
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-02-00520-CR



Guadalupe Garza Ortiz, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT

NO. 01-1021-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N



 Appellant Guadalupe Garza Ortiz appeals his conviction for intentionally and
knowingly causing serious bodily injury to a child.  Tex. Pen. Code Ann. § 22.04 (West 2003).  The
jury found appellant guilty and assessed his punishment at ninety-nine years' imprisonment.  The
jury also found that a deadly weapon had been used as alleged in the indictment.

Points of Error

	Appellant advances five points of error.  First, appellant urges that the trial court erred
in excluding evidence "relevant to appellant's defense."  Second, appellant contends that the trial
court erred in refusing to grant a mistrial after the admission of an extraneous offense during the
guilt/innocence stage of the trial.  Third, appellant complains that the trial court violated section two
of article 37.07 of the Texas Code of Criminal Procedure by submitting a charge allowing the jury
at the guilt/innocence stage of the trial to consider the effect of their verdict on the issue of
punishment.  Fourth and fifth, appellant asserts that he was denied the effective assistance of counsel
guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article
I, section 10 of the Texas Constitution.

Background and Facts

	Appellant does not challenge either the legal or factual sufficiency of the evidence
to sustain his conviction.  A recitation of the pertinent facts will, however, place the points of error
in proper perspective.  
	Appellant Ortiz and Lori Carbajal had an on-and-off relationship.  They never
married.  On June 5, 2001, appellant took Lori to the hospital to await the birth of their son, Daniel
Carbajal.  Appellant was not present at the birth because he left the hospital, began consuming
alcohol and cocaine, and never returned.  
	On October 1, 2001, they were living at the trailer home of appellant's parents near
Jarrell.  That morning, Lori announced that she did not have a babysitter for Daniel and would not
go to work.  Appellant insisted that she go to work in Austin.  He stated that he would take care of
the almost four-months-old Daniel.  He asked Lori to call his new place of employment and report
that he was sick.  Appellant was "stressed out" because of his parental responsibilities, his
relationship with Lori, and his unstable employment situation.  Appellant had begun a self-rehabilitation program in attempting to withdraw from the use of heroin.  
	Late in the afternoon, Lori arrived home from work and found appellant and Daniel
in bed.  Appellant told her that Daniel was not feeling well as he had fallen when appellant was
changing his diaper.  Lori observed that Daniel appeared to be having a seizure.  Lori took Daniel
and ran to the car.  Appellant proceeded to drive to a hospital, but along the way the car struck the
curb of the highway and a flat or blow-out of a tire disabled the vehicle.  A man named Lopez gave
them a ride in his vehicle until they encountered Deputy Sheriff Jack Tomlinson directing traffic at
a Georgetown construction site.  Tomlinson, in view of Daniel's condition, called for EMS and
Starflight.  Starflight transported the child to the Scott and White Hospital in Temple.
	At the hospital, Daniel was placed on a ventilator to assist his breathing.  There were 
bruises on his face, neck, arms, thighs, and buttocks.  He had experienced subdural and retinal
hemorrhaging.  Daniel's brain was swollen and the brain gave indications that it had been deprived
of oxygen.  Daniel continued to experience seizures because of the brain injuries.  The medical
personnel did not expect Daniel to live.  The current prognosis is that Daniel will have "severe
neurological impairment" the rest of his life.  He lost a significant amount of brain tissue as a result
