W.2d 678, 680 (Tex. App.-Texarkana 1997, no pet.).  If a proper
objection was raised, reversal is required if the error "is calculated to injure the rights of the
defendant."  Almanza, 686 S.W.2d at 171.   In other words, an error that has been properly preserved
is reversible unless it is harmless.  Id.  However, if the evidence is not within the law applicable to
the case, the trial court is not required to include a limiting instruction in the charge to the jury. 
Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001). 
	Tex. R. Evid. 105(a) expresses in pertinent part: 
	When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury 	accordingly; but, in the absence of such request the court's action in admitting        
such evidence without limitation shall not be a ground for complaint on appeal.  

	In Hammock, Hammock was convicted of aggravated sexual assault, and during the trial on
guilt/innocence, the prosecution introduced evidence of Hammock's past incarceration. Hammock,
46 S.W.3d at 891.  Hammock's counsel did not request a limiting instruction until the court had
prepared the charge and asked counsel for objections.  Id. at 891-92.  The court held that the
appropriate time to request a limiting instruction would have been when the evidence was admitted. 
Id. at 893.  The court reasoned that failing to give a limiting instruction at the time of admission
allows the jury to draw inferences about the defendant's guilt based on character conformity, and the
improper inference could not later be erased by an instruction.  Id. at 894; Jackson v. State, 992
S.W.2d 469, 478 (Tex. Crim. App. 1999).  Further, the court reasoned that its interpretation of Tex.
R. Evid. 105 did not conflict with the Texas Code of Criminal Procedure.  See Tex. Code Crim.
Proc. Ann. art. 36.14 (Vernon Supp. 2002) (judge shall, before argument begins, deliver to jury a
written charge distinctly setting forth law applicable to case); see Hammock, 46 S.W.3d at 895. 
Because the evidence was not limited on admission, the court held it was admitted for all purposes;
consequently, a limiting instruction on the evidence was not within the applicable law of the case,
and the trial court was not required to include such an instruction.  Hammock, 46 S.W.3d at 895.  
	In the present case, as set out above, the trial court allowed into evidence the testimony of
three officers concerning Skeen's strength.  However, Skeen did not request a limiting instruction
until the court had prepared the charge and asked counsel for objections.  Similar to Hammock, the
jury had already been allowed to draw inferences from the extraneous offense about Skeen's guilt,
and a limiting instruction would have failed to remove such inferences. Id. at 894.  Because the
testimony was admitted for all purposes, the trial court was under no obligation to include a limiting
instruction.  Id. at 895.  Therefore, the trial court did not commit error by denying Skeen a limiting
instruction.  Id.; Tex. Code Crim. Proc. Ann. art. 36.14.
Self-Defense Instruction
	In his third point of error, Skeen contends the trial court committed error by failing to include
in the charge an instruction regarding self-defense.  It is well established that a defendant has the
right to a jury instruction on any defensive issue that has been raised by the evidence, regardless of
whether the evidence is weak or strong, unimpeachable or contradicted, and regardless of what the
trial court may think about its credibility.  Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App.
1999); Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).  Further, in a case where
deadly force was used, an instruction regarding self-defense is warranted if there is some evidence
satisfying the requisites of Tex. Pen. Code Ann. Ç§ 9.31,  9.32 (Vernon Supp. 2002); see Dyson,
672 S.W.2d at 463.  Accordingly, the issue before this Court is not whether Skeen's testimony is true,
but rather whether, if the testimony is believed, an issue of self-defense has been raised.  Dyson, 672
S.W.2d at 463; Rodriguez v. State, 544 S.W.2d 382 (Tex. Crim. App. 1976).  The defendant's
testimony alone can be enough to raise a defensive issue requiring a jury charge, Dyson, 672 S.W.2d
at 463, and the testimony is to be viewed in a light most favorable to the defendant. Granger, 3
S.W.3d at 38.
	Tex. Pen. Code Ann. § 9.31 provides in pertinent part: 
	(a) . . . [A] person is justified in using force against another when and to the degree
he reasonably believes the force is immediately necessary to protect himself against
the other's use or attempted use of unlawful force. 

