Opinion filed November 21, 2013




                                       In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-11-00325-CR
                                   __________

               GREGORY DONALD CANTRELL, Appellant
                               V.
                   THE STATE OF TEXAS, Appellee

                       On Appeal from the 35th District Court
                               Brown County, Texas
                          Trial Court Cause No. CR21410


                       MEMORANDUM OPINION
      The trial court convicted Gregory Donald Cantrell of possession of
methamphetamine with intent to deliver in a drug-free zone.            The trial court
assessed Appellant’s punishment at confinement for fifty years and sentenced him
accordingly.    In his sole appellate issue, Appellant contends that he received
ineffective assistance of counsel at trial. We affirm.
                                     Background
      Captain Tony Aaron of the Brown County Sheriff’s Department received
information     from    a   confidential   source   that   Appellant    was   sending
methamphetamine through the mail from Amarillo, Texas, to Kaye Hudson’s
residence in Brownwood, Texas. Appellant and Hudson had been a couple for a
number of years.     In February 2011, Appellant lived at 2500 South Polk,
Apartment B, in Amarillo, and Hudson lived at 3201 Stephen F. Austin, No. 114,
in Brownwood. Appellant had previously lived with Hudson at her residence,
which was a trailer house.
      On February 18, 2011, officers intercepted a package that they believed
contained illegal drugs. The addresses on the package were handwritten. The
return address was 2500 S. Polk, Amarillo, TX 79109. The package was addressed
to Hudson at 3201 Stephen F. Austin #114, Brownwood, TX 76801. The package
had been mailed from an Amarillo post office on February 16, 2011. A drug dog
alerted to the presence of narcotics in the package. The officers did not open the
package. The package was delivered to Hudson at her trailer house.
      The officers obtained a search warrant for Hudson’s residence. The officers
arrived at the trailer house to execute the warrant about ten minutes after the
package was delivered. When the officers arrived, a car that belonged to Appellant
was parked in front of the residence. The officers kicked Hudson’s door in and
entered the residence. At that time, Hudson was alone in the trailer house. She
was in her bed. Hudson had opened the package and removed its contents. The
package, a note, two bags that contained a total of 13.11 grams of
methamphetamine, and a CD were on the bed with Hudson. During the search, the
officers found, among other things, an employee identification card in Appellant’s
name and with Appellant’s picture on it, a notebook with Appellant’s Amarillo
contact information in it, and items used in connection with the sale of
methamphetamine. Hudson told the officers that Appellant sent the package that
contained the methamphetamine to her. Hudson testified that Appellant mailed


