author: COCHRAN, J., WOMACK, J.,

text:
    Ex parte George Edward McFARLAND, Applicant.
    No. AP-75044.
    Court of Criminal Appeals of Texas, En Banc.
    May 18, 2005.

      Walter E. Herman III, Humble, for Appellant.
    Jack Roady Asst District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion for a unanimous Court.

This is an original application for writ of habeas corpus filed pursuant to Article 11.071 of the Texas Code of Criminal Procedure. Applicant was convicted of capital murder and sentenced to death in August of 1992. This Court affirmed Applicant’s conviction on direct appeal. Applicant alleged twenty-three claims for relief in his original habeas corpus application filed on May 21, 1997. After an evidentiary hearing, the trial court entered Findings of Fact and Conclusions of Law and recommended denying relief.

In his Findings of Fact, the trial judge noted that almost all of the twenty-three habeas claims in applicant’s original habe-as corpus application had been raised and rejected on direct appeal. There would normally be no habeas review for any of these issues. On November 17, 2004, we adopted the trial court’s finding and conclusions on claims three through twenty-three and denied relief. However, applicant’s first two habeas claims deal with whether his trial attorneys provided effective assistance of counsel. The first claim is that one of those attorneys slept through large portions of the trial. After these ineffective assistance of counsel claims were rejected on direct appeal, the Fifth Circuit held, in Burdine v. Johnson, that when a lawyer sleeps through significant portions of trial this conduct results in the constructive denial of counsel. Based upon Burdine, we filed this' application to reconsider our decision on direct appeal that applicant failed to show that he had been “denied counsel” under the Sixth Amendment or that his attorneys provided constitutionally “ineffective assistance of counsel.” After reviewing the evidence, the trial court’s Findings of Fact, and the applicable law, we now deny relief on those two habeas claims as well.

I.

A. The Evidence at Trial

Shirley and Kenneth Kwan ran a grocery store in Houston. Mr. Kwan and the store’s security guard, James Powell, went to the bank twice a week for money to cash customers’ payroll checks. On November 15, 1991, the two men returned from the bank with a bank bag containing $27,000 in cash. As they pulled up to the store, Mr. Powell noticed applicant sitting nearby with a bag of leaves on his lap. As Mr. Kwan and Mr. Powell got out of the car, applicant jumped up and shouted at Mr. Powell, who was carrying a shotgun: “Drop the gun. Drop the gun. If you don’t, I’ll blow your Goddamned brains out.” Mr. Powell dropped the gun. Mr. Kwan ran to the front door of the store, but applicant fired two shots at him. Mr. Kwan stood inside the doorway for a second and then dropped to the floor as more shots were fired. Applicant’s accomplice followed Mr. Kwan into the store. As applicant yelled “Grab the bag,” the accomplice, wearing a ski mask, stood over Mr. Kwan, shot him in the back, and grabbed the bank bag. Mr. Kwan died from his wounds. He had been shot a total of five times.

Carolyn Bartie, a friend and customer of the Kwans, saw the entire robbery-murder from her car in the store’s parking lot. Ms. Bartie testified that she waved at Mr. Kwan, who was getting out of his car, and she noticed applicant sitting nearby. She could see his face. He did not wear a disguise and never attempted to cover his face.

Four days after the robbery-murder, applicant’s nephew Craige Burks called Crime Stoppers and said that three men were involved in the crime: applicant, Michael Clark, and Albert Harris. Burks testified at trial that two weeks before the robbery, he was driving with Michael Clark when Clark pointed to Mr. Kwan’s grocery store and said that “he was going to retire from armed robbery and that the Chinese guy [sic] supposed to bring him a bunch of money.” Burks also said that, on the day of the robbery, applicant came by his house in a new car with a “bundle of money” and took him, his brother, and his uncle for a ride. Applicant told them he had dressed like a hobo, robbed and shot a Chinese guy, and pulled a pistol on the security guard. He claimed that he and his two accomplices stole $50,000.

Houston Police Officer Bill Stephens investigated the robbery-murder of Mr. Kwan. Acting on Burks’s tip, Officer Stephens showed Mr. Powell and Ms. Bartie a photo line-up. Mr. Powell made a tentative identification of applicant, and Ms. Bartie made a positive identification of him.

During the punishment phase, the State offered evidence of applicant’s three prior convictions, including an armed robbery, and evidence of three unadjudicated offenses.

First, in September of 1991, applicant robbed two Wal-Mart employees in the store parking lot as they returned from the bank with over $5,000 in cash. One of the victims identified applicant as the man who put a machine gun to his head and demanded the money. Applicant and his accomplice drove off in the employee’s truck, and, when one of the victims followed them in another car, applicant got out of the truck and fired a shot at him.

Second, just two days after the Wal-Mart robbery, applicant was arrested for an altercation in a nightclub parking lot. Earlier in the evening he had gotten into a shouting match with another nightclub patron. A security guard later saw the men still shouting in the parking lot, then he saw applicant retrieve a handgun (later found to be loaded with hollow-point bullets) from hjs car and put the gun to the other man’s, back. The security guard ran over and grabbed it.

Third, in December of 1991, police received information about a forthcoming “bank-bag robbery” on Lockwood. For over an hour they followed Michael Clark — one of applicant’s accomplices in the robbery-murder of Mr. Kwan — driving a red Jeep around town when they saw applicant getting out of a stolen van which had been traveling with the Jeep.

The defense put on three punishment phase witnesses. The custodian of records for the Harris County Jail testified that applicant had not been involved in any disciplinary incidents while in custody for this murder. Applicant’s supervisor at a paper company testified that applicant was a good worker during his five-year employment. Finally, applicant’s wife testified that she and applicant had two children and that he had always been good to her.

B. Applicant’s Legal Representation

Shortly after his arrest for capital murder, applicant hired his own trial counsel, seventy-two-year-old John Benn. He retained Mr. Benn even though Mr. Benn had never tried a capital murder case under current Texas law. Three months after Benn made his first court appearance, the trial judge, in an abundance of caution, appointed Sanford Melamed to serve as Mr. Benn’s co-counsel. Mr. Melamed was a considerably younger attorney with considerably more trial experience, albeit not in capital cases. The judge warned Mr. Melamed that he was to follow Mr. Benn’s lead; he was not to make any decisions in the case without first seeking the approval of both Mr. Benn and applicant. However, the trial judge also warned Mr. Melamed that he should be prepared to try the entire case on his own.

Applicant wanted nothing to do with Mr. Melamed and refused to sign the appointment of counsel form. He wanted only Mr. Benn’s assistance. Richard Frankoff, an attorney who had represented applicant on other criminal charges, sent applicant a letter stating that he had known Mr. Me-lamed for years, that “[h]e is a very committed and competent attorney,” and that applicant should talk with Mr. Melamed.

Mr. Benn, like applicant, also refused Mr. Melamed’s assistance. Mr. Melamed repeatedly tried to meet with applicant’s retained counsel to discuss trial strategy and divide up trial duties. Mr. Benn kept putting him off. As a result, the two lawyers had virtually no pre-trial contact, and they never had a significant substantive conversation about the case.

Mr. Melamed testified that he knew that neither his client nor his co-counsel wanted his involvement in this case. Mr. Me-lamed did not want to come between Mr. Benn and applicant, but, as the trial neared, he realized he would be trying this case essentially by himself. Mr. Benn testified at the writ evidentiary hearing that he had spent just four hours preparing for applicant’s capital murder trial. He also admitted that he did not file any pre-trial motions, interview or subpoena any witnesses, or visit the crime scene.

Mr. Melamed, on the other hand, testified that he took numerous steps to prepare for trial — studying a capital murder treatise, consulting with experienced capital-litigation lawyers, observing portions of a capital trial, and filing numerous pretrial motions. Mr. Melamed said that, by the time the trial began, he was fully prepared to handle every aspect of it. Had he needed more preparation time, he would have asked for a continuance.

Mr. Melamed said that the trial judge asked applicant at least twice before the trial whether he wanted to continue with retained counsel Mr. Benn. Applicant said, ‘Yes,” and he never requested other or additional counsel. Applicant never expressed dissatisfaction with Mr. Benn to either the judge or Mr. Melamed.

At trial, Mr. Melamed provided the lion’s share of legal representation; Mr. Benn sometimes slept during trial. At the hearing on the motion for new trial, he explained, “I’m 72 years old. I customarily take a short nap in the afternoon.” Virtually everyone in the courtroom noticed Mr. Benn sleeping. Mr. Melamed stated that he first saw Mr. Benn sleeping during parts of voir dire, and it got worse as the trial progressed. He said that the bailiff would nudge Mr. Benn’s chair during the trial to awaken him, and the judge admonished Mr. Benn on numerous occasions.

During its case-in-chief, the State put on fourteen witnesses, but Mr. Benn cross-examined only three. Although Mr. Benn said that he would prepare applicant’s mitigation case for the punishment phase, he did not, so again Mr. Melamed did. Mr. Benn did present a closing argument to the jury. His remarks were extremely concise. He simply asked the jury not to be swayed by an “eye for an eye” mentality, but rather to have sympathy for his client and to spare his life.

II.

