                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00171-CR


BILLY RAY BURDICK                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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                         MEMORANDUM OPINION1

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                                   Introduction

      Appellant Billy Ray Burdick appeals his conviction for possession of

methamphetamine, contending in a single point that his lawyer was ineffective

because she did not object to evidence offered during trial that sheriff’s deputies

also found a quantity of marihuana when they came upon Appellant in a pickup

truck holding a syringe of methamphetamine in his hand. We affirm.
      1
       See Tex. R. App. P. 47.4.
                   Background Facts and Procedural History

      A pickup truck followed Cynthia Jenkins into her trailer park late one night,

coming to rest between a tree and the trailer across the street from Cynthia’s

driveway.   Cynthia knew everyone’s vehicle in the neighborhood but did not

recognize this one.     She had come home alone and sat in her car in her

driveway, worried that it might be unsafe to venture out. She watched the pickup

through her rearview mirror for about fifteen minutes.

      The driver of the pickup was “just acting strange.” His engine was off but

the parking lights were on, and Cynthia saw him “coming from the front of the

vehicle to the back of the vehicle, going back to the front of the vehicle, getting in,

getting out of the vehicle, coming to the back of the vehicle, going back to the

front of the vehicle” and at one point when he came out, he appeared to be ill,

almost falling before going to the back, leaning on the tailgate, and hanging his

head. Feeling she had seen enough, Cynthia called 911.

      When Sheriff’s deputies arrived, Corporal Gary Medlin went to talk to

Cynthia while Deputy Dallas Cochran approached the pickup and shined his

flashlight into it. Appellant, the sole occupant, was “seated in the driver’s seat in

a reclined position with his head back. He was wearing nothing but black shorts,

and he was holding a syringe between his right finger and right thumb.” Cochran

also observed that on the center console beside Appellant “was a bent spoon

with a little piece of cotton on it,” which he knew from his previous fourteen years’

law enforcement experience were “used to filter drugs before they go into a


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needle.” Cochran called Medlin over. The deputies opened the pickup truck

door and ordered Appellant to drop the syringe. He tossed it gently to the side,

and the deputies removed Appellant and arrested him for possession of a

controlled substance.

      As they removed Appellant from the truck, the deputies discovered and

seized a baggie containing a green leafy substance they believed to be

marihuana.    They also seized the syringe, which contained a clear liquid

substance that later chemical analysis showed was methamphetamine. Nearby

where Appellant had tossed the syringe, the deputies retrieved the syringe’s

safety cap, a bent spoon, and a red baggie, which contained a powdery

substance that later analysis also showed to be methamphetamine.

      Appellant went to trial for possession of less than one gram of

methamphetamine.        There, Appellant’s lawyer (Counsel) did not object when

Cochran testified about having found marihuana in the pickup truck. But when

the State offered the actual marihuana as an exhibit in evidence, Counsel did

object, the objection was sustained, and the exhibit did not come in.

      After the close of evidence at the guilt-innocence phase, the jury found

Appellant guilty of possession of less than a gram of methamphetamine.

Appellant then pled true to enhancement allegations in the indictment, the jury

assessed thirteen years’ confinement, and the trial court sentenced Appellant

accordingly. Appellant filed a notice of appeal and a motion for new trial but




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there is nothing in the record to indicate that he presented the motion for new trial

to the trial court or that it was heard.

      In his sole point on appeal, Appellant complains that Counsel provided

constitutionally ineffective assistance of counsel because she did not object to

testimony that the deputies also found marihuana when they arrested Appellant

with a methamphetamine-loaded syringe in his hand. We disagree.

                                 Standard of Review

      To establish ineffective assistance of counsel, the 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); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).

      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 v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). 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

v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65


                                           4
S.W.3d 59, 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a

position on direct appeal to fairly evaluate the merits of an ineffective assistance

claim. Salinas, 163 S.W.3d at 740; 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.”         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. at 694, 104 S. Ct. at 2068. 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.




