Opinion
No. 05-15-00004-CR
03-07-2016
KARL AARON MULLENS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 59th Judicial District Court Grayson County, Texas
Trial Court Cause No. 063112
MEMORANDUM OPINION
Before Justices Lang, Brown, and Richter
Opinion by Justice Lang
The Hon. Martin Richter, Justice, Assigned
Following a plea of not guilty, appellant Karl Aaron Mullens was convicted by a jury of "Driving While Intoxicated 3rd or More." Additionally, appellant pleaded true to one enhancement paragraph and the trial court found that enhancement paragraph true. Punishment was assessed by the trial court at ten years' confinement.
In two issues on appeal, appellant asserts (1) he was denied effective assistance of counsel at trial and (2) the evidence is legally insufficient to support his conviction. We decide appellant's two issues against him. The trial court's judgment is affirmed. Because the law to be applied in this case is well settled, we issue this memorandum opinion. See TEX. R. APP. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
Tarif Alkhatib testified at trial that he is a highway patrol trooper with the Texas Department of Public Safety. At approximately 7:25 p.m. on April 13, 2013, he was traveling southbound on U.S. Highway 75 near Loy Lake Road in Denison when he saw a car parked on the shoulder of the road with the hood raised. Alkhatib stopped his vehicle near the car and approached the car on foot. He stated appellant was "around the front of the car with the hood up looking at the motor." There was no other person in the car or nearby. The keys to the car were "in the ignition in the off position." According to Alkhatib, appellant (1) stated he had "pulled over" because his car overheated while he was driving it and (2) "told me that he had just broke down, maybe ten minutes prior to me pulling up." Alkhatib was asked on direct examination, "Did you ever notice that the engine was warm or did you have that opportunity?" He responded, "No, I did not."
Alkhatib stated he checked the registration of the car and "the vehicle came back registered to [appellant]." Additionally, Alkhatib testified (1) appellant's eyes were bloodshot, (2) "an odor of an alcoholic beverage" was "coming from [appellant's] breath," (3) there was an open can of beer in the center console of the car that was cold and "sweating," (4) more than fifty empty beer cans were "just laying throughout the vehicle," and (5) appellant told him he had "started drinking around 4:00" that afternoon. Alkhatib poured the beer from the open can onto the ground. He testified he then noticed that the audio on his "dash cam" audiovisual recorder was not working, so he returned to his patrol car and activated the audio.
Alkhatib administered three standardized field sobriety tests to appellant: the horizontal gaze nystagmus ("HGN") test, the "walk-and-turn" test, and the "one-leg stand" test. An audiovisual recording of Alkhatib administering those tests was admitted into evidence and played for the jury. According to Alkhatib, the HGN test is administered by observing "involuntary jerking of the eye," which "intensifies" when alcohol or certain drugs are introduced into the body. Alkhatib stated he observed six clues of intoxication while administering the HGN test to appellant. Further, Alkhatib testified that before administering the other two standardized field sobriety tests, he first asks the person being tested whether they "have any kind of physical handicaps or anything like that" and "[i]n this case, [appellant] stated he did not." Alkhatib stated he observed three clues of intoxication while administering the walk-and-turn test and two clues of intoxication while administering the one-leg stand test. Also, Alkhatib administered a "portable breath test" to appellant, the results of which "showed that [appellant] had positive alcohol in his system." Alkhatib stated that based on his investigation, he believed appellant was intoxicated and had been operating a vehicle on a public roadway while in that condition. He placed appellant under arrest. Then, Alkhatib asked appellant to provide a blood sample. Appellant refused. Alkhatib testified he drove appellant to a nearby hospital, where a blood sample was drawn without appellant's consent.
On cross-examination, Alkhatib stated that "a third party showed up" before he and appellant left the scene to go to the hospital. He stated he recalled "talking to the gentleman," but could not recall the man's name or why he was there.
Chris Youngkin testified he is a forensic scientist with the Texas Department of Public Safety Crime Laboratory in Garland. He stated he tested the blood sample taken from appellant on the night in question. According to Youngkin, the blood in that sample contained "0.157 grams of alcohol per 100 milliliters," which is "[a]lmost twice the legal limit" in Texas.