Applicant contends both that he was denied counsel under the Sixth Amendment and that he received constitutionally ineffective assistance of counsel. Under Strickland v. Washington, a defendant claiming ineffective assistance of counsel must demonstrate that (1) counsel’s conduct “fell below an objective standard of reasonableness,” and (2) this incompetence caused the defendant prejudice. Under Strickland, however, there are a few- situations in which prejudice under the second prong will be presumed because these errors are .both “easy to identify” and “easy for the government to prevent.” In those situations, it is “likely that case-by-case inquiry into prejudice is not worth the cost.” Such presumed-prejudice errors include the “actual or constructive denial” of counsel or “state interference” with counsel’s assistance.

A. Actual or Constructive Denial of Counsel Claim

Applicant’s first claim is that he was actually or constructively denied counsel because of his retained attorney’s persistent habit of napping during the trial. He argues that when Mr. Benn slept through significant portions of his trial, applicant was totally deprived of that counsel’s assistance. Applicant notes that in United States v. Cronic, the Supreme Court held that a defendant’s Sixth Amendment rights are violated “if the accused is denied counsel at a critical stage.” Under Cronic and its progeny, a defendant is denied counsel not only when his attorney is physically absent from the proceeding, but when he is mentally absent as well, ie., counsel is asleep, unconscious, or otherwise actually non compos mentis. This prong of Cronic is epitomized by the “inert” or “potted plant” lawyer who, although physically and mentally present in the courtroom, fails to provide (or is prevented from providing) any meaningful assistance. In this situation, courts presume prejudice based upon the actual- or constructive denial of counsel “when such absence threatens the overall fairness of a trial.”

We agree that applicant did not have Mr. Bern’s active assistance during his postprandial naps and that those naps occurred during “critical stages” of his trial. However, as this Court stated in the direct appeal of this ease:

Appellant had two attorneys. Appellant was never without counsel. Additionally Melamed stated at the motion for new trial hearing that he was prepared to do everything in the case. Although we do not condone Benn’s behavior, viewing the totality of circumstances, appellant fails to make any showing that he was not effectively represented at trial by Melamed.

Had Mr. Benn been the sole attorney, applicant’s Sixth Amendment right to counsel might well have been denied under Cronic. But, Mr. Benn was not his sole attorney.

Applicant now contends that, although he did have the constant, actual and active participation of a second lawyer, “Melamed was an inexperienced lawyer who was paralyzed by blind deference to an often unconscious lead counsel.” He asserts that he is entitled to relief under Cronic and its “presumed prejudice” standard because both of his attorneys “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” Because, as discussed below, we conclude that Mr. Melamed provided constitutionally effective representation, we necessarily reject the proposition that applicant had “no meaningful assistance.”

Under these circumstances, we cannot presume prejudice under Cronic. Applicant has failed to demonstrate that the fundamental fairness of his trial was threatened by Mr. Benn’s conduct because his co-counsel was an awake, active, and zealous advocate in the adversarial testing of the prosecution’s case.

B. Ineffective Assistance of Counsel Claims

In his second claim for relief, applicant alleges ineffective assistance of counsel under Strickland because of his counsel’s collective failure to: (1) properly investigate and prepare for trial; (2) effectively cross-examine the State’s witnesses; (3) call mitigation witnesses; (4) advocate for the client during closing argument at the punishment phase; and (5) reveal a conflict of interest.

To prevail on these “ineffective assistance” claims, applicant must satisfy both prongs of the Strickland test. First, he must prove that his counsel’s conduct was objectively deficient. In assessing this, we look to see if counsel was acting as “a reasonably competent attorney” would under the circumstances. Applicant has the burden of proof and must overcome a “strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance.” This highly deferential review is employed to avoid “the distorting effect of hindsight.” Thus, applicant must show that his attorneys made “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Second, even if a habeas applicant can demonstrate that his counsel’s actions were objectively deficient, he must still prove that their deficient performance prejudiced his defense. He must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” The Supreme Court has defined this “reasonable probability” as a “probability sufficient to undermine confidence in the outcome.” In capital cases, the question is whether the defendant would not have been found guilty of capital murder or whether “there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Absent some effect of the challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.

We turn now to each of applicant’s claimed ineffective assistance errors.

1. Pre-trial Investigation and Preparation Claims

Applicant claims that neither of his attorneys “perform[ed] any pre-trial investigation, let alone reasonable investigation.” He claims that Mr. Melamed’s failure to interview the prosecution witnesses was “manifestly unreasonable,” and argues that the “State’s case against McFarland was thin at best.”

At the writ hearing, Mr. Melamed testified to numerous pretrial preparations. For example, he studied the leading treatise, on capital murder defense. He also consulted with, observed, and discussed the facts of - this case with three other defense attorneys who had experience - in capital murder trials. In addition, he reviewed the State’s files and submitted eight pre-trial motions, including a discovery motion, a motion for investigator fees, a motion to suppress the identification evidence, and numerous motions in limine. He hired an investigator, visited applicant once in the Harris County Jail, and conferred with him on the telephone and during trial.

Mr. Melamed explained that his investigator did not attempt to interview the State’s eyewitnesses because he “believed it would not have been a good expenditure of investigator’s fees,” and he viewed prosecution witnesses as being generally unwilling to “voluntarily cooperate” with defense counsel. This was a strategic decision, made after Mr. Melamed consulted with more experienced counsel in Harris County. Instead, he had his investigator visit the crime scene, canvass nearby locations in an attempt to find other eyewitnesses, photograph the crime scene, construct a scene diagram, and review the ballistics report and offense reports with him.

Further, when applicant finally spoke with Mr. Melamed, he gave counsel a list of potential witnesses, but Mr. Melamed was unable to locate them. Mr. Melamed also suggested calling various witnesses, including Mr. Frankoff, Walter Burks, or some other family member, to challenge the competency and credibility of Craige Burks-one of the State’s star witnesses-but applicant rejected all of these suggestions.

The trial court found that Mr. Melamed had developed a two-pronged defense trial strategy before trial began: (1) that the person who committed the murder “committed, at most, felony murder rather than capital murder”; and (2) that the evidence was insufficient to prove, beyond a reasonable doubt, that applicant was present and committed the offense. The trial court found, as did this Court on direct appeal, that counsel’s pre-trial investigation was constitutionally reasonable.

Furthermore, applicant fails to demonstrate how the failure to conduct further pretrial investigation prejudiced him. Applicant argues that if defense counsel had interviewed Craige Burks or reviewed his grand-jury testimony more thoroughly, they would have discovered “inconsistencies” between that testimony and his trial testimony. He also relies upon an undated post-trial affidavit purportedly signed by Craige Burks contradicting much of his trial testimony (and possibly establishing perjury on one of the two occasions), but there is no showing or suggestion that Mr. Burks would have told anyone this version before he testified at trial. Thus, applicant fails, under Strickland, to demonstrate prejudice in counsel’s alleged failure to conduct additional pretrial investigation.

Based upon our review of the record, we agree with the trial court’s findings that Mr. Melamed’s trial preparation was objectively reasonable under the circumstances and consistent with a coherent trial strategy.

2. Cross-Examination Claims

Applicant claims that his attorneys failed to adequately cross-examine the only two witnesses who definitively tied him to the crime, Carolyn Bartie, an eyewitness to the killing, and Craige Burks, who called Crime Stoppers to implicate his uncle. Applicant claims that his lawyers should have attacked Ms. Bartie’s credibility as an eyewitness. However, Ms. Bartie testified consistently at both the identification hearing and at trial that she saw applicant holding the security guard and firing at Mr. Kwan. Moreover, she identified applicant from a photo spread and a live lineup.

Cross-examination is inherently risky, and a decision not to cross-examine a witness is often the result of wisdom acquired by experience in the combat of trial. It is frequently a sound trial strategy not to attack a sympathetic eyewitness without very strong impeachment. Otherwise, an attorney risks reinforcing the eyewitness’ previous identification of the defendant as the assailant.

Furthermore, cross-examination is an art, not a science, and it cannot be adequately judged in hindsight. For example, had counsel so vigorously cross-examined Ms. Bartie as to raise serious doubts about applicant’s identity as the robber-murderer, the State might well have been allowed to offer evidence during the guilt stage about applicant’s extraneous Wal-Mart “bank-bag” robbery two months before the capital offense. A defense strategy that avoids the introduction of extraneous offenses under Rule 404(b) is not constitutionally ineffective.

Next, applicant contends that counsel should have questioned Craige Burks about previous inconsistencies in his testimony to the grand jury. In particular, he claims that when Burks testified before the grand jury he stated that applicant discussed the murder while they were in a family member’s house, yet at trial, he testified that they discussed the murder while riding in a car. However, these two statements are not necessarily in conflict with one another, and they can be easily reconciled. In any event, it is impeachment on a relatively minor issue.

In sum, counsels’ failure to cross-examine these witnesses on certain discrepancies did not fall below an objective standard of reasonableness. Applicant’s suggestion that cross-examination should have been conducted in a different way “does not rebut the presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Moreover, applicant fails to show that there is a reasonable probability that the result of his trial likely would have been different had his attorneys impeached the witnesses on these particular matters.

Based upon its reading of the trial record, the habeas court found that “during the guilt-innocence phase of the applicant’s trial, trial counsel vigorously cross-examined all of the State’s substantive witnesses ... [and] addressed any conflicts in witnesses’ testimony.” Like the claims above, this issue was raised and rejected on direct appeal. Applicant does not present sufficient new evidence to persuade us that our original decision was wrong.