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      After an appellant claiming ineffective assistance of counsel at trial has

identified what he alleges are erroneous acts and omissions of counsel, the

appellate court must determine whether, in light of all the circumstances, these

identified acts or omissions were outside the wide range of competent

assistance. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Cooper v. State, 333

S.W.3d 859, 867 (Tex. App.—Fort Worth 2010, pet. ref’d). Although a single

egregious error of omission or commission by counsel may constitute ineffective

assistance, Thompson, 9 S.W.3d at 813; see Andrews v. State, 159 S.W.3d 98,

103 (Tex. Crim. App. 2005) (holding that record was sufficient to allow decision

on merits and that counsel rendered ineffective assistance by failing to object to

prosecutor’s misstatement of law), an isolated failure to object to certain

procedural mistakes or improper evidence generally does not constitute

ineffective assistance of counsel. See Ingham v. State, 679 S.W.2d 503, 509

(Tex. Crim. App. 1984); see also Scheanette v. State, 144 S.W.3d 503, 510 (Tex.

Crim. App. 2004) (stating that an ineffective assistance claim must “be firmly

founded in the record”), cert. denied, 543 U.S. 1059 (2005). 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); see also Goodspeed v. State, 187 S.W.3d 390, 391 (Tex. Crim. App.

2005) (holding that inquiry into counsel’s conduct—failure to ask any questions

during voir dire and exercise of peremptory challenges on jurors who had already

been excused—was needed to determine whether performance was deficient);


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Edwards v. State, 280 S.W.3d 441, 444 (Tex. App.—Fort Worth 2009, pet. ref’d).

When the record is silent as to counsel’s reason for failing to object, the appellant

fails to rebut the presumption that counsel acted reasonably.         Thompson, 9

S.W.3d at 814.

                                    Discussion

      Appellant faults Counsel for not objecting to testimony that some

marihuana was found in the pickup truck Appellant was sitting in when he was

arrested for possessing methamphetamine. He claims that he “was denied the

Sixth Amendment right to effective assistance of counsel because although the

trial court sustained an extraneous offense evidence objection to other drugs[,]

trial counsel forfeited that claim by allowing the evidence to be admitted

elsewhere.”

      We do not take Appellant’s claim literally as he has framed it because

when a trial court sustains a party’s objection to evidence, there is no appellate

claim relating to that evidence for the party to forfeit; we will not declare Counsel

ineffective for failing to preserve an appellate claim that never was.           But

Appellant also criticizes Counsel for having “exposed” the jury to “other extrinsic

conduct evidence that was unfairly prejudicial.”         This is a claim we can

understand: that Counsel was ineffective for not objecting to evidence that any

reasonably competent attorney would have objected to and that the admission of

that evidence accrued to Appellant’s detriment.




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      Appellant argues that the State “did not legitimately need” the evidence,

and in support he quotes Hankton v. State, in which our sister court observed

that “admission of an extraneous offense oftentimes is cumulative of the proof

established and serves only to demonstrate the accused’s bad character.” 23

S.W.3d 540, 546 (Tex. App.––Houston [1st Dist.] 2000, pet. ref’d).         That is

certainly true as far as it goes: few would dispute that evidence that serves only

to demonstrate an accused person’s bad character is inadmissible. See Tex. R.

Evid. 404.

      But our rules of evidence make clear that evidence that would not be

allowed if offered to prove only character may come in for other purposes. See

Tex. R. Evid. 404(b). The State, for its part, ably argues that the testimony was

admissible for at least two other purposes. One, as context to give the jury a full

picture of the circumstances of the offense, and, two, to “affirmatively link”

Appellant to the drugs for which he was on trial.

      Although the admissibility of the testimony that Appellant now faults

Counsel for not objecting to is not inconsequential, the real issue in this case is

whether Counsel’s representation was constitutionally deficient because she did

not object.

