                                   NO. 07-07-0336-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                    AUGUST 27, 2008

                          ______________________________


                          TREMAINE FILLMORE, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

        FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

         NO. 2004-490,673; HONORABLE LARRY B. “RUSTY” LADD, JUDGE

                         _______________________________

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


                                MEMORANDUM OPINION


       Following a plea of not guilty, Appellant, Tremaine Fillmore, was convicted by a jury

of assault domestic violence. Punishment was assessed at 365 days confinement and a

$2,000 fine. By four issues, Appellant asserts his trial counsel rendered ineffective

assistance by failing to (1) properly preserve error regarding the trial court’s exclusion of
certain e-mail communications; (2) object to the admission of the complainant’s medical

records; (3) object to the testimony of Linda Schwartz as a medical expert and her

interpretation of the contents of the complainant’s medical records; and (4) seek a mistrial

following Juror Colley’s communication with an assistant district attorney. We affirm.


                                       Background


       Appellant was accused of hitting his ex-girlfriend, Leslie Arland, in the face and left

ear after an altercation. Arland was eight and one-half months pregnant with Appellant’s

child at the time of the incident. Arland was living at her father’s house when Appellant

came by on August 31, 2004, to see if he and Arland could discuss the situation with their

unborn child. According to Arland, she and Appellant were trying to work out their

relationship and Appellant’s responsibilities to their child. Appellant was involved with and

residing with another woman at that time. Appellant and Arland argued and she tried to

push him out of the house and close the door on him. According to Arland’s testimony, she

and Appellant scuffled and he pushed the door in and hit her in the face and ears with his

hand. He then drove away and she called 911.


       An ambulance arrived, but she refused medical treatment because she did not want

to go to the hospital and leave her other two children (by a different father) unattended.

Police were dispatched to the residence on a domestic dispute call. She reported to the

responding officer that Appellant had hit her and that she could not hear out of her left ear.



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       According to Arland’s testimony, she visited her obstetrician shortly after the incident

and also consulted an attorney to swear out an affidavit in support of a restraining order

against Appellant. She did not, however, seek medical attention for her hearing problem

until almost three weeks later. Arland explained that she was unable to get an appointment

any sooner with Dr. Philip Scolaro, the otolaryngologist (ear, nose, and throat doctor) of her

choice, but acknowledged that she did not call other doctors for an earlier appointment.

Defense counsel reserved the right to cross-examine Arland at a later time.


       Linda Schwartz, the business records custodian for Dr. Scolaro, testified for the

State, without objection, to the contents of Arland’s medical records. The medical records

were likewise admitted without objection. Schwartz testified on direct examination that

Arland had an injury to her left eardrum. During cross-examination, she acknowledged that

according to the audiology report, Arland’s hearing was within normal limits. On recross-

examination, she conceded that Arland’s injury could have been caused by accidently

hitting herself with a door rather than by a slap across the face.


       After the State presented its case-in-chief, trial counsel moved for an instructed

verdict, which the trial court denied. Defense counsel then announced that he was ready

to proceed with his cross-examination of Arland. Before calling the jury in, the trial judge

announced that Juror Jennifer Colley had approached him to inform him that she

recognized Arland. Colley was a teacher where Arland’s older daughter attended school.

Colley had not made the connection because Arland’s daughter had a different last name.


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She was aware of custody issues involving Arland’s daughter and, as a teacher, she had

been instructed that only certain persons were permitted to pick the child up after school.

However, she assured the judge that she could be objective. The State and defense

counsel questioned Colley and agreed with the trial judge that she did not need to be

removed from the jury.


       After the trial resumed, defense counsel vigorously cross-examined Arland. He

pursued the theory that she had accidently hit herself with the door when she tried to shut

it on Appellant. He also exposed certain discrepancies in her testimony and the statement

she made to the responding officer. Another deviation, although slight, was that Arland

was adamant that Appellant hit her with his hand yet the medical records recited that she

was struck by his fist.


