                                        In The

                                  Court of Appeals
                      Ninth District of Texas at Beaumont
                                ___________________
                                 NO. 09-11-00616-CR
                                ___________________

          JAMAR JOSEPH A/K/A JAMAR KEITH JOSEPH, Appellant

                                          V.

                         THE STATE OF TEXAS, Appellee

__________________________________________________________________

              On Appeal from the Criminal District Court
                       Jefferson County, Texas
                       Trial Cause No. 11-10938
__________________________________________________________________

                            MEMORANDUM OPINION

      Jamar Joseph1 appeals his conviction for unlawfully possessing a firearm.

See Tex. Penal Code Ann. § 46.04(a)(1) (West 2011). Joseph argues the trial court

erred by admitting a firearm into evidence during his trial, and he contends that he

received ineffective assistance of counsel. We conclude the trial court did not

abuse its discretion by admitting the firearm into evidence. On the record that is


      1
          The indictment alleges that Joseph is also known as Jamar Keith Joseph.
                                           1
before us, we also conclude that Joseph has not demonstrated that he received

ineffective assistance of counsel. We affirm the trial court’s judgment.

                                    Background

      In December 2010, Joseph was a passenger in a vehicle that Deputy Barbara

Bienvenue of the Jefferson County Sherriff’s Department stopped for a traffic

violation. Deputy Bienvenue arrested Joseph after she determined that Joseph had

outstanding traffic warrants.

      Deputy Bienvenue testified during Joseph’s trial. According to Deputy

Bienvenue, after Joseph was taken to the jail, she was asked to return to the book-

in area of the jail. On returning to that area, Sergeant Lawrence Flannigan Jr., who

had assisted her at the scene of Joseph’s arrest, handed Deputy Bienvenue a

handgun that had been given to him by one of the book-in officers at the jail.

Deputy Bienvenue identified the handgun during the trial as “the weapon that was

handed to me at the jail[.]” Before the handgun was admitted into evidence,

Joseph’s attorney took Deputy Bienvenue on voir dire and asked several questions

about the handgun; Deputy Bienvenue’s responses reflect that she did not see the

handgun when it was taken from Joseph. Although Joseph’s attorney lodged an

objection to admitting the handgun, the trial court, based on Deputy Bienvenue’s

testimony, admitted the handgun into evidence. During cross-examination, Deputy

                                          2
Bienvenue stated without objection that she was told that the handgun was the one

that had been taken from Joseph.

      Sergeant Flannigan also testified during Joseph’s trial. Sergeant Flannigan

testified that he responded to Deputy Bienvenue’s request for assistance. He

explained that after he arrived at the scene of the traffic stop, he conducted a pat-

down search of Joseph but found no weapons at that time. After taking Joseph to

jail, one of the book-in officers, Officer Sellers, asked Sergeant Flannigan to come

to the book-in desk. Officer Sellers handed Sergeant Flannigan a small handgun

and told him that Officer Romero found the handgun on Joseph. The testimony

about what Officer Sellers told Sergeant Flannigan was admitted without objection

during Sergeant Flannigan’s cross-examination. Sergeant Flannigan also explained

that shortly after Officer Sellers gave him the handgun, he gave it to Deputy

Bienvenue.

      Officer Romero also testified during Joseph’s trial. According to Officer

Romero, he was on-duty as the pat-down officer when Joseph was jailed. A video-

camera was used to tape Officer Romero’s search. The video was admitted into

evidence and shows Officer Romero finding an object on Joseph during the search

at the jail. According to Officer Romero, he discovered that Joseph had a small

caliber firearm concealed beneath his pants. Officer Romero testified that he took a

                                         3
“.380 semi-automatic” from Joseph, that he then handed the weapon to Officer

Sellers, who then gave it to Sergeant Flannigan. While the testimony shows that

Officer Romero acknowledged that he did not know if the gun admitted during the

trial was the same gun as the one he had taken from Joseph, after looking at the

handgun that was in evidence, Officer Romero testified: “It looks to be the one that

I took off Joseph.”