Tex. Pen. Code Ann. Â§ 9.32 provides in pertinent part:
	(a) A person is justified in using deadly force against another:  (1) if he would be
justified in using force against the other under Section 9.31; (2) if a reasonable person
in the actor's situation would not have retreated; and (3) when and to the degree he
reasonably believes the deadly force is immediately necessary: (A) to protect Â himself
against Â the Â other's Â use Â or Â attempted Â use Â of Â unlawful Â deadly force. . . .
 In the present case, Skeen has not shown that, at the time of the shooting, he reasonably
believed deadly force was immediately necessary.  See Tex. Pen. Code Ann. Â§ 9.32.  Skeen testified 
he believed his father reached for the gun to pull himself up from the bed, not to use unlawful deadly
force.  While Skeen may have raised an issue of mistake or accident, he has failed to present
evidence that would satisfy the requirements set forth in the Texas Penal Code, and the trial court
did not commit error by denying his request for a jury instruction.  Dyson, 672 S.W.2d at 463.  
Hearsay
 In his fourth point of error, Skeen contends the trial court committed error by admitting
testimony over his hearsay objection.  The abuse of discretion standard controls this Court's review
of the trial court's decision to admit or exclude alleged hearsay testimony.  Jefferson v. State, 909
S.W.2d 247 (Tex. App.-Texarkana 1995, pet. ref'd).  The test for abuse of discretion is not whether,
in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action;
rather, it is a question of whether the court acted without reference to any guiding rules or principles,
and the mere fact that a trial court may decide a matter within its discretionary authority differently
than an appellate court does not demonstrate such an abuse.  Montgomery v. State, 810 S.W.2d 372,
391 (Tex. Crim. App. 1990).
	Where an appellant claims the trial court erred in admitting evidence offered by the State, the
error must have been preserved by a proper objection and ruling.  Ethington v. State, 819 S.W.2d
854, 858 (Tex. Crim. App. 1991); Rawlings v. State, 874 S.W.2d 740, 742 (Tex. App.-Fort Worth
1994, no pet.).  The objection must have been timely, and the defense must have stated the basis for
the objection unless the particular ground was apparent from the context.  Lankston v. State, 827
S.W.2d 907, 908-09 (Tex. Crim. App. 1992).  In addition, Texas law generally requires a party to
continue objecting each time inadmissible evidence is offered.  Ethington, 819 S.W.2d at 858.  Any
error in admitting the evidence is cured where the same evidence comes in elsewhere without
objection.  Mack v. State, 872 S.W.2d 36, 38 (Tex. App.-Fort Worth 1994, no pet.); Hudson v. State,
675 S.W.2d 507, 511 (Tex. Crim. App. 1984).
	In the present case, Skeen contends the following exchange between the prosecutor and
witness Glenda Szoboda admitted by the trial court constituted inadmissible hearsay: 
	[State]: Tell me again, ma'am, when he came to the restaurant, what did you notice
about him? 
	[Witness]: Â I Â could Â tell Â something Â was Â wrong, Â and Â I Â asked Â him Â what Â was
Â wrong Â and Â he wouldn't talk. . . . And he started telling us what was going on at his
house, that he - he was real stressed out . . . .
	[State]: Well, he was stressed out because of things that were occurring in his house?
	[Witness]: Yes. 
	[State]: What things did he tell you that happened? 
	[Witness]: He was talking about he wanted his son to move out of his house. He was
tired of them tearing things up and partying and just being rowdy.
	. . . .		
	[State]: Did he say if they were smoking pot? 
	[Witness]: Yes. He said they were smoking pot and drinking. And the only thing he
said was tearing things up. He didn't say what they were tearing up. 
	. . . .	
	[State]: And did his son make any remarks to him about him throwing him out?
	[Witness]: He told me that he wanted them to move out, he was tired of fighting. 
And his son - he said his son threatened him that he would kill him if he had moved
out. And he told him that he was taking him out of his will for the way he was
treating him. And his son told him that, if you do that, you will be killed.   
However, the statements Skeen allegedly made threatening to kill his father are admissible because
they were previously admitted into evidence without objection.  See Hudson, 675 S.W.2d at 511. 
Specifically, the following exchange took place between the State and Keeling: 
	[State]: Now did he say his son would kill him for putting him out or did he tell you
that his son had threatened to kill him for putting him out?
