
NO. 07-02-0320-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

 FEBRUARY 7, 2003
______________________________

CARLOS WAYNE TOOMBS,




		Appellant


v.

THE STATE OF TEXAS, 


		Appellee

_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 44,997-E; HON. ABE LOPEZ, PRESIDING
_______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J. (1)
	Appellant Carlos Wayne Toombs appeals from his conviction for sexual assault of
a child.  The two issues before us concern his Sixth Amendment right to confront the
witnesses and evidence presented against him and the effectiveness of his trial counsel. 
We overrule each issue and affirm the judgment of the trial court. 



Issue One - Right to Confront Witnesses

	In his first point of error, appellant contends that he was denied his right to confront
two police officers that the State purportedly subpoenaed to testify.  The officers did not
appear at trial.  Furthermore, it was determined that the officers had not actually been
subpoenaed.  Nevertheless, the parties entered into a stipulation regarding the substance
of the officers' testimony, and counsel for appellant read it to the jury.  Because the officers
did not appear and their testimony was presented through stipulation, appellant now
believes that he was denied his Sixth Amendment right to confront them.  We overrule the
issue.
	To the extent appellant complains of being unable to confront the two officers
because they did not appear to testify, he was not deprived of the right at issue.  It is
axiomatic that the right to confront applies to evidence presented, or witnesses who testify,
at trial.  If the evidence is not presented or the witnesses do not testify, there can be no
violation of the right to confront.  Simply put, one cannot be said to have been denied a
right to test evidence or witness testimony that was never tendered at trial.  See Chavez
v. State, 508 S.W.2d 384, 386 (Tex. Crim. App. 1974) (the accused was not denied his
right to confront and cross-examine a witness against him when she did not appear and
testify at trial and none of her prior testimony was introduced).  
	To the extent appellant suggests that he was denied the opportunity to confront the
two officers since they effectively testified via the stipulation, we conclude that the doctrine
of invited error applies.  There is no evidence that either litigant was forced or coerced into
executing the stipulation.  Nor does anyone so contend.  Nor does the record illustrate (or
anyone contend) that the substance of the stipulation would have been admitted if the
stipulation was not executed.  Thus, by executing the stipulation with the State when
obviously knowing that the officers were not present to be questioned, appellant invited 
the situation about which he now complains (i.e. the inability to cross-examine the officers'
testimony proffered through the stipulation).  Having invited or created the situation, he is
estopped from complaining about it.  Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim.
App. 1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000)
(discussing the doctrine of invited error). (2) 
Issue Two -Effectiveness of Counsel

	Next, appellant asserts that his attorney was ineffective because he did not secure
a ruling upon his motion for mistrial.  Counsel moved for mistrial after it was discovered that
the two officers mentioned in the preceding issue did not appear to testify.  We overrule
this issue as well.
	As has been the rule for some time, claims of ineffectiveness must be firmly founded
in the record.  Rios v. State, 990 S.W.2d 382, 385 (Tex. App.--Amarillo 1999, no pet.). 
Implicit in this is the need to prove, among other things, that the act complained of actually
occurred.  And, since the act complained of is counsel's purported failure to secure a ruling
upon his motion for mistrial, the record must show that the court did not rule on it.  Yet,  the
record before us fails to do so.  Indeed, in open court, counsel wanted it "noted for the
record" that he requested a mistrial and that he expressly "except[ed] to the denial of our
motion . . . ."  (Emphasis added).  This came after the court had conducted "in camera
conversations" with the attorneys about the situation.  Counsel's act of "except[ing]" to the
"denial  of [the] motion" for mistrial is some evidence from which one can reasonably infer
that the motion was actually denied.  At the very least, we cannot say the record firmly
illustrates that the trial court failed to rule on the motion.  And, because the record does not
so illustrate, we cannot say that appellant established that his attorney failed to secure a
ruling on the motion.  Consequently, the claim of ineffectiveness is not firmly founded in
the record before us.  
	Accordingly, the judgment of the trial court is affirmed.

							Brian Quinn
							    Justice
 
Do not publish.
 
 
 
 

1.  John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov't
Code Ann. § 75.002(a)(1) (Vernon Supp. 2003). 
2. Appellant states in his brief that the "fact that [his] attorney signed the written stipulation does not give
[sic] evidence that [he] . . . was a willful participant in giving up his constitutional right."  That may be true. 
However, neither at trial or in his brief did he contend that he 1) did not know of the stipulation, 2) did not agree
to it, or 3) did not agree to waive any right to confront the absent officers.  Nor does the record illustrate that
the execution of the stipulation was anything other than voluntary.  Appellant also fails to challenge the
authority of his attorney to execute the stipulation on his behalf.  Given the lack of such a challenge, we have
no basis upon which to conclude that appellant was not voluntarily bound by the stipulation his attorney signed
while representing him at trial.  See Orellana v. State, 706 S.W.2d 660, 661 (Tex. Crim. App. 1986) (holding
that even though the appellant did not personally sign the "reset" forms, he was bound by the forms unless
the record reflected that counsel was not authorized to sign them).      