3. Mitigation Evidence Claims

Applicant claims that his attorneys were ineffective for failing to present mitigation witnesses at the punishment stage of his trial. Although the defense case at punishment lasted only fifteen minutes, this fact alone does not automatically result in ineffective assistance of counsel. Some of the responsibility for such a short mitigation case lies with applicant. Mr. Melamed attempted to obtain the names of possible punishment witnesses from applicant. Applicant, however, rebuked Mr. Melamed’s attempts to develop punishment witnesses and specifically instructed him not to contact members of his family. He told Mr. Melamed that Mr. Benn would handle that portion of the trial.

The trial court found that Mr. Melamed talked with applicant for several hours on several occasions about potential punishment-phase evidence and discussed applicant’s personal life with him. Mr. Mé-lamed determined that there were no Penry-tjpe issues in applicant’s case. Based upon the evidence at the writ hearing, the trial court further found

that Melamed attempted to obtain names of possible punishment witnesses from the applicant; that the applicant rebuked Melamed’s attempt to develop punishment witnesses and specifically instructed Melamed that counsel Benn would take care of it; and, that counsel Benn stated that he would take care of having the applicant’s relatives present for the punishment phase.

Despite his writ allegation that counsel should have called any number of witnesses, including family members, applicant names only one potential mitigation witness: Richard Frankoff. Mr. Frankoff is an attorney who had formerly represented Mr. McFarland and had known him for over eight years. In his affidavit, Mr. Frankoff states that he would have testified that he knew Mr. McFarland to be “friendly and agreeable” and not a “violent man.” Although Mr. Frankoffs testimony on direct examination could have been beneficial to the defense, his attorneys might well have made a wise strategic decision in not calling him. If Mr. Frankoff had testified, the State would have been permitted to cross-examine him about his past representation of applicant, and specifically, his representation on the “violent” Walmart “bank-bag” robbery, which was essentially a mirror image of this case. The trial court found that Mr. Melamed made a strategic decision not to call Mr. Frankoff during the punishment phase. Moreover, applicant himself specifically requested that Mr. Frankoff not be called to testify. Given the potential hazards involved, we cannot conclude that counsel’s decision not to call Mr. Frankoff constituted ineffective assistance.

Furthermore, this matter was raised and rejected on direct appeal. Applicant has failed to name any specific witnesses, other than Mr. Frankoff, whom his attorneys should have contacted or called as mitigation witnesses. Likewise, he has failed to show that these unnamed witnesses were available to testify or that their testimony would have benefitted him. Therefore, he fails to show prejudice.

4. Jury Argument Claim

Next, applicant claims that Mr. Benn’s closing remarks to the jury during the punishment phase essentially conceded his guilt and bolstered the State’s case. Mr. Benn was the last person to speak to the jury on applicant’s behalf. As part of his closing remarks, he told the jury that:

If we could exchange George’s life for his [Mr. Kwan’s], I would say alright, but killing one man is not going to bring back the life of another man. Eye for an eye, a tooth for a tooth went out of civilized religion a long time ago.

Applicant argues that the jury would interpret these comments as an admission of guilt. However, this argument was made at the punishment phase after the jury had already found applicant guilty. Therefore, Mr. Benn’s conduct was not objectively deficient: he merely accepted what the jury had already decided. Additionally, even if counsel’s comments were an admission of guilt, applicant has failed to prove that they prejudiced his case. Applicant has not shown that, but for Mr. Benn’s argument, the jury likely would have answered the special issues differently. He has failed to prove either prong of the Strickland test.

5. Conflict of Interest Claim

Finally, applicant claims that Mr. Benn had a conflict of interest. He contends that Mr. Benn previously represented Michael Clark, who was, according to Craige Burks, peripherally involved in this capital murder.

The trial court concluded that relief on this ground should be denied for various reasons. First, applicant failed to show that his attorney is the same John Benn who represented Michael Clark or that this person was the same Michael Clark who might have had some involvement in this case. Second, even if Mr. Benn had once represented Mr. Clark, that representation occurred sixteen months before this capital murder was committed. Finally, and most importantly, Michael Clark did not testify in this case. Therefore, Mr. Benn never had the opportunity to cross-examine him. Any potential conflict never became an actual conflict of interest. Nor does applicant claim that, but for Mr. Benn’s earlier representation of Clark, applicant would have called him as a witness.

Applicant has failed to show that his counsel was burdened by any actual conflict of interest and that the conflict had an adverse effect on counsel’s performance.

rv.

The evidence in this case shows that the trial judge recognized that Mr. Benn — although he was clearly the sole attorney applicant wanted — was elderly and unprepared to try a capital murder case. The trial judge was caught between Scylla and Charybdis. On the one hand, he could foresee that Mr. Benn might not provide reasonably competent representation, and, under the Sixth Amendment, a criminal defendant is entitled to competent representation. On the other hand, a criminal defendant also has a Sixth Amendment right to the privately retained counsel of his choice, and a trial judge may not unilaterally remove a defendant’s retained attorney without extraordinarily good cause. Thus, the trial judge in this case did his best to satisfy both of these constitutional requirements: he appointed an experienced and competent co-counsel to assist Mr. Benn and take over as necessary.

We conclude that, although one of his attorneys slept through portions of the trial, applicant was not deprived of the assistance of counsel under the Sixth Amendment because his second attorney was present and an active advocate at all times. Furthermore, applicant has failed to establish that he received ineffective assistance of counsel which deprived him of his Sixth Amendment right to. a fair trial. We therefore deny relief.

WOMACK, J., filed a concurring opinion, joined by KELLER, P.J., and JOHNSON, J.

WOMACK, J.,

filed a concurring opinion in which KELLER, P.J., and JOHNSON, J., joined.

In addition to the reasons for denying relief that the Court gives in its opinion, which I join, I wish to add another: The applicant waived, at trial, the complaint that he brings today.

As the Court’s account says, the applicant chose and hired an attorney (ante, at 750), spurned the trial court’s efforts to give him the assistance of another attorney (ante, at 750) or to let him change attorneys (ante, at 751). He insisted on going to trial with the counsel of his choice. This was his right, which the trial court could not have denied him.

The careful trial court, seeing that the applicant had chosen poorly, provided him with the assistance of a qualified attorney at the public’s expense.

When it was obvious that his chosen counsel fell asleep during trial (see ante, at 751), the trial court asked the applicant if he wanted to have the trial continue in the charge of a capable- attorney (again, at public expense). The applicant refused. (Ante, at 751, n. 9.)

Having resisted the efforts of the trial court to give him the effective assistance of counsel,' and having knowingly exercised his right to continue being represented by a lawyer who slept rather than a capable lawyer, the applicant may not now complain about his choice.

      . McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996) (en banc).

      . See McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996). One new claim asserted that applicant's direct appeal attorney was constitutionally ineffective because his attorney filed many extensions, was forced to show cause why the brief had not been timely filed, and ultimately filed a poor brief. On appeal, counsel raised thirty-three points of error in the initial brief. He then filed a supplemental brief raising thirty-five more points of error. This Court thoroughly addressed all of those points of error in a lengthy published opinion. The trial court concluded that appellate counsel’s representation was sufficient to "protect his right to reasonably effective counsel in the primary case.” Further, applicant failed to show that, but for appellate counsel’s performance, he would likely have prevailed on appeal. Ex parte Owenby, 749 S.W.2d 880, 881 (Tex.Crim.App.1988) (to prevail on ineffective assistance of appellate counsel claim, defendant must "must be able to show that the outcome of his appeal would be different" had counsel provided competent counsel).
      A second new claim was a Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), allegation concerning the purported suppression of the grand jury testimony of Walter Burks and the destruction of the tape of Craige Burks’s telephone call to Crime Stoppers. In its writ findings, the trial court concluded that applicant failed to show that: Mr. Burks’s grand jury testimony contained Brady evidence; the State withheld the transcript of Mr. Burks’s testimony; admission of the grand jury testimony would have been favorable to applicant; the State "withheld” the Crime Stoppers tape which was destroyed in accordance with Houston Police Department policy after six months; or the tape contained any exculpatory evidence. We adopted these findings and denied relief on those claims on November 17, 2004.

      . 262 F.3d 336 (5th Cir.2001).

      . Id. at 341, 349 (concluding that an “[u]n-conscious counsel equates to no counsel at all” for purposes of the Sixth Amendment right to counsel in a criminal case).

      . Applicant's specific claims are as follows:
      1) McFarland's Sixth Amendment right to the assistance of counsel has been deprived.

        2) The representation of McFarland falls far below an objective standard of reasonableness and prejudiced the outcome of his trial.

      . Sanford Melamed testified at the writ hearing that he had practiced criminal law for fourteen years, had been retained or appointed in over two hundred misdemeanor cases and over six hundred felony cases, and had tried approximately thirty felony jury trials.

      . Ironically, one of applicant's direct appeal claims was that the trial court violated his "constitutional right to counsel of his choice” by foisting an appointed lawyer upon him to assist his retained counsel. 928 S.W.2d at 508. This Court concluded that "[wjhere a trial court deems, as in the instant case, that retained counsel may need assistance, it is acceptable to sua sponte appoint additional counsel, and [this] does not violate a defendant's right to counsel of choice.” Id.