of his injuries.  It is unlikely, according to medical experts, that he will ever be able to see or walk
and will always be mentally retarded.
	After appellant's arrival at the hospital, he gave a written statement to Deputy Sheriff
J.R. Hicks that Daniel had been with Catherine, a baby sitter, that day and when Lori brought Daniel
home he was weak and limp.  In the early morning hours of the next day, October 2, appellant gave
a second written statement in which he admitted that he lied in his first statement because Lori did
not want her family to know that they were living together.  Appellant admitted that he had been the
baby sitter; that while he was changing the child's diapers at noon-time he reached for the baby
powder and the child's body swayed and fell out of his hands onto a child's car seat; and that the
child's bottom hit first and his head struck the car seat.  It was afternoon before appellant observed
the child appeared weak and limp.
	The investigation continued.  On October 4, 2001, officers armed with a search and
an arrest warrant went to the home of appellant's parents where appellant lived.  There, they obtained
a third written statement and a tape recorded statement from appellant.  In these statements, appellant
admitted that Daniel was crying and that he (appellant) had been under a lot of stress, so he spanked
Daniel several times.  At one point, Daniel, during a spanking, fell out of appellant's hands and hit
the dresser and bounced off the floor.  Appellant put Daniel to bed.  After appellant woke up from
a nap, Daniel was crying again.  Appellant picked up the child and shook him and threw him onto
a bed.  Appellant noticed that the child's eyes rolled back into his head.  The child emitted a low
moan and his body went limp.  All of appellant's statements were admitted into evidence.  All three
medical experts who treated Daniel testified that his injuries were consistent with "shaken baby
syndrome" and the brain injuries were severe and would be prolonged.
	Appellant, testifying in his own behalf, repudiated all of his previous statements.  He
stated that the statements were given to protect Lori knowing that he could endure jail time better
than she could.  Appellant then gave a different version of what occurred on October 1, 2001. 
Appellant told the jury that after Lori left for work he discovered severe bruises on Daniel's bottom. 
When Lori returned home from work, he confronted her about the bruises.  Lori threatened to leave
him.  Appellant then announced that he would keep Daniel.  A struggle ensued, with Lori physically
trying to pull Daniel from appellant's arms.  While both were pulling on Daniel, appellant let go, and
Daniel's head hit the dresser.  
	Appellant acknowledged that at the time he had been trying to get off drugs for about
a month; that on the day in question he was using a prescription drug, Flexeril, a muscle relaxant,
that he had obtained from a friend, not a doctor.  Appellant admitted that he had taken fifteen to
twenty doses on October 1, 2001, at the rate of two or three an hour.  
	In rebuttal, the State called Kenneth Adair, once a cell mate of appellant's in the
Williamson County jail.  Adair related that appellant told him that he (appellant) was going to "make
up" a story about the child falling during a struggle with Lori, who was pulling on the child; that he
would say his earlier versions were given only to protect the mother of his child.  Adair stated that
appellant indicated that he wanted to implicate Lori because she had not contacted him since he had
been incarcerated.  
	In rebuttal, appellant acknowledged that he had been in jail with Adair, had discussed
his case with Adair, and at one point told Adair about his (appellant's) dilemma in "coming forward
with the truth" and the struggle with Lori.  He recalled that Adair responded, "Go ahead and fry the
bitch."

