                                 NO. 07-02-0222-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL C

                                   MAY 16, 2003

                        ______________________________


                          OLLIE LEE PAYNE, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

             FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                   NO. 3136; HONORABLE RON ENNS, JUDGE

                       _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.


                             MEMORANDUM OPINION


      Ollie Lee Payne appeals from his conviction for possession of a controlled

substance in an amount of 400 grams or more. We affirm.
                                     BACKGROUND


       In September, 2001, Lori Smith reported to the Dumas police that appellant Ollie

Payne had shown her a large amount of drugs in the refrigerator at the house in which

appellant lived in Dumas. She reported that appellant told her the drugs were his and that

he took her with him one evening when he was making sales of drugs. The police obtained

and executed a search warrant based on Smith’s report. Smith executed an affidavit which

was attached to the search warrant.


       Drugs were located in the house where appellant lived and he was arrested. He

signed a written confession; was indicted by a Moore County grand jury for possession of

a controlled substance in an amount of 400 grams or more; was convicted; and was

sentenced to 30 years incarceration.


       Appellant presents three issues in seeking to have his conviction reversed and a

new trial granted: (1) the trial court committed fundamental error by admitting the search

warrant and its accompanying affidavit from Smith into evidence in violation of his right to

confront and cross-examine witnesses against him; (2) the trial court committed

fundamental error by admitting the search warrant and Smith’s accompanying affidavit into

evidence when no question of probable cause was before the jury; and (3) appellant was

denied effective assistance of counsel. The State responds that admission of the warrant

and Smith’s affidavit was harmless error, appellant’s counsel was not ineffective, and

appellant has not shown prejudice from any of the actions allegedly demonstrating

ineffective assistance.


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                  ISSUE ONE: ADMISSION OF SMITH’S AFFIDAVIT


      Smith did not testify at trial. The search warrant with Smith’s affidavit attached was

introduced into evidence. The affidavit contained statements to the effect that appellant

(1) was seeking to have sex with Smith, (2) offered to pay for her housing, (3) wanted her

to smoke pot with him, (4) took Smith with him to make drug sales in Dumas one night, (5)

planned to go to Los Angeles to pick up drugs, and (6) showed Smith drugs which were

in the refrigerator and which appellant claimed belonged to him. Appellant objected to the

affidavit on the basis that he was unable to cross-examine Smith.


      The State does not contest appellant’s assertion that admission of Smith’s affidavit

was error. Nevertheless, the State maintains that admission of the affidavit was harmless.

We agree.


      In his confession appellant admitted to becoming involved in selling and delivering

drugs, mainly methamphetamine, because he could not pay his bills. He stated that he

was “fronted” the drugs by others and would only keep part of the money he received from

selling the fronted drugs.   He denied using methamphetamine, but stated that he

occasionally smoked marijuana. He claimed that he put the dope in the refrigerator at his

house, regretted getting involved with drugs and that he was sorry for the hurt he had

caused the people he sold drugs to.


      The material parts of Smith’s affidavit’s were contained in appellant’s written

confession which was admitted at trial. Where the same evidence is admitted elsewhere

during trial no reversible error exists. See McFarland v. State, 845 S.W.2d 824, 840

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(Tex.Crim.App. 1992); Johnson v. State, 803 S.W.2d 272, 291 (Tex.Crim.App. 1990);

Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App. 1986). Assuming, arguendo, that

admission of the affidavit was error and that error was preserved1 so as to require a harm

analysis for constitutional error, see TRAP 44.2(a), we are convinced beyond a reasonable

doubt that information in the affidavit which was not also contained in appellant’s

confession did not contribute to appellant’s conviction. Accordingly, we overrule issue one.


                      ISSUE TWO: ADMISSION OF THE SEARCH
                         WARRANT AND SMITH’S AFFIDAVIT

       By his second issue appellant complains of admission of both the search warrant

and Smith’s affidavit. He urges that neither the existence of the warrant nor probable

cause was disputed at trial. He asserts harm based on non-constitutional error because

the error violated a rule of evidence.


       When the State offered the warrant into evidence, appellant’s counsel objected to

Smith’s affidavit, as we have discussed above. No objection was lodged to admission of

the warrant.


       As to admission of the search warrant itself, error was not preserved. See TRAP

33.1(a); TRE 103(a)(1). We cannot reverse on a matter not presented to the trial court and

which is first raised on appeal. See Hailey v. State, 87 S.W.3d 118 (Tex.Crim.App. 2002).



