IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 10, 2003
______________________________
ROBERT SHARP, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;
NO. 02-02-5252; HONORABLE ANDY KUPPER, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Following his plea of not guilty, appellant Robert Sharp was convicted by a jury of involuntary manslaughter and punishment was assessed at ten years imprisonment and a $5,000 fine. Presenting one issue, appellant contends the trial court erred in allowing the prosecution to bolster one of its expert witnesses during the State's opening statement using a third party's repeated statements during voir dire about the credibility of the expert witness. Based upon the rationale expressed herein, we affirm.
In response to a question by the prosecutor during voir dire, a potential juror answered that because she was a registered nurse, she knew a medical doctor who would be called as an expert for the State. She also stated her children played basketball with the expert's children. However, in response to the trial court's question, she stated her acquaintance with the expert would not affect her decision. Also, the prosecutor continued to inquire about her prior jury experience and her knowledge of the State's medical expert. She reaffirmed the fact that she knew the expert would not affect her decision. In addition, during his opening statement, the prosecutor made a reference to the expert by suggesting, "I think that you heard some people recognize his name . . . ."
Appellant's sole contention is error by the trial court in allowing the prosecution to bolster one of its expert witnesses during the State's opening statement using a third party's repeated statements during voir dire about the credibility of the expert witness. In response, the State contends the alleged error was not preserved for appellate review. We agree with the State.
In order to preserve a complaint for review on appeal, the action or omission alleged as error by the trial court must have been the basis of a timely request, objection, or motion specifying the action the trial court was requested to take, or to forebear from taking, and an adverse ruling must have been obtained. See Tex. R. App. P. 33.1(a). This rule ensures that trial courts are provided an opportunity to correct their own mistakes at the most convenient and appropriate time. See Hull v. State, 67 S.W.3d 215, 217 (Tex.Cr.App. 2002). Here, appellant did not make an objection nor move for mistrial in the trial court. Accordingly, the alleged error was not preserved for our review.
Moreover, "bolstering" is the introduction of evidence for the purpose of adding credence or weight to earlier unimpeached evidence offered by that same party. See Rousseau v. State, 855 S.W.2d 666, 681 (Tex.Cr.App. 1993), cert. denied, 510 U.S. 919, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993). Even if the prosecutor's remarks were improper, a question we do not decide, appellant's contention that the opening remarks constituted "bolstering" is inappropriate. Finally, the conduct of the voir dire phase, including the opening remarks of counsel, rests largely within the sound discretion of the trial court. See Mendoza v. State, 552 S.W.2d 444, 447(Tex.Cr.App. 1977). Appellant does not allege the trial court abused its discretion. Appellant's issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
rial, 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
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 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.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't
Code Ann. §75.002(a)(1) (Vernon Supp. 2002).
2.