      . In an affidavit submitted in the habeas proceeding, one juror stated that Mr. Benn's sleeping "was so blatant and disgusting that it was the subject of conversation within the jury panel a couple of times.”

      . After one of these incidents, the trial judge again asked applicant if he wanted a different lead counsel appointed. Again, applicant declined. The writ record does not indicate whether applicant himself knew that his retained lawyer frequently napped during the trial. Although the present facts might well raise an issue of waiver, the trial court made no findings on that issue. Thus, we will not address the question of whether a defendant who refuses to accept the offer of different, appointed lead counsel, when he knows that his retained attorney does not remain awake during trial, forfeits any Sixth Amendment claim based on that counsel’s penchant for napping.

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

      . Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052.

      . Id. at 692, 104 S.Ct. 2052.

      . Id.

      . Id.

      . 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

      . Id. at 659, 104 S.Ct. 2039.

      . Id. at 659, 104 S.Ct. 2039; see also Burdine v. Johnson, 262 F.3d 336, 345 (5th Cir.2001) (en banc) (distinguishing between the total lack of counsel and ineffective assistance of counsel; noting that prejudice is presumed "when, during a critical stage of a trial, counsel is either (1) totally absent, or (2) present but prevented from providing effective assistance"); Javor v. United States, 724 F.2d 831, 833-34 (9th Cir.1984) (defendant's Sixth Amendment right to counsel was violated because his attorney slept through a substantial portion of his trial).

      . Gochicoa v. Johnson, 238 F.3d 278, 284-85 (5th Cir.2000) (stating that prejudice is presumed under Cronic’s constructive denial of counsel prong "only when the defendant demonstrates that counsel was not merely incompetent but inert, distinguishing shoddy representation from no representation at all”).

      . See Bell v. Cone, 535 U.S. 685, 696-97, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (noting that, under Cronic, an attorney’s failure to test the prosecution's case must be “complete”; only when defense counsel “ 'entirely fails to subject the prosecution’s case to adversarial testing’ ” does presumption of prejudice apply) (quoting Cronic, 466 U.S. at 658, 104 S.Ct. 2039); see also Florida v. Nixon, 543 U.S. -, -, 125 S.Ct. 551, 555, 160 L.Ed.2d 565 (2004); French v. Jones, 332 F.3d 430, 439 (6th Cir.2003).

      . Burdine, 262 F.3d at 347.

      . 928 S.W.2d at 505.

      . Cronic, 466 U.S. at 658, 104 S.Ct. 2039.

      . Applicant included his "sleeping lawyer” claim as one of his enumerated "ineffective assistance" claims, but because another competent attorney provided zealous representation during those interludes, we need not address the issue of Mr. Benn’s ineffective assistance.

      . Id. at 694, 104 S.Ct. 2039; Ex parte Nailor, 149 S.W.3d 125 (Tex.Crim.App.2004).

      . Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

      . Id. at 689, 104 S.Ct. 2052.

      . Id.

        .Id. at 687, 104 S.Ct. 2052.

      . Id.

      . Id. at 694, 104 S.Ct. 2052.

      . Id.

      . Id. at 695, 104 S.Ct. 2052.

      . Cronic, 466 U.S. at 656, 104 S.Ct. 2039.

      . See Burger v. Kemp, 483 U.S. 776, 785, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (noting that "[t]he district judge, who presumably is familiar with the legal talents and character of the lawyers who practice at the local bar and who saw and heard the witness testify, is in a far better position than we are to evaluate a charge of this kind, and the regional courts of appeals are in a far better position than we are to conduct appellate review of these heavily fact-based rulings”).

      . See (Frank) McFarland v. State, 845 S.W.2d 824, 848 (Tex.Crim.App.1992) ("When a defendant preempts his attorney's strategy by insisting that certain evidence be put on or kept out, no claim of ineffective assistance can be sustained”).

      . McFarland, 928 S.W.2d at 500-01.

      . Specifically, applicant points out that Ms. Bartie originally described the assailant as being approximately 5’8” and 150 pounds, whereas applicant asserts that he is 6'2” and 200 pounds. Applicant also argues that counsel failed to confront Ms. Bartie with the fact that her version of the event purportedly conflicted with the factual accounts offered by other witnesses at the scene. But, even if that were true, the rules of evidence prevent an attorney from impeaching one witness’s testimony with the testimony of other witnesses. See, e.g., McKinney v. State, 491 S.W.2d 404, 408 (Tex.Crim.App.1973) (allowing prosecutor to ask defendant on cross-examination if State’s witnesses were “lying” for testifying inconsistently with defendant’s version was argumentative, but not reversible error); Mason v. State, 449 S.W.2d 47, 49 (Tex.Crim.App.1969); United States v. Henke, 222 F.3d 633, 643 (9th Cir.2000) (forcing a witness to comment on another witness’s testimony is inappropriate); State v. Maluia, 107 Hawaii 20, 108 P.3d 974 (2005). Counsel cannot be condemned for failing to do something that he is not permitted to do.

      . Coble v. State, 501 S.W.2d 344, 346 (Tex.Crim.App.1973).

      . See, e.g., Dannhaus v. State, 928 S.W.2d 81, 88 (Tex.App.-Houston [14th Dist.]1996, pet. ref'd).

      . See id. (noting that "[i]f ineffective, cross-examination can serve to bolster the credibility of the witness and underscore the very points that are sought to be impeached. Thus, unless there is a good basis on which to cross-examine ... it can be more effective to refrain from cross-examining a damaging witness to minimize the impact of his testimony”).

      . Applicant also claims that counsel should have pointed out an internal inconsistency in Craige Burks’s testimony. At one point, Mr. Burks testified that applicant said that he shot the complainant, but later he testified that applicant said that Albert Harris shot the complainant. During closing argument, the State pointed out that Mr.-Burks testified that Harris, not applicant, shot Mr. Kwan. Had the defense emphasized the point that Mr. Burks also testified that applicant shot the complainant, this might well have harmed, not helped, the defense case.

      . Resendiz v. State, 112 S.W.3d 541, 548 (Tex.Crim.App.2003) (citation omitted).

      . McFarland, 928 S.W.2d at 506.

      . See Strickland, 466 U.S. at 691, 104 S.Ct. 2052 ("The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant”).

      . Applicant cannot claim that his counsel was constitutionally deficient for abiding by applicant’s specific, explicit directive to refrain from contacting or calling specific potential witnesses. See (Frank) McFarland, 845 S.W.2d at 848; Duncan v. State, 717 S.W.2d 345, 348 (Tex.Crim.App.1986)(stating that when defendant preempts attorney’s strategy by insisting that a particular defense be followed, claim of ineffectiveness will not stand; holding that defense counsel was not ineffective when he attempted to follow trial strategy "thrust upon him” by defendant).

      . See (Frank) McFarland, 845 S.W.2d at 848; see also Williams v. Cain, 125 F.3d 269, 276 (5th Cir.1997) (judging counsel’s performance through a "highly deferential” lens and with a view to "the facts and resources available to counsel at the time of trial,” in concluding that counsel’s strategic decisions were based on professionally informed and competent assessment of the information available).

      . 928 S.W.2d at 501.

      . King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983) ("Counsel’s failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony”); see also Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir.2001).

      . See Butler v. State, 872 S.W.2d 227, 245-46 (Tex.Crim.App.1994) (counsel in capital murder trial was not ineffective for conceding defendant’s guilt during closing argument at punishment stage; noting that "[t]rial counsel conceded appellant’s guilt as a basis for his argument that, in the eyes of God, two wrongs would not be able to make a right”).

      . Even if Mr. Benn's closing argument strategy fell below professional norms, it "cannot form the basis of a constitutional ineffective assistance of counsel claim because there is no evidence that [it] prejudiced [applicant] or 'permeated [his] entire trial with obvious unfairness.’ ” Martinez v. Dretke, 404 F.3d 878, 890 (5th Cir., 2005) (quoting United States v. Jones, 287 F.3d 325, 331 (5th Cir.2002)).

      . Michael Clark was never charged with any offense related to this transaction, although he was involved with applicant in other matters.

      . See Routier v. State, 112 S.W.3d 554, 579-86 (Tex.Crim.App.2003) (lengthy discussion of potential and actual conflicts of interest in context of capital murder prosecution). Here, as in Routier, the record does not support applicant’s claim that an actual conflict of interest existed. At best, applicant’s allegation shows the possibility of a conflict of interest. The showing of a potential conflict of interest does not constitute an actual conflict of interest. Routier, 112 S.W.3d at 585-86.
      To prove ineffective assistance of counsel based on an actual conflict of interest, the defendant must show (1) defense counsel was burdened by a conflict of interest; and (2) the conflict had an adverse effect on specific instances of counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997). An actual conflict of interest exists if counsel is required to make a choice between advancing his client’s interest in a fair trial or advancing other interests to the detriment of his client’s interests. Monreal, 947 S.W.2d at 564. When an attorney is unable to cross-examine a government witness or is hindered in such a cross-examination because of a privilege arising from counsel's prior representation of the witness an actual conflict of interest exists. United States v. Martinez, 630 F.2d 361, 362 (5th Cir.1980).

