Opinion
04-21-00345-CR
09-28-2022
EX PARTE Vanessa Marie VILLANUEVA
Do Not Publish
From the 216th Judicial District Court, Kerr County, Texas Trial Court No. A1523-1 Honorable Albert D. Pattillo, III, Judge Presiding.
Sitting: Luz Elena D. Chapa, Justice, Beth Watkins, Justice Lori I. Valenzuela, Justice.
MEMORANDUM OPINION
Luz Elena D. Chapa, Justice.
Appellant Vanessa Marie Villanueva appeals the trial court's order denying her post-conviction application for writ of habeas corpus. On appeal, she contends the State engaged in spoliation of evidence and violated her due process rights, the trial court failed to give proper weight to certain evidence, and she received ineffective assistance of counsel. We affirm the trial court's order.
Background
Villanueva crashed her minivan into a fence one night after leaving a bar. When Kerr County Sheriff's Deputy Amin Malek arrived, he found Villanueva sitting on the ground next to her vehicle parked in the middle of the road. Villanueva told Deputy Malek she had been driving home from a bar after having two "healthy" vodka tonic drinks. Texas Department of Public Safety Trooper John Moorman then arrived and performed a driving while intoxicated (DWI) investigation. He smelled alcohol on Villanueva's breath and noticed she had slurred speech. When asked whether she had been drinking, Villanueva told the trooper she had two "stiff" vodka tonics before driving and denied taking any prescription medication. Trooper Moorman performed the standard field sobriety tests, determined Villanueva was intoxicated, and arrested her for DWI. Villanueva's blood sample was sent to the state crime laboratory, and testing revealed her blood alcohol concentration to be 0.366.
Villanueva pled guilty to DWI, third or more, and the trial court placed her on community supervision for ten years and assessed a $500 fine against her. Villanueva filed an application for post-conviction writ of habeas corpus, arguing she received ineffective assistance from her two trial attorneys. According to Villanueva, both of her trial attorneys had failed to properly investigate her case and one of her attorneys had been addicted to methamphetamines during her trial. Villanueva amended her application multiple times, explaining how her 1991 DWI conviction should not have been used to enhance her current DWI conviction to a third-degree felony and arguing she was not voluntarily intoxicated because her drink had been "spiked."
During the hearing on Villanueva's second amended application, the trial court admitted the following items into evidence: (1) an affidavit by one of Villanueva's former trial counsel, who attested she properly investigated the case; (2) copies of news stories and the Texas State Bar website showing Villanueva's other trial counsel had been arrested for drug charges and disbarred; (3) a transcript of Villanueva's plea hearing; (4) certified copies of Villanueva's 1991 DWI conviction; (5) videos of Villanueva's arrest; and (6) photos of the label of Villanueva's blood pressure medication. The trial court also heard testimony from Villanueva's expert Dr. Ronald Tisdell, who testified about Villanueva's blood-alcohol concentration levels and the effects of her blood pressure medication. The trial court took the case under advisement, and Villanueva filed a third amended application. The trial court denied it, and Villanueva now appeals.
Analysis
Standard of Review
Article 11.072 of the Texas Code of Criminal Procedure allows a defendant who is seeking relief from a judgment of conviction ordering community supervision to file an application for post-conviction writ of habeas corpus. Tex. Code Crim. Proc. art 11.072, § 1; Ex parte Baldez, 510 S.W.3d 492, 494-95 (Tex. App.-San Antonio 2014, no pet.). The applicant bears the burden to demonstrate her entitlement to relief by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).
We review a trial court's decision to deny the relief requested for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Baldez, 510 S.W.3d at 495. Under this standard, we review the facts in the light most favorable to the trial court's ruling and afford almost total deference to the trial court's fact findings, particularly when those fact findings are based on the evaluation of a witness's credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006); Baldez, 510 S.W.3d at 495. "However, if the resolution of those ultimate questions turns on an application of legal standards absent any credibility issue, we review the determination de novo." State v. Webb, 244 S.W.3d 543, 547 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
Spoliation and Due Process Violation
Villanueva first argues the State engaged in spoliation of evidence and violated her due process rights under the Fourteenth Amendment. According to Villanueva, the state crime laboratory destroyed the blood sample taken at the time of her arrest. Villanueva argues this destruction of evidence violated article 38.43(c)(2)(C) of the Texas Code of Criminal Procedure, which she argues required the State to retain and preserve the blood sample until she completed the terms of her community supervision.
In response, the State argues Villanueva failed to preserve her due process spoliation argument because she did not raise it in her application or at the writ hearing. The State further argues even assuming Villanueva properly preserved the argument, she failed to show how the blood sample's exculpatory value was apparent before it was destroyed.