	[Officer]: I believe his words were that his son would kill him if he put him out.
The foregoing testimony was admitted without objection.  Accordingly, in the present case, any error
the trial court committed by admitting the statements made by Szoboda concerning the threats was
cured by the testimony of Keeling.	
	On the other hand, the statements made by Szoboda that the victim told her Skeen had been
partying, tearing things up, and smoking pot in his father's residence amounted to the admission of
inadmissible hearsay.  In order for the father to have the mental state he professed to have, the
statements would have to be taken as true, which would be in violation of Rule 801.  Tex. R. Evid.
801; Callaway v. State, 818 S.W.2d 816, 828 (Tex. App.-Amarillo 1991, pet. ref'd).  Therefore, the
witness' statement that the father told her his son was partying, tearing things up, and smoking pot
in the father's residence is outside the scope of the mental or emotional condition exception, and the
trial court erred by admitting testimony regarding the events or existing conditions that were the
cause of the father's mental and emotional state.  See Tex. R. Evid. 803(3); Gibbs v. State, 819
S.W.2d 821, 837 (Tex. Crim. App. 1991).
 Despite the admission of inadmissible hearsay, the trial court's error does not warrant the
reversal of Skeen's conviction.  Under the Texas Rules of Appellate Procedure, any error, other than
constitutional error, committed by the trial court that does not affect substantial rights must be
disregarded.  Tex. R. App. P. 44.2(b).  We review the record as a whole to determine whether the
error had a substantial influence on the jury's verdict.  Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998).
	In the present case, the only issue in dispute was the mental state of Skeen at the time of the
shooting.  At trial, the State contended Skeen knowingly and intentionally killed his father.  The
State produced evidence that Skeen physically abused his father on the day of the shooting.  Further,
the State produced testimony from another neighbor, Dittmar, who called for medical assistance, that
Skeen did not give aid to his father, and that Skeen did not appear remorseful for having shot the
victim.  Further, the State introduced testimony that Skeen and his wife had already removed from
the house the guns the father might have used against Skeen.  The State reasoned from the evidence
presented that Skeen intended to kill his father. 
	The statements that were admitted did not reflect Skeen's intent to kill his father; rather, the
statements referred to a collateral matter of partying and smoking pot in the residence.  In light of
the above evidence produced by the State, the jury could have found Skeen guilty despite the
inadmissible hearsay.  Additionally, the conviction for manslaughter requires only a reckless state
of mind.  Therefore, the trial court's error did not have a substantial and injurious effect on the jury's
verdict.    
Sufficiency of Evidence
 In his fifth and sixth points of error, Skeen contends the evidence was both legally and
factually insufficient to support the jury's verdict. 
1. Legal Sufficiency 
 When there has been a challenge to both the legal and factual sufficiency of the evidence, the
court must first determine if the evidence was legally sufficient to support the verdict.  Clewis v.
State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996); Hines v. State, 978 S.W.2d 169, 172 (Tex.
App.-Texarkana 1998, no pet.).  The proper standard of review to determine legal sufficiency is
whether the evidence would support the verdict when viewed in the light most favorable to the
verdict.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  In other words, if any reasonable
trier of fact could have found beyond a reasonable doubt the essential elements of the crime, the
verdict will be deemed legally sufficient.  Clewis, 922 S.W.2d at 134.  
 In the present case, the jury was instructed that a person commits the offense of manslaughter
if he or she recklessly causes the death of an individual.  The Texas Penal Code defines recklessness
as follows: 
	A person acts recklessly, or is reckless, with respect to circumstances surrounding his
conduct or the result of his conduct when he is aware of but consciously disregards
a substantial and unjustifiable risk that the circumstances exist or the result will
occur.  The risk must be of such a nature and degree that its disregard constitutes a
gross deviation from the standard of care that an ordinary person would exercise
under all the circumstances as viewed from the actor's standpoint.

