Affirmed; Opinion Filed October 21, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01470-CR
CHRISTINE KAY WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 062724
MEMORANDUM OPINION
Before Justices FitzGerald, Fillmore, and Stoddart
Opinion by Justice Stoddart
A jury convicted Christine Kay White of aggravated robbery and the trial court assessed
punishment at 20 years’ confinement. In three issues, she argues she suffered ineffective
assistance of counsel at trial because her counsel failed to introduce exculpatory evidence; the
trial court abused its discretion by denying admission of audio-taped statements; and the trial
court abused its discretion by not giving her sufficient funds to retain an expert witness as part of
her defense. We affirm the trial court’s judgment.
In her first issue, White argues her trial counsel was ineffective because he did not
introduce evidence that she believes was exculpatory. There was testimony at trial that White
robbed a woman in a parking lot while carrying a knife. White testified in her defense and
admitted to robbing a woman in the parking lot. White also testified that the only thing she had
in her hands were her car keys. She stated she never had a knife in her hand.
On appeal, White argues that her counsel failed to offer a key to a Dodge Durango
vehicle. White asserts that if her counsel had shown the car key to one of the witnesses who
testified, the witness may have realized she had mistaken the car key for a knife.
To successfully assert an ineffective assistance of counsel challenge, an appellant must
show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2)
a reasonable probability exists that, but for counsel’s errors, the result of the proceeding would
have been different. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Our
review of counsel’s performance is highly deferential and we assume counsel’s conduct fell
within the wide range of reasonable professional assistance. See Andrews v. State, 159 S.W.3d
98, 101 (Tex. Crim. App. 2005). An ineffective assistance claim must be “firmly founded in the
record,” and the record must “affirmatively demonstrate” the claim has merit. Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Generally, a silent record providing no
explanation for counsel’s actions will not overcome the strong presumption of reasonable
assistance. See Rylander, 101 S.W.3d at 110–11.
White did not file a motion for new trial or otherwise develop a record showing why her
counsel did not attempt to introduce the car key. See Goodspeed, 187 S.W.3d at 392. The
record includes no evidence to overcome the presumption that counsel provided reasonable
assistance. See id.; Rylander, 101 S.W.3d at 110–11. Moreover, trial counsel’s decision not to
introduce a car key was not “so outrageous that no competent attorney would have engaged in”
that action. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In light of this
record, we conclude White has not demonstrated that her trial counsel’s performance was
deficient or that the outcome of her trial would have been different but for her counsel’s actions.
We overrule White’s first issue.
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In her second issue, White argues the trial court erred by refusing White’s request to
admit portions of audio tapes of two witnesses’ statements. White asserts that the excluded
statements were inconsistent with the witnesses’ testimony at trial. Because the audio tapes were
prior inconsistent statements of the witnesses, White argues, the trial court erred by excluding
them.
White’s counsel attempted to admit the prior statements on two occasions, and the trial
court denied both requests. The first time, White’s counsel argued that the statements were not
hearsay or, alternatively, they fell within the excited utterance exception to the hearsay rule. The
second time White’s counsel sought to admit the evidence, he argued it fell within the present
sense impression or excited utterance exception to the hearsay rule.
To preserve an issue for appellate review, rule 33.1 of the rules of appellate procedure
requires the appellant to have made “a timely request, objection, or motion that stated the
grounds for the ruling that the complaining party sought from the trial court 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)(A). Arguments on appeal must comport
with the arguments made at trial and must bring to the trial court’s attention the very complaint
that is made on appeal. See Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). “[I]t
is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing
party on appeal, must have told the judge why the evidence was admissible.” Id. White may
not, for the first time on appeal, urge error not raised at trial. The explanation given at trial for
admissibility must match the one urged on appeal. See Martinez v. State, 91 S.W.3d 331, 336
(Tex. Crim. App. 2002) (under rule of appellate procedure 33.1, issue is whether complaining
party on appeal brought to trial court’s attention the very complaint that party is making on
appeal).
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White did not inform the trial court that she believed the statements were admissible for
purposes of impeachment. Rather, she argued that the prior statements were not hearsay or were
admissible because they were excited utterances or present sense impressions. Because the trial
court never had the opportunity to rule upon whether the statements were admissible for
purposes of impeachment and because White’s argument on appeal does not comport with her
argument in the trial court, we conclude she has not preserved the issue for appellate review. We
overrule White’s second issue.
In her third issue, White asserts the trial court abused its discretion by not authorizing
sufficient funds to pay a psychologist. Before trial, White’s counsel filed a motion for
appointment of an expert, which the trial court granted. In its order, the trial court ordered that
the expert, Charles Keenan, Ph.D., was to be paid up to $1,000. The record does not indicate
that White’s counsel ever requested additional funds to pay Keenan.
In a hearing outside of the presence of the jury, Keenan and defense counsel had the
following exchange:
Q. Okay. Now, let me ask you. When I first asked if you could do
this, did you quote me a fee on how much it would cost for you to be able to do
it?
A. Yes, I did.
Q. How much was it?
A. I said it would take at least $1,500 for me to be available in this
case.
Q. Was I able to get you $1,500?
A. No, sir.
Q. How much was I able to get you?
A. A thousand dollars, sir.
After this exchange, White’s counsel did not request additional funds from the trial court.
White failed to raise her argument that she needed additional funds to the trial court.
Although the expert testified he thought “it would take at least $1,500” to work on the case, there
is no evidence that White filed a motion or otherwise requested more than the $1,000 initially
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allotted. Because she failed to bring this argument to the trial court’s attention, she has not
preserved it for appeal. See TEX. R. APP. P. 33.1(a). We overrule White’s third issue.
We affirm the trial court’s judgment.
/ Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
131470F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHRISTINE KAY WHITE, Appellant On Appeal from the 397th Judicial District
Court, Grayson County, Texas
No. 05-13-01470-CR V. Trial Court Cause No. 062724.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices FitzGerald and Fillmore
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 21st day of October, 2014.
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