We begin our analysis with the State's waiver contention. To preserve a complaint for appellate review, the record must show the complaint was made to the trial court by either a timely request, objection, or motion. Tex.R.App.P. 33.1. Specifically, "[i]n reviewing an order denying habeas relief, an intermediate court of appeals only reviews issues that were properly raised in the habeas petition and addressed by the trial court." Ex parte Perez, 536 S.W.3d 877, 880 (Tex. App.-Houston [1st Dist.] 2017, no pet.).
Here, a review of Villanueva's initial application shows Villanueva did not argue the destruction of her blood sample violated her due process rights. Instead, the record shows in an amended application, Villanueva responded to the State's argument it had been prejudiced by the destruction of the blood sample by arguing the destruction harmed her-not the State.
Assuming without deciding Villanueva's response raised a due process violation, this court has recognized in some instances, the State "has a duty to preserve evidence in its possession and the violation of this duty may rise to the level of a due process violation under the Fourteenth Amendment." Zapata v. State, 449 S.W.3d 220, 228 (Tex. App.-San Antonio 2014, no pet.). "If the State fails to preserve material, exculpatory evidence, then the State has committed a due process violation." Id. at 228-29. "However, if the State merely fails to preserve 'potentially useful evidence,' the defendant must show the State did so in bad-faith in order to show a violation of due process." Id. at 229.
Villanueva does not argue the State destroyed her blood sample in bad faith; instead, Villanueva contends her blood sample was material because it possessed information that could not be obtained by any other means. To be considered material, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. (emphasis added). Here, Villanueva's blood sample is not exculpatory; instead, it is incriminating. And, even if it possessed exculpatory value, Villanueva has not shown the State knew the blood sample analysis would be an issue in a future writ proceeding before it was destroyed. See id. (reasoning appellant failed to show State was aware information on recordings would be an issue before recordings were destroyed). Moreover, the record shows in her plea agreement, Villanueva waived her right to the preservation of her blood sample. Accordingly, we conclude Villanueva's due process rights were not violated by the State's destruction of the blood sample, and we overrule Villanueva's first argument.
Weight Given to Expert Testimony
Villanueva next asserts the trial court erred "in discounting [the] weight of expert witness scientific evidence." According to Villanueva, when Dr. Tisdell testified he believed Villanueva was not intoxicated at the time of the offense, the trial court failed to give his testimony "the critical weight" it mandates, particularly in light of the destruction of her blood sample. The State, however, argues the trial court was free to disbelieve Dr. Tisdell and find him not credible.
During the writ hearing, Dr. Tisdell testified he had reviewed the videos of Villanueva's arrest, Villanueva's blood alcohol testing file, and Villanueva's blood pressure medication. Dr. Tisdell opined Villanueva was not stumbling in the videos or slurring her speech. He further opined a person "with a blood alcohol level between .35 and .5 would be in a comatose state," and it was his opinion Villanueva's blood alcohol level "was somewhat less than .336." Dr. Tisdell testified when considering Villanueva's stature, weight, and size, he believed Villanueva's blood alcohol level "would have been .0256 percent" if Villanueva would have consumed two strong drinks on an empty stomach. He also explained Villanueva's blood pressure medication could have caused Villanueva's blood pressure to drop "so sometimes some people will fall or pass out." When asked whether he believed Villanueva was intoxicated, he specifically stated, "It's my opinion that she was not intoxicated."
On cross examination, Dr. Tisdell confirmed he was not present when Trooper Moorman questioned Villanueva, and he did not dispute the video evidence showing Villanueva admitted she had been drinking too much. Dr. Tisdell further acknowledged he did not know whether Villanueva had taken her blood pressure medication that night and he had no reason to believe Villanueva's blood sample was mishandled or the testing was inaccurate. Dr. Tisdell also testified his opinion did not take into account potential factors that could have impacted Villanueva's absorption rate.
Here, the trial court expressly did not find Dr. Tisdell's explanation credible given all the other evidence presented. As the factfinder, the trial court was free to evaluate the credibility of Dr. Tisdell's testimony and determine how much weight to give it. See Amezquita, 223 S.W.3d at 367 (explaining standard of review requires appellate courts to give almost total deference to trial court's evaluation of witness's credibility). And, contrary to Villanueva's assertion, we may not reassess the weight given to evidence and must defer to the trial court's credibility and weight determinations. See id. Accordingly, we conclude the trial court did not err in how much weight it gave Dr. Tisdell's testimony, and we overrule Villanueva's assertion.
Weight Given to Video Evidence
Villanueva also challenges the weight the trial court gave the video depicting her encounter with Deputy Malek. Specifically, Villanueva argues the trial court should have concluded her actions depicted in the video were caused by her blood pressure medication, as explained by Dr. Tisdell. In response, the State contends the trial court was the factfinder and free to conclude Villanueva was intoxicated based on the video.