Exclusion of Evidence

	In his first point of error, appellant urges that the "trial court erred in refusing to admit
evidence relevant to appellant's defense."  In order to properly respond, we shall consider the
contention in two parts.  We do this because appellant contends that the trial court excluded relevant
evidence pertaining to (1) reasons for giving false statements to the police and (2) a "meaningful
defense."  The evidence excluded is the same for both purposes.
	Following a recess taken while appellant was on direct examination and in the jury's
absence, appellant's counsel inquired of the trial court about offering evidence that Lori had a family
violence assault arrest and that it had affected appellant's "judgment in the decision he made
regarding the statements in the case."  Counsel pointed out that it was "a critical issue about why he
[appellant] would make these false statements about his own behavior," and that appellant would
testify that he believed if he "took the fall, it would be better for all of us."  The trial court responded
that appellant "had already said that."  Counsel, however, wanted to be more specific about
appellant's reasons for making the statements.  Upon this offer of proof, see Tex. R. Evid. 103(b),
the trial court, after colloquy, ruled that the evidence, if relevant, had little probative value and was
substantially outweighed by extremely prejudicial matters.  See Tex. R. Evid. 403.  The trial court
nevertheless authorized the perfection later of an informal bill of exception.
	As appellant's direct examination continued, he stated that he had given the first
written statement to the police for Lori's sake so she "could save face with her family."  Appellant
related that he gave the second written statement to prevent the State from taking Daniel away and
Lori going to jail.  "I knew she wouldn't be able to handle it . . . so I figured I'd take all the blame
and that I'd go to jail."  Appellant further testified that the third written statement and tape recording
was false because he was in shock and under duress; that his emotional father told him that Detective
Hughley had said that appellant had to say something; and that he didn't want "to put Lori out there
like that," as he could handle being locked up better than Lori.
	At the conclusion of the direct examination, appellant's counsel was permitted to
perfect the informal bill of exception.  Appellant testified that "one time" Lori told him that she got
into a fight with her younger sister and had to take anger management classes.  He took that into
consideration in making the statements to the detectives.  He considered that this "wouldn't look
good for her," and that "it would be easier for me to take the heat."  This testimony did not establish
that appellant knew of Lori's arrest.  In a rather strange procedural move, appellant called Lori on
the bill of exception designed to show what appellant would testify if permitted.  Her testimony was
extremely disjointed.  When asked if appellant was aware of the "incident," she responded:  "Yes
I was on the phone with him when it happened."  
	A trial court's decision to admit or exclude evidence is afforded a great deal of
discretion.  Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990).  Therefore, we
review a trial court's ruling on the admission or exclusion of evidence under an abuse of discretion
standard.  Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001); Angleton v. State, 971
S.W.2d 65, 67 (Tex. Crim. App. 1998).  If the trial court's ruling is reasonably supported by the
record under any theory of applicable law, it will be upheld on appeal.  This is known as the "zone
of reasonable disagreement" test.  Montgomery, 810 S.W.2d at 391; see also Tex. R. Evid. 103(a). 
Appellant's counsel offered the evidence at trial on the basis that it affected appellant's judgment
in making the false statements.  In his brief, appellant notes that in the bill of exception appellant
testified the excluded evidence "influenced his state of mind in regard to his pre-trial statements." 
Before and after the evidence was excluded, appellant repeatedly testified before the jury as to his
reasons for the fabrication in his earlier statements to the police.  Appellant's personal knowledge
that Lori had a fight with her sister and that anger management classes resulted does not appear to
meet the relevancy test.  Tex. R. Evid. 401.  If relevant as presented, the trial court ruled that it did
not meet the balancing test under Rule 403.  See Tex. R. Evid. 403.  Appellant acknowledges the
Rule 403 decision but has not challenged that ruling by briefing the issue.  See Tex. R. App. P.
38.1(e), (h).  We find no abuse of discretion on the part of the trial court.

A Further Contention

	On appeal, appellant also claims for the first time that the exclusion of the evidence
violated his constitutional right to due process--being the right to present a meaningful defense.  See
Chambers v. Mississippi, 410 U.S. 284, 294-95 (1973).  Appellant has not identified his "defense"
as stated in his point of error.  Recognized defenses are labeled as a "defense" or an "affirmative
defense" in the penal code.  See Tex. Pen. Code Ann. §§ 2.03, .04 (West 2003).  The term "defense"
should not be used for an issue where the defense has not been labeled as such by the Legislature. 
Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998); Roise v. State, 7 S.W.3d 225, 242-43 (Tex. App.--Austin 1999, pet. ref'd).

Traditional "common law" defenses . . . are no longer considered defenses per se. 
That is, if raised the jury is not instructed on the issue and the state bears no burden
of producing evidence to rebut them.  Courts have reasoned that such issues are in
the nature of a negation of one of the elements of the state's case.


6 Michael B. Charlton, Texas Practice: Texas Criminal Law § 2.4 (2001) (citing Giesberg, 984
S.W.2d at 245).
	Thus, issues such as accident, alibi, and mistaken identity constitute no more than a
negation of an essential element of the State's burden of proof of the elements of the offense alleged
and a defendant is not entitled to an instruction on such a defensive issue.  Giesberg, 984 S.W.2d
at 246-47; Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982); Castaneda v. State, 28
S.W.2d 216, 226 (Tex. App.--El Paso 2000, pet. ref'd); Anderson v. State, 11 S.W.3d 369, 373
(Tex. App.--Houston [1st Dist.] 2000, pet. ref'd).  
	Appellant has not revealed the "meaningful" defense that he was deprived of
presenting by virtue of the excluded evidence.  We will not speculate as to the claimed constitutional
error.  It is observed that appellant made no trial objection on the basis now advanced in order to
preserve error.  See Tex. R. App. P. 33.1(a).  Even constitutional error may be waived.  See Briggs
v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Gibson v. State, 516 S.W.2d 406, 409 (Tex.
Crim. App. 1974); Webber v. State, 21 S.W.3d 726, 730 (Tex. App.--Austin 2000, pet. ref'd).  The
first point of error is overruled.  