      . See Mickens v. Taylor, 535 U.S. 162, 171-74, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (citing Cuyler v. Sullivan, 446 U.S. at 348-50, 100 S.Ct. 1708).

      . Strickland, 466 U.S. at 693, 104 S.Ct. 2052.

      . Wheat v. United States, 486 U.S. 153, 158-59, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (Sixth Amendment affords criminal defendants the right of counsel and, absent a conflict of interest or similar ethical problem necessitating disqualification, the right to privately retained counsel of their own choosing); Ex parte Prejean, 625 S.W.2d 731, 733 (Tex.Crim.App.1981) (mandamus relief granted when trial judge in capital murder case disqualified retained counsel for a conflict of interest that defendant had explicitly waived; stating that "freedom of choice in the selection of counsel by the accused” is guaranteed by both the federal and state constitutions as well as by Texas statute).

      . See Stearnes v. Clinton, 780 S.W.2d 216, 220 (Tex.Crim.App.1989) (trial courts do not have "inherent power” to disqualify defense counsel of choice).


source: Caselaw Access Project

author: Justice ROSS.

license: Public Domain

text:
    Tony Roy ELARDO, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00060-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Feb. 1, 2005.
    Decided March 17, 2005.
    Opinion Overruling Rehearing April 27, 2005.

      Tim Cone, Gilmer, for Appellant.
    Mike Fetter, Dist. Atty., Timothy J. Cariker, Asst. Dist. Atty., Gilmer, for State.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Tony Roy Elardo appeals his conviction by jury trial for thirty-two counts of possession of child pornography. The sentence was enhanced to a second degree felony due to a prior felony conviction, and the jury assessed punishment at twenty years’ imprisonment. Elardo argues the trial court erred in denying the motion to suppress because 1) there was insufficient probable cause, and 2) the magistrate lacked authority to issue the warrant. We reverse the judgment of the trial court because the issuing magistrate did not have a substantial basis to determine that probable cause existed.

Factual Background

Michelle Dean, the daughter-in-law of Elardo’s wife, went to Elardo’s home to retrieve a television set owned by his wife. While in the house, Dean observed Elardo viewing child pornography on his computer. Dean reported this observation to the police. Based on the information provided by Dean, an investigator with the Gilmer Police Department obtained a search warrant. The search warrant provided that a “reliable source” had observed Elardo viewing child pornography in his home. Although Dean testified at the suppression hearing, the warrant did not name Dean except as a “reliable source,” nor did the warrant provide any facts as to why the source was reliable other than the bare-bones conclusion that the source was reliable. After the magistrate issued the warrant, the police searched Elardo’s residence pursuant to the warrant and seized floppy disks, CDs, and four computers, that contained over 6,000 images of alleged child pornography. Elardo was indicted on forty-five counts of child pornography. He filed a motion to suppress, which the trial court denied after a hearing.

Discussion

We first address whether the magistrate who issued the search warrant had a substantial basis to determine that probable cause existed. While the affidavit in support of the warrant did contain facts indicating that the information may have been obtained in a reliable manner by the informant, the warrant did not contain any facts concerning why the information was reliable or any other indicia of reliability. Under the totality of the circumstances, the affidavit was not sufficient to constitute a substantial basis for determining that probable cause existed. We then address whether the magistrate lacked authority to issue the warrant. We conclude the magistrate did have authority to issue the warrant in question.

The Trial Court Erred in Denying the Motion To Suppress

Elardo argues in his first point of error that the trial court erred in denying his motion to suppress because the warrant did not contain sufficient facts to provide a substantial basis to determine that probable cause existed. Specifically, Elar-do asserts the warrant contains no evidence of the “reliable source’s” reliability. In addition, Elardo argues that the phrase “visual material” does not indicate what nature of visual material was observed. The State contends the warrant was sufficient because the anonymous informant was a private citizen.

We review the trial court’s decision on a. motion to suppress evidence by applying a bifurcated standard of review deferring to the trial court’s determination of historical facts that depend on credibility, but reviewing de novo the trial court’s application of the law. Burke v. State, 27 S.W.3d 651, 654 (Tex.App.-Waco 2000, pet. ref'd). We review de novo those questions not turning on credibility and demeanor. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). Because probable cause to support the issuance of the warrant is determined from the “four corners” of the affidavit alone, there are no credibility choices to be made by the trial court in examining the sufficiency of an affidavit to establish probable cause. Burke, 27 S.W.3d at 654. Thus, we review de novo the court’s ruling on the motion to suppress. Id. We will affirm the trial court’s ruling if the ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Roberts v. State, 963 S.W.2d 894, 903 (Tex.App.-Texarkana 1998, no pet.).

As an exception to the general rule articulated in Guzman, the issuing magistrate’s decision to grant the search warrant should be reviewed with a deferential standard of review. Swearingen, 143 S.W.3d at 811. Great deference should be given to a magistrate’s determination of probable cause, and warrants should not thereafter be invalidated through a “hyperteehnieal” interpretation of their supporting affidavits. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Our determination of the sufficiency of an arrest or search warrant is limited to the four corners of the affidavit. Oubre v. State, 542 S.W.2d 875, 877 (Tex.Crim.App.1976); Burke, 27 S.W.3d at 654. Granting great deference to the issuing magistrate’s determination, we will sustain the issuance of the warrant if the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236, 103 S.Ct. 2317; see Swearingen, 143 S.W.3d at 811. “If in a particular case it may not be easy to determine whether an affidavit demonstrates the existence of probable cause, the resolution of such doubtful or marginal cases should be largely determined by the preference to be accorded warrants.” State v. Walker, 140 S.W.3d 761, 765 (Tex.App.-Houston [14th Dist.] 2004, no pet.). We interpret affidavits for arrest or search warrants in a common-sense and realistic manner. Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App.1991). The magistrate who reviews an affidavit may draw inferences from the facts contained in it. Id.

The Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution guarantee the right of the people to be secure against unreasonable searches of their persons, houses, papers, and effects. U.S. Const, amend. IV; Tex. Const, art. I, § 9. Because of the potential unreliability of statements given by anonymous informants, the United States Supreme Court developed the Aguilar-Spinelli analysis, which required a two-pronged test: 1) the informant obtained the relevant information in a rehable manner, and 2) the informant was reliable. In response to “hyperteehnieal” interpretations of the Aguilar-Spinelli analysis, the United States Supreme Court subsequently relaxed the rigid standards in the Aguilar-Spinelli analysis to allow consideration of the totality of the circumstances. See Gates, 462 U.S. at 230, 103 S.Ct. 2317. Because the focus of inquiry is whether the statements are sufficiently reliable for a finding of probable cause, a deficiency in one of the two factors of reliability of the informant may not be fatal if the totality of the circumstances indicates reliability. Id. However, the totality of the circumstances includes the “veracity,” “reliability,” and the basis of knowledge of the informant and the informant’s information. “[A]n informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Id.

The warrant in this case provides no facts on which the magistrate could conclude that the “reliable source” is reliable, nor does the warrant contain any corroboration of the informant’s information or other indicia of reliability. The warrant only contains the eonclusory and bare-bones assertion that the source is reliable. The probable cause portion of the warrant provides in its entirety:

AFFIANT HAS PROBABLE CAUSE FOR THE SAID BELIEF BY REASON ■ TO [sic] THE FOLLOWING FACTS, TO WIT:
A RELIABLE SOURCE PROVIDED AFFIANT WITH INFORMATION THAT HE/SHE HAS BEEN IN THE RESIDENCE DESCRIBED ABOVE WITHIN LAST 12 HOURS AND HAS SEEN THE VISUAL MATERIAL ON A COMPUTER IN THE ABOVE DESCRIBED RESIDENCE. THE RELIABLE SOURCE ALSO WITNESSED THE PARTY NAMED ABOVE, VIEWING THE VISUAL MATERIAL AT THAT TIME. THE RELIABLE SOURCE ADVISED THAT HE/SHE HAS KNOWN THE ABOVE PARTY FOR A NUMBER OF YEARS AND HAS BEEN TOLD ON SEVERAL OCCASIONS THAT THE PARTY ABOVE KEEPS THIS TYPE OF VISUAL MATERIAL IN THE RESIDENCE.

While the police officer had other information which, if it had been included, may have been sufficient, our review is confined to the four corners of the affidavit.

Although we recognize that our review under the totality of the circumstances test must be evaluated on a case-by-case basis, we find guidance in the relevant federal and state caselaw. Elardo cites three Texas cases—Lowery v. State, 98 S.W.3d 398 (Tex.App.-Amarillo 2003, no pet.), State v. Ozuna, 88 S.W.3d 307 (Tex.App.-San Antonio 2002, pet. ref'd), and Barraza v. State, 900 S.W.2d 840 (Tex.App.-Corpus Christi 1995, no pet.)—in support of his proposition that the warrant contains insufficient facts to form a substantial basis to determine that probable cause existed.

