No. 05-04-00878-CR
Opinion Filed April 20, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-81965-03. Affirmed.
Before Justices WRIGHT, MOSELEY and LANG.
LANG, Justice.
James Dewey Bailey appeals his conviction for Driving While Intoxicated. After pleading true to an enhancement paragraph for a prior felony conviction, Bailey was assessed punishment of twenty years confinement and a ten thousand dollar fine. In six issues, Bailey contends that (1) the evidence was legally and factually insufficient to support the conviction, and (2) he was not afforded effective assistance of counsel. For the reasons stated below, we decide Bailey's issues against him and affirm the trial court's judgment.
I. Factual Background
On or about July 2, 2003, at approximately 12:30 a.m., Bailey and City of Melissa police officer Chad Young were driving in opposite directions on State Highway 121 inside the Melissa city limits. After noticing a vehicle's non-functioning license plate light, Young turned around and began following the vehicle. He noticed the vehicle cross over onto the shoulder of the road twice and signaled the vehicle to pull over. When the vehicle came to a stop, Young approached the vehicle and found Bailey in the driver's seat. Young testified that he could smell the odor of alcohol coming from the vehicle and that Bailey admitted to having consumed "a couple" of drinks. Bailey told Young that he was going to McKinney, but later stated he was going to his home, which was in the opposite direction from which he was traveling. Bailey had trouble exiting the vehicle, his balance was shaky, and he swayed. Bailey's speech was "a little slurred" and he hesitated when answering questions. Outside the vehicle, Young could smell the odor of alcohol coming from Bailey's breath as he spoke. Young attempted to administer three field sobriety tests. Despite Bailey's inability to fully perform the Horizontal Gaze Nystagmus test, because he could not follow directions and continued to move his head, Young did observe a lack of smooth pursuit and distinct nystagmus at maximum deviation in both of Bailey's eyes. When Young attempted to administer the walk-and-turn test, Bailey walked off toward Young's patrol car before being instructed on how to perform the test. And, when attempting the one-legged-stand test, Bailey raised his foot, swayed like he was going to fall, and decided not to continue. Young placed Bailey under arrest for driving while intoxicated. A search of Bailey's vehicle revealed an open, twelve-ounce bottle of beer, cool to the touch, with about one inch of liquid remaining inside. Once inside Young's patrol car, Bailey became belligerent, cursed, and refused to sit up so that a seat belt could be put around him. After arriving at the jail, Bailey refused a blood test and would not answer any questions. Three months before trial, Bailey's trial counsel filed a pretrial motion to suppress evidence related to the videotape of the events in question and any evidence related to the administration of the field sobriety tests. After watching the videotape, the trial court sustained counsel's objections to some portions of the tape, and ordered that they be redacted prior to admitting the tape into evidence. During the punishment phase, Dr. Olivieri, who was not called during the guilt/innocence phase, testified that Bailey suffered from arthritis in his hands, but not in other parts of his body. Dr. Olivieri further testified that Bailey had a history of drug abuse and chronic alcohol abuse. II. Legal and Factual Sufficiency
In his first four points of error, Bailey challenges the legal and factual sufficiency of the evidence to support his conviction. Specifically, Bailey asserts that the evidence was legally and factually insufficient to establish that he had lost the normal use of his mental faculties due to intoxication. We disagree. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence viewed by the fact finder establishes that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). In both sufficiency reviews, the fact finder may draw reasonable inferences from the evidence before it and is the exclusive judge of the witnesses' credibility and the weight given to the testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). To establish a conviction in this case, the State had to prove that Bailey was intoxicated, i.e., that he did not have the normal use of mental or physical faculties by reason of the introduction of alcohol and/or any substance into his body, while operating a motor vehicle in a public place. See Tex. Pen. Code Ann. §§ 49.01(2)(A), 49.04(a). In the present case, the evidence established the following: (1) Young noticed the odor of alcohol coming from inside the vehicle and on Bailey's breath, (2) Bailey admitted to having consumed "a couple" of drinks, (3) Bailey was traveling in the opposite direction from his stated destination, (4) Bailey's speech was slurred and he swayed, (5) Bailey failed, or did not attempt, all three field-sobriety tests, (6) an open, twelve-ounce beer bottle, that was cold to the touch and nearly empty, was found in the vehicle, (7) Bailey became belligerent when placed in the patrol car, and (8) Bailey refused to take a blood test. Viewing all the evidence in the light most favorable to the judgment, the evidence was sufficient to establish that Bailey was intoxicated while operating the motor vehicle. See Wilson, 7 S.W.3d at 141. A neutral review of all the evidence reveals that the jury was rationally justified in finding Bailey guilty beyond a reasonable doubt. See Johnson, 23 S.W.3d at 11. As such, the evidence was legally and factually sufficient to support the jury's finding that Bailey was driving while intoxicated. Consequently, we decide Bailey's first four points against him. III. Ineffective Assistance of Counsel
In his fifth and sixth points, Bailey contends that he was denied effective assistance of counsel. Specifically, Bailey contends that his trial counsel's untimely filing of a motion to suppress and failure to call Dr. Olivieri as a witness during the guilt/innocence phase deprived him of the right to a fair trial. We disagree. To prevail on his claim, Bailey must show counsel's representation fell below an objective standard of reasonableness, and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Bailey has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). When facing a silent record as to defense counsel's strategy, the court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. See Jackson v. State, 877 S.W. 2d 768, 771 (Tex.Crim.App. 1994). Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814. Counsel's motion to suppress was filed three months prior to trial. Counsel made several objections to the videotape, and the trial court acknowledged each one, sustaining objections to some portions of the tape and ordering that the tape be redacted prior to admitting it into evidence. Bailey makes no showing that trial counsel's actions resulted in an improper ruling on the pretrial motion to suppress. Furthermore, Bailey has failed to show that counsel's failure to call Dr. Olivieri was not the exercise of sound trial strategy. Given Dr. Olivieri's testimony concerning Bailey's past drug and alcohol abuse, counsel may have made the tactical decision to not call Dr. Olivieri as a witness during the guilt/innocence phase. However, we will not speculate as to counsel's tactics. No evidence was offered by Bailey as to the strategy and methods involved concerning counsel's trial strategy. Accordingly, we will presume a sound trial strategy. We conclude Bailey has not met his burden of proving by a preponderance of the evidence that counsel was ineffective. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 813. Accordingly, we decide Bailey's fifth and sixth points against him. IV. Conclusion
Having decided against Bailey on his six points, we affirm the trial court's judgment.