After the State's presentation of evidence, appellant's court-appointed trial counsel moved for a directed verdict of not guilty on the ground that "the State's case-in-chief is not legally nor factually sufficient to merit a conviction of the offense charged." That motion was denied.
Appellant testified that on the date in question, he finished work at a jobsite at approximately 2:30 p.m. According to appellant, as he drove his car southbound on U.S. Highway 75 on his way home, the "car temperature started rising." He stated that at approximately 3:30 p.m., he pulled over and stopped "along about Loy Lake Road" because he "saw the steam coming up from underneath the hood." He testified he walked to a Wal-Mart at a shopping center approximately a mile away to purchase coolant, but then decided to instead call his friend Larry Judd to assist him in getting his car home. He stated he realized he had left his cell phone in his car, so he walked to a nearby restaurant, The Jalapeno Tree, and asked to use the phone. According to appellant, a customer at the restaurant who identified himself as "Randy" allowed appellant to use his cell phone to call Judd. Appellant testified (1) Judd told him it might be a "little bit" before he could get there and (2) he told Judd he planned to "sit here and drink a few margaritas" before meeting Judd at his vehicle.
Appellant stated that at approximately 6:30 p.m., he was "working on" his sixth margarita at the restaurant. At that time, according to appellant, he offered to give Randy a twelve-pack of beer if Randy would drive him to a nearby Auto Zone store to purchase a radiator cap and then take him back to his vehicle to wait for Judd. Appellant was asked on direct examination, "And had you been driving a vehicle after those margaritas at the Jalapeno Tree, you would have indeed been guilty of DWI, wouldn't you?" Appellant responded, "Yes, I would have."
Appellant stated he and Randy stopped at a gas station and appellant purchased two twelve-packs and one eighteen-pack of beer. They opened one of the twelve-packs and each drank a beer while Randy took appellant to Auto Zone and dropped him off at his car. According to appellant, (1) when he arrived back at his car, he gave Randy the unopened twelve-pack and (2) after Randy left, he opened another can of beer from the other twelve-pack and put the remainder of the beer in his vehicle. Appellant testified that at that point, he called Judd again to make sure he was on his way, then "got up under the hood of the vehicle" to assess the repairs needed.
According to appellant, Alkhatib arrived on the scene after he had been back at his vehicle for "about ten, 15 minutes." Appellant testified (1) "[Alkhatib] said, You have help coming? And I said, Yes. It's been about 10, 15 minutes since I called them when I had gotten back to the vehicle" and (2) "[t]hat's all that I recalled making ten minute—anything about a ten-minute reference to." Additionally, appellant testified he did not operate a motor vehicle on the date in question after drinking an alcoholic beverage.
On cross-examination, appellant stated that while speaking with Alkhatib, he did not mention walking to the shopping center, drinking margaritas at The Jalapeno Tree, or getting a ride to his vehicle from anyone. Appellant stated in part, "I was nervous, the highway was busy, and he' s—was you driving, was you by yourself, and he started trying to accuse me of being under the influence and driving. Of course, I was under the influence at that time, yes, but I had not been when I parked that vehicle."
Judd testified appellant is an employee of his and they work together "doing odd jobs." Judd stated that on the date in question, appellant called him at approximately 3:30 or 4 p.m. and Judd then "went looking for the car dolly." Further, Judd stated, appellant called him again at approximately 6:30 or 7 p.m. At that time, according to Judd, appellant told him that he was at The Jalapeno Tree "having a drink" and would meet Judd "back over at the car." Judd stated he had not located a "car dolly" at the time of appellant's second phone call to him. Judd told appellant he would come pick him up and "leave the car sitting there" until the next morning. The location appellant gave Judd was "on 75, Loy Lake Road there close to it by Wal-Mart." According to Judd, when he arrived at the location of appellant's vehicle, appellant was in handcuffs in a "police car." Judd stated he spoke briefly with the officer at the scene, then left.
