Affirmed; Opinion Filed October 21, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-01470-CR

                             CHRISTINE KAY WHITE, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 397th Judicial District Court
                                   Grayson County, Texas
                               Trial Court Cause No. 062724

                              MEMORANDUM OPINION
                        Before Justices FitzGerald, Fillmore, and Stoddart
                                   Opinion by Justice Stoddart
       A jury convicted Christine Kay White of aggravated robbery and the trial court assessed

punishment at 20 years’ confinement.        In three issues, she argues she suffered ineffective

assistance of counsel at trial because her counsel failed to introduce exculpatory evidence; the

trial court abused its discretion by denying admission of audio-taped statements; and the trial

court abused its discretion by not giving her sufficient funds to retain an expert witness as part of

her defense. We affirm the trial court’s judgment.

       In her first issue, White argues her trial counsel was ineffective because he did not

introduce evidence that she believes was exculpatory. There was testimony at trial that White

robbed a woman in a parking lot while carrying a knife. White testified in her defense and

admitted to robbing a woman in the parking lot. White also testified that the only thing she had

in her hands were her car keys. She stated she never had a knife in her hand.
       On appeal, White argues that her counsel failed to offer a key to a Dodge Durango

vehicle. White asserts that if her counsel had shown the car key to one of the witnesses who

testified, the witness may have realized she had mistaken the car key for a knife.

       To successfully assert an ineffective assistance of counsel challenge, an appellant must

show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2)

a reasonable probability exists that, but for counsel’s errors, the result of the proceeding would

have been different. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Our

review of counsel’s performance is highly deferential and we assume counsel’s conduct fell

within the wide range of reasonable professional assistance. See Andrews v. State, 159 S.W.3d

98, 101 (Tex. Crim. App. 2005). An ineffective assistance claim must be “firmly founded in the

record,” and the record must “affirmatively demonstrate” the claim has merit. Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Generally, a silent record providing no

explanation for counsel’s actions will not overcome the strong presumption of reasonable

assistance. See Rylander, 101 S.W.3d at 110–11.

       White did not file a motion for new trial or otherwise develop a record showing why her

counsel did not attempt to introduce the car key. See Goodspeed, 187 S.W.3d at 392. The

record includes no evidence to overcome the presumption that counsel provided reasonable

assistance. See id.; Rylander, 101 S.W.3d at 110–11. Moreover, trial counsel’s decision not to

introduce a car key was not “so outrageous that no competent attorney would have engaged in”

that action. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In light of this

record, we conclude White has not demonstrated that her trial counsel’s performance was

deficient or that the outcome of her trial would have been different but for her counsel’s actions.

We overrule White’s first issue.




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        In her second issue, White argues the trial court erred by refusing White’s request to

admit portions of audio tapes of two witnesses’ statements. White asserts that the excluded

statements were inconsistent with the witnesses’ testimony at trial. Because the audio tapes were

prior inconsistent statements of the witnesses, White argues, the trial court erred by excluding

them.

        White’s counsel attempted to admit the prior statements on two occasions, and the trial

court denied both requests. The first time, White’s counsel argued that the statements were not

hearsay or, alternatively, they fell within the excited utterance exception to the hearsay rule. The

second time White’s counsel sought to admit the evidence, he argued it fell within the present

sense impression or excited utterance exception to the hearsay rule.

        To preserve an issue for appellate review, rule 33.1 of the rules of appellate procedure

requires the appellant to have made “a timely request, objection, or motion that stated the

grounds for the ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, unless the specific grounds were

apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). Arguments on appeal must comport

with the arguments made at trial and must bring to the trial court’s attention the very complaint

that is made on appeal. See Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). “[I]t

is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing

party on appeal, must have told the judge why the evidence was admissible.” Id. White may

not, for the first time on appeal, urge error not raised at trial. The explanation given at trial for

admissibility must match the one urged on appeal. See Martinez v. State, 91 S.W.3d 331, 336

(Tex. Crim. App. 2002) (under rule of appellate procedure 33.1, issue is whether complaining

party on appeal brought to trial court’s attention the very complaint that party is making on

appeal).

                                                –3–
       White did not inform the trial court that she believed the statements were admissible for

purposes of impeachment. Rather, she argued that the prior statements were not hearsay or were

admissible because they were excited utterances or present sense impressions. Because the trial

court never had the opportunity to rule upon whether the statements were admissible for

purposes of impeachment and because White’s argument on appeal does not comport with her

argument in the trial court, we conclude she has not preserved the issue for appellate review. We

overrule White’s second issue.

       In her third issue, White asserts the trial court abused its discretion by not authorizing

sufficient funds to pay a psychologist.       Before trial, White’s counsel filed a motion for

appointment of an expert, which the trial court granted. In its order, the trial court ordered that

the expert, Charles Keenan, Ph.D., was to be paid up to $1,000. The record does not indicate

that White’s counsel ever requested additional funds to pay Keenan.

       In a hearing outside of the presence of the jury, Keenan and defense counsel had the

following exchange:

               Q.       Okay. Now, let me ask you. When I first asked if you could do
       this, did you   quote me a fee on how much it would cost for you to be able to do
       it?
               A.       Yes, I did.
               Q.       How much was it?
               A.       I said it would take at least $1,500 for me to be available in this
       case.
               Q.       Was I able to get you $1,500?
               A.       No, sir.
               Q.       How much was I able to get you?
               A.       A thousand dollars, sir.


       After this exchange, White’s counsel did not request additional funds from the trial court.

       White failed to raise her argument that she needed additional funds to the trial court.

Although the expert testified he thought “it would take at least $1,500” to work on the case, there

is no evidence that White filed a motion or otherwise requested more than the $1,000 initially
                                                –4–
allotted. Because she failed to bring this argument to the trial court’s attention, she has not

preserved it for appeal. See TEX. R. APP. P. 33.1(a). We overrule White’s third issue.

       We affirm the trial court’s judgment.




                                                     / Craig Stoddart/
                                                     CRAIG STODDART
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
131470F.U05




                                               –5–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CHRISTINE KAY WHITE, Appellant                     On Appeal from the 397th Judicial District
                                                   Court, Grayson County, Texas
No. 05-13-01470-CR        V.                       Trial Court Cause No. 062724.
                                                   Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                       Justices FitzGerald and Fillmore
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of October, 2014.




                                             –6–