In Lowery, the Amarillo Court of Appeals reversed the trial court’s denial of a motion to suppress. The informant had informed the police “that methamphetamine was cooked within the previous 24 hours at some unmentioned place by Golden and someone else, Golden was later found intoxicated, Golden was previously at some unmentioned location where drug paraphernalia was seized at some time or another, and appellant was previously arrested for possessing a controlled substance.” 98 S.W.3d at 401. The informant also described the manufacturing process of methamphetamine. Id. The court specifically noted that the affidavit did not include whether methamphetamine or any paraphernalia related to the manufacture of methamphetamine would be present and concluded the warrant contained too many gaps “to be filled with guess, hope, and surmise.” Id. at 402.

In Barraza, the Corpus Christi Court of Appeals held that the phrase “reliable and credible confidential informant” was a mere conclusory statement. 900 S.W.2d at 842. The court reversed the trial court’s denial of the motion to suppress since there was no evidence of reliability, no indication how the informant knew the contraband was at the said location, or any corroboration. Id. at 843.

In Ozuna, the San Antonio Court of Appeals affirmed the trial court’s granting of the defendant’s motion to suppress. 88 S.W.3d at 313. While a named informant said Ozuna was a heroin supplier and would trade stolen items for drugs, the court held the probable cause was insufficient since the affidavit contained no evidence connecting the heroin to the premises. Id. In addition, the court noted that the affidavit presented no evidence the informants had been used in the past and proven to be rehable. Id.

These cases, while providing some support for Elardo’s position, are distinguishable. Nonetheless, we agree that a substantial basis did not exist in the instant case for the issuing magistrate to determine that probable cause existed. The facts alleged in support of probable cause amount to nothing more than the uncorroborated hearsay statements of some unnamed person of unknown reliability. Under the totality of the circumstances, the strong nature of the basis of knowledge factor, i.e., personal observation, is not sufficient to compensate for the complete lack of the veracity factor or other indicia of reliability. While “a deficiency in one [prong] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability,” the warrant must contain “sufficient information” to allow the issuing magistrate to determine probable cause because the magistrate’s action “cannot be a mere ratification of the bare conclusions of others.” Gates, 462 U.S. at 232, 238-39, 103 S.Ct. 2317.

The conclusory phrase “reliable source” is clearly insufficient to establish the informant’s reliability. This statement is nothing more than the bare-bones conclusion of the affiant. In general, a mere anonymous tip, standing alone, will not establish probable cause. State v. Steelman, 93 S.W.3d 102, 108 (Tex.Crim.App.2002). The police can provide other indicia of reliability by independent corroboration of the informant’s information.

However, corroboration of only innocent details is usually insufficient. In this case, the affidavit contains no alleged facts that serve to corroborate-the informant’s information. The affidavit did not allege the police had obtained correct information from this informant in the past. The issuing magistrate was presented with no facts from which he could have concluded that the informant or the informant’s story was reliable.

While the affiant may have had sufficient information in his possession to constitute probable cause, the warrant presented to the magistrate did not contain sufficient facts to constitute probable cause.. The strong showing of the basis of knowledge factor, i.e., personal observation, is not sufficient to compensate for the complete lack of the veracity factor or other indicia of reliability under the totality of the circumstances of this case.

The State argues the magistrate had a substantial basis to determine there was probable cause because the source of the information was a private citizen whose only contact with the police was to witness the crime. The State introduced evidence at the suppression hearing that the source was a private citizen whose only contact with the police was to report the crime in question. Courts have held that information provided by private citizens whose only contact with the police was to witness the crime is presumed to be reliable. Marquez v. State, 725 S.W.2d 217, 233 (Tex.Crim.App.1987), overruled on other grounds, Moody v. State, 827 S.W.2d 875, 892 (Tex.Crim.App.1992); Morris v. State, 62 S.W.3d 817, 824 (Tex.App.-Waco 2001, no pet.); see also State v. Wester, 109 S.W.3d 824, 826-27 (Tex.App.-Dallas 2003, no pet.) (person under investigation by police not presumed reliable). The Supreme Court has suggested that “if an unquestionably honest citizen comes forward with a report of criminal activity— which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary.” Gates, 462 U.S. at 233-34, 103 S.Ct. 2317. If the affidavit had alleged that the reliable source was rehable because she was a private citizen whose only contact with the police was to witness the crime, the State’s argument may be correct.

The State’s argument fails, though, because the affidavit failed to mention that the rehable source was a private citizen whose only contact with the police was to witness the crime. A substantial basis for the magistrate’s determination of probable cause must be contained within the four corners of the probable cause affidavit. Because the magistrate is confined to the four corners of the affidavit in determining probable cause, the state cannot supplement the probable cause affidavit with additional information not contained in the affidavit. Testimony at a hearing on a motion to suppress cannot be used to remedy defects in a warrant. Barraza, 900 S.W.2d at 843. Such testimony was not before the magistrate when he issued the warrant. Therefore, the presumption of reliability inherent in a report from a private person without prior contact with the police does not apply in this case.

Elardo’s remaining argument is that the phrase “visual material” in the probable cause portion of the affidavit does not reference any other portion of the affidavit regarding what type of visual material was observed. Elardo argues that the issuing magistrate is “left to simply wonder or guess what the nature of the visual material might include.” The issuing magistrate may draw reasonable inferences from the facts contained in the affidavit. Gibbs, 819 S.W.2d at 830. The magistrate was entitled to reasonably infer that the visual material observed was child pornography.

Even after granting great deference to the issuing magistrate’s determination, we are unable to conclude that a substantial basis existed for the magistrate to conclude that probable cause existed. A substantial basis for determining probable cause cannot be based solely on the uncorroborated hearsay statements of an unidentified person of unknown reliability. Under the “totality of the circumstances,” the brevity of the probable cause section of the affidavit, the complete lack of any information related to the veracity of the informant, and the complete absence of corroboration or other indicia of reliability prevent the warrant from having a substantial basis on which the issuing magistrate could have determined that probable cause existed.

The Magistrate Did Have Authority To Issue the Search Warrant

In his second point of error, Elar-do argues that the issuing magistrate lacked authority to issue the search warrant. The search warrant in this case was issued by a justice of the peace in Upshur County. The record before us indicates the issuing magistrate is not an attorney. Because the issuing magistrate was not an attorney, Elardo contends the magistrate did not have authority under Article 18.02(d) of the Texas Code of Criminal Procedure.

The issuance of a search warrant is governed by Articles 18.01 and 18.02 of the Texas Code of Criminal Procedure. See Tex.Code CRIM. PROC. Ann. arts. 18.01,1802 (Vernon Supp.2004-2005). Article 18.01(c) provides in pertinent part:

Except as provided by Subsections (d) and (i) of this article, only a judge of a municipal court of record or county court who is an attorney licensed by the State of Texas, statutory county court, district court, the Court of Criminal Appeals, or the Supreme Court may issue warrants pursuant to Subdivision (10), Article 18.02 of this code.

Tex.Code Cmm. Proc. Ann. art. 18.01(c). Subdivision (10) of Article 18.02 states a warrant may be issued to search for and seize “property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.” Tex.Code Crim. Proc. Ann. art. 18.02(10). The question before this Court is whether the warrant was an evidentiary warrant under Article 18.02(10).

Although the State argued during the pretrial hearing that the search warrant was issued under Article 18.02(6), we must affirm the decision of the trial court if it is correct under any theory of law. On appeal, the State argues that the search warrant was issued under Article 18.02(8) which allows searches for “any property the possession of which is prohibited by law.” Tex.Code Crim. Proc. Ann. art. 18.02(8). Possession of child pornography is prohibited by law. Tex. Pen.Code Ann. § 43.26 (Vernon 2003). However, Elardo contends that, because the police seized items that were not prohibited by law, i.e., the computers and disks, the warrant was an evidentiary warrant under Article 18.02(10).

The Corpus Christi Court of Appeals addressed a similar argument in Mason v. State, 838 S.W.2d 657 (Tex.App.-Corpus Christi 1992, pet. ref'd). The defendant in Mason argued that a warrant which authorized the seizure of a package containing narcotics was an evidentiary warrant since it authorized the seizure of a box. Id. at 659. The Corpus Christi Court of Appeals rejected the argument and held the warrant was issued pursuant to Article 18.02(7), which authorizes the issuance of search warrants for controlled substances. Id. at 660; see Tex.Code Cmm. PROC. Ann. art. 18.02(7). While the possession of computers, floppy disks, and CDs are not prohibited by law, the items stored therein are. Since the images were digital, the police seized the computers, disks, and CDs on which the images were stored. Because the object of the warrant was property that was prohibited by law, the warrant was issued under Article 18.02(8). We overrule Elardo’s second point of error.

Conclusion

Although the magistrate had authority to issue the search warrant in question, the issuing magistrate did not have a substantial basis to conclude probable cause existed for the search. Even though the affidavit in support of the warrant alleged sufficient facts for the issuing magistrate to conclude that the informant’s basis of knowledge was reliable, the affidavit contained no facts that would allow the magistrate to conclude the information or the informant was reliable. In addition, the affidavit included no facts corroborating the informant’s story or other indicia of reliability. Giving great deference to the issuing magistrate’s determination, insufficient facts were alleged to give the issuing magistrate a substantial basis to determine probable cause existed to justify the search under the totality of the circumstances.