Tex. Pen. Code Ann. Â§ 6.03 (Vernon 1994). 

	The State produced testimony that Skeen physically abused his father on the day in question,
that the police had been called to the residence for terroristic threats, and that Skeen threatened to
kill his father on the day in question.  Further, Skeen testified he followed his father down the hall
of the residence with a loaded pistol after the father had threatened Skeen.  Under the above
circumstances, a reasonable juror could have found that Skeen grossly deviated from the standard
of Â care Â an Â ordinary Â person Â would Â exercise Â under Â the Â circumstances.  Â See Â Tex. Â Pen. Â Code
Ann. Â§ 6.03; Johnson, 23 S.W.3d at 7.  A reasonable juror could have determined Skeen invited a
confrontation and was reckless in doing so.  Accordingly, the State presented legally sufficient
evidence to support the verdict. 
2.  Factual Sufficiency 
 A factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring
neither party.  Johnson, 23 S.W.3d at 7.  In determining the factual sufficiency of the evidence to
establish the elements of the offense, we view all the evidence in a neutral light and set aside the
verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly Â wrong
Â and Â unjust.  Â Id.  Â Further, Â we Â set Â aside Â the Â verdict Â for Â factual Â insufficiency only if (1) the
evidence in support of a vital fact, considered as standing alone, is factually too weak to support it,
or (2) looking at all the evidence, some evidence supports a positive inference and some supports
a negative inference, but the State's evidence is so weak as to make the finding against the great
weight and preponderance of the available evidence.  Goodman v. State, 66 S.W.3d 283 (Tex. Crim.
App. 2001).  Such a finding is described as being "manifestly unjust," or "shocks the conscience,"
or "clearly demonstrates bias."  Id.   
	In the present case, the State produced expert testimony that the pistol had been fired between
two and five feet from the father, that the father did not have gunshot residue on his hands, and that
it was physically impossible for the father to have had his hand on the gun at the time of the
shooting.  However, in contrast, Skeen elicited testimony from the same witnesses that the gun was
a poor depositor of gun residue, that the residue, if any, on the father could have been washed away
by the father's blood, and that the father's arms were long enough to grab the gun and still have been
shot from over two feet away.  Further, as set out above, Skeen testified the father threatened him
before the shooting occurred. 
	While Skeen has presented evidence in support of his contention, he has not presented such
compelling evidence that would render the verdict against the great weight and preponderance of the
evidence.  See Johnson, 23 S.W.3d at 7.  Further, due deference is to be afforded to the fact-finder's
assessment of the weight and credibility of the evidence.  Id. at 11.  As a result, the evidence
presented at trial was factually sufficient to support the verdict.  

Witness Bolstering

	In his seventh point of error, Skeen contends the trial court committed error by allowing the
State to improperly bolster one of its witnesses.  The test for abuse of discretion is not whether, in
the opinion of the reviewing court, the facts present an appropriate case for the trial court's action;
rather, it is a question of whether the court acted without reference to any guiding rules or principles,
and the mere fact that a trial court may decide a matter within its discretionary authority differently
than an appellate court does not demonstrate such an abuse.  Montgomery, 810 S.W.2d at 391.
	Testimony elicited to rebut prior impeachments by opposing counsel is not considered
improper bolstering.  Anderson v. State, 717 S.W.2d 622, 629 (Tex. Crim. App. 1986).  In the
present case, the following testimony was elicited at trial: 
	[Appellant]:     Okay. So this little scenario with Mr. Littlefield and yourself is just
between you two; isn't that correct?

	[Witness]:     Yes. 

	[Appellant]:     You just made it up, didn't you?

	[Witness]:     I don't understand what you mean. 

	[Appellant]:     Well, I mean you just did it. Not based on what he said but based on
what you think had happened; isn't that correct?

	[Witness]:     It's based on his testimony, yes. 

	[Appellant]:     Did you rehearse that? 

	[Witness]:     I didn't rehearse anything. 

	[Appellant]:     Okay. Where were you late Thursday at about 11 o'clock? 

	[Witness]:     In the 196th court. 

	[Appellant]:     Okay. Who was in the court with you? 

	[Witness]:     Mr. Littlefield. 

