Opinion filed April 26, 2012




                                             In The


   Eleventh Court of Appeals
                                          __________

                                      No. 11-10-00113-CR
                                          __________

                      LAURA SUZANNE WEAVER, Appellant

                                                V.

                                 STATE OF TEXAS, Appellee


                           On Appeal from the 220th District Court

                                     Comanche County, Texas

                               Trial Court Cause No. CCCR-10-03247


                               MEMORANDUM OPINION
       The jury convicted Laura Suzanne Weaver, appellant, of the offense of forgery and
assessed her punishment at two years in a state jail facility and a fine of $2,500. We affirm.
       Briona Keith was a cashier at the Brookshire’s grocery store in Comanche in September
2009. While she was on duty at Brookshire’s on September 11, 2009, a woman came to the store
to purchase a prescription. The prescription was for Vicoprofen, a narcotic pain medication
containing hydrocodone, and was in the name of Lisa Watson. The prescription had been
transferred from a pharmacy in Round Rock. The woman paid for the prescription with a check.
         Keith recognized the woman as someone who had been in the store two weeks earlier. At
that time, the woman used the name “Laura Weaver” and produced her driver’s license with that
name on it. Keith was shown a photo lineup and identified appellant as the person who gave her
the check to pay for the prescription.      Comanche law enforcement officers contacted law
enforcement officers in Georgetown.       Those officers administered photo lineups and two
Georgetown physicians identified appellant, but she was known to them as Lisa Watson.
         The check that appellant used to pay for the Vicoprofen was written on a closed account
that formerly belonged to Sylvia Moyer. Moyer is appellant’s mother. The check was originally
written in October 2007 to the Gatesville P.T.O. and sent to appellant’s children for a fundraiser
at their school. The fundraiser was subsequently cancelled. Both the name of the payee on the
check and the amount of the check had been altered without Moyer’s permission, and she signed
a forgery affidavit.
         Based upon these facts, Comanche authorities arrested appellant, and this conviction
followed.
         Appellant presents us with what we take as one issue on appeal with several subparts.
Appellant complains that her trial counsel was ineffective in failing to file pretrial motions,
failing to object to certain pieces of evidence, and failing to object to various aspects of the
State’s closing argument.
         In order to prevail on a claim of ineffective assistance of counsel, appellant must show
that trial counsel’s representation fell below an objective standard of reasonableness and that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Hernandez v. State, 726
S.W.2d 53, 55 (Tex. Crim. App. 1986). The adequacy of the attorney’s assistance is based upon
the totality of the representation. Ex parte Robinson, 639 S.W.2d 953, 954 (Tex. Crim. App.
1982). Effective assistance does not mean errorless counsel or one whose competency and
adequacy is to be judged in hindsight. Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App.
1981).
         In addition, in matters of strategy and tactics, the actions of defense counsel will be
presumed competent. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (trial
                                                2
record will rarely contain sufficient information to show trial counsel’s performance was
deficient in strategic or tactical realm). Counsel cannot be called ineffective merely because a
given trial strategy did not work. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983).
It is also unreasonable to judge one attorney by what another might have done. Mercado, 615
S.W.2d at 228. Finally, the defendant has the burden to show, by a preponderance of the
evidence, that counsel failed to render effective assistance. McFarland v. State, 845 S.W.2d 824,
844 (Tex. Crim. App. 1992).
                                  Failure to File Pretrial Motions
       During the trial, the State asked Moyer if appellant had a history of prescription narcotic
abuse; she answered, “I suspect it, yes.” Appellant contends that, if her trial counsel had
requested notice under TEX. R. EVID. 404(b) (evidence of other crimes, wrongs or acts), he
would have known that the State was going to offer evidence of appellant’s drug addiction.
Other than the drugs that appellant purchased with the forged check, Moyer’s testimony was the
only evidence that appellant might be addicted to prescription narcotics. At the motion for new
trial hearing, appellant’s trial counsel testified that the State had an open file policy and that he
did not see the need to file any additional discovery motions. Appellant’s trial attorney felt he
had done all that was necessary and knew the evidence that the State was going to present.
Appellant has not shown that counsel was ineffective when he did not file a Rule 404(b) request.
               Failure to Object to Testimony Concerning the Nature of Vicoprofen
       Sharon Abbey, the pharmacist at Brookshire’s, testified that Vicoprofen—the drug that
appellant bought with the forged check—is a combination of ibuprofen and hydrocodone.