Motion for Mistrial

	In his second point of error, appellant contends that the trial court erred in denying
appellant's motion for a mistrial "based on the improper admission of an unadjudicated extraneous
offense during the guilt/innocence phase of trial."  
	After appellant testified and the defense rested, the prosecution called Kenneth Adair
in rebuttal.  Adair, for a period of time, had been a cell mate of appellant in the Williamson County
jail.  Adair testified about certain statements made to him by appellant.  The record also reflects the
following on direct examination:  


And did you [Adair] know what he had been charged with?


Not right at first.  He didn't really say anything.  But a couple of days after, he
did.


And what was that charge that you understood?


It was injury to a child and then a tampering with evidence charge also.


	Appellant objected on the basis of an insertion of an extraneous offense into evidence. 
At the bench, the prosecution informed the trial court that the other offense was a completely
different offense still pending, which occurred before the instant offense.  The trial court sustained
the objection and instructed the jury, at appellant's request, to disregard the witness's last response. 
Appellant's motion for a mistrial was overruled.
	A trial court's denial of a mistrial motion is reviewed under an abuse of discretion
standard.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).  The determination of whether
a given error necessitates a mistrial must be made by examining the particular facts of the case.  Id. 
Ordinarily, a prompt instruction to disregard will cure the error associated with an improper question
and answer, even one regarding an extraneous offense.  Ovalle v. State, 13 S.W.3d 774, 783 (Tex.
Crim. App. 2000); Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992); Fairly v. State, 90
S.W.3d 903, 905 (Tex. App.--San Antonio 2002, no pet.); Banks v. State, 955 S.W.2d 116, 119
(Tex. App.--Fort Worth 1999, no pet.).  
	Prompt instructions to disregard have been held to cure an unresponsive answer.
Hughes v. State, 878 S.W.2d 142, 154 (Tex. Crim. App. 1992).  A reference to a prior prison
incarceration, Iennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App. 1990), an improper
impeachment, Adams v. State, 683 S.W.2d 661, 670 (Tex. Crim. App. 1985), and a reference to an
outstanding arrest warrant for defendant for an extraneous offense, Alaniz v. State, 891 S.W. 737,
742-43 (Tex. App.--Houston [1st Dist.] 1994, no pet.) are all examples of improprieties cured by
instructions to disregard.  A reviewing court will presume that the jury will obey the trial court's
instruction to disregard.  Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987).  
	A mistrial is only required when the impropriety is clearly calculated to inflame the
minds of the jurors and is of such a character as to suggest the impossibility of withdrawing the
impression produced on the minds of the jurors.  Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim.
App. 1999); Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988).  These conditions are
not present here.  
	The trial court sustained appellant's objection and promptly instructed the jury to
disregard witness Adair's answer.  The jurors knew the offense with which appellant was charged. 
Part of Adair's answer did not add to the jury's knowledge.  The other part was unresponsive.  The
extraneous offense was not mentioned again.  The reference was an isolated one.  The trial court did
not abuse its discretion in denying the mistrial motion.  The second point of error is overruled.  

The Charge on Lesser-Included Offenses

	In his third point of error, appellant contends that the "trial court violated article 37.07
§ 2 of the Texas Code of Criminal Procedure by submitting a charge to the jury that allowed the jury
to consider the effect of their [sic] verdict in regard to the issue of punishment during the
guilt/innocence phase of the trial."  
	Appellant was indicted for intentionally and knowingly causing serious bodily injury
to a child.  See Tex. Pen. Code Ann. § 22.04(a)(1), (e) (West 2003).  The trial court charged the jury
on the alleged offense and also submitted the lesser included offenses of recklessly engaging in
serious bodily injury to a child and by causing serious bodily injury to a child by criminal negligence. 
Id. (a), (e), (g).  Appellant contends that the submission of later offenses was appropriate, but the use
of the term "lesser included offense" in the court's jury charge was error.
	Article 37.07, section 2(a) of the Texas Code of Criminal Procedure provides:

Sec. 2.  (a)  In all criminal cases, other than misdemeanor cases of which the justice
court or municipal court has jurisdiction, which are tried before a jury on a plea of
not guilty, the judge shall, before argument begins, first submit to the jury the issue
of guilt or innocence of the defendant of the offense or offenses charged, without
authorizing the jury to pass upon the punishment to be imposed.  