      Appellant offers Hall v. State, 161 S.W.3d 142 (Tex. App.––Texarkana

2005, pet. ref’d), as an example of a case in which our sister court held that a

lawyer was ineffective for failing to object to extraneous offenses. But Hall is

distinguishable in both quantity and quality of error claimed on appeal. In that


                                         8
case, the court of appeals “identified three discernible deficiencies on the part of

trial counsel” that combined for a hefty dose of ineffective assistance. See id. at

155–56.     Hall’s trial attorney failed to request a jury instruction on the

requirement that accomplice-witness testimony be corroborated, failed to object

to the prosecutor’s commenting on Hall’s post-arrest silence, and failed to object

to numerous unadjudicated offenses, including credit-card fraud, aggravated

assault, unlawfully discharging a firearm, and engaging in violent criminal activity,

all of which the State referred to several times, while cross-examining Hall, as

“gang-banging.” Id. at 151–53. Appellant’s complaint in this case––that Counsel

failed to object to a single line of testimony––suffers by comparison.

        Appellant also cites Walker v. State, 195 S.W.3d 250 (Tex. App.––San

Antonio 2006, no pet.). But Walker offers no more support for his position than

Hall.   Whereas here, Appellant complains of Counsel’s failure to object to a

single line of testimony, in Walker, the court of appeals held that the trial attorney

performed deficiently in no less than eight separate areas: (1) failing to ask any

questions in voir dire about potential bias; (2) failing to investigate or interview

Walker in detail about his criminal history or prior contacts with the complainant;

(3) failing to seek discovery from the State; (4) failing to file and obtain rulings on

a motion in limine to require the State to raise extraneous matters outside the

presence of the jury; (5) failing to prepare Walker to testify; (6) failing to object to

inadmissible extraneous offenses during guilt innocence; (7) inviting evidence of

unadjudicated arrests during the punishment phase; and (8) failing to object to


                                           9
the punishment charge’s omission of a reasonable-doubt instruction. Id. at 262–

63.

        Here, Appellant asks us to hold Counsel ineffective for failing to object to a

single line of testimony that Appellant speculates the trial court would have

excluded if an objection had been raised. But even if we agreed with Appellant

that the trial court might have sustained the objection he faults Counsel for not

making, it does not necessarily follow that Counsel was ineffective for not making

it. As stated above, isolated failures to object to improper evidence generally do

not amount to ineffective assistance of counsel. See Ingham, 679 S.W.2d at

509. And even if we were to hold that Counsel’s failure to object was a mistake,

we would not hold that it was so egregious as to constitute ineffective assistance.

See Andrews, 159 S.W.3d at 103; Thompson, 9 S.W.3d at 813.

        Further, as the State correctly points out, there is no evidence in the record

showing Counsel’s reasons for not objecting as Appellant concludes she should

have.    Although Appellant filed a motion for new trial, it did not allege that

Counsel was ineffective––only that the verdict was contrary to the law and the

evidence. And there is nothing in the record to indicate that the motion was

presented to the trial court or heard. As previously indicated, we are reluctant to

denounce a lawyer as ineffective before he or she is afforded an opportunity to

explain his or her actions. See Rylander, 101 S.W.3d at 111; Edwards, 280

S.W.3d at 444. Because the record here is silent as to Counsel’s reason for




                                          10
failing to object, we are constrained to hold that Appellant has failed to rebut the

presumption that Counsel acted reasonably.2 See Thompson, 9 S.W.3d at 814.

      Finally, even if Appellant had managed to surmount Strickland’s first prong,

he has made no attempt to scale the second. As the State puts it, Appellant

“does not discuss, analyze, attempt to illustrate, or otherwise demonstrate how

the alleged deficiencies of his trial counsel prejudiced his defense.” That pretty

much sums it up. Accordingly, we hold that Appellant has failed to meet his

burden showing that Counsel was ineffective, and we overrule his sole point on

appeal.

                                   Conclusion

      Having overruled Appellant’s sole point on appeal, we affirm the trial

court’s judgment.


                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

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

DELIVERED: September 13, 2012

      2
       Generally, in a case such as this in which there is no record relative to
Counsel’s decisions and actions, an appellant has a more appropriate remedy in
seeking a writ of habeas corpus to allow him the opportunity to develop evidence
to support his complaint. See Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim.
App. 2000) (noting that a postconviction writ proceeding is the preferred method
for gathering the facts necessary to substantiate an ineffective assistance of
counsel claim).


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