NO. 07-02-0060-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
OCTOBER 23, 2002
______________________________
BECKY LYNN HANEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108th DISTRICT COURT OF POTTER COUNTY;
NO. 44,553-E; HON. ABE LOPEZ, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, SJ.1
Appellant Becky Lynn Haney appeals her conviction of possession of a controlled
substance, i.e., less than one gram of methamphetamine. In doing so, she argues that (1)
the trial court erred in admitting evidence of an extraneous offense without first determining
whether a jury could find that she committed the offense, and (2) she received ineffective
assistance of counsel because her attorney failed to investigate her competency to stand
trial or the viability of the insanity defense. We affirm the judgment of the trial court.
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. T EX . G O V ’T
C ODE A N N . §75.0 02(a )(1) (V erno n Su pp. 2002 ).
Background
On March 22, 2001, police officers went to appellant’s home to respond to a fight
between her two daughters Natasha and Brandy. Appellant’s husband Ed left the house
through the back door and one of the police officers followed him to see if he had
witnessed the fight and, because of previous “knowledge” of Ed, to see whether he was
getting a weapon or destroying any kind of evidence in the back yard. In the yard, the
officer smelled an unusual odor that, from his experience with methamphetamine
laboratories, indicated a laboratory was located on the premises in a storage shed. Written
permission to search the premises was then obtained from appellant. In the shed, the
officers found equipment that could be used to manufacture illegal drugs. When a female
officer later attempted to body search appellant in the bathroom, a little plastic bag fell from
a piece of toilet tissue in appellant’s hand onto the floor. The substance in the bag was
determined to contain methamphetamine.
Issue One - Admission of Extraneous Offense
In her first issue, appellant complains that the trial court erred in admitting evidence
as to the items found in the shed which in addition to testimony included 22 photographs.
This was error, she argues, because the court failed to find beyond a reasonable doubt
that she committed the crime of manufacturing methamphetamine. We overrule the point.
Appellant objected at trial to the admission of evidence as to a methamphetamine
lab by arguing: “My objection is, she is not charged with manufacturing meth” and “[o]nce
the jury hears that, that is going to prejudice them against her, and . . . I think that we can
discuss permission to search the house and what they found, without getting into that . . . .”
2
In response, the State contended that the evidence went to knowledge and intent and also
asserted that the offense was not extraneous but went to the reason why the officers
sought to search appellant. The court overruled the objection without indicating the basis
upon which it did so, and, upon appellant’s additional objection, overruled appellant’s
complaint that the prejudicial effect outweighed the probative value. Appellant was given
a running objection to the admission of any such evidence. Appellant later objected to the
admission of the photographs on the basis they were immaterial and irrelevant. Although
that objection was originally sustained, the court subsequently allowed the admission of
the photographs.
At trial, appellant did not request the court to determine that appellant had
committed the offense beyond a reasonable doubt or object to the court’s alleged failure
to do so. Appellant also did not object to the State’s failure to prove commission of the
offense by her. To preserve a complaint for appellate review, appellant must state the
grounds for the ruling sought with sufficient specificity to make the trial court aware of the
complaint unless the specific grounds were apparent from the context. TEX . R. APP. P.
33.1(a)(1); Aguilar v. State, 26 S.W.3d 901, 905-06 (Tex. Crim. App. 2000). Because the
specific ground of complaint asserted here must have been asserted below and it was not,
appellant’s current complaint is waived. Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim.
App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995).
Issue Two - Ineffective Assistance of Counsel
3
In her second issue, appellant complains that she received ineffective assistance
of counsel because her counsel failed to investigate her competency to stand trial or
whether an insanity defense was viable.2 We overrule the point.
The standard of review applicable to claims of ineffective assistance is well
established. Therefore, we will not repeat it, but cite the parties to Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984) and Hernandez v.
State, 988 S.W.2d 770 (Tex. Crim. App. 1999) for its explanation.
First, we note that claims of ineffective assistance must be firmly founded in the
record before us. Rios v. State, 990 S.W.2d 382, 385 (Tex. App.–Amarillo 1999, no pet.).
Though appellant contends that her trial attorney failed to investigate the issues of
competency to stand trial or insanity at the time of the offense, the record does not support
such a conclusion. No motion for new trial was filed. Nor did anyone purport to testify
about the extent, if any, of counsel’s investigation into his client’s competency or sanity.
Instead, appellant merely infers that because 1) the trial court did not hold a competency
hearing and 2) trial counsel supposedly failed to request the court to have his client undergo
mental examination or evaluation, he must not have conducted any investigation. Yet, the
latter conclusion does not logically or necessarily follow from the premises offered. Counsel
may well have investigated those topics on his own or with professional assistance without
having broached them to the court. And, whether or not we think this likely is of little
consequence for we must act on the record, not on our speculation, hunch, or surmise. In
short, the record before us must be one which illustrates deficient performance and, when
2
As an incidental part of her argument, appellant states that the trial court failed to sua spo nte raise
the issue of her competency. She cites no legal authority to support any contention she may be trying to raise
with respect to trial court error, and we w ill therefore no t address the m atter. See Je nkins v. S tate, 912
S.W .2d 793, 819 (T ex. C rim . App . 1993).
4
the deficiency involves the purported failure to investigate, it must show the want of
investigation. The record before us, in this direct appeal, does not do that.
Second, the case of Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990), an opinion
upon which appellant relies, is readily distinguishable. There, the appeal was from an order
granting a petition for writ of habeas corpus. Thus, trial counsel’s knowledge of the
defendant’s mental state and the actions, if any, undertaken by counsel were developed to
an extent greater than that here. There, the reviewing court was not left to guess at the
facts or evidence for it had been developed. That is missing here. And, because it is and
due to the admonition that disputes like those before us must be resolved on a case-by-
case basis, id. at 596 n.22, we cannot say that Bouchillon dictates that we reverse the
judgment for the want of effective trial counsel.
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Justice
Do not publish.
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Becky Lynn Haney v. State
Combined Opinion