No. 05-08-00977-CR
Opinion Filed May 7, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Court at Law Kaufman County, Texas, Trial Court Cause No. 07CL-1619.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
MICHAEL J. O'NEILL, Justice.
A jury convicted appellant Dudley Scott Baker of driving while intoxicated. The trial court sentenced him to 180 days confinement, probated for two years and a $1,000 fine. Appellant filed a motion for new trial alleging ineffective assistance of counsel. Following a hearing, the trial court denied the motion. In a single point, appellant contends trial counsel was ineffective by (1) not objecting to the state trooper's inaccurate testimony; (2) not seeking a continuance to hire an expert to testify to the effects of alcohol; (3) not obtaining testimony from appellant's physician regarding his leg injury; and (4) not calling certain lay witnesses to testify he was not intoxicated on the night in question. We affirm the trial court's judgment.
Background
On the evening of October 13, 2006 appellant was driving on a road in Kaufman County. State Trooper Jacob Farley observed a car traveling between forty-four and fifty-five miles per hour in an area where the speed limit ranged from fifty-five to sixty-five miles per hour. The car also weaved back and forth in its lane, but never crossed the center line. The driver signaled a left-hand turn approximately a half mile prior to the intersection and then turned onto the wrong side of the road. Trooper Farley initiated a traffic stop because of the suspicious driving. When appellant rolled down his window, Trooper Farley immediately smelled alcohol and observed appellant's bloodshot, glassy eyes. He also testified appellant was somewhat uncooperative and passive-resistant. Appellant admitted to consuming eight to ten beers between 2:30 p.m. and 8:30 p.m. and not eating anything except a sandwich for lunch around noon. Trooper Farley administered the horizontal gaze nystagmus test and observed all six indicators of intoxication. He also observed signs of intoxication while administering the walk and turn test and the one leg stand test. Although appellant later claimed he had a "bad left leg" from a previous serious injury, when he performed the one leg stand test, he chose to stand on his left leg. He did not tell Trooper Farley about any injury while at the scene of the stop. Trooper Farley transferred appellant to jail and put him in the intoxilizer room. Appellant received his warnings and refused to provide a breath sample. The first time appellant mentioned any leg injury was during his questioning in the intoxilizer room. When asked whether he had been injured lately, he replied "no"; however, when asked about any physical handicaps, he replied "bad left leg." A jury found appellant guilty of driving while intoxicated. He filed a motion for new trial alleging ineffective assistance of counsel. After a hearing, in which trial counsel testified, the court denied the motion. This appeal followed. Standard of Review
We review a trial court's ruling on a motion for new trial regarding ineffective assistance of counsel under an abuse of discretion standard. Sanchez v. State, 243 S.W.3d 57, 63 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). We must determine whether the trial court's determination of the ineffective assistance claim and the denial of the motion for new trial were clearly wrong and outside the zone of reasonable disagreement. Id.; Anderson v. State, 193 S.W.3d 34, 39 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland requires a two-step analysis whereby an appellant must show both that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. Id.; Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Strickland defines reasonable probability as a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Furthermore, a claim of ineffective assistance must be firmly supported in the record. Id. Thus, we will review the motion for new trial record and determine whether the trial court abused its discretion in denying the motion. Discussion
Appellant first asserts trial counsel was ineffective when he failed to object to Trooper Farley's testimony that the legal limit for alcohol concentration in Texas is 0.10, not 0.08, and the impression left in the jurors' minds was harmful. Trooper Farley made this statement while explaining the horizontal gaze nystagmus test and the six clues of intoxication. He testified the clues reflect being over the legal limit and that "at the time the study came out, being over the legal limit of .10." Trooper Farley did not specifically testify that the present legal limit of intoxication in Texas is 0.10. Rather, he stated that at the time the horizontal gaze nystagmus test studies were released, the legal limit in Texas was 0.10, and at that time, exhibition of six out of six clues generally established intoxication. Further, he never correlated appellant's performance on the horizontal gaze nystagmus test to an exact blood alcohol content, which he could not, because appellant never submitted to a blood or breath test. When Trooper Farley's statement is read in context, we conclude he did not make a misstatement of law. Thus, any objection by trial counsel would have been futile, and counsel is not ineffective when he forgoes making such objections. Wood v. State, 4 S.W.3d 85, 91 (Tex.App.-Fort Worth 1999, pet. ref'd) (holding defense attorney is not ineffective for failing to make futile objections). In addition, the indictment charged appellant with operating a motor vehicle in a public place while intoxicated "by not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body." The jury was similarly charged to the meaning of intoxication. As such, the issue of whether appellant was intoxicated in excess of the legal limit of 0.08 was not before the jury to decide. See Burkett v. State, 179 S.W.3d 18, 35 (Tex.App.