                                   NO. 07-03-0228-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                NOVEMBER 25, 2003
                          ______________________________

                                   MICHAEL HORTON,

                                                         Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

            FROM THE 159TH DISTRICT COURT OF ANGELINA COUNTY;

                NO. CR-22,860; HONORABLE PAUL E. WHITE, JUDGE
                       _______________________________

                               Memorandum Opinion
                         _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       Through one issue, appellant Michael Horton challenges his conviction for burglary

of a habitation. After he pled guilty, the issue of punishment was submitted to the trial

court for resolution. According to appellant, his counsel was ineffective during that portion

of the trial because he “allowed [appellant’s] illegally obtained confession to be admitted

into evidence.” We affirm the judgment.
        The standard by which we review a claim of ineffective assistance is well

established. Rather than repeat it, we cite the parties to Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Bone v. State, 77 S.W.3d 828 (Tex.

Crim. App. 2002), Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999), and Rios v.

State, 990 S.W.2d 382 (Tex. App.--Amarillo 1999, no pet.) for its explanation.

        Next, according to the record, counsel for appellant objected to the admission of the

confession when it was first offered into evidence. He believed it to be duplicitous,

hearsay, and irrelevant. The objections were overruled, and the tape was then heard by

the trial court. Further examination of the witness through which the confession was

proffered revealed that appellant was not afforded his Miranda warnings before making the

statement. Counsel then objected to the admission of the tape on that ground. The trial

court sustained the objection and struck the confession from the record. Counsel having

objected to the admission of the tape at four different times and having ultimately

succeeded in excluding it from evidence does not evince the rendition of unreasonably

deficient assistance. See Marlow v. State, 886 S.W.2d 314, 318-19 (Tex. App.--Houston

[1st Dist.] 1994, pet. ref’d) (holding that counsel was not ineffective for failing to object to

the admission of the State’s exhibit when the record showed he objected four times, with

the first three being sustained and only the last one being overruled). Thus, appellant has

failed to satisfy the first element of the test espoused in Strickland, and its progeny.1


        1
          We also note that appellant failed to brief whether the confession was actually obtained in violation
of the law and was therefore susceptible to exclusion. Nor can he rely on the trial court’s decision to exclude
the statement as proof of its inadmissibility. This is so because the trial court decided to exclude the
statement “[o]ut of an abundance of caution” and because neither counsel provided him authority on the
matter. So, before it can be said that counsel was deficient for being unable to initially exclude the
confession, it was incumbent on him to explain via argument and authority why the utterance was actually

                                                      2
        Nor has he satisfied the element requiring that he establish prejudice, i.e. that the

outcome would have differed but for the alleged misconduct. Indeed, appellant did not

even attempt to brief that issue other than by simply saying “the damage had been done.”

This alone merits rejection of his claim. TEX . R. APP . P. 38.1(h) (stating that a brief must

contain a clear and concise argument supporting the contentions made with appropriate

citation to authority and the record); Lockett v. State, 16 S.W.3d 504, 505 n.2 (Tex.

App.–Houston [1st Dist.] 2000, pet. ref’d) (holding that a conclusory statement supported

by neither argument nor authority presents nothing for review).

        Yet, even assuming arguendo that appellant had not waived the issue of prejudice

due to inadequate briefing, nothing of record illustrates that the trial court considered

anything contained in the confession while sentencing him. The applicable range of

punishment was from two to 20 years. TEX . PEN . CODE ANN . §12.33(a) (Vernon 2003).

The trial court indicated that it assessed a term of eight years because of the “no less than

at least ten other offenses” listed in the pre-sentence investigation report, not because of

anything mentioned in the confession.

        Accordingly, the judgment of the trial court is affirmed.



                                                            Brian Quinn
                                                              Justice




subject to exclusion and, again, this he did not do. TEX. R. APP. P. 38.1(h) (stating that a brief must contain
a clear and concise argument supporting the contentions made with appropriate citation to authority and the
record); Lockett v. State, 16 S.W.3d 504, 505 n.2 (Tex. App.–Houston [1st Dist.] 2000, pet. ref’d) (holding that
a conclusory statement supported by neither argument nor authority presents nothing for review).

                                                       3
Do not publish.




                  4
