No. 4-05-00320-CR
Delivered and Filed: June 28, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 12, Bexar County, Texas, Trial Court No. 836388, Honorable Michael E. Mery, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
Opinion by: SARAH B. DUNCAN, Justice.
Roland Rodriguez Segura appeals the trial court's judgment convicting him of driving while intoxicated, sentencing him to three months in jail, probated for one year, and fining him $750.00. We affirm.
Factual and Procedural Background
After getting off work, Segura met some of his colleagues at a bar. Approximately three hours and four or five beers later, Segura left for home in his car. When San Antonio Police Officer Anthony Bancroft observed Segura commit several traffic infractions, Bancroft pulled Segura over. Detecting a strong odor of intoxicants coming from Segura's breath and noticing Segura's eyes were red and glassy and his speech was slurred, Bancroft asked Segura to step out of the car. Segura was slow and unsteady on his feet. Bancroft decided to administer field sobriety tests, which were recorded by a video camera mounted on Bancroft's cruiser. After administering the tests, Bancroft believed Segura had exhibited enough clues to conclude Segura was intoxicated. Because Bancroft had received permission to end his shift early, Officer Guidry was dispatched to assist Bancroft. Thus, Bancroft had Officer Guidry arrest Segura. While Segura was in custody, he was read the statutory warnings regarding the consequences of giving a breath test specimen and refused to take the breath test. Segura was ultimately charged with driving while intoxicated, found guilty by a jury, and convicted and sentenced by the trial court. He now appeals. Discussion
1. Segura first argues that the court's instruction to the jury that it "may consider the defendant's breath test refusal as evidence in this case" constitutes an improper comment on the weight of the evidence because the instruction highlights a single piece of evidence from which the jury could infer guilt. We disagree. Article 36.14 of the Code of Criminal Procedure governs the charge to the jury. It requires the trial court to submit a charge that sets forth the law applicable to the case without "expressing any opinion as to the weight of the evidence. . . ." Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2005). "A charge that assumes the truth of a controverted issue is a comment on the weight of the evidence and is erroneous." Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App. 1986). In this case, the court's instruction is a correct statement of the law. See Tex. Transp. Code Ann. § 724.061 (Vernon 1999) (permitting the introduction of an accused's refusal to take a breath test into evidence at trial); Smith v. State, 8 S.W.3d 450, 451 (Tex.App.-Waco 1999, no pet.) (recognizing that a jury may consider an accused's refusal to take a breath test as evidence of guilt). But more importantly, as given, the instruction was neutral, neither favoring nor prejudicing a particular party. Although the instruction directs the jury's attention to Segura's refusal to submit to a breath test, the instruction does not direct the jury to draw any particular inference from this fact; nor does it tell the jury how Segura's refusal related to the ultimate issue of intoxication. Indeed, both the State and Segura litigated Segura's reasons for refusing to take the breath test. The State argued Segura refused because he knew he was intoxicated, while Segura argued he refused because he had been told the test was unreliable. The jury was thus free to draw whatever inference it wanted. By not requiring any particular inference to be drawn, the instruction does not assume the truth of the controverted issue — Segura's intoxication — and is therefore not a comment on the weight of the evidence. See Whaley, 717 S.W.2d at 33. 2. Segura next argues his trial counsel was ineffective in failing to object to the instruction on his refusal to take a breath test; Bancroft's testimony regarding Segura's performance on the field sobriety tests since Bancroft was testifying from the checklist completed by Officer Guidry; and the introduction into evidence of the written statutory warnings regarding Segura's refusal to provide a breath specimen because it was Guidry, not Bancroft, who signed the document. We again disagree. To prevail on his claim of ineffective assistance of counsel, Segura must demonstrate by a preponderance of the evidence that his trial counsel's performance was deficient and, but for this deficient performance, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674 (1984). Assertions of ineffectiveness must be firmly founded in the record, which must affirmatively demonstrate the alleged ineffectiveness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). When there is no record or when the record is silent on counsel's reasoning or strategy, we must generally presume that trial counsel had a plausible reason for his actions; we will not indulge in speculation to find trial counsel ineffective. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). We adhere to this presumption because trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Goodspeed, 187 S.W.3d at 392. "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. (citations omitted). In this case, Segura did not litigate his ineffectiveness claim in the trial court. Instead, he relies solely upon the reporter's record of the trial. But this record contains no direct evidence establishing Segura's trial counsel's reasoning. And, from our review of this record, we cannot conclude that trial counsel's conduct was so outrageous that no competent attorney would have engaged in it. a. Failure to object to the jury instruction concerning Segura's breath test refusal — Segura first asserts that "[a]ny reasonable attorney would recognize that this instruction" "was clearly erroneous and should have been objected to. . . ." since it "impermissibly commented on the weight of the evidence to [his] detriment." However, as we held above, the instruction was neither erroneous nor a comment on the weight of the evidence. b. Failure to object to Officer Bancroft's testimony concerning Segura's performance on the field sobriety tests — Segura next argues his trial counsel was ineffective in failing to object to Bancroft's testimony concerning Segura's performance on the field sobriety tests as hearsay because Bancroft was relying upon the field sobriety checklist Guidry completed. However, even if this portion of Bancroft's testimony constitutes hearsay, trial counsel's failure to object was not "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392. Since the jury saw for themselves Segura's videotaped performance before Bancroft testified to it, Bancroft's trial counsel may have been concerned that an objection would be seen by the jury as unduly argumentative, thus adversely affecting the jury's impression of Segura. Moreover, if Segura's trial counsel had forced the State to call Officer Guidry to the stand, the result might well have been two police officers instead of one expressing their opinion that Segura was intoxicated. We recognize "[t]hese proposed reasons are speculative, but as discussed above, that is the problem with trying to evaluate an ineffective assistance claim in which defense counsel has not been given an opportunity to respond, and why such claims are usually rejected." Goodspeed, 187 S.W.3d at 394. c. Failure to object to the admission into evidence of the written statutory warnings regarding Segura's refusal to provide a breath specimen — Finally, Segura argues that had his trial counsel not stipulated to the admissibility of the document containing the statutory warnings, the State would not have been able to introduce it into evidence since it had not laid the proper predicate and the jury would never have seen "a document that essentially was an indirect admission of guilt." However, the jury was informed about Segura's refusal to provide a breath specimen by Officer Bancroft's testimony that Segura refused to take the breath test, and indeed by Segura's later testimony. Because trial counsel was not given an opportunity to explain himself and the record brought on direct appeal does not affirmatively demonstrate counsel's performance was deficient, we conclude that Segura has not met his burden of proving his trial counsel was ineffective. The trial court's judgment is affirmed.