During closing argument, appellant's trial counsel argued in part as follows:
No question about it, six or seven margaritas, or whatever they were drinking. And when the officer confronted [appellant], he was intoxicated. He was fairly polite, as you may have noticed, but he was chagrin, but he was certainly intoxicated. So, you've got the priors stipulated, you've got intoxication stipulated. What don't you have stipulated? He wasn't driving the vehicle while intoxicated.
Following the jury's verdict of guilty, the jury was discharged and trial court heard evidence respecting punishment. Appellant testified that "as a youth" he experienced a head injury in a "horrible" motorcycle accident and had multiple surgeries in connection with that injury. He stated (1) he was subsequently told by a doctor that he has "posttraumatic stress disorder" and was prescribed medication for that disorder, but he does not take that medication as prescribed, and (2) alcohol relieves "the depression, the anxiety, the paranoia" and "as I told probation in the past, you know, the quick fix is always right there in every store on the corner." Further, he testified (1) it was his understanding that the trial court was "entitled" to sentence him to ten years, but, alternatively, could place him on probation; (2) he would like to "give [probation] a shot" and receive help to "get my head straight"; (3) he believes that "with some help," he "could make 10 years' probation"; (4) he is "a welder by trade" and has "a job to go to" and a place to live if placed on probation; and (5) he has "a good support system" consisting of his mother, his father, and Judd.
On cross-examination, appellant stated (1) this was his "ninth or tenth" conviction for driving while intoxicated ("DWI") and his third felony DWI conviction, (2) he was "on felony DWI probation in Oklahoma when this offense happened," and (3) he has been through several "treatment programs," but those programs "didn't work."
The trial court rendered judgment on the jury's verdict and assessed punishment as described above. Then, appellant requested a "new attorney" on appeal "based on ineffective assistance of counsel."
Less than a week later, the trial court appointed new counsel for appellant on appeal. Approximately one month after that, a "Motion for New Trial and Motion in Arrest of Judgment" was filed by appellant. In that motion, appellant asserted in part that he received ineffective assistance of counsel at trial because he "instructed" his trial counsel to file a motion to suppress the blood evidence in his case on the ground that such evidence was taken without consent or a valid search warrant in violation of his constitutional rights, but trial counsel refused to file or present a motion to suppress on that issue. Further, appellant contended trial counsel (1) did not obtain certain medical records appellant asked him to obtain to present in his case-in-chief and in the punishment hearing and (2) did not call appellant's parents to testify on his behalf in his case-in-chief and at his punishment hearing as requested by appellant or "make any attempt to even ascertain the content of the relevant testimony they were prepared to present." According to appellant, the medical records in question were important (1) "to explain the problems [appellant] demonstrated conducting the standard field sobriety tests" and (2) "in sentencing to indicate his current physical condition and its potential impact on his incarceration or his ability to successfully comply with conditions of probation." Additionally, appellant asserted (1) his father was prepared to testify that "[f]ollowing [appellant's] serious brain injury, [appellant] behaved completely different" and experienced "physical and mental changes that impacted all aspects of his life" and (2) his mother was prepared to testify that "she is very familiar with her son's natural condition and [he] was not intoxicated at the time he was detained by the officer."
At the hearing on appellant's motion for new trial and motion in arrest of judgment, appellant testified that approximately six months prior to trial, he wrote letters to his trial counsel (1) asking him to obtain certain medical records respecting his head injury from his prior motorcycle accident and a "knee injury" from "high school football" for use in "the defense of the field sobriety tests that were given" and (2) stating he "had some concerns about the lack of a warrant that was not obtained when they took [his] blood against [his] will." Further, he testified that prior to trial, his trial counsel (1) indicated that his trial strategy would be that appellant was not in the car at the time he was intoxicated, (2) stated he "didn't want to challenge the officer or any other nitpicking whatsoever" about whether or not appellant was "drunk," (3) told appellant "[the State] didn't have to have a warrant on this," and (4) "just pretty much told [appellant] to quit worrying about the blood test, that it was not an issue." Additionally, appellant stated that after the jury returned its verdict, but prior to the presentation of evidence respecting punishment, (1) he again wrote to trial counsel and requested him to obtain the medical records described above to "back up" appellant's testimony regarding his medical condition and (2) trial counsel responded by letter that the medical records in question "cannot be marshalled for the hearing," but appellant would "get the opportunity to tell the judge all about your medical history, diagnosis, medications, et cetera."