	[Appellant]:     And who else? 

	[Witness]:     There was Investigator - or Marshal Rich and also Tommy Grandfield. 
And also I think attorney Craig Black. 

	[Appellant]:     Okay. And isn't it true you all were rehearsing your testimony today;
isn't that correct?

	[Witness]:     I was going over my testimony. 

	[Appellant]:     Oh I see. Okay. And each one of you went over your testimony. That's
- as a practice, didn't you?
 
	[Witness]:     We went over our testimony, yes.

	[Appellant]:     So you've heard all his questions before, haven't you? 
 
Redirect Examination


	[State]:     Okay. You're a police officer. Correct? 

	[Witness]:     That's correct. 

	[State]:     Why would you lie about something? 

	[Witness]:     I wouldn't.

	[Appellant]:     Judge, I'm going to object to counsel trying to bolster the witness' 		testimony. 

Skeen contends the above line of questioning resulted in improper bolstering of the witness'
testimony.  However, Skeen's counsel opened the door to such questioning by implying the witness
had fabricated his testimony and it was a product of rehearsal.  When a witness has been impeached,
the subsequent rehabilitation of a witness is not considered improper bolstering. Anderson, 717
S.W.2d at 630.  Accordingly, Skeen has not shown that the trial court abused its discretion by
allowing the State to rehabilitate its witness.  

Ineffective Assistance of Counsel

	In his eighth, ninth, and tenth points of error, Skeen contends he was provided with
ineffective assistance of counsel.  The standard of testing claims of ineffective assistance of counsel
is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional
claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).  To prevail, an appellant
must prove by a preponderance of the evidence (1) that his counsel's representation fell below an
objective standard of reasonableness, and (2) that the deficient performance prejudiced his defense. 
Strickland, 466 U.S. 668; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Rosales v.
State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).  Under this standard, a claimant must prove that
counsel's representation so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.  Strickland, 466 U.S. at 686. 
	Our review of counsel's representation is highly deferential, with a strong presumption that
counsel's conduct falls within a wide range of reasonable representation.  Strickland, 466 U.S. at 689;
Tong, 25 S.W.3d at 712.  This Court will not second-guess through hindsight the strategy of counsel
at trial, nor will the fact that another attorney might have pursued a different course support a finding
of ineffectiveness.  Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Harner v. State, 997
S.W.2d 695, 704 (Tex. App.-Texarkana 1999, no pet.).  Any allegation of ineffectiveness must be
firmly founded in the record.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  As
a result, the Texas Court of Criminal Appeals has often held that, on direct appeal, the record has
not been sufficiently developed to enable an appellate court to adequately determine whether the
appellant was provided ineffective assistance of counsel.  Id. at 814-15.  
	In the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate
court will assume a strategic motivation if any can be imagined.  Garcia v. State, 57 S.W.3d 436,
441 (Tex Crim. App. 2001).  We will not conclude the challenged conduct constitutes deficient
performance unless the conduct was so outrageous that no competent attorney would have engaged
in it.  Id.; see Thompson, 9 S.W.3d at 814.
1. Did counsel's decision not to object to being called as a witness for the State result in
ineffective assistance of counsel? 

	In the present case, Skeen's counsel delivered bullets to the investigating officer for testing. 
The State called counsel as a witness to explain the origin of those bullets because counsel had
previously questioned whether the bullets used in testing could render an accurate result.   During
the course of the examination, the State asked counsel if it was true that he "misrepresented to this
[j]ury that those were different bullets on purpose."  Counsel did not object to being called as a
witness at trial, and the record is void of any reason for counsel's decision not to object.   
	Similarly, in Thompson, the court held the record had not been fully developed to a point that
the court could adequately consider the issue on direct appeal.  Thompson, 9 S.W.3d at 814.  The
court reasoned that "an appellate court should be especially hesitant to declare counsel ineffective
based upon a single alleged miscalculation during what amounts to otherwise satisfactory
representation, especially when the record provides no discernible explanation of the motivation
behind counsel's actions."  Id.  In the present case, Skeen has failed to meet the first prong of
Strickland because the record has not been adequately developed for this Court to consider whether 
trial counsel's representation was ineffective.  However, like in Thompson, Skeen is not precluded
from bringing a petition for writ of habeas corpus to fully develop the record and determine what,
if anything, motivated trial counsel not to object to being called as a witness.  Thompson, 9 S.W.3d
at 814-15.        
2.  Did counsel's decision not to pursue his objections after they had been sustained result in
ineffective assistance of counsel? 

