Opinion
No. 05-04-00981-CR
Opinion Filed April 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law #3, Collin County, Texas, Trial Court Cause No. 003-82799-03.
Affirm.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
OPINION
Appellant appeals his conviction for driving while intoxicated (DWI). In two points of error, appellant contends (1) he received ineffective assistance of counsel, and (2) the evidence is factually insufficient to support his conviction. For the following reasons, we affirm the trial court's judgment. On May 13, 2003, Officer George Johnson pulled appellant over for speeding. When Johnson approached appellant's vehicle, he noticed an odor of alcohol. Appellant's eyes were "very red," his speech was slow, and he slurred a couple times. There was a large bottle of beer in a paper bag on appellant's front passenger seat. The officer asked appellant if he had been drinking and appellant admitted that he had had "some beers." The officer asked appellant to perform field sobriety tests — the HGN, the walk-and-turn, and the one-leg-stand. With respect to the HGN test, appellant exhibited six of six clues. A finding of four clues on the HGN test is indicative of intoxication. With respect to the walk-and-turn test, appellant exhibited three of eight clues — a finding of two clues on that test is indicative of intoxication. However, appellant only exhibited one of four clues on the one-leg-stand, which is not suggestive of intoxication. Because Johnson believed appellant was intoxicated, he arrested him for DWI and searched his vehicle. Inside the vehicle, the officer found a flask containing a couple of drops of what smelled like bourbon. The officer also found a paper cup on the passenger seat containing a small amount of beer. After appellant was transported to jail, appellant refused a breath test. A videotape was taken of appellant at the scene of his arrest and at the jail. Appellant does not appear particularly intoxicated on either tape. Appellant called his wife to testify in his defense. She testified that she spoke to appellant shortly before his arrest and that, in her opinion, appellant was sober. She also testified she observed the videotapes of appellant taken that night and she believed they showed appellant was not intoxicated. She admitted appellant had a flask in his truck. However, as far as she knew, the flask had never contained any alcohol. She claimed it had been in the vehicle since it was given to appellant at a wedding a couple of years earlier. After hearing the evidence, the jury found appellant guilty of DWI. We will first address appellant's second point of error attacking the factual sufficiency of the evidence to support his conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). We must, however, be appropriately deferential to the jury's findings so as to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. The jury found appellant was intoxicated in that he did not have the "normal use of his mental or physical faculties by reason of the introduction of alcohol into the body." According to appellant, the evidence is factually insufficient to support this finding. We disagree. Evidence was presented that after appellant was stopped, Officer Johnson noticed a smell of alcohol from appellant's vehicle. Appellant's eyes were "very red" and he slurred his speech. There was a large bottle of beer on the passenger seat and a flask that had contained bourbon in the center console. Appellant admitted that he had had been drinking. Moreover, appellant failed two of three field sobriety tests. In Johnson's opinion, appellant was intoxicated. To show he was not intoxicated, appellant relies on tapes taken of his arrest and in the intoxilyzer room which fail to show signs of intoxication and on his wife's testimony that she spoke to appellant on the phone shortly before his arrest and he did not sound intoxicated. After reviewing all the evidence in a neutral light, we cannot conclude (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. We overrule appellant's second point of error. In his first point of error, appellant contends he received ineffective assistance of counsel. Appellant filed a motion for new trial alleging ineffective assistance of counsel. The trial court held a hearing on appellant's motion, in which appellant's trial attorney, an HGN expert, and another attorney testified in support of the motion. After the hearing, the trial court allowed the motion to be overruled by operation of law. We review the denial of a motion for new trial for an abuse of discretion. Charles v. State, 146 S.W.2d 204, 208 (Tex.Crim.App. 2004); Melton v. State, 987 S.W.2d 72, 75 (Tex.App.-Dallas 1998, no pet.); Brewer v. State, 126 S.W.3d 295, 305 (Tex.App.-Beaumont 2004, pet. ref'd). An abuse of discretion occurs when the trial court's decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Melton, 987 S.W.2d at 75. At a hearing on a motion for new trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate on appeal that: (1) his lawyer's performance was deficient, i.e. that the lawyer made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) the errors of counsel were so serious that there exists a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. See id. at 694; Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App. 1986). An appellant must show his counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. We review the totality of the representation rather than isolated acts and omissions. See Scheanette v. State, 144 S.W.3d 503, 509 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 872 (2005). Moreover, a defendant does not have the right to errorless or perfect counsel. Castaneda v. State, 135 S.W.3d 719, 721 (Tex.App.-Dallas 2003, no pet.). Nor do we judge counsel's trial decisions by hindsight. Duckworth v. State, 89 S.W.3d 747, 751 (Tex.App.-Dallas 2002, no pet.). The fact that another attorney might have pursued a different course of action at trial will not support a finding of ineffectiveness. Nethery v. State, 29 S.W.3d 178, 188 (Tex.App.-Dallas 2000, pet. ref'd). Appellant first asserts his trial counsel was ineffective for opening the door to Officer Johnson's testimony that correlated a failure of the HGN test to a specific blood alcohol concentration (BAC). On direct, Officer Johnson testified that, in his opinion, the HGN test was the most reliable of the field sobriety tests. On cross-examination, appellant's trial counsel asked Johnson, "Are you trying to say that you can tell what someone's breath-test score would be by giving them the eye test? You're not saying that, are you?" The officer responded, "Yes." Trial counsel then asked who had taught him that. The officer responded it was a study done in 1998 through the National Highway Traffic Safety Administration (NHTSA) which showed that if a person had six clues on the HGN test there was an "88 percent accuracy" that the person's BAC was over .08. At the motion for new trial hearing, trial counsel denied he had any tactical reason for asking Johnson who told him about the correlation. However, he admitted he was hoping to obtain an answer that would discredit the source of Johnson's information. The prosecutor subsequently asked Johnson some follow-up questions about the NHTSA study. Appellant asserts he received ineffective assistance of counsel because trial counsel asked a question to which he did not know the answer, thereby presenting evidence of a correlation between the HGN test and a specific BAC in violation of Emerson v. State, 880 S.W.2d 759, 769 (Tex.Crim.App. 1994). However, the trial court could have concluded appellant merely showed trial counsel took a risk that backfired and that such did not establish ineffective assistance. This is true even though counsel, with the benefit of hindsight, opined it had been a mistake to ask the question. Appellant also asserts trial counsel should have objected to the prosecutor's questions about the study that were asked after trial counsel opened the door. However, appellant has not directed us to any authority to show counsel had grounds for objecting to these questions. Thus, we cannot conclude counsel was ineffective for failing to do so. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996). Moreover, appellant's primary complaint about admission of the NHTSA study was that it purported to correlate a specific BAC to failure of the test. However, the charge only permitted the jury to find appellant guilty if appellant was intoxicated because he lost the normal use of his mental or physical faculties, not based on any particular BAC. It is proper to consider HGN evidence as evidence of intoxication. See Lorenz v. State, 2004 WL 2749490 (Tex.App.-Houston 2004, pet. filed). It is only improper to attempt to use such evidence to show a particular BAC. Under these circumstances, the trial court could have determined there is no reasonable probability the result of the proceeding would have been different had counsel objected to the correlation evidence. Appellant next complains that his trial counsel was ineffective for failing to object to evidence that he refused to tell the officer why he was refusing a breath test. On the videotape taken at the jail, Officer Johnson asked appellant to provide a breath specimen. Appellant refused. Johnson asked appellant why he was refusing. Appellant refused to answer. According to appellant, trial counsel should have objected to appellant's refusal to answer. Evidence that a defendant has refused a breath test is admissible against the defendant. See Tex. Transp. Code Ann. § 724.061 (Vernon Supp. 2004-05); Griffiths v. State, 55 S.W.3d 598, 601 (Tex.Crim.App. 2001). However, his reasons for doing so are not. See Griffiths, 55 S.W.3d at 601. At the motion for new trial hearing, trial counsel testified he had no "sound trial strategy" for his failure to object to appellant's refusal to tell the officer why he did not want to take a breath test. However, even if we could conclude "no reasonable trial counsel" would have failed to object to the question, we cannot agree the jury would have placed much weight on appellant's refusal to give his reasons for not taking the test in light of the fact the refusal itself is proper evidence of guilt. Consequently, the trial court could have concluded there is no reasonable probability the result of the proceeding would have been different had trial counsel objected. Appellant also complains his trial counsel was ineffective for failing to make a bill of exception "with those questions" he would have asked if he had played the videotapes taken at the scene of appellant's arrest and at the jail during the cross-examination of Officer Johnson. Trial counsel did not play the tape of appellant's arrest at the time he cross-examined Officer Johnson about the arrest. At the motion for new trial hearing, trial counsel admitted that he knew the trial judge had a practice of not permitting such tapes be played in open court — instead, having the jury play the tapes in the jury room. Appellant nevertheless asserts that, in this case, trial counsel was ineffective for failing to make a request or a bill showing how he would have cross-examined Johnson if he had he done so with the benefit of the videotape. However, appellant has cited this Court to no authority to show that he would have prevailed had he made such a bill. Therefore, appellant has not shown ineffective assistance for the complained-of omission. Vaughn, 931 S.W.2d at 566. Appellant next asserts trial counsel was ineffective for failing to suppress the results of appellant's HGN and walk-and-turn tests. According to appellant, the results of these tests should have been suppressed because an expert he retained after the guilty verdict, Dr. Joseph Citron, testified those tests were not properly performed. Dr. Citron is a national HGN expert, ophthalmologist, and lawyer licensed in Georgia. According to appellant, his trial counsel was ineffective for failing to call Citron for trial. We disagree. Initially, we note there is nothing to show that appellant would have been willing to retain Citron at the time of trial. Indeed, appellant sought to have Citron, who was in Georgia, testify at the motion for new trial hearing by affidavit because his "appearance in person would be cost prohibitive." Appellant ultimately did call Citron at the motion for new trial hearing. The trial court could have nevertheless determined appellant failed to show he would have been willing to pay for Citron at the time of trial. Moreover, a defendant is not entitled to errorless counsel or a perfect defense. The State established at the motion for new trial hearing that HGN defense experts are not normally called at DWI trials. The trial court could have determined appellant did not show no reasonable trial counsel could have failed to call Dr. Citron. Finally, even if trial counsel committed some errors, the trial court could have determined, based upon the totality of counsels representation, that appellant failed to establish trial counsel committed errors "so serious" that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Appellant's trial counsel was a criminal defense attorney in which a substantial portion of his practice is devoted to DWIs. Trial counsel vigorously and extensively cross-examined the arresting officer and made numerous objections. Trial counsel established that, other than speeding, appellant's driving was regular, appellant was polite and courteous, and that many circumstances suggested appellant was not intoxicated. Trial counsel further established many things could cause a person who was not intoxicated to fail the HGN test. Finally, trial counsel called appellant's wife to testify that, in her opinion, appellant did not look or sound intoxicated on the night of his arrest. Under these circumstances we cannot conclude the trial court abused its discretion in denying appellant's motion for new trial. We overrule appellant's first point of error.
We affirm the trial court's judgment.
Appellant also relies on evidence presented at the motion for new trial hearing to show the jury's verdict was clearly wrong and unjust. In a factual sufficiency review, we analyze the jury's weighing of the evidence. See Johnson, 23 S.W.3d at 7. It follows that in performing this task, we consider only evidence that was presented to the jury.