Opinion
No. 05-05-00834-CR
Opinion issued April 11, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 5, Dallas County, Texas, Trial Court Cause No. MB04-20676-F. Affirmed.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
Dhiraj D. Ramolia appeals his conviction for driving while intoxicated. After the jury found appellant guilty, the trial court assessed punishment at 180 days' confinement, probated for two years, and a $1000 fine. In two issues, appellant contends (1) the jury charge was erroneous, and (2) trial counsel was ineffective by failing to object to the charge. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends the trial court erred by instructing the jury that "intoxication" means having an "alcohol concentration" of 0.08 or more" because there is no evidence to support this portion of the charge. Appellant does not complain about the admissibility of the intoxilyzer results or about the sufficiency of the evidence to support his conviction under the loss of faculties charge. Rather, he contends the trial court should not have included the complained-of portion of the definition because the results of the intoxilyzer tests taken fifty minutes after he was stopped are not evidence of alcohol concentration at the time he was stopped, and the State failed to offer any evidence relating the test results to his condition at that time. We cannot agree. There are two types of DWI offenses: a "loss of faculties" offense and a "per se" offense. State v. Carter, 810 S.W.2d 197, 200 (Tex.Crim.App. 1991). In the information, the State alleged both types of offense. The jury instruction tracks the statutory definition for intoxication and defines both types of intoxication. See Tex. Pen. Code Ann. § 49.01 (Vernon 2003). With respect to the loss of mental and physical faculties portion of the instruction, the record shows Officer Eric Beene stopped appellant after seeing him fail to maintain a lane of traffic, fail to stop at a stop sign, and lose control of his vehicle. When Beene asked appellant for his driver's license, Beene smelled alcohol on appellant's breath. Appellant told Beene he had been drinking "whiskey and coke." After observing appellant perform field sobriety tests and having personal contact with appellant, Beene determined that appellant did not have the normal use of his mental and physical faculties due to the introduction of alcohol and arrested appellant for driving while intoxicated. Thus, the trial court properly defined intoxication as not having the normal use of mental or physical faculties due to the introduction of alcohol. With respect to the per se portion of the definition, the record shows Beene took appellant to the "DWI tape room" at the jail. Appellant was advised of his statutory warnings and then agreed to provide a breath specimen. After observing appellant for fifteen minutes, Officer Zack Beagle performed two breath tests on appellant (fifty minutes after appellant was stopped). The first showed a blood alcohol level of 0.93, and the second test showed a level of 0.90. Although appellant is correct that the technical supervisor could not testify with certainty whether appellant's blood alcohol level would have been higher or lower at the time of his arrest, she did testify that research indicates that if he had not been drinking (during the time he was in custody), it was not likely that his alcohol concentration would have been lower at the time of his arrest. Further, the State is not required to prove appellant's exact blood alcohol concentration at the time he was arrested. See Owen v. State, 905 S.W.2d 434, 437-38 (Tex.App.-Waco 1995, pet. ref'd) (citing Forte v. State, 707 S.W.2d 89, 93 (Tex.Crim.App. 1986)). There is delay built into the process of using breath testing. Owen, 905 S.W.2d at 439. As the time-gap increases between the offense and the test, the probative value of the intoxilyzer test as evidence of the defendant's alcohol concentration at the time of the offense diminishes. Nevertheless, the results are probative evidence of the defendant's condition at the time of the offense. Id. Thus, from this evidence alone, the jury could have inferred from the results of the intoxilyzer tests given some fifty minutes after appellant was stopped that he had an alcohol concentration of 0.08 or greater at the time he was stopped. Id. Because the record contains evidence that appellant's blood alcohol concentration was 0.08 or greater at the time of the offense, the court correctly included the per se portion in its definition of intoxication. We overrule appellant's first issue. In a related issue, appellant contends trial counsel was ineffective for failing to object to the trial court's instruction to the jury. A defense attorney is not ineffective for failing to make futile objections. See Bourque v. State, 156 S.W.3d 675, 678-79 (Tex.App.-Dallas 2005, pet. ref'd) (because no transfer orders were required, trial counsel could not be ineffective for failing to file pleas to jurisdiction complaining of lack of transfer orders.); Wood v. State, 4 S.W.3d 85, 90 (Tex.App.-Fort Worth 1999, pet. ref'd) (because trial court's charge on issue of intent was not erroneous, trial counsel did not render ineffective assistance of counsel by failing to object to charge); Thacker v. State, 999 S.W.2d 56, 67 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (trial counsel not ineffective for failing to file motion to quash or object to indictment when indictment was legally sufficient). Because the trial court correctly included the per se portion in its definition of intoxication, trial counsel was not ineffective for failing to object to its inclusion. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.