We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

OPINION ON REHEARING

The State has filed a motion for rehearing in which it contends this Court concluded that the affidavit supporting the search warrant contained an anonymous tip. According to the State, the magistrate could infer from the affidavit that it was based on more than a mere anonymous tip. Because the probable cause section of the affidavit states that “[t]he reliable source advised that he/she has known the above party for a number of years ....,” the' State asserts the magistrate could reasonably infer that the “rehable source” was a family member or friend, not an anonymous source.

Even if the issuing magistrate could reasonably infer that the source was a family member or friend based on such source having “known [Elardo] for a number of years,” there are insufficient facts for the private citizen exception to apply. Assuming the issuing magistrate could have reasonably inferred that the source was a family member or friend, the source could still have been anonymous. The affidavit does not allege how the source asserted he or she had known “the above party.” An anonymous informant could have asserted that he or she had known the suspect for a number of years without revealing the informant’s identity to the officer. An anonymous report, even if made by a private citizen, is not sufficient to satisfy the private citizen exception. The mere fact that the information came from a private citizen is not sufficient. Without the identity of the source or more facts concerning the source, the issuing magistrate could not determine whether the source had prior contact with the police or whether the source could be prosecuted for making a fabricated report. See State v. Wester, 109 S.W.3d 824, 826-27 (Tex.App.-Dallas 2003, no pet.); see also Illinois v. Gates, 462 U.S. 213, 233-34, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The statement does not reveal sufficient facts concerning the source for the private citizen exception to apply. Even assuming the issuing magistrate could reasonably infer the source was a family member or friend, the private citizen exception does not apply.

In its motion, the State cites Johnson v. State, 803 S.W.2d 272 (Tex.Crim.App.1990), in support of its argument. We believe Johnson is distinguishable. The affidavit in Johnson contained a total of ten alleged facts giving rise to probable cause. Id. at 288. Many of the facts the issuing magistrate could reasonably infer were obtained by police officers in the course of their investigation. These allegations included that fingerprints found at the scene matched the suspect’s fingerprints. Id. The affidavit contained several sources and other indicia of reliability .supporting .a finding of probable cause under the totality of the circumstances. In our case, the sole alleged source was the uncorroborated statement of an unknown source of unknown reliability.

Because there is no evidence concerning whether the. source had prior contact with the police or whether the source could be held liable for fabrication of the report, the private citizen exception does not apply even if the issuing magistrate could have reasonably inferred that the source was a family member or friend. Because the affidavit contains insufficient statements concerning the reliability of the source or other indicia of reliability, the issuing magistrate did not have a substantial basis to conclude probable cause existed.

We overrule the State’s motion for rehearing.

      . Under the general rule, the appellate court reviews de novo determinations of reasonable suspicion and probable cause after granting deference to the trial court’s determination of historical facts. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997); see Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The exception to the general rule is based on the Fourth Amendment’s "strong preference for searches conducted pursuant to a warrant and the need for an incentive to encourage police to use the warrant process.” Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004).

      . See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), overruled, Gates, 462 U.S. at 230, 103 S.Ct. 2317; see also Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), overruled, Gates, 462 U.S. at 230, 103 S.Ct. 2317. Under the Aguilar-Spinelli test, the entire warrant was invalidated if either prong was found to be insufficient. Ware v. State, 724 S.W.2d 38, 40 (Tex.Crim.App.1986); see Stoddard v. State, 475 S.W.2d 744 (Tex.Crim.App.1972). Gates "did not dispense with the two requirements used in the Aguilar-Spinelli test. Rather, the Supreme Court simply held that the prongs should not be applied too rigorously, and the entire affidavit should be examined to determine whether, as a whole, probable cause is established.” Ware, 724 S.W.2d at 40 n. 2.

      . Id. In a plurality decision, the Texas Court of Criminal Appeals adopted the reasoning of Gates as the proper standard of review under the Texas Constitution as well. Bower v. State, 769 S.W.2d 887, 904 (Tex.Crim.App.1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 (Tex.Crim.App.1991) (indicating court was not "willing to march lock-step with federal court interpretations of constitutional rights” as to state constitutional law); see Hall v. State, 795 S.W.2d 195, 197 (Tex.Crim.App.1990); see also Martin v. State, 67 S.W.3d 340, 344 (Tex.App.-Texarkana 2001, pet. ref'd).

      . See Barraza, 900 S.W.2d at 842. The Supreme Court has specifically prohibited use of bare-bones affidavits and has stated that the issuing magistrate cannot rely on the wholly conclusory statements of the affiant. Gates, 462 U.S. at 239, 103 S.Ct. 2317. In Eatmon v. State, the Fourteenth Court of Appeals found a warrant to be insufficient under the totality of the circumstances test enunciated in Gates when it contained only the bare assertion that the informant was "reliable, trustworthy and credible.” 738 S.W.2d 723, 724 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd). Similar to our situation, the warrant contained no facts indicating that any of the informant’s tip was corroborated by independent police work. Id. We note that Eatmon does not indicate what the affidavit alleged concerning the informant’s basis of knowledge. See id.

      . See Gates, 462 U.S. at 236, 103 S.Ct. 2317; Cassias v. State, 719 S.W.2d 585, 590 (Tex.Crim.App.1986). "Corroboration by the police officer means that, in light of the circumstances, the officer confirms enough facts to reasonably conclude that the information provided is reliable and a detention is justified.” Jones v. State, 949 S.W.2d 509, 515 (Tex.App.Fort Worth 1997, no pet.).

      . In Davis v. State, the Fort Worth Court of Appeals held that the trial court erred in denying the motion to suppress when the anonymous informant had never provided information to the police, the affidavit contained no facts concerning the informant's reliability, and the police only independently corroborated "innocent" details of the informant’s information. 144 S.W.3d 192, 199-200 (Tex.App.-Fort Worth 2004, no pet.); see Parish v. State, 939 S.W.2d 201, 204 (Tex.App.-Austin 1997, no pet.); Correll v. State, 696 S.W.2d 297, 299 (Tex.App.-Fort Worth 1985, pet. ref'd).

      . The officer testified at the suppression hearing there was no attempt to corroborate the information provided by Dean before obtaining the search warrant.

      . Recently in Rider and Eldridge, this Court, granting great deference to the issuing magistrate, held that the issuing magistrate had a substantial basis for concluding probable cause existed when the informant had provided information concerning "criminal activity in the past which has proven to be correct” and had personally observed the contraband. Eldridge v. State, No. 06-02-00189-CR, 2003 WL 22435212, at * 9, 2003 Tex.App. LEXIS 9127, at *28 (Tex.App.-Texarkana Oct.27, 2003, pet. ref'd) (not designated for publication); Rider v. State, No. 06-02-00196-CR, 2003 WL 22682077, at *5-6, 2003 Tex.App. LEXIS 8957, at *17-18 (Tex.App.-Texarkana Oct. 22, 2003, no pet.) (not designated for publication). Here, the officer testified that he had never met Dean before she made the report and that he had no information regarding her reputation for being reliable or truthful.

      . Several federal courts have found warrants insufficient when the basis of knowledge was the personal observation of the anonymous informant. See United States v. Wilhelm, 80 F.3d 116, 120 (4th Cir.1996); United States v. Leake, 998 F.2d 1359, 1365 (6th Cir.1993); United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir.1993); United States v. Gibson, 928 F.2d 250, 253 (8th Cir.1991); United States v. Fields, 182 F.Supp.2d 575, 579-80 (E.D.Tex.2002).

      . The evidence introduced at the suppression hearing provides several methods by which the warrant could have been sufficient. However, the law requires that the affidavit in support of the warrant be sufficient to constitute probable cause. The fact that the police officer had' knowledge sufficient to constitute probable cause does not make a warrant with insufficient probable cause valid. "While we must apply the totality of the circumstances standard in testing the sufficiency of the affidavit, this application only goes to the circumstances included in the affidavit.” Barraza, 900 S.W.2d at 843. Testimony during the pretrial hearing on the motion to suppress should not be considered in determining if the magistrate had a substantial basis for determining that probable cause existed. Id.

      . The magistrate is confined to the four corners of the affidavit in determining whether "there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317; see Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App.1996); Burke, 27 S.W.3d at 654. We note that the affidavit in Morris did not specify that the only contact Graham, the informant, had with the police was that he had witnessed the crime in question. However, the affidavit referred to Graham by name, indicated that Graham was a private citizen, and explained that the information was obtained from Graham's employer. Morris, 62 S.W.3d at 824.

      . Article 18.01(i) states an exception that allows any magistrate to issue a warrant under subdivision (10) for counties in which the only judges who are licensed attorneys are district judges whose districts include more than one county. See TexCode Crim. Proc. Ann. art. 18.01(i). The record indicates that the statutory county judge in Upshur County is a licensed attorney. Subsection (d) of Article 18.01 requires the issuance of a subsequent search warrant to be made by “a judge of a district court, a court of appeals, the court of criminal appeals, or the supreme court.” TexCode Crim. Proc. Ann. art. 18.01(d). The record does not indicate that Elardo's residence had been previously searched.

      . Roberts, 963 S.W.2d at 903. Article 18.02(6) concerns obscene materials kept or prepared for commercial distribution. See TexCode Crim. Proc. Ann. art. 18.02(6). There is no evidence the digital images were kept or prepared for commercial distribution or exhibition.

