                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-10-00019-CR


MATTHEW DUANE GARMAN                                                     APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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      In two issues, Matthew Duane Garman challenges the effectiveness of his

trial counsel and the trial court‟s ruling limiting his cross-examination of a witness.

We affirm.

                                    Background

      Appellant entered an open plea of guilty to aggravated assault with a

deadly weapon arising from his pointing a gun at Jennie Estep-Ford outside of a

      1
       See Tex. R. App. P. 47.4.
party at her house. The trial court deferred punishment for the preparation of a

presentence investigation report (PSI). At the subsequent hearing for sentencing

purposes, the State presented evidence that a person in appellant‟s truck2 shot at

Deborah Estep‟s3 house right after the occurrence of the charged offense; Estep

was in the house at the time with her fourteen-year-old son and two-year-old

granddaughter. Information about this extraneous offense was included in the

PSI. Appellant‟s trial counsel did not object to admission of the PSI, nor had he

requested that the State give notice of its intent to introduce extraneous offenses

relevant to punishment. The trial court assessed appellant‟s punishment at ten

years‟ confinement and sentenced him accordingly.

                       Trial Counsel Was Not Ineffective

      In his first issue, appellant claims that his counsel was ineffective for failing

to request that the State give notice of its intent to introduce extraneous offenses,

failing to object to the admission of the PSI or the part of the PSI discussing the

drive-by shooting, and failing to object to testimony about the drive-by shooting at

the hearing.




      2
       A witness outside of Estep‟s house saw the truck during the drive-by; he
described what it looked like and stated that he knew it was appellant‟s truck.
Estep-Ford was not at her mother‟s house during the drive-by, but her description
of appellant‟s truck matched the witness‟s.
      3
       Deborah Estep is Ford-Estep‟s mother.

                                          2
Standard of Review

      To establish ineffective assistance of counsel, 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 v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988

S.W.2d 770, 770 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsel‟s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel‟s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel‟s conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63.   A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at

813–14. “In the majority of cases, the record on direct appeal is undeveloped

and cannot adequately reflect the motives behind trial counsel‟s actions.”

                                        3
Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the

presumption    of   reasonable    professional   assistance,    “any   allegation   of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson, 9

S.W.3d at 813).     It is not appropriate for an appellate court to simply infer

ineffective assistance based upon unclear portions of the record. Mata v. State,

226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel‟s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

appellant must show there is a reasonable probability that, but for counsel‟s

unprofessional errors, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

Analysis

      Appellant did not file a motion for new trial, so there is no record of trial

counsel‟s motives at trial.   Although the court of criminal appeals “has been

hesitant to „designate any error as per se ineffective assistance of counsel as a

matter of law,‟ it is possible that a single egregious error of omission or

commission by . . . counsel constitutes ineffective assistance.” Thompson, 9

                                          4
S.W.3d at 813 (quoting Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App.

1985), vacated and remanded on other grounds, 475 U.S. 1114 (1986)); see Ex

parte Harrington, 310 S.W.3d 452, 459 & n.28 (Tex. Crim. App. 2010). Here,

however, counsel‟s failure to request notice could have occurred for a myriad of

reasons; counsel may have already received notice, oral or otherwise.        See

Hinson v. State, 166 S.W.3d 331, 332 (Tex. App.––Waco 2005, pet. ref‟d); Autry

v. State, 27 S.W.3d 177, 182 (Tex. App.––San Antonio 2000, pet. ref‟d).

Appellant acknowledges that counsel had notice of the uncharged extraneous

offense in the PSI. Because of the undeveloped state of the record, we cannot

say that counsel‟s failure to request such notice was ineffective per se. See

Autry, 27 S.W.3d at 182; Rodriguez v. State, 981 S.W.2d 357, 359 (Tex. App.––

San Antonio 1998, no pet.).

      Appellant contends that this is one of the rare cases that reveals no trial

strategy for counsel‟s failure to object to the uncharged extraneous offense

evidence; he contends that counsel appeared unaware of his right to object.

According to appellant, he can find “no coherent trial strategy in allowing the

State to introduce an extraneous offense involving gunfire and 3 innocent

potential victims, including two children.”

      To show ineffective assistance for the failure to object, an appellant must

show that the trial judge would have committed error by overruling the objection.

Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004); Alexander v. State,

282 S.W.3d 701, 705 (Tex. App.––Houston [14th Dist.] 2009, pet. ref‟d). Here,

                                          5
appellant never argues what the effect of an objection to the evidence would

have been, much less whether such an objection would have been successful.

The court of criminal appeals has held that “Article 37.07 does not prohibit a trial

court, as a sentencing entity, from considering extraneous misconduct evidence

in assessing punishment just because the extraneous misconduct has not been

shown to have been committed by the defendant beyond a reasonable doubt, if

that extraneous misconduct is contained in a PSI.” Smith v. State, 227 S.W.3d

753, 763 (Tex. Crim. App. 2007). Thus, the trial court would not have erred by

overruling an objection to the PSI because of inclusion of information about the

extraneous offense, regardless of the quantum of evidence presented about the

extraneous drive-by. See id.; see also Stringer v. State, 309 S.W.3d 42, 47–48

(Tex. Crim. App. 2010) (holding that Crawford does not apply to PSI in noncapital

case).

         Moreover, after reviewing the testimony about the extraneous drive-by, we

conclude that it was also admissible during the hearing on sentencing because

the evidence was sufficient to prove appellant‟s involvement in the drive-by

beyond a reasonable doubt.        See Tex. Code Crim. Proc. Ann. art. 37.07, §

3(a)(1) (Vernon Supp. 2010).        The trial judge was not required to believe

testimony from appellant and his father that appellant was not involved in the

shooting. Thus, the trial judge would not have erred by overruling any objection

to that evidence either. We conclude and hold that appellant has not shown that



                                         6
his trial counsel was ineffective for failing to object to the PSI or to evidence

about the extraneous drive-by included in the PSI or presented at trial.

      We overrule appellant‟s first issue.

             Failure to Preserve Confrontation Clause Complaint

      In his second issue, appellant contends that the trial court committed

constitutional error by denying him the right to cross-examine Estep-Ford about

whether her boyfriend, who was at the party the night of both offenses, had ever

shot someone. Appellant contends that the trial court‟s ruling violated his right

under the Confrontation Clause.       See U.S. Const. amend. VI.           However,

appellant failed to raise a Confrontation Clause challenge in the trial court. Thus,

he failed to preserve this complaint for our review. Reyna v. State, 168 S.W.3d

173, 179–80 (Tex. Crim. App. 2005); Fox v. State, 175 S.W.3d 475, 483–84

(Tex. App.––Texarkana 2005, pet. ref‟d). We overrule appellant‟s second issue.

                                   Conclusion

      Having overruled both of appellant‟s issues, we affirm the trial court‟s

judgment.



                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 28, 2010

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