      On appeal, Joseph argues that the handgun was not properly authenticated

by Deputy Bienvenue as the gun taken from him. Joseph contends that gaps in the

handgun’s chain of custody prevent the handgun from being linked to him. An

abuse of discretion standard is used to review a trial court’s decision to admit

evidence. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). A

preliminary question regarding whether an exhibit asked to be admitted as

evidence is authentic is reviewed by examining “whether the proponent of the

evidence has supplied facts that are sufficient to support a reasonable jury

determination that the evidence he has proffered is authentic.” Id.

      When the trial court admitted the handgun, Deputy Bienvenue was the only

witness who the State had used to authenticate the handgun; however, the evidence

before the trial court at that stage reflects that Deputy Bienvenue lacked personal




                                          4
knowledge about whether the handgun shown to her at trial was the one removed

from Joseph when he was jailed.

      Neither of the parties’ briefs discusses the authentication requirements of

Rule 901 of the Texas Rules of Evidence; nevertheless, it is the Rule of Evidence

that governs the requirement concerning the authentication or identification of

evidence.2 Rule 901(a) provides: “The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims.” Tex. R. Evid. 901(a). Rule 901(b) then lists ten illustrations as examples

of authentication or identification that conform to the requirements of the rule. See

id. 901(b). Authentication is a matter of conditional relevancy under Rule 901,

which means that the party satisfies the condition by offering “‘evidence sufficient

to support a finding that the matter in question is what the proponent claims.’”

Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007) (quoting Tex. R.

Evid. 901(a)). “When the relevance of evidence depends upon the fulfillment of a

condition of fact, the court may admit the evidence contingent upon the

introduction of evidence sufficient to support a finding of the fulfillment of the

      2
        We further note that the State’s response to Joseph’s first issue, which
addresses the trial court’s decision to admit the handgun, cites no cases in support
of the State’s argument.
                                         5
condition.” Layton v. State, 280 S.W.3d 235, 241 (Tex. Crim. App. 2009) (citing

Tex. R. Evid. 104(b)). In this case, Deputy Bienvenue’s testimony is only a part of

the State’s proof that the handgun admitted into evidence was the same handgun

taken from Joseph.

      Nevertheless, assessing whether the trial court committed error requires that

we look at the evidence introduced before the trial court admitted the handgun

offered by the State, and the record is clear that Deputy Bienvenue “did not see

[the handgun] come off of Mr. Joseph.” When the trial court admitted the handgun,

Officer Romero had not yet testified. Also, when the handgun was admitted, the

trial court did not expressly state that the handgun was only being conditionally

admitted subject to the State’s offering further evidence that it was the handgun

taken from Joseph.

      Nevertheless, even if the trial court erred by admitting the handgun before

the State laid a sufficient foundation to show that the handgun was the one

removed from Joseph, Officer Romero’s subsequent testimony that the handgun

looked like the one he took from Joseph provides an adequate foundation for the

trial court’s decision to admit the handgun. Rule 901 creates a gatekeeping

function that can be cleared by circumstantial evidence. See Campbell v. State, 382

S.W.3d 545, 549-50 (Tex. App.—Austin 2012, no pet.). The testimony of Sergeant

                                        6
Flannigan and that of Deputy Bienvenue, relating how each had gained possession

of the handgun, are additional circumstances that, in light of Officer Romero’s

testimony, allowed the jury to decide whether the handgun admitted into evidence

was the handgun Joseph had at the jail.

      Assuming the trial court’s decision to admit the handgun was premature and

that it was error, a violation of evidentiary rules that results in the erroneous

admission of evidence is non-constitutional error. See Campbell, 382 S.W.3d at

552. In a harm evaluation under Rule 44.2(b), any non-constitutional error “‘that

does not affect substantial rights must be disregarded.’” Taylor v. State, 268

S.W.3d 571, 592 (Tex. Crim. App. 2008) (quoting Tex. R. App. P. 44.2(b)). “A

substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997).

