                                  NO. 07-06-0156-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   AUGUST 15, 2006

                         ______________________________


                         MICHAEL JESUS COY, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

         FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY;

               NO. 703172; HONORABLE MICHAEL DENTON, JUDGE

                         _______________________________

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


                               MEMORANDUM OPINION


      Following a plea of not guilty, appellant, Michael Jesus Coy, was convicted of

assault by bodily injury and sentenced to one year confinement and a $4,000 fine, probated

in favor of one year community supervision. Presenting three issues, appellant contends

(1) the hearsay statements of the victim admitted over his objection violated his right to
confrontation under the United States Constitution, (2) he was denied effective assistance

of counsel, and (3) the evidence was factually insufficient to support his conviction. We

affirm.


          In June 2005, appellant was arrested and charged with assaulting his wife during

a dispute at the couples’ home. Despite multiple subpoenas, the victim failed to appear for

trial. The State proceeded with its case by offering the victim’s statements through the

testimony of the two police officers who investigated the complaint. Counsel for appellant

objected to hearsay; however, the court admitted the testimony under the excited utterance

exception of Rule 803(2) of the Rules of Evidence. Appellant was subsequently convicted

of the offense.


          By his first issue, appellant contends that by admitting the victim’s out-of-court

statements, the trial court violated the Confrontation Clause of the Sixth Amendment to the

United States Constitution. Although he concedes that he did not object on constitutional

grounds at trial, appellant maintains that because the State mentioned the case of

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), he was not

required to make a separate Confrontation Clause objection. We disagree.


          As a prerequisite to appellate review, a defendant must make a timely request,

objection, or motion stating the grounds with sufficient specificity to apprise the trial court

of his complaint. Tex. R. App. P. 33.1(a). The purpose of this requirement “is to give to the

trial court or the opposing party the opportunity to correct the error or remove the basis for

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the objection.” Martinez v. State, 22 S.W.3d 504, 507 (Tex.Cr.App. 2000). Recently, the

Court of Criminal Appeals has made it clear that an objection to hearsay does not preserve

error on Confrontation Clause grounds. Reyna v. State, 168 S.W.3d 173, 179 (Tex.Cr.App.

2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex.Cr.App. 2004). In addition, objections

below that do not comport with those uttered on appeal are generally not preserved for

review.   Wilson v. State, 71 S.W.3d 346, 349 (Tex.Cr.App. 2002).            Consequently,

appellant’s first issue presents nothing for review and is overruled.


       Alternatively, by his second issue, appellant argues that because counsel failed to

preserve error on Confrontation Clause grounds, he received ineffective assistance of

counsel. We disagree.


       Ineffectiveness of counsel is reviewed under the standard in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a

defendant must establish (1) counsel's performance was deficient (i.e., fell below an

objective standard of reasonableness), and (2) there is a reasonable probability that but for

counsel's deficient performance, the result of the proceeding would have been different, a

reasonable probability being a probability sufficient to undermine confidence in the

outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003); Hernandez v. State,

726 S.W.2d 53, 55 (Tex.Cr.App. 1986). In other words, appellant must demonstrate by a

preponderance of the evidence that the deficient performance prejudiced his defense.

Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002); Thompson v. State, 9 S.W.3d


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808, 813 (Tex.Cr.App. 1999). Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d

at 814 (citing Strickland, 466 U.S. at 700). The adequacy of defense counsel's assistance

is based upon the totality of the representation rather than by isolated acts or omissions of

trial counsel.   Id.   Although the constitutional right to counsel ensures the right to

reasonably effective counsel, it does not guarantee errorless counsel whose competency

or accuracy of representation is to be judged by hindsight. Ingham v. State, 679 S.W.2d

503, 509 (Tex.Cr.App. 1984); Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993).

Furthermore, appellate review of trial counsel's representation is highly deferential and

presumes that counsel's conduct fell within the wide range of reasonable and professional

representation. See e.g., Andrews v. State, 159 S.W.3d 98, 101 (Tex.Cr.App. 2005); Bone

v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002). To defeat the presumption of reasonable

professional assistance, any allegation of ineffectiveness must be firmly founded in the

record. Thompson, 9 S.W.3d at 813-14.


       In the present case, the record fails to demonstrate counsel’s performance fell below

an objective standard of reasonableness. Counsel vigorously cross-examined the State’s

witnesses, attempted to discredit their version of events, and repeatedly attacked the

State’s failure to produce the photographs of the victim’s injuries. He also made pertinent

objections throughout the trial, most notably, he lodged a valid, albeit unsuccessful,

hearsay objection under the Rules of Evidence prior to the introduction of the witnesses

out-of-court statements.     Contrary to appellant’s assertion, there are a number of

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conceivable reasons why counsel might have declined to object on confrontation grounds.

For example, as the State points out, he may have simply believed that the testimony was

admissible, making an objection inappropriate. SeeThompson, 9 S.W.3d at 814.


      Based on the record before us and provided the presumption that trial counsel's

conduct falls within the wide range of reasonable and professional representation, no

reversible error is demonstrated. See Bone, 77 S.W.3d at 833; Mallett v. State, 65 S.W.3d

59, 63 (Tex.Cr.App. 2001). Appellant’s second issue is overruled.


      By his third issue, appellant claims that without the victim’s hearsay statements, the

State’s evidence is factually insufficient to support his conviction. However, we conduct a

factual sufficiency analysis by considering all the evidence before the jury—whether proper

or improper—so that we can make an assessment from the jury's perspective. Miles v.

State, 918 S.W.2d 511, 512 (Tex.Cr.App. 1996). Because we cannot conduct a sufficiency

review without considering the victim’s out-of-court statements, appellant’s third point

presents nothing for review and is overruled. Fuller v State, 827 S.W.2d 919, 931

(Tex.Cr.App. 1992).


       Accordingly, the trial court’s judgment is affirmed.


                                          Don H. Reavis
                                            Justice

Do not publish.




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