       The defense also called James Paul Burns who testified that he knew both Arland

and Appellant very well as former co-workers and friends. Notwithstanding that Arland is

his friend, he testified that she has a reputation of being “untrustworthy and untruthful.” He

also testified on cross-examination that Appellant, who is a good friend, has never lied to

him and he was unaware of Appellant ever hitting anyone.


       After both sides rested and closed, defense counsel objected to omissions in the

charge which the trial court corrected. The prosecutor then reported to the trial court that

it had come to his attention that Juror Colley had not been candid when questioned earlier

about her acquaintance with Arland. The prosecutor reported that, during a trial recess,

                                              4
Colley had spoken with one of the assistant district attorneys who was not involved in the

case and expressed a predisposed unfavorable opinion of Arland. In response, defense

counsel requested that the identity of the assistant district attorney be disclosed. The trial

court denied the request and defense counsel announced that he would not be moving for

mistrial without knowing the content of the conversation between Colley and the assistant

district attorney. The trial continued and the jury returned a guilty verdict.


       The following morning, during the punishment phase, defense counsel informed the

court that he had “reason to believe that that [sic] Assistant District Attorney was Assistant

District Attorney Trey Payne” who Colley had spoken with. Defense counsel learned that

Colley was Payne’s daughter’s teacher and that Payne dog sat for Colley. Defense

counsel requested a mistrial explaining that it was the earliest opportunity in which to do

so because the prosecutor’s name had not been disclosed the day before. Recognizing

that defense counsel’s decision not to seek a mistrial earlier may have been trial strategy,

the court nevertheless denied the motion.


       By four issues, Appellant challenges trial counsel’s conduct in the following four

instances:


       C      failing to properly preserve error regarding the trial court’s exclusion
              of certain e-mail communications;
       C      failing to object to the admission of complainant’s medical records;
       C      failing to object to Linda Schwartz’s testimony as a medical expert and
              her interpretation of the contents of complainant’s medical records;
              and

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       C      failing to move for mistrial following Juror Colley’s communication with
              an assistant district attorney.


                                   Standard of Review


       A claim of ineffectiveness is reviewed under the standard set out in Strickland v.

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

defendant must establish that (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. Ex parte Ellis, 233 S.W.3d 324, 330 (Tex.Crim.App. 2007); Rylander v. State,

101 S.W.3d 107, 110 (Tex.Crim.App. 2003). Failure to make the required showing of

either deficient performance or sufficient prejudice defeats the ineffectiveness claim.

Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999), 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. Thompson, 9

S.W.3d at 814.     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. Robertson v. State, 187

S.W.3d 475, 483 (Tex.Crim.App. 2006). Appellate review of trial counsel’s representation


                                             6
is highly deferential and presumes that counsel’s conduct fell within the wide range of

reasonable and professional representation. See Andrews v. State, 159 S.W.3d 98, 101

(Tex.Crim.App. 2005). See also Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.

2002). To defeat 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.        See Mallett v. State, 65 S.W.3d 59, 63

(Tex.Crim.App. 2001). See also Thompson, 9 S.W.3d at 813-14. However, where the

alleged derelictions are errors of omission not revealed in the record, rather than errors

of commission supported by the trial record, collateral attack may be the vehicle by which

to develop a detailed record of the alleged ineffectiveness. See Freeman v. State, 125

S.W.3d 505, 506-07 (Tex.Crim.App. 2003). See generally Massaro v. United States, 538

U.S. 500, 123 S.Ct. 1690, 1694 155 L.Ed.2d 714 (2003) (stating that when a claim of

ineffectiveness is raised on direct appeal, a trial record is usually not sufficiently

developed to establish such a claim).