      In identifying an object for admissibility, it is sufficiently identified “if the

evidence is sufficient to support a finding that the matter in question is what its

proponent claims.” Druery, 225 S.W.3d at 503. Generally, absent evidence of

tampering or fraud, “problems in the chain of custody do not affect the

admissibility of the evidence.” Id. The record in Joseph’s case does not show either

tampering or fraud with respect to how the police obtained the handgun. Officer

                                          7
Romero’s testimony that the handgun looked like the one he took from Joseph, the

testimony of Sergeant Flannigan that Officer Sellers handed him a handgun and

told him that Officer Romero had found the handgun on Joseph, and the testimony

of Deputy Bienvenue that the handgun in evidence was the one that Sergeant

Flannigan had handed her at the jail supports the trial court’s decision to admit the

handgun and to allow the jury to resolve whether the handgun in evidence was the

same handgun that Joseph had at the jail. See Tienda, 358 S.W.3d at 638 (“The

preliminary question for the trial court to decide is simply whether the proponent

of the evidence has supplied facts that are sufficient to support a reasonable jury

determination that the evidence he has proffered is authentic.”). Although Joseph

points to conflicts in the evidence, it is generally the jury’s responsibility to

determine the credibility of each witness and to resolve any conflicts in the

evidence. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999);

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

      We conclude that Joseph’s substantial rights were not affected even if the

admission of the handgun was premature. Subsequent evidence admitted during

trial sufficiently identified the handgun under the requirements of Rule 901(a). See

Tex. R. Evid. 901(a). Assuming the trial court prematurely admitted the handgun,




                                         8
such error, on the record before us, was harmless. See Tex. R. App. P. 44.2(b). We

overrule issue one.

                                  Ineffective Assistance

      In his second issue, Joseph argues that he received ineffective assistance of

counsel because his trial attorney failed to object or should have raised other

objections to several of the questions and statements made by the prosecutor

during his trial. Joseph points out that there were occasions where his attorney

could have objected to the prosecutor’s leading of witnesses, the introduction of

irrelevant evidence, the admission of out-of-court statements made by others,

nonresponsive answers of witnesses, and various aspects of the prosecutor’s

closing arguments.

      We apply a two-pronged test to resolve ineffective assistance of counsel

claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish the

ineffective assistance of counsel, the appellant must show by a preponderance of

the evidence that his counsel’s representation fell below the standard of prevailing

professional norms and that there is a reasonable probability that, but for counsel’s

deficiency, the result of the trial would have been different. Strickland, 466 U.S. at

                                          9
687, 694; Garza, 213 S.W.3d at 347-48; Thompson, 9 S.W.3d at 812. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Thompson, 9 S.W.3d at 812. But, as Garza explained, our review of

ineffective assistance claims is “highly deferential” to trial counsel, as we presume

“that counsel’s actions fell within the wide range of reasonable and professional

assistance.” Garza, 213 S.W.3d at 348.

       In reviewing complaints about trial counsel’s alleged deficiencies, an

appellate court must “avoid the deleterious effects of hindsight.” Thompson, 9

S.W.3d at 813. Trial counsel’s decisions are viewed with great deference when

trial counsel’s reasons for not undertaking a suggested strategy do not appear in the

record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Joseph

did not file a motion for new trial, and the record, regarding counsel’s explanation

of his strategy, is silent.

       “A Strickland claim must be ‘firmly founded in the record’ and ‘the record

must affirmatively demonstrate’ the meritorious nature of the claim.” Id. (quoting

Thompson, 9 S.W.3d at 813, 814 (declining to speculate on counsel’s failure to

object to hearsay in light of a silent record)). Generally, when faced with a record

that does not include an explanation of trial counsel’s trial strategy, the record that

is before the appellate court is deemed to be insufficient to demonstrate that trial

                                          10
counsel’s conduct was ineffective, unless the challenged conduct was “‘so

outrageous that no competent attorney would have engaged in it.’” Id. (quoting

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

      Having carefully reviewed the record, we conclude that Joseph’s complaints

that he received ineffective assistance of counsel require a more developed record.

Consequently, we cannot second-guess trial counsel’s strategy because the record

does not show that no competent attorney would have handled the matters in the

manner they were handled. See id. (evaluating whether challenged conduct was

“‘so outrageous that no competent attorney would have engaged in it’”); see also

Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably

competent counsel need not perform a useless or futile act[.]”). Because Joseph’s

ineffective assistance claim is not firmly founded in the record, we overrule issue

two and affirm the trial court’s judgment.

      AFFIRMED.

                                              ___________________________
                                                     HOLLIS HORTON
                                                          Justice


Submitted on March 28, 2013
Opinion Delivered June 12, 2013
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.
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