                                  IN THE
                          TENTH COURT OF APPEALS

                                   No. 10-18-00154-CR

CHARLES CLARK,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                            From the 21st District Court
                              Burleson County, Texas
                               Trial Court No. 15305


                           MEMORANDUM OPINION



       Charles Clark appeals from a conviction for delivery of a controlled substance.

TEX. HEALTH & SAFETY CODE ANN. § 481.134(d) (West 2010). Clark complains that the trial

court abused its discretion by admitting evidence of extraneous offenses and that he

received ineffective assistance of counsel. Because we find no reversible error, we affirm

the judgment of the trial court.
EXTRANEOUS OFFENSES

        In his first issue, Clark complains that the trial court erred by overruling his

objection to the admission of evidence of extraneous offenses pursuant to Rules 402 and

404(b) of the Rules of Evidence and because its probative value is substantially

outweighed by the danger of unfair prejudice pursuant to Rule 403 of the Rules of

Evidence.

        Clark complains of two separate extraneous offenses. The first was during the

confidential informant's testimony when she was asked how she had met Clark. The

informant answered that she had met Clark through her ex-boyfriend. The informant

was asked what their connection was, and the informant answered that her ex-boyfriend

"used to buy methamphetamine." Clark objected, stating: "Your Honor, that brings up—

that that brings up an extraneous offense. Another delivery offense that has nothing to

do with this case. It's completely irrelevant to this case. It's entirely prejudicial and

unfairly prejudicial." The trial court overruled his objection. The second extraneous

offense testimony about which Clark complains took place immediately after his

objection. The State asked the informant if she had been present with her boyfriend, and

the informant testified that she had gone with her ex-boyfriend and had been present

during those interactions between her ex-boyfriend and Clark. She also testified that she

had regularly bought methamphetamine from Clark for an extended period of time,

sometimes on a daily basis. Clark did not object to this testimony.


Clark v. State                                                                     Page 2
        To the degree that Clark's complaints in this issue include the testimony by the

confidential informant after the objection, because he did not object to the testimony and

no running objection had been requested from his previous objection, those complaints

were not preserved and were waived. See TEX. R. APP. P. 33.1(i). This leaves only the

answer that her ex-boyfriend had purchased methamphetamine from Clark.

        Even if we were to assume without deciding that the statement that the informant's

ex-boyfriend "used to buy methamphetamine" was erroneously admitted, and that the

objection was not waived by Clark's failure to object to the informant's further answers

that she was present for the interactions between Clark and her ex-boyfriend, we do not

believe that Clark was harmed by the admission of the testimony. The erroneous

admission of evidence of this character is nonconstitutional error governed by Rule

44.2(b) of the Rules of Appellate Procedure. See Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001). Under rule of appellate procedure 44.2(b), we disregard the error if it

did not affect the appellant's substantial rights. Id. 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). Conversely, an error

does not affect a substantial right if we have "fair assurance that the error did not

influence the jury, or had but a slight effect." Solomon, 49 S.W.3d at 365. In making this

determination, we review the record as a whole, including any testimony or physical

evidence admitted for the jury's consideration, the nature of the evidence supporting the


Clark v. State                                                                       Page 3
verdict, and the character of the alleged error and how it might be considered in

connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

App. 2002). We may also consider the jury instructions, the State's theory and any

defensive theories, whether the State emphasized the error, closing arguments, and even

voir dire, if applicable. Id. at 355-56.

        The confidential informant testified that she approached law enforcement because

she had gotten clean and wanted to stop Clark from being able to continue selling to her

and others like her. The informant participated in several controlled buys with Clark,

one of which forms the basis of this conviction. There was a video, albeit of poor quality,

from the informant's vehicle showing the transaction. The informant testified to a long-

standing course of drug purchases between herself and Clark. Our further review of the

rest of the record, including the jury charges and the arguments by the State, supports

the conclusion that the admission of the testimony, to whatever degree it may have been

erroneous, was harmless. We overrule issue one.