	In the present case, Skeen contends his trial counsel provided ineffective assistance because
he did not pursue his objections to an adverse ruling.  See Ramirez v. State, 815 S.W.2d 636, 643
(Tex. Crim. App. 1991) (holding it must be clear from record trial court overruled defendant's
objection; otherwise, error is waived).  Specifically, Skeen contends the following objections
resulted in ineffective assistance of counsel: 
	[State's opening argument]:    He comes back about 11 o'clock at night thinking - 		imagine this, a 72-year-old man coming back after 11 o'clock at night to his own 		house.  That's how scared he was, to stay away until 11:00 o'clock at night.
 
	[Counsel]:     Judge, we're going to object to Counsel interjecting his opinion into his
opening statement.
 
	The Court:     Sustained. You can argue what you believe the evidence will show. 

	. . . .	

	[State's opening argument]: If it's an accidental shooting with your father involved,
no matter how much you dislike him, you're going to be upset that your father was
accidently [sic] shot. 

	[Counsel]: Judge, I'm going to object to Counsel interjecting his opinion into this
case in his opening statement.

	The Court: Sustained. 
 
	. . . .

	[State's examination of Amber Hoedebeck ]: I just want to make sure your testimony
was you saw the Defendant strike -

	[Counsel]: Judge, I'm going to object. It's been asked and answered. 

	The Court: Sustained. I think she's already testified to that. 

	. . . .

	[State]:     Is it your testimony - and I know Mr. Williams - we talked about this -
is it your testimony that you saw the Defendant do this eight hours before the victim
was murdered? 

	[Witness]:     Yes. 

	[Counsel]:     Judge, I'm going to object to Counsel eliciting from this witness facts
that are not in evidence regarding before this person was murdered. That's a totally
improper question. It's prejudicial.
 
	The Court:     Sustain the objection. I have not heard any time frame on when the
senior Mr. Skeen was shot.  

	. . . .

	[State's examination of Officer Mario Robles]:     If he was really trying to get out
that night, why would he leave the van there?

	[Witness]:     I have no idea. 

	[Counsel]:     Objection. That's based on speculation. 

	The Court:     Sustained. 

	. . . .

	[State]:     We went over your reports, did we not? 

	[Witness]:     That's correct.

	[Counsel]:     Your Honor, I'll object to counsel leading the witness. 

	[State]:     Judge, he's the one impeaching on, trying to make him out to be a liar
because he reviewed his evidence with me.
 
	The Court:     Overruled. 

	[Counsel]:     Judge, I'm going to object to the side-bar comments of counsel -

	The Court:     Sustain. 

	[Counsel]:     and ask the Court to admonish the Jury to disregard. 
	The Court:    The Jury will remember that whatever attorneys say, including
questions, are not evidence in this case.

The record is devoid of any explanation for counsel's decision not to pursue the objections to adverse
rulings.  Accordingly, Skeen has not produced sufficient evidence to overcome the presumption that
counsel provided adequate representation.  See Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim
App. 1998).
3.  Did counsel's decision not to object to a witness' testimony as being in violation of both the
federal and state Constitutions result in ineffective assistance of counsel?  
	Skeen complains that counsel's failure to object to the testimony of Szoboda violated his right
to confront the witness.  However, the motivation, if any, for not objecting is not in the record, and
Skeen has failed to present sufficient evidence that counsel's representation was ineffective.  Id. 
Further, in light of the record as a whole, Skeen has failed to show how the outcome of the trial
would have been different given an objection to his right to confrontation. Strickland, 466 U.S. at
693.
	Based on the foregoing, we affirm the trial court's judgment. 

							Josh R. Morriss, III
							Chief Justice

Date Submitted:	September 13, 2002
Date Decided:		November  20, 2002

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