Tex. Code Crim. Proc. Ann. art. 37.07, § 2(a) (West Supp. 2004) (emphasis added).
	Appellant objected to the court's charge on the basis of this statute.  The objection
was overruled.  The trial court pointed out that the phrase "lesser included offense" had been
removed from the jury verdict forms to be submitted and deleted from headings or labels in the
charge above the offenses involved.  The phrase was not removed, however, from the body of the
application paragraphs in the charge relating to these offenses.  The court's jury instructions were
favorable to appellant and did not authorize the jury to pass upon any punishment at the
guilt/innocence stage of the bifurcated trial.  Moreover, the "lesser included offenses" and their range
of punishment was discussed during the voir dire examination of the jury panel without objection. 
	Article 36.14 provides in pertinent part that:

Subject to the provisions of article 38.07 in each felony case and in each
misdemeanor case tried in a court of record the judge shall, before the argument
begins, deliver to the jury, except in pleas of guilty, where the jury has been waived,
a written charge distinctly setting forth the law applicable to the case . . . .


Tex. Code Crim. Proc. Ann. art. 36.14 (West Supp. 2004) (emphasis added).  Thus, in the instant
case the trial court was required to apply the law to the facts.  
	Article 37.09 (Lesser Included Offense) provides:

An offense is a lesser included offense if:


it is established by proof of the same or less than all the facts required to
establish the commission of the offense charged;
 it differs from the offense charged only in the respect that a less serious injury
or risk of injury to the same person, property, or public interest suffices to
establish its commission;
 it differs from the offense charged only in the respect that a less culpable mental
state suffices to establish its commission; or
 it consists of an attempt to commit the offense charged or an otherwise included
offense.  


Tex. Code Crim. Proc. Ann. art. 37.09 (West 1981).
	Section 6.02(a), (d), and (e) of the Texas Penal Code provides:



Except as provided in subsection (b) a person does not commit an offense unless
he intentionally, knowingly, recklessly, or with criminal negligence engages in
conduct as the definition of the offense requires.


Culpable mental states are classified according to relative degrees from highest
to lowest as follows:
 
intentional
 knowing
 reckless
 



criminal negligence
 


Proof of a higher degree of culpability than that charged constitutes proof of the
culpability charged.


Tex. Pen. Code Ann. § 6.02(a), (d), (e) (West 2003).  See also Patterson v. State, 46 S.W.3d 294,
303-04 (Tex. App.--Fort Worth 2000) aff'd following remand, 101 S.W.2d 150, pet. ref'd).
	The statutes expressly provide for lesser included offenses and different degrees of
culpable mental states.  In submitting the charge to the jury, the trial court was required to apply the
applicable law on the issues raised by the evidence.
	The phrase "lesser included offense," being a part of the statutory law, is commonly
used by the bench and bar in jury trials, utilized in jury instructions and in appellate court opinions, 
and discussed by legal commentators.  See, e.g., 43A George E. Dix & Robert O. Dawson, Texas
Practice: Criminal Law and Practice § 43.499, 500 (2d ed. 2001).
	Appellant's contention is without merit.  The third point of error is overruled.  

Ineffective Assistance of Counsel

	In his fourth and fifth points of error, appellant contends that he was denied his right
to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United
States Constitution and article I, section 10 of the Texas Constitution.  Appellant urges that his trial
counsel was ineffective because he failed to object to Kenneth Adair being called by the State as a
rebuttal witness because Adair was not on a list of witnesses furnished to appellant.