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methamphetamine to her on prior occasions and that, on those occasions, Appellant
came to Brownwood and sold the methamphetamine.
      Investigator Carlyle Gover of the Brown County Sheriff’s Department
testified that he had compared the writing on the subject package and the note that
was found on Hudson’s bed with some known handwriting samples of Appellant.
Investigator Gover said that he saw some similarities in the writing on the package,
the note, and the samples. Mario Salazar, a postal carrier for the United States Post
Office, said that he had delivered mail on the route that included Hudson’s
residence for about twenty years. Based on his delivery of mail to the residence,
Salazar knew that Appellant formerly lived at the residence with Hudson. Salazar
testified that he was familiar with Appellant’s writing because he had seen it on
letters that Appellant had sent to Hudson. Salazar said that he recognized
Appellant’s writing on packages that had been sent from Amarillo to Hudson at her
residence because he had “seen [Appellant’s writing] for so long.”
      Investigator Gover testified that he listened in on phone calls that Appellant
made while Appellant was in jail.       The prosecutor asked Investigator Gover
whether he heard anything during the phone calls that indicated Appellant sent the
subject package of methamphetamine to Hudson. Investigator Gover responded,
“Yes.”   At that point, Appellant’s counsel lodged a hearsay objection to the
testimony.   Appellant’s counsel also objected to admission of the testimony
because the State had not provided copies of the recordings of the telephone calls
to him. The trial court sustained the objections.
                                  Issue on Appeal
      Appellant contends that his trial counsel rendered ineffective assistance of
counsel by failing to object to the introduction of Investigator Gover’s and
Salazar’s handwriting comparison testimony, failing to move the trial court to
strike the handwriting testimony, and failing to move the trial court to strike
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Investigator Gover’s testimony that related to the jail telephone calls. Appellant
asserts that, without the evidence that related to the handwriting and the telephone
calls, (1) the testimony of Hudson, who was an accomplice witness, was not
sufficiently corroborated to support Appellant’s conviction and (2) the remainder
of the evidence was legally insufficient to support his conviction. Thus, Appellant
argues that, but for his counsel’s deficient performance, the result of the trial would
have been different.
                                       Analysis
      To determine whether Appellant’s trial counsel rendered ineffective
assistance, we must first determine whether Appellant has shown that counsel’s
representation fell below an objective standard of reasonableness and, if so, then
determine whether there is a reasonable probability that the result would have been
different but for counsel’s errors.     Wiggins v. Smith, 539 U.S. 510 (2003);
Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98
(Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).
We must indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, and Appellant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000). “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690.
      For a claim of ineffective assistance of counsel to succeed, the record must
demonstrate both deficient performance and prejudice suffered by the defendant.
Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). An ineffective-
assistance claim must be firmly founded in the record, and the record must
affirmatively demonstrate the meritorious nature of the claim. Id. Direct appeal is
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usually an inadequate vehicle for raising such a claim because the record is
generally undeveloped. Id. at 592–93. This statement is true with regard to the
deficient performance prong of the inquiry when counsel’s reasons for failing to do
something do not appear in the record. Id. at 593. Trial counsel should ordinarily
be afforded an opportunity to explain his or her actions before being denounced as
ineffective. Id. If trial counsel is not given that opportunity, then the appellate
court should not find deficient performance unless the challenged conduct was so
outrageous that no competent attorney would have engaged in it. Id.
      Appellant did not raise his ineffective-assistance claims in a motion for new
trial. Thus, his trial counsel has not been afforded an opportunity to respond to his
allegations. The record is silent as to why Appellant’s trial counsel did not object
to the handwriting testimony. Appellant’s counsel may have believed that the
State could have overcome an objection to the handwriting testimony and that,
therefore, an objection would have been futile. Appellant has not shown that the
testimony was inadmissible. Rule 701 of the Texas Rules of Evidence provides
that a lay witness may testify as to an opinion that is rationally based on his or her
perception if the opinion is helpful to a clear understanding of the witness’s
testimony or the determination of a fact in issue. TEX. R. EVID. 701. Lay opinion
testimony is admissible on many subjects, including handwriting. Denham v.
State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978); Orsag v. State, 312 S.W.3d
105, 118 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). Trial counsel is not
ineffective for failing to make futile objections. Ex parte White, 160 S.W.3d 46,
53 (Tex. Crim. App. 2004).
      The record is also silent as to why Appellant’s trial counsel did not move the
trial court to strike Investigator Gover’s testimony about the jail telephone calls.
The trial court sustained Appellant’s objections to the testimony. In a bench trial, a
trial court, in its role as factfinder, is presumed to disregard matters that, in its role
                                            5
as legal arbiter, it deemed inadmissible. Lackey v. State, 364 S.W.3d 837, 843
(Tex. Crim. App. 2012); Garza v. State, 126 S.W.3d 79, 82 (Tex. Crim. App.
2004). Based on this presumption, it was reasonable for Appellant’s trial counsel
not to move the trial court to strike the testimony.
      Because the record contains no evidence of the reasoning behind trial
counsel’s actions, we cannot conclude that counsel’s performance was deficient.
Menefield, 363 S.W.3d at 593. Thus, Appellant has failed to overcome the
presumption that trial counsel’s conduct was reasonable and professional. Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Green v. State, 191 S.W.3d
888, 894–95 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
      Additionally, even if trial counsel’s performance had been deficient, we
could not conclude on this record that a reasonable probability exists that the result
of the trial would have been different but for counsel’s errors. To support a
conviction based upon the testimony of an accomplice, such as Hudson, there must
be corroborating non-accomplice evidence that tends to connect the accused to the
offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); Smith v. State, 332
S.W.3d 425, 439 (Tex. Crim. App. 2011). In this case, the State presented ample
non-accomplice evidence that tended to connect Appellant to the commission of
the offense. Excluding the testimony related to handwriting and jail telephone
calls from our consideration, the remainder of the evidence presented a strong case
for Appellant’s guilt and was legally sufficient to support the conviction.
Appellant has not demonstrated that, but for his trial counsel’s alleged errors, there
is a reasonable probability that the result of the proceeding would have been
different. Appellant’s sole issue on appeal is overruled.




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                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


November 21, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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