       1
        Because of our disposition of the issue, we do not offer any opinion on whether
appellant’s objection was sufficient to preserve error. See TEX . R. APP. P. 33.1(a); TEX . R.
EVID . 103(a)(1); Barnum v. State, 7 S.W.3d 782, 794 (Tex.App.–Amarillo 1999, pet.
refused). Further reference to a Rule of Appellate Procedure will be by reference to
“TRAP___”; a Rule of Evidence will be referred to as “TRE___.”

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       We have previously determined that any error in admitting Smith’s affidavit was

harmless by constitutional harm standards. For claims of non-constitutional or “other” error

under TRAP 44.2(b), a judgment should not be overturned unless after examining the

record as a whole, the reviewing court has a grave doubt that the result was free from the

substantial influence of the error on the outcome of the proceeding. See Burnett v. State,

88 S.W.3d 633, 637-38 (Tex.Crim.App. 2002). We do not have a grave doubt as to the

harm of Smith’s affidavit in regard to appellant’s conviction, for the reasons expressed in

our analysis of issue one. Issue two is overruled.


             ISSUE THREE: INEFFECTIVE ASSISTANCE OF COUNSEL


       Appellant cites Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984) in presenting his third issue. We thus consider that his issue references his

right to counsel under the Sixth Amendment to the federal constitution. In determining

whether counsel’s representation was so inadequate as to violate a defendant’s Sixth

Amendment right to counsel, Texas courts adhere to the two-pronged test enunciated in

Strickland. See Hernandez v. State, 726 S.W.2d 53, 56-7 (Tex.Crim.App. 1986). There

is a strong presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance. Strickland, 466 U.S. at 690. The burden is on appellant to prove

by a preponderance of the evidence that counsel was ineffective. See McFarland v. State,

928 S.W.2d 482, 500 (Tex.Crim.App. 1996). The defendant must first prove that counsel’s

performance was deficient, i.e., that counsel’s assistance fell below an objective standard

of reasonableness. Id. If appellant has demonstrated deficient assistance of counsel, it

is then necessary that appellant affirmatively prove prejudice as a result of the deficient

                                             5
assistance. Id. In proving prejudice, appellant must prove a reasonable probability that

but for counsel’s errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.

Hernandez, 726 S.W.2d at 55.


       Any allegation of ineffective assistance of counsel must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.

McFarland, 928 S.W.2d at 500. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Id. Defense counsel

should ordinarily be accorded an opportunity to explain his or her actions before being

labeled as unprofessional, incompetent or ineffective. See Bone v. State, 77 S.W.3d 828,

836 (Tex.Crim.App. 2002).


       Appellant sets out eight instances of trial conduct which he urges warrant reversal

because his counsel was ineffective. Five of the instances complain of trial counsel’s

failure to object to matters during trial, although the record does not contain evidence of

counsel’s reasons for not objecting.


       Appellant does not cite authority or make argument that if trial counsel had posed

the referenced objections, the trial court would have been in error by overruling the

objections. To successfully present an argument that counsel was ineffective because of

a failure to object to the State’s questioning and argument, however, appellant must show

that the trial court would have committed error in overruling such objection. See Vaughn

v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996). And, because the record does not


                                            6
evidence trial counsel’s reasons for failing to lodge the objections, a conclusion as to those

reasons would require speculation on our part – an exercise in which we decline to engage.

The allegations of ineffectiveness for failure to object during trial are not supported by the

record. See Bone, 77 S.W.3d at 836-37.


       A sixth instance complained of is trial counsel’s failure to interview Lori Smith. But,

appellant points to no evidence in the record to substantiate his allegation that trial counsel

failed to interview Smith. Nor does he point to any record evidence that an interview with

Smith would have yielded any information which would have benefitted appellant’s case.

Without such record evidence ineffectiveness of counsel is not proved. See McFarland,

928 S.W.2d at 500.


       The last of the instances posited as ineffective assistance are trial counsel’s failures

to request an instructed verdict and an instruction limiting the jury to considering the search

warrant and Smith’s affidavit for purposes of determining probable cause. He does not cite

authority or present argument that an instructed verdict would have been granted. Nor

does he assert how a limiting instruction as to the search warrant and Smith’s affidavit

would have resulted in a different result in his trial. See id.; Hernandez, 726 S.W.2d at 55.


       Appellant has not proved either deficient performance or sufficient prejudice to

warrant reversal on his ineffective assistance claim. Nor does his urging ineffective

assistance because of the “multitude of deficiencies” warrant reversal.             A vague,

inarticulate sense and allegation that counsel could have provided a better defense is not




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a legal basis for finding counsel constitutionally ineffective. See Bone, 77 S.W.3d at 836.

Issue three is overruled.


                                      CONCLUSION


       Having overruled appellant’s three issues, we affirm the judgment of the trial court.




                                                 Phil Johnson
                                                 Chief Justice




Do not publish.




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