On cross-examination at the hearing, appellant testified in part,
Q. But if you testified at trial that there's no disputing that when the officer took your blood and tested it that you had been at the Jalapeno Tree drinking six margaritas, that's not in dispute, is it?
A. No.
Q. So, what's the issue with the blood test?
A. The issue is, the blood test is—like I said, an officer of the law obtained it illegally, violated my Fourth Amendment of the Constitution of the United States, illegal search and seizure.
Further, on re-direct examination of appellant, the following exchange occurred:
Q. Did you ever say that you—or, did you believe that you were intoxicated at the time that the officer arrived on the scene?
A. No.
. . . .
Q. So, you did not believe you were intoxicated and you wanted that defense presented at trial, as well as the fact that this—the alcohol that was consumed was after you had driven.
A. Yes.
Q. Okay. And that was because your credibility was being put into question.
A. Yes, ma'am.
Trial counsel testified in part (1) "[t]he strategy, which was fully agreed upon by my client, was to admit that he was intoxicated at the time he was confronted by the trooper, but to deny that he had a drink of anything at the last point in time when he had operated the vehicle"; (2) "I wanted that blood result in evidence to back up his story"; (3) "had we challenged [the blood test result] in front of the jury it would have weakened his story"; and (4) regardless of the credibility of appellant's "story," "the officer's testimony alone would have been more than sufficient to convict a multiple-convicted DWI defendant." Further, trial counsel stated that prior to trial, he was aware of the U.S. Supreme Court's opinion in Missouri v. McNeely, 133 S.Ct. 1552 (2013), which involved a challenge to a blood sample obtained without consent. However, he stated, he did not "bring to [appellant's] attention the McNeely decision and the questions that that decision brought to the forefront of the legal arena" because he didn't feel it was "necessary" to do so once the trial strategy described above was "in place."
As to the medical records in question and the testimony of appellant's parents, trial counsel testified that the decision not to challenge appellant's "condition" and his "ability to conduct the standardized field sobriety test" was based on the same considerations described above because "[t]he field sobriety test also . . . backed up his story." Additionally, trial counsel testified in part as follows:
Q. So, under your strategy, to provide medical records that corroborate what [appellant's] testimony was, that would be important because that would show this jury that he was telling the truth, would it not?
A. I—I'll speculate that it's possible.
. . . .
Q. . . . . [Appellant] never said he was intoxicated, did he? He said he drank alcohol, but he never admitted intoxication, did he?
A. I'm almost certain he did, Counsel. The—I guess the best evidence of that would be the record of the trial . . .
. . . .
Q. What was your strategy for not calling his parents?
A. Well, as for the mother, based on what she had to say about him, I was scared that if I put her on the stand she would say the same thing and press the jury. And I didn't think—it was very negative. She was very—I would say disgusted, dissolutioned [sic] with him because of his drinking. With the father, I really didn't see any problem, but I didn't see that anything that he had to say would be of help to the plan we went into for the trial. So, I didn't really have any strategy one way or the other.
Q. Wouldn't his father's testimony have corroborated [appellant's] testimony regarding his medical condition?
A. Probably so.
Q. And his credibility was being challenged. Correct?
A. On his medical condition, I do not recall any the State ever challenging his assertion about his medical condition.
Q. Okay. But the credibility was important. So, if it could be corroborated, that would support your defensive theory, would it not?
A. I suppose that's possible. I believed him and, perhaps, I was deficient in not seeking independent character witnesses, of which I don't—I'm not certain I could have found, to his reputation as to his truth and veracity.
At the hearing, Harold Mullens testified he is appellant's father. He stated appellant incurred brain damage in a motorcycle accident in 1990. According to Harold Mullens, after that accident, appellant experienced (1) depression, (2) "times when he just couldn't rationalize how to make a decision," and (3) "times . . . when he would lose his balance." Further, Harold Mullins stated that had he been called to testify at trial, "I think it might have given some benefit to [appellant], as far as his truthful—about his—you know, disabilities and all."