INEFFECTIVE ASSISTANCE OF COUNSEL

        In his second issue, Clark complains that he received ineffective assistance of

counsel because his trial counsel did not object to the State's motion to amend the

indictment that was presented on the first day of trial. The State sought to amend the

indictment to include the provision that the offense had occurred in a drug free zone. The

motion to amend the indictment had been filed seven days before trial but was not heard


Clark v. State                                                                        Page 4
by the trial court until immediately prior to voir dire.         Clark objected to the late

amendment. After discussion between the trial court, counsel for the State and Clark,

and upon Clark's written and oral consent, an agreement was reached to allow the

amendment with limitations.

        In order to prevail on a claim of ineffective assistance of counsel, Clark must satisfy

a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.

Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, Clark

must show that counsel was so deficient as to deprive him of his Sixth Amendment right

to counsel. Strickland, 466 U.S. at 687. Second, Clark must show that his counsel's

representation was objectively unreasonable. Id.; see Lopez v. State, 343 S.W.3d 137, 142

(Tex. Crim. App. 2011). To satisfy the second prong, Clark must show that there is a

"reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Thompson, 9 S.W.3d at 812. A reasonable

probability exists if it is enough to undermine the adversarial process and thus the

outcome of the trial. See Strickland, 466 U.S. at 694, Mallett v. State, 65 S.W.3d 59, 62-63

(Tex. Crim. App. 2001).       As the reviewing court, we look to the totality of the

representation and the particular circumstances of each case in evaluating the

effectiveness of counsel. Thompson, 9 S.W.3d at 813. Our review is highly deferential and

presumes that counsel's actions fell within a wide range of reasonable professional

assistance. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813.


Clark v. State                                                                           Page 5
        The right to "reasonably effective assistance of counsel" does not guarantee

errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v.

State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). "Isolated instances in the record

reflecting errors of commission or omission do not cause counsel to become ineffective,

nor can ineffective assistance of counsel be established by isolating or separating out one

portion of the trial counsel's performance for examination." Ex parte Welborn, 785 S.W.2d

391, 393 (Tex. Crim. App. 1990). Clark bears the burden of proving by a preponderance

of the evidence that counsel was ineffective, and an allegation of ineffectiveness must be

firmly founded in the record. Thompson, 9 S.W.3d at 813.

        Trial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.

App. 2003). Specifically, when the record is silent regarding the reasons for counsel's

conduct, a finding that counsel was ineffective would require impermissible speculation

by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.]

1996, no pet.). Therefore, absent specific explanations for counsel's decisions, a record on

direct appeal will rarely contain sufficient information to evaluate an ineffective-

assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To warrant

reversal without affording counsel an opportunity to explain his actions, "the challenged

conduct must be 'so outrageous that no competent attorney would have engaged in it.'"

Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187


Clark v. State                                                                         Page 6
S.W.3d 390, 392 (Tex. Crim. App. 2005)). Here, the record is largely silent as to trial

counsel's strategy; therefore, we will examine the record to determine if trial counsel's

conduct was "'so outrageous that no competent attorney would have engaged in it.'" Id.

(quoting Goodspeed, 187 S.W.3d at 392).

         Clark did not file a motion for new trial or otherwise offer his trial counsel an

opportunity to explain his actions. There was a discussion between the trial court, the

State, and counsel for Clark regarding the motion to amend the indictment, during which

the State agreed to not raise the issue of the drug-free zone until the punishment phase

of the trial. During that discussion, it also appeared that counsel for Clark considered the

potential for a continuance as the remedy for the late request. We also do not find that

his trial counsel's conduct, without further explanation as to his reasoning as it relates to

this isolated incident, was "so outrageous that no competent attorney would have

engaged in it." See Roberts, 220 S.W.3d at 533. Because we find that Clark's ineffective

assistance complaint is not "firmly founded in the record," we overrule Clark's second

issue.

CONCLUSION

         Having found no reversible error, we affirm the judgment of the trial court.




                                           TOM GRAY
                                           Chief Justice



Clark v. State                                                                          Page 7
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins1
Affirmed
Opinion delivered and filed February 27, 2019
Do not publish
[CRPM]




1
 The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).


Clark v. State                                                                                    Page 8