A review of the video shows Deputy Malek was the first officer to find Villanueva sitting on the ground, and her vehicle was parked sideways in the middle of the road blocking another vehicle. Villanueva admitted she was driving, had trouble standing up, and told the deputy her leg hurt, and she could not see very well. When asked whether she had been drinking, Villanueva told the deputy she had two "healthy" vodka tonic drinks before driving home.
Although Villanueva contends her actions depicted in the video can be explained by the effects of her blood pressure medication, we again must afford almost total deference to the trial court's weight and credibility determinations regarding the video. See id. The contents of the video support the trial court's conclusion Villanueva was driving while intoxicated. See Diamond v. State, 613 S.W.3d 536, 544 (Tex. Crim. App. 2020) ("An appellate court affords almost total deference to a habeas court's factual findings when they are supported by the record, especially when those findings are based on credibility and demeanor."). Accordingly, we conclude the trial court did not abuse its discretion, and we overrule Villanueva's challenge to the video evidence.
Ineffective Assistance of Counsel
Finally, Villanueva argues her trial attorneys gave her ineffective assistance. She argues they failed to investigate the "medical reasons that would explain [her] BAC level," "whether there was potential error in laboratory processing," and did not interview other witnesses at the bar. She further argues no reasonable trial strategy would justify their conduct and explain why they advised her to plead guilty. The State counters, arguing Villanueva failed to meet her burden to prove she received ineffective assistance.
"To establish ineffective assistance, an appellant must prove by a preponderance of the evidence both that h[er] counsel's representation was deficient and that the deficiency prejudiced h[er] case." Ex parte Salim, 595 S.W.3d 844, 855-56 (Tex. App.-Fort Worth 2020, no pet.); see Ex parte Martinez, 330 S.W.3d 891, 900-01 (Tex. Crim. App. 2011). "To demonstrate [she] is entitled to habeas relief based on [her] claim [her] guilty plea resulted from ineffective assistance of counsel, [Villanueva] must show that (1) Trial Counsel's performance was deficient, in that it fell below an objective standard of reasonableness; and (2) 'there is a reasonable probability that, but for [Trial C]ounsel's errors, [s]he would not have ple[d] guilty and would have insisted on going to trial.'" Salim, 595 S.W.3d at 856 (quoting Ex parte Torres, 483 S.W.3d 35, 47 (Tex. Crim. App. 2016)).
Here, the State produced an affidavit from one of Villanueva's trial attorneys, and it was the only evidence before the trial court containing an explanation regarding trial counsel's strategy. In the affidavit, the attorney attested Villanueva told her she went to a bar, where she began drinking while waiting for a takeout order. Villanueva told her she drank two double vodka tonics, did not eat her meal at the bar, and believed someone drugged her drink. The attorney further stated she extensively investigated Villanueva's version of events, and she did not believe it would be reasonable for a jury to infer only drugs caused Villanueva to crash her vehicle because her blood alcohol content level was so high. Based on this evidence, the trial court made express findings stating Villanueva did not produce any evidence explaining her trial attorneys' "reasoning, motivation, the extent of [their] investigation, or [their] trial strategy."
After reviewing the record, we agree with the trial court and conclude Villanueva did not produce any evidence showing her attorneys' performance was deficient or their performance prejudiced her because she would have gone to trial instead of pleading guilty. And to the extent Villanueva argues the admitted affidavit should have included more information regarding the investigation process, we remain mindful the burden was on Villanueva to establish trial counsel's ineffective assistance; the burden was not on trial counsel to prove her performance was sufficient. See Ex parte Saylee, No. 03-18-00124-CR, 2019 WL 1413043, at *5 (Tex. App.-Austin Mar. 29, 2019, no pet.) (mem. op., not designated for publication) (explaining burden was on appellant to show trial counsel's ineffective assistance and trial counsel was not required to prove his effectiveness by explaining what defenses he discussed with appellant). Accordingly, we overrule Villanueva's argument.
Conclusion
We affirm the trial court's order denying Villanueva's post-conviction application for writ of habeas corpus.
To the extent Villanueva asks us to reconsider the trial court's denial of her motion for early termination, we decline to do so because we do not have jurisdiction. See Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977) (providing there is no constitutional or statutory authority conferring court with jurisdiction to entertain direct appeal from order refusing to alter community supervision); Galaz v. State, No. 06-15-00229-CR, 2016 WL 824753, at *1 (Tex. App.-Texarkana Mar. 2, 2016, no pet.) (mem. op. not designated for publication) (dismissing appeal from an order denying motion for early termination of deferred adjudication for lack of jurisdiction).