-San Antonio 2005, no pet.). Rather, they had to decide whether appellant was intoxicated because he lost normal use of his mental and physical faculties. Throughout the case, the State argued appellant lost the normal use of his faculties. It presented evidence that appellant was driving below the speed limit and swerving within his lane. He prematurely turned on his turn signal and then proceeded to turn into the wrong lane. He also smelled of alcohol and had bloodshot, glassy eyes when Trooper Farley pulled him over. Because of the evidence of intoxication, we cannot say appellant has shown prejudice or that a reasonable probability exists the outcome would have been different had counsel objected to Trooper Farley's testimony regarding the legal limit of blood alcohol content. Strickland, 466 U.S. at 687; see, e.g., Burkett, 179 S.W.3d at 35. Thus, appellant's first argument regarding ineffective assistance of counsel lacks merit. Appellant next contends counsel was ineffective when he failed to seek a continuance to give him time to raise money to obtain an expert who could explain to the jury that "consuming 8 to 10 beers from 2:30 p.m. to 8:00 p.m. would not necessarily render an average sized male intoxicated when driving at 9:00 p.m." The record, however, shows trial counsel talked to a Mr. Hughs with the Texas Department of Public Safety, and his opinion was not favorable to their position. He also discussed with appellant the possibility of hiring a local physician to testify; however, he was doubtful any would cooperate. When he asked appellant about getting his treating physician to testify, appellant indicated he did not want to pursue that option. The record fails to show an expert was available who could testify for appellant. Here, counsel tried to obtain an expert; however, the expert's opinion was not favorable to his position. Thus, on the record before us, we cannot say counsel performed ineffectively. Appellant next argues trial counsel failed to obtain a continuance to allow his treating physician to testify about his leg injury. A claim of ineffective assistance of counsel may not be predicated upon a failure to call witnesses unless appellant shows such witnesses were available, and their testimony would benefit the appellant. See King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983). There is no showing in this record that appellant's treating physician was available to testify or that his testimony would have been beneficial. In fact, appellant did not want to call his physician as a witness. Trial counsel admitted medical records regarding appellant's leg injury; therefore, the relevant information and defensive theory that the injury affected his performance on the one leg stand test was before the jury to consider. Thus, we cannot conclude counsel was ineffective because appellant believes he should have presented additional, cumulative evidence. See, e.g., Fox v. State, 175 S.W.3d 475, 488 (Tex.App.-Texarkana 2005, pet. ref'd) (concluding counsel was not ineffective for failing to further develop testimony regarding emotional problems when considerable testimony was presented at trial on the subject); Tutt v. State, 940 S.W.2d 114, 121 (Tex.App.-Tyler 1996, pet. ref'd); see also Singh v. State, 05-99-01910-CR, 2000 WL 1835403, at *6 (Tex.App.-Dallas 2000, pet. ref'd) (not designated for publication). Finally, appellant contends trial counsel was ineffective by failing to call three lay witnesses who would have testified they watched appellant's intoxilizer room videotape and did not believe he was intoxicated. A criminal defense lawyer has the responsibility to conduct a legal and factual investigation and to seek out and interview potential witnesses. Rodd v. State, 886 S.W.2d 381, 384 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). An appellant who complains about trial counsel's failure to call witnesses must show the witnesses were available, and he would have benefitted from their testimony. Id. The decision to call a witness is generally a matter of trial strategy. Id. Counsel testified he "gave it a lot of thought" whether to have these witnesses testify and decided their testimony would not be helpful because they lacked personal knowledge of the events on the night in question. Further, because they were appellant's long-time friends, he thought the jury could consider the testimony biased. Lastly, he was afraid if his friends testified the State might introduce evidence of appellant's prior DWI offense through "have you heard" or "did you know" testimony. Thus, trial counsel investigated possible witnesses and made a strategic decision not to call them because their testimony could have potentially hurt appellant. We cannot conclude counsel was ineffective for failing to call witnesses that may have provided testimony that was as harmful as helpful. See Damian v. State, 881 S.W.2d 102, 110 (Tex.App.-Houston [1 Dist.] 1994, pet. ref'd) (holding when in counsel's reasonable judgment, a possible witness is as potentially dangerous as he might be helpful, it is not ineffective assistance to not call the witness to the stand). That other counsel might have made a different decision regarding whether to call the witnesses does not render trial counsel's assistance ineffective. Id. Thus, we reject appellant's final argument. Conclusion
Having considered all of appellant's arguments, we conclude the trial court did not abuse its discretion in denying the motion for new trial. We overrule appellant's sole issue and affirm the trial court's judgment.