The Standard of Review

	The Sixth Amendment to the United States Constitution guarantees the right to the
reasonably effective assistance of counsel in a state criminal proceeding.  McMann v. Richardson,
397 U.S. 759, 771 n.14 (1970); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001);
Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).  In Strickland v. Washington, 466
U.S. 668, 689 (1984), the United States Supreme Court held that in order to show ineffective
assistance of counsel, a convicted defendant must show that (1) his trial counsel's performance was
deficient, in that counsel made such serious errors he was not functioning effectively as counsel; and 
(2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived
of a fair trial.  In this connection, a strong presumption exists that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional judgment. 
"Prejudice" is demonstrated when the convicted defendant shows "a reasonable probability that but
for counsel's unprofessional errors, the result of the proceedings would have been different."  Id. at
694.  A reasonable probability is a probability sufficient to undermine confidence in the outcome. 
Parmer v. State, 38 S.W.3d 661, 665 (Tex. App.--Austin 2000, pet. ref'd); Banks v. State, 819
S.W.2d 676, 681 (Tex. App.--San Antonio 1991, pet. ref'd).  Unless a defendant makes both
showings, it cannot be said that the conviction resulted from a breakdown in the adversary process
that renders the results unreliable.  Strickland, 466 U.S. at 687; Oestrick v. State, 939 S.W.2d 232,
237 (Tex. App.--Austin 1997, pet. ref'd).  Under Strickland, a defendant has the burden to prove
a claim of ineffective assistance of counsel by a preponderance of the evidence.  McFarland v. State,
928 S.W.2d 482, 500 (Tex. Crim. App. 1996); Parmer, 38 S.W.3d at 665.
	The two-pronged standard for testing claims of ineffective assistance of counsel set
out in Strickland has been adopted for Texas constitutional claims.  Hernandez v. State, 726 S.W.2d
53, 57 (Tex. Crim. App. 1986).  Under the Strickland-Hernandez standard, any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate
the alleged ineffectiveness.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Josey
v. State, 97 S.W.3d 687, 696 (Tex. App.--Texarkana 2003, no pet.).  The assessment of whether a
defendant received effective assistance of counsel must be made according to the facts of each case. 
Lopez v. State, 96 S.W.3d 406, 417 (Tex. App.--Austin 2002, pet. ref'd).  Whether the Strickland
test has been met is to be judged by the "totality of the representation" rather than by isolated acts
or omissions of trial counsel, and the test is applied at the time of the trial, not through hindsight. 
Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Banks, 819 S.W.2d at 681.  Any
judicial review of a defendant's claim of ineffective assistance must be highly deferential to trial
counsel.  Thompson, 9 S.W.3d at 813.  There is a strong presumption that counsel's conduct fell
within the wide range of reasonable professional assistance.  Id.; Jackson v. State, 877 S.W.2d 768,
771 (Tex. Crim. App. 1994).
	A reviewing court will not second guess through hindsight the strategy of counsel at
trial.  Blevins v. State, 18 S.W.3d 266, 271 (Tex. App.--Austin 2000, no pet.).  In the absence of
direct evidence in the record of counsel's reasons for the challenged conduct, an appellate court will
assume a strategic motivation, if any can be imagined.  Garcia, 57 S.W.3d at 441; Skeen v. State, 96
S.W.3d 567, 580 (Tex. App.--Texarkana 2002, no pet.).  Cf. Moore v. Johnson, 194 F.3d 586, 604
(5th Cir. 1999).  The challenged conduct will not, under the circumstances, constitute deficient
performance unless the conduct was so outrageous that no competent attorney would have engaged
in it.  Garcia, 57 S.W.3d at 441; Thompson, 9 S.W.3d at 814.
	Claims of ineffective assistance of trial counsel can be properly raised on appeal if
the appellate record is sufficiently developed.  Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex.
Crim. App. 2000).  In most cases, the trial record alone would be insufficient.  See Thompson, 9
S.W.3d at 813.  The claim can be developed by a hearing on a motion for new trial based on a claim
of ineffective assistance of counsel.  See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App.
1993).  
	Appellant's appellate counsel filed a motion for new trial based in part on a claim of
