GARY ALLEN THOMAS,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00522-CR
 
GARY ALLEN THOMAS,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, ROWE AND CARVER
FN:1
OPINION BY JUSTICE CARVER
JUNE 21, 1989
        Gary Allen Thomas was convicted in a non-jury trial of burglary of a building and received an enhanced sentence of twenty-five years confinement. Thomas appeals on the sole point of error that he was denied the effective assistance of counsel. We disagree and affirm.
        Thomas did not testify in either the guilt or the punishment phase of the trial. Briefly, from the State's and the defense's witnesses, the record reflects that Charles Clay complained to the police that a shed behind his apartment had been broken into and his bicycle, his tools and tool box, and his painting equipment were missing. Subsequently, Clay reported to the police that a neighbor reported to him that she had purchased the missing bicycle from Thomas. The police secured a warrant for Thomas's arrest and confronted him in the presence of the neighbor. Thomas denied taking the bicycle but offered to point out the location of other missing items to the police. Thomas directed the police to the apartment of Robert Gallegoa where they found the missing tools and tool box. Gallegoa denied taking these items and stated he got them from "Donnie," Thomas's brother. Gallegoa testified Thomas later sought to get these items back.
        Thomas concedes that his complaint burdens him to demonstrate in the record that his trial counsel's performance was professionally deficient and that the deficient performance so prejudiced his defense that he was effectively deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 686-90 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). Thomas also concedes that, in assessing the record, his counsel's performance must be judged on the totality of the representation rather than isolated acts or omissions. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Raborn v. State, 658 S.W.2d 602, 605 (Tex. Crim. App. 1983).
        In viewing the whole record, it is immediately apparent that the direction of the State's case was to rely upon Thomas's possession and sale of the missing bicycle and Thomas's knowledge of the whereabouts of other missing property as circumstances supporting guilt. The direction of Thomas's defense was to avoid testifying while developing through the State's witnesses, and others, Thomas's denial of complicity, plus explaining his seemingly guilty knowledge by developing the actual guilt of his brother, Donnie.
        Thomas particularly urges that his trial counsel failed to object when the State asked the police investigator to relate a conversation he had with Gerri Blaylock about getting the bicycle from Thomas. Thomas argues that the proper objection was that the question sought a hearsay answer, yet the record reflects Thomas was present during the conversation. Thus, the testimony was admissible. Cantwell v. State, 493 S.W.2d 242, 244 (Tex. Crim. App. 1973). There is no ineffectiveness in failing to object to admissible testimony. Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.--Houston [1st Dist.] 1986, pet ref'd). Moreover, in completing his answer about the conversation, the witness stated that Thomas interjected his immediate denial of any complicity. Under the circumstances shown and the defense strategy adopted, we cannot say that defense counsel was deficient or that Thomas was thereby denied a fair trial.
        Thomas also complains that his counsel failed to object when the same officer in the same answer describing Thomas's interjection of his denial of complicity added "but he could tell me where the remainder of the complainant's property was." Thomas argues that this statement was in the nature of a confession and should have been so tested by his counsel. We cannot agree because Thomas's ability to point out the other property was, under the defensive theory, not a confession of his own guilt but a "confession" of his brother Donnie's guilt, with Thomas's offense being limited to some subsequent possession or sale of stolen property. We fail to see any demonstration of deficient performance of defense counsel.
        We note that in the record defense counsel successfully offered a number of hearsay objections where an answer would not serve the defensive theory adopted. We find from the whole record that Thomas was not denied a fair trial through the ineffective assistance of his counsel, but, to the contrary, the record reflects a studied plan of defense and an adroit pursuit of that plan in the cross-examination of the State's witnesses and the offer of defense witnesses. The complaints now offered by Thomas might have merit isolated from the context of the trial and the defensive theory but so isolating them is contrary to Raborn and Ingham. Thomas's complaints examined in the context of the trial and the defensive theory demonstrate that his counsel's entire representation was professionally adequate, not deficient.
        Affirmed.
 
                                                  
                                                  SPENCER CARVER
                                                  JUSTICE, RETIRED
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00522.F
 
FN:1 The Honorable Spencer Carver, Justice, Retired, Court of Appeals, Fifth District of Texas, at Dallas, sitting by assignment.
File Date[01-02-89]
File Name[880522]