                                    NUMBER 13-01-344-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


THAD RODGERS,                                                                                Appellant,

v.

THE STATE OF TEXAS,                                                                          Appellee.


      On appeal from the 411th District Court of Polk County, Texas.


                              MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Benavides
             Memorandum Opinion by Justice Benavides

        Appellant, Thad Rodgers, was convicted of delivery of a controlled substance on

September 12, 2000.           He was ultimately sentenced on June 19, 2003 to sixty years’

imprisonment.1 Tex. Health & Safety Code Tex. Health & Safety ANN . § 481.112(d) (Vernon

1
 The tim e delay of sentencing is not relevant to the present issue before this Court and accordingly will not
be addressed in this opinion.
2005).     Rodgers claims ineffective assistance of counsel, asserting that his trial counsel

failed to present any evidence, testimony or objections during the trial. For the reasons

stated herein, we affirm the trial court’s judgment.

                         I. FACTUAL AND PROCEDURAL BACKGROUND

         On December 30, 1999, Rodgers was indicted for felony delivery of cocaine, based

on an August 5, 1999 offense, which was enhanced by a prior conviction for aggravated

sexual assault of a child on April 26, 1988. See TEX . PENAL CODE ANN . § 49.09(b) (Vernon

Supp. 2007). Rodgers pled not guilty, and trial commenced on September 11, 2000. After

the jury was sworn in, the court recessed until the following day, September 12, 2000.

Rodgers failed to appear on the day of trial, and the Court proceeded without him.

         Officers Phillip Cash and Hardy Nevill, agents with the Central East Texas Narcotics

Task Force, testified at trial. The purpose of the task force is not only to obtain evidence

of persons dealing drugs, but also of persons supplying drugs. While undercover, they

developed a relationship to purchase drugs from Michael Shane Moore, a mid-level dealer.

On August 4, 1999, Officer Nevill set up a meeting with Moore to purchase narcotics at

Vern’s Bar in Onalaska, Polk County. Officer Nevill fronted the money to Moore who then

left the bar. Officer Cash then followed Moore to a residential home which was later

identified as Rodgers’s residence. Officer Cash saw Moore go in to the home and come

out with a brown satchel. Moore then returned to Vern’s Bar with the narcotics in the brown

satchel. Identification cards belonging to Rodgers were also found in the satchel. Officer

Nevill then told Moore that he wanted to sell narcotics to people he worked with so he

needed a better price in order to make a profit. He asked Moore to set up a meeting with

his supplier, which they did for the following day.

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          On August 5, 1999, Officers Nevill and Cash were again at Vern’s Bar when Moore

joined them. Officer Nevill told him that he wanted more cocaine but at a better price.

Moore told him that his supplier was on the way. Thereafter, Rodgers arrived with his step-

father, Richard Sanders, and two other unidentified males. Richard Sanders and the other

two other men posted themselves at the bar. Rodgers joined Officer Nevill and Moore at

the table. Officer Nevill then purchased cocaine from Rodgers. Officer Nevill took custody

of the narcotics, which laboratory testing confirmed was 6.2 grams of cocaine.

          The jury found Rodgers guilty and sentenced him to 60 years imprisonment in the

Texas Department of Criminal Justice. After his conviction, the trial court twice appointed

appellate counsel. The first counsel was Steve Taylor, who filed an Anders brief with this

Court on October 9, 2001.2             Second appellate counsel, Tom Brown was appointed and

filed an Anders brief on January 14, 2003 and a supplemental Anders brief on November

21, 2003. Rodgers is now represented by third appellate counsel, Scott Pagway, who

argues ineffective assistance of trial counsel.

                                                 II. ANALYSIS

          To prevail on a claim of ineffective assistance of counsel, Rodgers must prove by a

preponderance of the evidence that: (1) counsel’s performance fell below the standard of

prevailing professional norms; and (2) there is a reasonable probability that, but for

counsel’s deficiency, the result of the trial would have been different. See Strickland v.

Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

App. 1999). A reasonable probability is one sufficient to undermine confidence in the

outcome of the proceeding. Thompson, 9 S.W.3d at 812. Allegations of ineffective

2
    Anders v. California, 86 U.S. 738, 744 (1967).
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assistance of counsel must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness. Id. at 813.

       Moreover, the court’s review of the defense counsel’s representation is highly

deferential and presumes that counsel’s action fell within the wide range of reasonable and

professional assistance. Ex Parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim. App. 2005);

Boone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable assistance.

Ex Parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004)

       Rodgers argues that while he voluntarily failed to appear for trial, trial counsel can

not do the same. Rodgers asserts that his counsel’s failure to call witnesses or object

during the trial fell below the prevailing professional norms, and if witnesses were called it

would have changed the outcome of the case. In order to obtain relief on an ineffective

assistance of counsel claim based upon on an uncalled witness, “the appellant must show

that the witness had been available to testify and that his testimony would have been of

some benefit to the defense.” Ex Parte Ramirez, No. WL-25,057-06, 2007 Tex. Crim. App.

LEXIS 1750, at *11 (Tex. Crim. App. Dec. 12, 2007); Ex Parte White, 160 S.W.3d 46, 52

(Tex. Crim. App. 2004); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). The

record does not show who Rodgers would have called and what testimony they would have

provided that would have helped his case.

       The same is true for any objections that could have been made and were not made.

Again, to show ineffective assistance of counsel for the failure to object during trial, the

applicant must show that the trial judge would have committed error in overruling the




                                              4
objection. Ex Parte White, 160 S.W.3d at 53; Vaughn v. State, 931 S.W.2d 564, 566 (Tex.

Crim. App. 1996). Rodgers has not demonstrated that objectionable material remains in

the record due to his attorney’s lack of objection. The only incident that Rodgers points to

is the lack of objection to the authentication of cocaine allegedly delivered by him.

However, a review of the record shows that the proper predicate was laid for the

authentication of the cocaine, and as such, if an objection had been made, there is nothing

to show it would have been error to overrule it. Furthermore, an isolated failure to object

to certain procedural mistakes or improper evidence does not constitute ineffective

assistance of counsel. Cude v. State, 588 S.W.2d 895, 897 (Tex. Crim. App. 1979).

       Rodgers further argues that his counsel’s failure to make a closing argument and to

present evidence during the punishment stage constitutes ineffective assistance of counsel.

Counsel’s services are to be judged by the totality of the representation and challenges will

be sustained only if firmly founded. Id. at 897. The determination of ineffective assistance

of counsel must turn on the individual case and it does not mean errorless counsel nor is

the adequacy and competency to be judged in hindsight. Ex Parte Prior, 540 S.W.2d 723,

726 (Tex. Crim. App. 1976). An attorney must appraise a case and do the best he can

with the facts, and the fact that another counsel might have tried the case differently does

not show inadequate representation. Id. at 727. Rodgers fails to show that his counsel’s

actions were ineffective rather than mere trial strategy. See Mallett v. State, 65 S.W.3d 59,

63 (Tex. Crim. App. 2001) (stating there is a strong presumption that counsel acted

reasonably when the record is silent regarding the motivation of counsel tactical or strategic

decisions); see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)




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(holding that a record which does not contain counsel’s explanation for his conduct is

insufficient to overcome the presumption of reasonableness).           The defendant must

overcome the presumption that the challenged action “might be considered sound trial

strategy.” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 100-101

(1955)). If there is any basis for concluding that counsel’s conduct was strategic, then

further inquiry is improper. Bell v. State, 867 S.W.2d 958, 961 (Tex. App.–Waco 1994, no

pet.).

         Upon review of the totality of the representation, we find Rodgers failed to

demonstrate that his counsel’s actions or lack of action amounted to ineffective assistance

of counsel; thus, he failed to satisfy the Strickland test.

                                       III. CONCLUSION

         Thompson’s claim of ineffective assistance of counsel is without merit. The judgment

of the trial court is AFFIRMED.

         Furthermore, all pending motions are hereby dismissed as moot.


                                                          ____________________________
                                                          GINA M. BENAVIDES
                                                          Justice
Do not publish.
See TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 1st day of May, 2008.




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