                                        Analysis


      The claims of ineffectiveness raised by Appellant on appeal are all alleged errors

of omission beyond the record. No motion for new trial was filed alleging ineffective

assistance of counsel. When ineffective assistance of counsel claims are raised on direct

appeal the record is undeveloped and cannot adequately reflect the motive behind trial

counsel’s actions. Mallett, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). “Trial counsel should


                                            7
ordinarily be afforded an opportunity to explain his actions before being denounced as

ineffective.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting

Rylander, 101 S.W.3d at 111). Absent such an opportunity, an appellate court should not

find counsel’s performance deficient unless his conduct was “so outrageous that no

competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440

(Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195, 123 S.Ct. 1351, 154 L.Ed.2d 1030

(2003).


       Appellant complains that defense counsel was ineffective in failing to preserve error

on the trial court’s ruling to exclude e-mails between Appellant and Arland. The State’s

objection to admission of the e-mails, which the trial court sustained, was based on

relevance and authentication. Counsel is not ineffective in failing to preserve error which

is not reversible error. Doyle v. State, 875 S.W.2d 21, 23 (Tex.App.–Tyler 1994, no pet.).

See also Mumphrey v. State, 155 S.W.3d 651, 666 (Tex.App.–Texarkana 2005, pet.

ref’d). Additionally, defense counsel was not given the opportunity to explain his strategy

and we may not speculate on his decision.


       Appellant maintains that defense counsel rendered ineffective assistance by failing

to object to admission of Arland’s medical records and by failing to object to Linda

Schwartz testifying about the content of the medical records. When alleging ineffective

assistance for failure to object, an appellant must demonstrate that the trial court would

have erred in overruling the objection if defense counsel had made one. See Vaughn v.


                                             8
State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996). Moreover, a failure to object to

admissible evidence does not constitute ineffective assistance of counsel. Oliva v. State,

942 S.W.2d 727, 732 (Tex.App.–Houston [14th Dist.] 1997), pet. dism’d, 991 S.W.2d 803

(Tex.Crim.App. 1998). Medical records can be admissible pursuant to Rule 803(6) of the

Texas Rules of Evidence. If not admitted during Schwartz’s testimony, the records

probably could have been admitted during Arland’s testimony. Appellant has failed to

demonstrate that defense counsel’s failure to object to admission of Arland’s medical

records and Schwartz’s testimony fell below an objective standard of reasonableness.


       Appellant’s final complaint is that defense counsel was ineffective in failing to move

for mistrial following Juror Colley’s communication with an assistant district attorney.

When first raised, defense counsel was under the impression that Colley had an

unfavorable opinion of Arland. The trial court recognized that it may have been trial

strategy for defense counsel not to move for mistrial at that time. However, defense

counsel was not given the opportunity to defend against Appellant’s claim of

ineffectiveness for failing to seek a mistrial. Moreover, mistrials should be granted only

when an objectionable event is “so emotionally inflammatory that curative instructions are

not likely to prevent the jury from being unfairly prejudiced against the defendant.” See

Sanders v. State, 25 S.W.3d 854, 858 (Tex.App.–Houston [14th Dist.] 2000), pet. dism’d,

56 S.W.3d 52 (Tex.Crim.App. 2001). Because we can only speculate on counsel’s

strategy which would be improper, Goodspeed, 187 S.W.3d at 394, Appellant’s allegation

is not firmly founded in the record.

                                             9
       In sum, defense counsel presented a solid defense. Not only did he effectively and

vigorously cross-examine the State’s witnesses, he also presented the theory that Arland

may have accidentally hit herself with the door. Through Burns’s testimony he challenged

Arland’s credibility. Without a motion for new trial or other opportunity for counsel to

defend his strategy, we decline to find his performance deficient. Based on the totality of

the representation, we are unable to conclude that Appellant has demonstrated that

defense counsel’s performance fell below an objective standard of reasonableness or that

counsel’s conduct was so outrageous that no competent attorney would have engaged

in it. Appellant has failed to meet the first prong of Strickland. We overrule all four issues.


       Consequently, the trial court’s judgment is affirmed.



                                                   Patrick A. Pirtle
                                                       Justice


Do not publish.




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