Abbey testified that hydrocodone is a “schedule three” medication, meaning it is an abusable
medication and a “highly addictive narcotic.” She testified that there are many people who are
addicted to hydrocodone and that it has a “high street value.” Abbey also testified that there was
no reason to suspect that this was not a valid prescription and that she filled it.
       This evidence arguably is relevant to show a motive on the part of appellant to commit
the forgery. See Taylor v. State, 920 S.W.2d 319, 321 (Tex. Crim. App. 1996) (extraneous
offense may be admissible to prove motive). Appellant also contends that her trial attorney
should have objected to the evidence on the basis that its probative value was substantially
outweighed by the danger of unfair prejudice if admitted into evidence. See TEX. R. EVID. 403.
                                                   3
Although appellant was using two different names, there is no evidence that the prescription was
fraudulent. The evidence concerning the addictive nature of Vicoprofen could be taken as
suggesting that appellant was abusing the drug. However, balancing the probative value of the
evidence against the unfair prejudice would have been a decision for the trial court to make had
appellant’s trial counsel made the objection. Because we may not substitute our judgment for
that of the trial court, we cannot say that the trial court would have been required to sustain a
Rule 403 objection had one been made. See Montgomery v. State, 810 S.W.2d 372, 389 (Tex.
Crim. App. 1991) (appellate court does not conduct a de novo review of the trial court’s decision
on a Rule 403 balancing issue). Appellant has not shown that her trial counsel was ineffective
for failing to object to this testimony. See also id. at 389 (Rule 403 favors the admissibility of
relevant evidence). Even if we were to hold that trial counsel was ineffective—which we do
not—appellant has not shown that there was a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Strickland, 466
U.S. at 687; Hernandez, 988 S.W.2d at 772; Hernandez, 726 S.W.2d at 55.
                             Failure to Object to Mother’s Testimony
       As noted above, appellant’s mother testified that she suspected that her daughter had a
history of prescription narcotic abuse. Even if we were to hold that this is evidence of a
character trait to which appellant’s trial attorney should have objected under TEX. R. EVID.
404(a), appellant has not satisfied the second prong of Strickland—that there was a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Strickland, 466 U.S. at 687; Hernandez, 988 S.W.2d at 772; Hernandez, 726
S.W.2d at 55. Given the overwhelming weight of the evidence in favor of appellant’s guilt, we
cannot say that the result of the trial would have been different had trial counsel objected and
successfully excluded this evidence. See Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim.
App. 1989); see also Farrar v. State, 701 S.W.2d 32, 36 (Tex. App.—Houston [14th Dist] 1985
pet. ref’d) (isolated failures to object to certain procedural mistakes or improper evidence do not
constitute ineffective assistance of counsel).
                        Failure to Object to the State’s Closing Argument
       Appellant complains about trial counsel’s failure to object to two jury arguments made by
the State. First, appellant faults her trial counsel for his failure to object to the State’s closing
                                                 4
argument in which the prosecutor stated that appellant’s husband was in jail for prescription
fraud. The prosecutor said, “Ladies and Gentlemen, this is really a sad case. I mean her
husband’s in jail for prescription fraud, she’s here, but that’s not why we are here today.”
Although there was evidence that appellant’s husband was incarcerated, there was no evidence
that he had been convicted of or charged with prescription fraud, and the argument was, thus,
objectionable. See Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). The argument,
however, could have been to remind the jury not to decide the case based upon sympathy.
Although technically objectionable, it could have been a matter of trial strategy not to call further
attention to the argument by objecting to it. Additionally, trial counsel might have wanted to
curry the sympathy of the jury by having this information in front of them. Appellant has not
shown that trial counsel’s representation fell below an objective standard of reasonableness, and
neither has she shown that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687;
Hernandez, 988 S.W.2d at 772; Hernandez, 726 S.W.2d at 55.
       Second, appellant maintains that she received ineffective assistance from her trial
attorney when he did not object to the State’s closing argument in which the State referred to
appellant’s alleged drug dependency. Even assuming that appellant has satisfied the first prong
of Strickland, she has not established, given the overwhelming evidence of appellant’s guilt in
this case, that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland, 466 U.S. at 687; Hernandez, 988
S.W.2d at 772; Hernandez, 726 S.W.2d at 55.
       We overrule each subpart of appellant’s issue on appeal.
       The judgment of the trial court is affirmed.


                                                              PER CURIAM
April 26, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.


                                                 5
