                                  NO. 07-08-0129-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                  JANUARY 21, 2009

                         ______________________________


                    ANDREW RUSSELL GOODRUM, APPELLANT

                                           v.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

           FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

                     NO. 10,060; HON. TOM NEELY, PRESIDING

                        _______________________________

Before CAMPBELL, HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, Andrew Russell Goodrum, was granted an out of time appeal by the

Texas Court of Criminal Appeals to appeal his conviction for the offense of delivery of a

controlled substance, methamphetamine, in an amount of one gram or more but less than

four grams and subsequent sentence of confinement in the Institutional Division of the

Texas Department of Criminal Justice for a period of five years. Through two issues
appellant contends that 1) he was denied effective assistance of counsel and 2) that the

State’s attorney engaged in improper jury argument. We disagree and will affirm the trial

court’s judgment.


                           Factual and Procedural Background


       On October 16, 2000, appellant and Justin Walburg went to the home of Vicki Finch

in Vernon, Texas. Finch had been working as a confidential informant for the Department

of Public Service (DPS) since June of 2000. Upon arriving at Finch’s residence, appellant

and his companion were introduced to Randy Alsup and James Blake, both of whom were

DPS narcotics officers. After a short time, Alsup and appellant went into a bedroom where

they reached an agreement for Alsup to purchase methamphetamine from appellant.

Appellant then left the residence to obtain the drugs and returned about 10 minutes later.

Alsup and appellant again went into the bedroom and completed the transfer of the drugs.

The State prosecuted the case as a straight hand to hand drug delivery. Throughout trial

appellant contended that the delivery was as a result of entrapment by the State.


       Appellant testified he obtained the drugs involved from Finch and that he was

requested to make the delivery by Finch. Further, appellant stated that had she not

pressured him into the actual delivery, he would not have been involved. Appellant

admitted that he did, in fact, deliver the drugs to Alsup.


       At the conclusion of the testimony on the issue of guilt or innocence, the trial court

instructed the jury on the issue of entrapment. Both sides argued the issue in final

arguments. By its verdict of guilty, the jury rejected the defense of entrapment.

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       After the jury returned a verdict of guilty, the State introduced two prior convictions

of appellant. One for possession of a prohibited weapon and the other for unauthorized

use of a motor vehicle. After considering the evidence, the jury sentenced appellant to five

years confinement.


       It is from this conviction and sentence that appellant appeals. Appellant asserts he

was denied a fair trial due to ineffective assistance of counsel and because of improper

jury argument by the State. We disagree for the reasons set forth below.


                             Ineffective Assistance of Counsel


       `When confronted with an ineffective assistance of counsel claim, we apply the

two-pronged analysis set forth by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v.

State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986) (adopting Strickland as applicable standard

under Texas Constitution).


       Under the first prong of the Strickland test, an appellant must show that counsel's

performance was "deficient." Strickland, 466 U.S. at 687. "This requires showing that

counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Id. To be successful in this regard,

an appellant "must show that counsel's representation fell below an objective standard of

reasonableness." Id. at 688. Under the second prong, an appellant must show that the

deficient performance prejudiced the defense. Id. at 687. The appropriate standard for

judging prejudice requires an appellant to "show that there is a reasonable probability that,

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but for counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome." Id. at 694. Appellant must prove both prongs of Strickland by a preponderance

of the evidence in order to prevail. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.

2000); McFarland v. State, 845 S.W.2d 824, 842 (Tex.Crim.App.1992).


       Appellant alleges that his counsel was ineffective because trial counsel relied upon

a non-existent defense, which appellant states was a “crazy” defense, instead of urging a

defense recognized under Texas law. According to appellant’s contention, his trial counsel

should have placed more reliance on an entrapment defense. Further, appellant alleges

that his counsel did not understand the burden of proof in asserting an entrapment

defense.


       Simply speaking, the record totally belies the allegations of appellant. From the

beginning of voir dire and opening statements, appellant’s trial counsel emphasized that

his client was entrapped into committing this offense.          The record is replete with

statements by counsel to that effect. Further, a review of the questioning of the State’s

witnesses demonstrate that appellant was relying on entrapment. During the defense’s

portion of the evidence at the guilt/innocence stage, appellant’s trial counsel placed Finch

on the witness stand and spent several hours examining the witness on the various

elements of an entrapment defense. At the conclusion of the evidence, the trial court gave

a legally correct entrapment charge. In the final analysis we can find no support for

appellant’s allegation that his trial counsel raised some sort of “crazy” non-existent defense

and failed to properly raise the entrapment defense. Accordingly, we find that appellant

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has failed to demonstrate that trial counsel’s performance was deficient. Strickland, 466

U.S. at 687. Therefore, appellant’s first issue is overruled.


                                 Improper Jury Argument


       Appellant next contends that the State improperly argued but fails to point out where

in the record the alleged improper argument occurred. Appellant generally alludes to

alleged argument about the drugs in question possibly being ultimately consumed by a

juror’s children or grandchildren. At the outset, we can find no objection to any argument

that might be the basis of appellant’s complaint. It is axiomatic that in order to complain

about a matter on appeal, an appellant must object at the time the issue arises at trial. See

TEX . R. APP. P. 33.1(a)(1). If the objection is not preserved for appeal, it is waived and

nothing is preserved for appeal. Martinez v. State, 91 S.W.3d 331, 336 (Tex.Crim.App.

2002). Accordingly, appellant waived any issue regarding the State’s argument and the

issue is overruled.


                                        Conclusion


       Having overruled appellants’s issues, the trial court’s judgment is affirmed.




                                   Mackey K. Hancock
                                        Justice

Do not publish.




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