      . This Court is aware that the tip was not actually an anonymous tip. As we stated in our original opinion, “the police officer had knowledge sufficient to constitute probable cause.” However, the affidavit in support of the search warrant failed to include sufficient information. When the probable cause affidavit fails to identify a source in any way, the source is roughly equivalent to an anonymous source.

      . Johnson was overruled by Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App.1991), to the extent it conflicted with Heit-man's holding that the Texas courts would not be bound by United States Supreme Court decisions concerning the search and seizure arguments based on the Texas Constitution.


author: Justice CARTER.

text:
    Shawn Marcus CUMMINGS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00124-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Feb. 22, 2005.
    Decided March 23, 2005.
    Rehearing Overruled April 13, 2005.

      Clement Dunn, Longview, for Appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for State.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

After pleading guilty without the benefit of a negotiated plea agreement, the trial court found Shawn Marcus Cummings guilty of stealing over $20,000.00 worth of compact disks and other merchandise from the Lifeway Christian Store in Longview, Texas, and the court sentenced Cummings to seven years’ imprisonment. Cummings now appeals the trial court’s judgment, arguing that the trial court erred in failing to admonish Cummings concerning deferred adjudication community supervision and thereby precluded consideration of all available sentencing options. We affirm.

I. Factual and Procedural Background

On May 21, 2004, Cummings waived a jury trial and pled guilty to the offense of theft of property valued at greater than $20,000.00 but less than $100,000.00. See Tex. Pen.Code Ann. § 31.03 (Vernon Supp. 2004-2005). That offense is a third-degree felony. See Tex. Pen.Code Ann. § 31.03(e)(5). The punishment range for a third-degree felony is imprisonment for not less than two years nor more than ten years. Tex. Pen.Code Ann. § 12.34 (Vernon 2003). The applicable punishment also includes a fine of up to $10,000.00. Id.

In connection with his guilty plea, Cummings signed several documents, including an application for probation and a series of written admonishments regarding his guilty plea. The admonishments included an explanation that, by pleading guilty, Cummings would be waiving his right for ten days’ trial preparation time, waiving his right to a reading of the indictment, and waiving his right to confront and cross-examine the State’s witnesses. The group of documents signed by Cummings also include a stipulation of evidence that appears to track the indictment. Among these documents, however, there is no written admonishment concerning the possibility of the trial court deferring a finding of guilt and placing Cummings on community supervision. See Tex.Code Ceim. Peoc. Ann. art. 42.12, § 5 (Vernon Supp. 2004-2005).

Before accepting Cummings’ guilty plea, the trial court orally reviewed its standard admonishments concerning the guilty plea by advising Cummings of the specific charge, and determining that he understood the indictment. The court then further advised Cummings:

THE COURT: Are you telling me that you fully understand, you fully comprehend the exact nature of the accusation brought against you by the indictment?
[Cummings]: Yes, I do, your Honor.
THE COURT: How do you plead to this indictment?
[Cummings]: I’m pleading guilty, your Honor.
THE COURT: Upon your plea of guilty I must find you guilty. I cannot find you not guilty if you plead guilty; do you understand that?
[Cummings]: Yes, I do, your Honor.
THE COURT: Once I make a finding of guilt, the law requires that I assess your punishment to confinement in the Institutional Division of the Texas Department of Criminal Justice, that’s the state penitentiary, for a period of not less than two years, no more than ten years.
In addition to any period of confinement, I may impose a fine up to $10,000. You understand that is the range of punishment fixed by law for this type of offense?
[Cummings]: Yes, I do.
THE COURT: Okay. You have the right to file an application for a probated sentence. I note that you’ve done that. I tell you that you having filed that application, the law requires, and I will, in fact, consider it, but I’m under no duty, no obligation, no commitment to anyone to grant probation in this matter; do you understand that?
[Cummings]: Yes, I do, your Honor.
THE COURT: If probation is granted, I get to set its terms and conditions, including its length, which may be as little as two years, may be as many as ten years.
Also, if I grant probation, and I don’t know whether I am or not, I could impose a special condition that you serve what we call some up-front time in the county jail, up to 90 days — well, up to 180 days in the county jail.
Do you understand the Court sets the terms and conditions of probation if probation is granted?
[Cummings]: Yes, I do, your Honor.

The court then explained the procedure in the event Cummings was charged with a violation of community supervision conditions, accepted a judicial confession of guilt, and determined that the plea was freely and voluntarily entered. Cummings reiterated his plea of guilty.

II. Failure To Consider the Full Range of Punishment

In his only point of error, Cummings contends that the trial court erred by failing to admonish him regarding the possibility of receiving deferred adjudication and that this omission ostensibly caused the trial court to fail to consider the full range of punishment. Cummings then contends he suffered harm because the trial court found him guilty without first giving both the State and Cummings the opportunity to recommend deferring a finding of guilt.

Article 26.13 of the Texas Code of Criminal Procedure requires the trial court to advise a defendant of the range of punishment attached to the offense, but does not specifically require the court to admonish the defendant concerning the possibility of deferred adjudication. Tex. Code CRIM. PROC. Ann. art. 26.13 (Vernon Supp.2004-2005). An admonishment concerning the possible consequences of deferred adjudication is required only “[a]f-ter placing the defendant on community supervision....” Tex.Code Crim. Proc. Ann. art. 42.12, § 5(a). Deferred adjudication is a form of community supervision, and it is not necessary for a trial court to explain all possible forms or conditions or community supervision in order to properly admonish a defendant in accordance with Article 26.13.

Here, the trial court clearly admonished Cummings as to the range of punishment, acknowledged Cummings had filed an application for community supervision, stated it would consider the application, informed Cummings that, if community supervision was granted, then the court would set the conditions, and informed Cummings of the consequences of violation of community supervision conditions. However, in this case, Cummings’ complaint is that the trial court effectively refused to consider deferred adjudication probation, as evidenced by its comments.

As can be read from the text of the trial court’s admonishments, the trial court did not discuss the ‘ possibility of deferring a finding of guilt and placing Cummings on community supervision. Even if that omission was erroneous, Cummings did not object nor raise the issue in his motion for new trial, which was overruled by operation of law seventy-five days after the trial court imposed Cummings’ sentence. See Tex.R.App. P. 21.8(a), (c).

As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) 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; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection or motion, and the complaining party objected to the refusal.

Tex.R.App. P. 33.1(a).

In Teixeira v. State, 89 S.W.3d 190, 192 (Tex.App.-Texarkana 2002, pet. ref'd), this Court explained that a trial court “denies due process and due course of law if it arbitrarily refuses to consider the entire range of punishment for an offense or refuses to consider the evidence and imposes a predetermined punishment.” (citing Granados v. State, 85 S.W.3d 217 (Tex.Crim.App.2002); Johnson v. State, 982 S.W.2d 403, 405 (Tex.Crim.App.1998)). However, in Teixeira, we also emphasized for one to preserve a complaint for appeal that the trial court failed to consider the full range of punishment, the error, if any, must be raised to the trial court. Id. In Teixeira, the appellant failed to raise the alleged error at the trial court level and thereby waived the error for purposes of appellate review. Similarly, in this case, Cummings did not object during the trial court’s admonishment colloquy with Cummings, nor did he object at the time the trial court stated, “Based upon your plea of guilty, and based upon the evidence offered in connection with that plea and beyond a reasonable doubt, I find you [Cummings] guilty of theft of property of the value of $20,000 or more but less than $100,000 as charged in the indictment.” And, again, when the trial court asked whether there was “[a]ny reason in law [why] this sentence should not now be formally pronounced,” Cummings’ counsel responded, “Not at this time, your Honor.” The objection raised on appeal was not, therefore, raised before the trial court and was thereby waived. Cf. Teixeira, 89 S.W.3d at 192; Washington v. State, 71 S.W.3d 498, 499 (Tex.App.-Tyler 2002, no pet.).

Moreover, as is clear from the plea colloquy between Cummings and the trial court, the trial court did give consideration to the possibility of granting community supervision in this case. Ultimately, though, the trial court decided that the facts of the case did not merit such leniency. After discussing the facts presented in this case, the court stated, “But I’m not granting probation under these facts and for the person that stands before this bench.” Accordingly, even had Cummings’ point of error been preserved for appellate review, the record before us refutes the contention that the trial court arbitrarily failed to consider the full range of punishment. Cf. Davis v. State, 125 S.W.3d 734, 736 (Tex.App.-Texarkana 2003, no pet.) (trial court acknowledged on record it would consider accused’s application for community supervision).

For the foregoing reasons, we affirm the trial court’s judgment.

      . The term “probation” has been replaced by the statutory term "community supervision.” Tex.Code Crim. Proc. Ann. art. 42.12, § 1 (Vernon Supp.2004-2005). During this guilty plea process, the term "probation” was used.

      . Article 42.12, Section 2(2) provides:
      "Community supervision” means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which:
      (A) criminal proceedings are deferred without an adjudication of guilt; or
      (B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.
      Tex.Code Crim. Proc. Ann. art. 42.12, § 2(2) (Vernon Supp.2004 — 2005).

      . See also Teixeira v. Texas, 540 U.S. 1188, 124 S.Ct. 1434, 158 L.Ed.2d 96 (2004) (denying Teixeira's petition for writ of certiorari in connection with the denial of relief in his state post-conviction habeas application).