Betty Mullens testified she is appellant's mother. She stated it is not true that she has a "poor opinion" of appellant. Additionally, she (1) testified she has viewed the audiovisual recording described above that was played for the jury at trial and does not believe appellant was intoxicated at the time that recording was made and (2) stated "[h]e's a drunk," but "wasn't drunk that day."
The trial court denied appellant's motion for new trial and motion in arrest of judgment. This appeal timely followed.
II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
In evaluating the sufficiency of the evidence to support a conviction, an appellate court applies Jackson v. Virginia, 443 U.S. 307 (1979), and considers all the evidence in the light most favorable to the trial court's judgment to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See, e.g., Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013) (quoting Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)). The jury, as the fact-finder, is the sole judge of the witnesses' credibility and the weight to give the evidence. See Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012). As such, the appellate court defers to the jury's resolution of any conflicts in testimony, weight of the evidence, and inferences drawn. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 318-19). In our review, we consider both direct and circumstantial evidence and all reasonable inferences that may be drawn from the evidence. Id. Evidence is sufficient if "the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict." Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
B. Applicable Law
Section 49.04(a) of the Texas Penal Code states "[a] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place." TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2015); see also id. § 49.09(b) (an offense under § 49.04 "is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted . . . two times of any other offense relating to the operating of a motor vehicle while intoxicated"). A DWI conviction can be supported solely by circumstantial evidence. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).
C. Application of Law to Facts
We begin with appellant's second issue, in which he contends, "The evidence presented in this case was legally insufficient to support a conviction for Driving While Intoxicated—No link established between intoxication and time of driving has been established." Specifically, appellant asserts "[t]he evidence showed that [appellant] was intoxicated at the time the officer arrived at the scene," but (1) "[t]he trooper never offered any testimony as to the time [appellant] had ceased to drive the car or how long the car had sat disabled on the highway" and (2) "the State offered no evidence that would allow a rational trier of fact to infer that Appellant was actually driving a motor vehicle while intoxicated." Additionally, in his reply brief on appeal, appellant argues in part that although the State contends appellant "admitted 'he had just been operating the motor vehicle,'" the State "fails to mention that the officer himself testified that [appellant] had advised him that he had broken down on the highway on his way home from work and had made a phone call for assistance."
"Generally, when a party presents multiple grounds for reversal, an appellate court should first address those points that would afford the party the greatest relief." Chaney v. State, 314 S.W.3d 561, 565 n.6 (Tex. App.—Amarillo 2010, pet. ref'd) (citing TEX. R. APP. P. 43.3); accord Newhouse v. State, No. 05-14-01628-CR, 2015 WL 7720462, at *1 (Tex. App.—Dallas Nov. 30, 2015, no pet.) (mem. op., not designated for publication) (addressing sufficiency issue before ineffective assistance of counsel complaint).
The State responds in part that "[e]xamining the totality of the circumstances, and viewed in the light most favorable to the verdict, the circumstantial evidence indicates that appellant, while intoxicated, operated his motor vehicle and is legally sufficient to show that appellant was operating his vehicle while intoxicated."
As described above, the record shows Alkhatib testified in part that when he arrived on the scene at approximately 7:25 p.m. on the date in question, appellant stated (1) he had "pulled over" because his car overheated while he was driving it; (2) "he had just broke down, maybe ten minutes prior to me pulling up"; and (3) he had "started drinking around 4:00" that afternoon. Further, as appellant states in his brief in this Court, "[t]he evidence showed that [appellant] was intoxicated at the time the officer arrived at the scene." Regardless of whether Alkhatib's testimony that appellant "had just broke down, maybe ten minutes prior" was, as asserted by appellant, controverted by other testimony in the record, the jury was the sole judge of the witnesses' credibility and the weight to give the evidence. See Garcia, 367 S.W.3d at 687.
