No. 08-05-00315-CR
February 15, 2007. DO NOT PUBLISH
Appeal from County Court at Law No. 2 of El Paso County, Texas (TC # 20020C17414).
Before CHEW, C.J., McCLURE, and CARR, JJ.
ANN CRAWFORD McCLURE, Justice.
Julian Martinez appeals from an order denying his application for writ of habeas corpus. We affirm.
FACTUAL SUMMARY
On March 10, 2003, a jury convicted Appellant of driving while intoxicated. The court assessed his punishment at a fine of $1,000 and confinement for 180 days, probated for eighteen months. This court affirmed his conviction on April 7, 2005. Martinez v. State, No. 08-03-00240-CR, 2005 WL 787075 (Tex.App.-El Paso April 7, 2005, no pet.) (not designated for publication). Following the issuance of our mandate, Appellant filed an application for writ of habeas corpus based on ineffective assistance of counsel. The trial court conducted a hearing on the application and on August 31, 2005 denied the requested relief. The court then imposed the punishment previously assessed. INEFFECTIVE ASSISTANCE
In his sole issue on appeal, Appellant contends that the trial court erred by denying habeas corpus relief on his allegation of ineffective assistance of trial counsel. To prevail on a writ of habeas corpus, the proponent must prove his allegations by a preponderance of the evidence. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex.Crim.App. 1995). In reviewing a trial court's decision to grant or deny relief on a writ of habeas corpus, we should review the facts in the light most favorable to the trial court's ruling and should uphold it absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003). Reviewing courts should afford almost total deference to a trial judge's determination of the historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d at 819 n. 67. When dealing with mixed questions of law and fact, the reviewing court should give the same level of deference if the resolution of those questions turn on an evaluation of credibility and demeanor and review de novo those mixed questions of law and fact that do not depend upon credibility and demeanor. Id. at 819. Unless reviewing courts are unable to determine from the record what the trial court's implicit factual findings are, they should grant deference to implicit factual findings that support the trial court's ruling. Id. The reviewing court should affirm as long as the decision is correct on any theory of law applicable to the case. Ex parte Primrose, 950 S.W.2d 775, 778 (Tex.App.-Fort Worth 1997, pet. ref'd). The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel's performance was deficient to the extent that counsel failed to function as the "counsel" guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Under the second prong, the defendant must establish that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771. Failure to make the required showing of deficient performance defeats the ineffectiveness claim. Jackson, 877 S.W.2d at 771. When we review a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance, and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W .2d at 771. In any case analyzing the effective assistance of counsel, we begin with the strong presumption that counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We presume that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. Jackson, 877 S.W.2d at 771; Kegler v. State, 16 S.W.3d 908, 911 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The defendant must rebut the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W.2d at 771. If the record is silent as to the facts, circumstances, and rationale behind an attorney's particular course of action, we are compelled to find that the defendant did not rebut the presumption that it was a reasonable course of action. See Thompson, 9 S.W.3d at 814. On direct appeal, Appellant argued that the trial court erred by failing to provide an Article 38.23 instruction with respect to his refusal to take the breathalyzer test. He requested that the court instruct the jury to disregard all testimony related to the breath test if the jury found that Appellant had not been given the statutory warning. We held that Appellant waived his complaint because he had failed to present any evidence that there was a causal connection between the absence of the warnings and Appellant's refusal to take the breath test. See Martinez, 2005 WL 787075 at *3. We therefore did not address the merits of Appellant's complaint. Applying the Strickland standard, Appellant was first required to establish by a preponderance of the evidence that his trial attorney's failure to present evidence sufficient to warrant the requested Article 38.23 instruction is so egregious an error that counsel failed to function as the "counsel" guaranteed by the Sixth Amendment. Second, Appellant must establish that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Under the second prong of the standard, he must make two showings: (1) if the jury had been given the instruction there is reasonable probability it would have disregarded the evidence showing Appellant refused to take the breath test; and (2) there is a reasonable probability the jury would have found him not guilty in the absence of this evidence. At the writ hearing, Appellant's trial attorney, James Lucas, testified that he committed an error by failing to ask Appellant if his refusal to take the breath test would have been different if the officer had given him the statutory warnings. Lucas expressed his opinion that, had he preserved error, the trial court would have erred if it refused to submit the requested charge to the jury. He also believed that if the jury had been given the instruction it "may have viewed the evidence in its totality completely differently." Appellant testified at the writ hearing that if he had been given the statutory warnings, he would have taken the breath test. Appellant bases his claim of ineffective assistance of counsel on this single allegation of error by trial counsel. The Strickland standard has never been interpreted to mean that the accused is entitled to errorless or perfect counsel. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). Generally, isolated instances in the record reflecting errors of commission or omission do not cause counsel to become ineffective, nor can ineffective assistance of counsel be established by isolating or separating out one portion of the trial counsel's performance for examination. Id. An applicant must show omissions or other mistakes made by counsel that amount to professional errors of a magnitude sufficient to raise a reasonable probability that the outcome of the trial would have been different but for the errors. Id. While isolated errors rarely rise to the level of ineffective assistance, it is possible that a single egregious error of omission or commission by counsel constitutes ineffective assistance. Thompson, 9 S.W.3d at 813; see e.g., Jackson v. State, 766 S.W.2d 504, 508 (Tex.Crim.App. 1985) (failure of trial counsel to advise appellant that judge should assess punishment amounted to ineffective assistance of counsel), modified on other grounds by Texas v. Jackson, 475 U.S. 1114, 106 S.Ct. 1627, 90 L.Ed.2d 175 (1986); Ex parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App. 1991) (failure to challenge a void prior conviction used to enhance punishment rendered counsel ineffective); May v. State, 660 S.W.2d 888, 889 (Tex.App.-Austin 1983), aff'd, 722 S.W.2d 699 (Tex.Crim.App. 1984) (holding that isolated instance of error by counsel is insufficient to establish ineffective assistance of counsel, but where neglect of counsel totally precluded jury from considering probation, reversal of conviction and new trial were required). We do not have the benefit of the court reporter's record of the trial. While the trial court took judicial notice of the court's file, including our opinion and judgment, there is nothing to indicate that the file contained the court reporter's transcript. Accordingly, we will rely on the factual summary stated in our opinion. The arresting officer, Alejandro Guerra, testified that he gave Appellant the statutory warnings both orally and in writing. Martinez, 2005 WL 787075 at *1. The officer signed the form and indicated that Appellant refused to take the breath test. Id. On the other hand, Appellant did not affirmatively state that Guerra did not give him the statutory warning but testified only that he did not remember being advised regarding the consequences of refusing to the take the breath test. Id. at *2. Even if the requested instruction had been given by the trial court, the jury was free to believe the officer's testimony and reject Appellant's testimony. While it is possible the jury might have believed Appellant, we are unable to conclude that there is a reasonable probability the jury would have resolved the issue in Appellant's favor. Even if Appellant had established that there is a reasonable probability the jury would have resolved the Article 38.23 issue in this favor and disregarded the breath test refusal evidence, he still has not established prejudice under Strickland by showing a reasonable probability that the outcome of the trial would have been different. Evidence that a defendant refused to take the breath test when requested may be considered by the jury as evidence of intoxication. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). In this case, the jury's finding of guilt is supported by evidence of intoxication even without the evidence of the breath test refusal. Officer Guerra observed Appellant make an improper left turn at an intersection by turning left from the right hand lane, cutting across two lanes of traffic in order to make the turn. Martinez, 2005 WL 787075 at *1. As Guerra followed Appellant, he saw him straddling two lanes. Id. After Guerrra approached Appellant's vehicle, he could smell a strong odor of alcohol and Appellant had red, bloodshot, and glassy eyes. Id. Appellant's speech was slurred and he staggered as he walked. Id. His performance on the field sobriety tests also indicated that he was intoxicated as he exhibited sixteen out of eighteen clues Guerra is trained to observe. Id. Appellant has therefore failed to establish that there is a reasonable probability that the outcome of the trial would have been different but for counsel's error. We overrule the sole issue presented on appeal and affirm the order of the trial court denying habeas corpus relief.