ineffective assistance of trial counsel because of the failure to call material witnesses.  The motion
was overruled by operation of law.  Thus, all we have to evaluate appellant's present claim is the
appellate record itself.  
	As earlier noted, appellant took the witness stand, disavowed his earlier statements,
and gave a different version of what occurred on October 1, 2001.  Thereafter, Kenneth Adair, a
former jail cell inmate of appellant's, was called as a rebuttal witness by the State.  There was no
objection to Adair's testimony, although his name was not on the list of the State's witnesses
furnished to appellant.  Upon a request by a defendant, the State must in accordance with the trial
court's order give notice of whom it intends to call as witnesses at any stage of the trial.  See Stoker
v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989); Hightower v. State, 629 S.W.2d 920, 925 (Tex.
Crim. App. 1981); Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977); Osbourn v. State, 59
S.W.3d 809, 812 (Tex. App.--Austin 2001), aff'd, 92 S.W.3d 531 (Tex. Crim. App. 2002);
Castaneda v. State, 28 S.W.3d 216, 223 (Tex. App.--El Paso 2000, pet. ref'd). (1)
	If a trial court allows an unlisted witness to testify over objection, the decision is
reviewed for an abuse of discretion.  Stoker, 788 S.W.2d at 15; Martinez v. State, 867 S.W.2d 30,
39 (Tex. Crim. App. 1993); Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.--Texarkana 2000, pet.
ref'd).  Among the factors to be considered by an appellate court are any showing by the defendant
of bad faith on the part of the prosecution in failing to disclose and whether the defendant could have
reasonably anticipated that the witness would testify, despite the absence of the witness's name from
the State's list of witnesses.  Castaneda, 28 S.W.3d at 223 (citing Stoker, 788 S.W.2d at 15).  Unless
the defendant makes the necessary showing, the trial court's decision to allow the testimony will not
be disturbed on appeal.  Id. 
	The question presented by appellant is not whether the trial court abused its
discretion, but whether there was ineffective assistance by appellant's trial counsel in not objecting
to Adair's testimony on rebuttal.  This is the only error attributed to trial counsel.  Although a single
error may be sufficient to demonstrate ineffective assistance of counsel, Ex parte Felton, 815 S.W.2d
733, 736 (Tex. Crim. App. 1991), the "totality of the representation" is used to judge whether the
Strickland two-prong test has been met.  Welborn, 785 S.W.2d at 393.  Isolated acts or omissions
do not furnish the test.  Id.  And the "totality of the representation" test is applied at the time of trial,
not through hindsight.  Banks, 819 S.W.2d at 681.  
	We have earlier discussed the condition of the record regarding this claim.  The
instant case falls within the majority of cases where the record on direct appeal is inadequately
developed to reflect the claimed failure of trial counsel under the Strickland test.  Thompson, 9
S.W.3d at 813; Blevins, 8 S.W.3d at 272.  We thus are unable to make a fair evaluation of appellant's
claim.  Appellant, however, is not foreclosed from presenting his claim via a collateral attack by
virtue of an application for post-conviction writ of habeas corpus.  Robinson, 16 S.W.3d at 812-13;
Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Ex parte Torres, 943 S.W.2d 469,
475 (Tex. Crim. App. 1997).  Appellant's fourth and fifth points of error are overruled.
	The judgment is affirmed.


  
	John F. Onion, Jr., Justice
Before Chief Justice Law, Justices Kidd and Onion*
Affirmed
Filed:   March 11, 2004
Do Not Publish

*	Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment.  See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1.   Despite the "at any stage of the trial" language found in the cases, there is other case law
that the State is not required to disclose the identity of rebuttal witnesses setting forth the different
reasons for such a rule.  See Elkins v. State, 543 S.W.2d 648, 649 (Tex. Crim. App. 1976); Hoagland
v. State, 494 S.W.2d 186, 189 (Tex. Crim. App. 1993); Hardin v. State, 20 S.W.3d 84, 89 (Tex.
App.--Texarkana 2000, pet. ref'd); Washington v. State, 943 S.W.2d 501, 506 (Tex. App.--Fort
Worth 1997, pet. ref'd) (op. on reh'g); Devia v. State, 718 S.W.2d 72, 74 (Tex. App.--Beaumont
1986, no pet.).  