On this record, we conclude a reasonable inference could be drawn that appellant was driving his vehicle approximately ten minutes before he was approached by Alkhatib and was intoxicated at that time. Therefore, the evidence is legally sufficient to support appellant's conviction. See Kuciemba, 310 S.W.3d at 462-63 (fact that defendant was intoxicated at scene of accident, paired with evidence that accident had occurred recently, was sufficient evidence that defendant was intoxicated at earlier time when he was driving vehicle); see also Ubesie v. State, 379 S.W.3d 371, 377 (Tex. App.—Amarillo 2012, no pet.) (holding evidence was sufficient to prove intoxication at time of driving when twenty-four minutes had elapsed between time of driving and officer's observing signs of intoxication); Stoutner v. State, 36 S.W.3d 716, 721-22 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd) (op. on reh'g) (holding DWI evidence sufficient when fifteen to twenty minutes had elapsed between time of driving and officer's observance of signs of intoxication); Guerra v. State, 846 S.W.2d 124, 126 (Tex. App.—Fort Worth 1993, no pet.) (holding DWI evidence sufficient when thirty minutes or less had elapsed between time of driving and time appellant exhibited signs of intoxication); Rogers v. State, No. 02-03-00235-CR, 2014 WL 1257291, at *4 (Tex. App.—Fort Worth Mar. 27, 2014, no pet.) (mem. op., not designated for publication) (concluding evidence was sufficient to show intoxication at time of driving when thirty to forty-five minutes had elapsed between time of driving and officer's observing signs of intoxication); Campbell v. State, No. 07-10-00333-CR, 2012 WL 833744, at *2 (Tex. App.—Amarillo Mar. 13, 2012, pet. ref'd) (mem. op., not designated for publication) (holding evidence sufficient to prove DWI when thirty-eight to forty-five minutes had elapsed between time of driving and trooper's administration of field sobriety tests).
We decide against appellant on his second issue.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review and Applicable Law
To prevail on an ineffective assistance of counsel claim, a defendant must show by a preponderance of the evidence both that counsel's performance was deficient and the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); accord Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009); Newhouse v. State, No. 05-14-01628-CR, 2015 WL 7720462, at *3 (Tex. App.—Dallas Nov. 30, 2015, no pet.) (mem. op., not designated for publication). Unless an appellant can prove both prongs, an appellate court must not find counsel's representation to be ineffective. See, e.g., Ramirez v. State, No. 05-14-01432-CR, 2015 WL 6751134, at *3 (Tex. App.—Dallas Nov. 5, 2015, pet. filed) (mem. op., not designated for publication) (citing Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)). As to the first prong, a strong presumption exists that counsel's conduct fell within the wide range of reasonable professional assistance. Id. (citing Strickland, 466 U.S. at 689). To prove the second prong, an appellant must show there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different. Id. (citing Lopez, 343 S.W.3d at 142). "In assessing prejudice, we look to the entire record." Ex parte LaHood, 401 S.W.3d 45, 54 (Tex. Crim. App. 2013) (citing Strickland, 466 U.S. at 695); see also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ("When evaluating counsel's effectiveness, an appellate court looks to the totality of the representation and the particular circumstances of each case."). Further, a claim of ineffective assistance must be firmly supported in the record. See, e.g., Garza v. State, No. 05-11-01639-CR, 2013 WL 1286164, at *1 (Tex. App.—Dallas Mar. 6, 2013, no pet.) (mem. op., not designated for publication) (citing Thompson, 9 S.W.3d at 813).
"[W]hen analyzing the trial court's failure to grant a new trial on the basis of ineffective assistance of counsel, we view the relevant legal standards through the prism of an abuse of discretion." Taylor v. State, 461 S.W.3d 223, 228-29 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). "We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable." Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. See, e.g., Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
B. Analysis
In his first issue, appellant contends he was denied his constitutional right to effective assistance of counsel when (1) "defense counsel allowed illegally obtained evidence to be admitted in the prosecution of [a]ppellant without challenging the constitutionality of such evidence in light of McNeely" and (2) "defense counsel failed to procure testimony and records which would aid in [a]ppellant's case in chief and sentencing." Appellant argues in part (1) "[h]ad [trial counsel] presented either a motion to suppress the blood draw or argued McNeely before trial, the lower court would have been obligated to suppress the blood draw and testimony related to the blood draw" and (2) "the record is void as to any attempt by defense counsel to present evidence or testimony concerning [a]ppellant's medical conditions and struggles with alcohol addiction." Additionally, appellant contends he was harmed as a result of trial counsel's ineffectiveness because (1) "not only did the jury learn that [a]ppellant's blood alcohol concentration was 0.157, but [a]ppellant was deprived of the ability to challenge the admission of such evidence on appellate review," and (2) "[trial counsel's] total lack of effort at the punishment phase of trial deprived [appellant] of the possibility of bringing out even a single mitigating factor" to "provide[] some counterweight to evidence of bad character which was in fact received by the trial court."
