                                   NO. 07-08-0159-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                DECEMBER 30, 2008
                          ______________________________

                 DONNA MARIE GARRETT a/k/a DONNA GARRETT
                             a/k/a DONNA O’NEILL

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

              FROM THE 355TH DISTRICT COURT OF HOOD COUNTY;

                NO. 9803; HON. RALPH H. WALTON, JR., PRESIDING
                       _______________________________

                               Memorandum Opinion
                        ________________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Donna Marie Garrett appeals her felony conviction for driving while intoxicated and

the resulting sentence of twenty years imprisonment. The conviction was based upon her

plea of guilty; however, punishment was tried to a jury. Appellant argues before us that the

the trial court erred in admitting certain evidence and that she received ineffective

assistance of counsel. We disagree and affirm the judgment.
         Issue 1 - Admission of Evidence

         Appellant was involved in a single vehicle accident after which she was taken to the

hospital and later arrested for driving while intoxicated. Through her first issue, she

complains of the trial court’s admission into evidence of 1) hearsay testimony as to the

observations of the lone accident witness, 2) an aerial photograph of the accident site, and

3) testimony regarding appellant’s demeanor and conduct at the hospital. We overrule the

issue.

         We consider the matter of the aerial photograph first and note that appellant did not

object to its admission for demonstrative purposes. Moreover, the State used it to

demonstrate where the accident occurred. Furthermore, appellant does not argue that it

was used for other than that demonstrative purpose. So, we are unable to see how there

was error when the exhibit was used for the purpose appellant approved. And, to the

extent that she now suggests that it was cumulative and prejudicial, those grounds were

not asserted at trial as a basis for excluding it. Thus, they were waived. See Guevara v.

State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (the objection on appeal must comport

with that made to the trial court).

         As for the testimony regarding her demeanor and actions at the hospital, appellant

objected when the officer proffered it. However, the record fails to disclose that she again

objected when the same evidence was proffered through one of the hospital nurses.

Neither did we find a request for a running objection when the testimony was first offered;

nor did any party cite us to any portion of the record where such a request could be found.

So, this alleged error was waived. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App.



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2003) (stating that when the same evidence is admitted without objection elsewhere, any

error is waived).

        Finally, assuming arguendo that the trial court erred in admitting the purported

hearsay evidence, we find the error harmless. Simply put, we cannot say that it affected

the jury’s decision when the entire record is viewed. While it may be that appellant was

sentenced to twenty years in prison, this was not her first conviction. The jury heard about

her two prior convictions for the same offense, i.e. driving while intoxicated. So too was

it told of her felony conviction for theft. Evidence that she had previously “jumped bail” was

also admitted as was evidence of other instances in which she either drove or appeared

in public places while intoxicated. Given this, we can only say that any impact the hearsay

evidence had on the final outcome was de minimis.1

        Issue 2 - Ineffective Assistance of Counsel

        In her second issue, appellant claims she received ineffective assistance of counsel

because her trial attorney failed to make an opening statement. We overrule the issue.

        While a defendant may have a right to make an opening statement as appellant

argues, foregoing that right does not necessarily equate to ineffective assistance; this is

so because the decision may be a tactical one. Calderon v. State, 950 S.W.2d 121, 127-

28 (Tex. App.–El Paso 1997, no pet.); Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.–

Fort Worth 1997, pet. ref’d). And, while appellant argues that her counsel simply forgot to

make such an argument, that is not “firmly established” in the record. See Bone v. State,



        1
          The hearsay consisted of a statem ent that appellant’s vehicle had run off the road into a pipe fence,
that the witness observed the odor of alcohol on her, and that she was trying to leave the scene by getting
som eone to com e pick her up.

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77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (holding that the ineffective assistance must

be “firmly established” by the record). Indeed, the record does not disclose why counsel

did not make the argument; he could well have determined it to be unnecessary. See

Calderon v. State, 950 S.W.2d at 127-28. So, without evidence illustrating that the

decision was not the result of trial strategy, we cannot say that counsel’s performance was

deficient.

       Accordingly, the judgment of the trial court is affirmed.



                                                 Per Curiam



Do not publish.




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