Opinion
No. 05-03-00428-CR.
Opinion Filed February 25, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-80566-02. Affirm.
Before Justices MOSELEY, FITZGERALD, and LANG.
MEMORANDUM OPINION
Timothy Dewayne Lankford appeals his conviction for aggravated robbery. He brings two issues, complaining the trial court admitted evidence that constituted impermissible bolstering and that his counsel ineffectively represented him at trial. We conclude the dispositive issues in this case are clearly settled in law, and so we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. The factual nature of this case, as well as its procedural history, pleadings, and evidence are known to the parties. Therefore, we do not recount these matters in detail. We affirm the judgment of the trial court. Bolstering Appellant was charged with robbing the complainant as she unloaded groceries from her car and carried them into her house. Appellant was also charged with a number of other "driveway robberies." At the trial of another of these robberies, appellant testified (a) that he entered this complainant's home and stole jewelry from her, and (b) concerning how the laser sight on his gun worked. When the testimony was offered at this trial, appellant objected that it was bolstering. On appeal, appellant argues the only purpose of the evidence was to bolster the complainant's identification of appellant as her assailant. The court of criminal appeals has defined "bolstering" to be "any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit," without being substantively relevant to a fact at issue. See Cohn v. State, 849 S.W.2d 817, 819-20 (Tex.Crim. App. 1993) (emphasis in original). The fact that certain evidence corroborates earlier-offered evidence does not, standing alone, implicate the concept of bolstering. So long as the later-offered evidence has "an incrementally further tendency to establish a fact of consequence," it is admissible. See id. at 820 (emphasis in original). In this case, the complainant had identified appellant as her assailant. She had also testified that her assailant pointed a gun at her and that she saw a red light pointed at her head. But evidence that appellant had admitted to the robbery made the fact that appellant had robbed the complainant significantly more likely. Likewise, evidence that appellant owned and knew how to use a laser-sighted gun tended to show appellant understood the danger he placed the complainant in during the robbery. This evidence was relevant and admissible on its own. It did corroborate the complainant's testimony, but it did not speak solely to her credibility. Accordingly, the trial court correctly admitted the prior testimony. We decide appellant's first issue against him. Ineffective Assistance of Counsel Appellant's second issue argues he was provided ineffective assistance of counsel at trial. To prevail on an ineffective assistance of counsel claim, appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim. App. 1999). In most cases, a silent record will not overcome the strong presumption of reasonable assistance. Id. at 813-814. In this case, appellant complains first that his trial counsel allowed Exhibit 8, a laser-sighted gun, to be admitted into evidence without objecting to the lack of personal knowledge of those purporting to prove up the exhibit. Specifically, appellant avers that (a) the complainant could not have seen the handle of the gun which she purportedly recognized at trial, (b) the complainant was not shown to have any expert training in firearms, and (c) the testifying police officers offered only knowledge of the gun acquired from others. Appellant complains secondly of counsel's failure to object to the admission at trial of the complainant's pretrial identification of appellant in a photo lineup. We need not address the merits of these complaints. Appellant filed a motion for new trial, making the bald assertion that "[t]he defendant was denied effective assistance of counsel." However, he has developed no record explaining the motivation behind his trial counsel's decision not to object in these various situations. Counsel's decision could have been the result of strategic design. Consequently, we conclude the record is insufficient to support appellant's complaint on direct appeal. See Thompson, 9 S.W.3d at 813-814. We decide appellant's second issue against him. We affirm the judgment of the trial court.
The complainant identified appellant at trial. She also identified him prior to trial in a photo lineup; that evidence was admitted at trial without objection.
Although appellant's statement of facts appears to list other grievances against his trial counsel, only the above-described complaints are briefed and preserved for our review. See Tex.R.App.P. 38.1(h).