The State responds in part that the first prong of Strickland was not met for the following reasons: (1) the trial court "could have reasonably concluded" trial counsel made a "strategic decision" not to "raise the issue of the legality of appellant's blood draw" or present the evidence in question respecting appellant's medical history because "attempting to disprove intoxication might have undermined the reasonable trial strategy that trial counsel employed" and (2) "even if trial counsel did not have a trial strategy that did not involve challenging the legality of the blood draw, this area of law was unsettled at the time of trial."
Additionally, as to the second prong of Strickland, the State argued during oral submission before this Court that trial counsel's alleged ineffectiveness pertaining to the blood sample evidence did not prejudice appellant because there was other evidence at trial that showed appellant was intoxicated. Also, the State contends the evidence in question respecting appellant's medical history (1) "was not relevant regarding the trial strategy imposed in this case" and (2) "would have been redundant" to that presented to the trial court at the punishment phase.
Even assuming without deciding that the first prong of Strickland was satisfied in this case, we cannot agree with appellant that he has met his burden under the second prong to show he was prejudiced by trial counsel's alleged deficient performance. With respect to the issue of whether appellant was intoxicated, the record shows the blood test results and the recording of the standardized field sobriety tests in which appellant demonstrated "problems" allegedly due to his medical condition were not the only evidence of appellant's intoxication. Alkhatib testified that based on his investigation, he believed appellant was intoxicated. That investigation included a "portable breath test," the results of which "showed that [appellant] had positive alcohol in his system." Also, Alkhatib testified (1) appellant's eyes were bloodshot, (2) "an odor of an alcoholic beverage" was "coming from [appellant's] breath," (3) there was an open can of beer in the center console of the car that was cold and "sweating," (4) more than fifty empty beer cans were "just laying throughout the vehicle," and (5) appellant told him he had "started drinking around 4:00" that afternoon. Additionally, appellant testified (1) as of 6:30 p.m. on the date in question, he had consumed approximately six margaritas during the previous two to three hours and "would indeed have been guilty of DWI" if he had been driving a vehicle; (2) he drank one beer and opened another between that time and Alkhatib's arrival at approximately 7:25 p.m.; and (3) when he spoke with Alkhatib, he "[o]f course" was "under the influence at that time." On this record, we conclude appellant has not demonstrated that absent trial counsel's alleged deficiencies respecting the evidence pertaining to intoxication, there is a reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 687.
Further, the record shows appellant testified during the punishment hearing (1) he incurred a head injury in a motorcycle accident years ago and still suffers effects from that injury, including "posttraumatic stress disorder"; (2) he would like to be placed on probation and believes that "with some help," he "could make 10 years' probation"; and (3) he has a job, a place to live, and a "good support system." The State did not challenge the fact of appellant's injury or the alleged effects. Rather, the State cross-examined appellant respecting his numerous prior DWI convictions and past participation in "treatment programs" that "didn't work." To the extent the medical records and testimony in question pertain to the issue of whether appellant was being "truthful" respecting his unchallenged medical condition, we cannot agree with appellant that the record shows a reasonable probability the result of the proceeding would have been different if that evidence had been presented. See id.
On this record, we conclude appellant has not satisfied the second prong of Strickland with respect to his ineffective assistance of counsel claims. See id. We decide appellant's first issue against him.
IV. CONCLUSION
We decide against appellant on his two issues. The trial court's judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
150004F.U05
JUDGMENT
On Appeal from the 59th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 063112.
Opinion delivered by Justice Lang, Justices Brown and Richter participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 7th day of March, 2016.