No. 05-08-01550-CR
Opinion issued March 2, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-81008-07.
Before Chief Justice WRIGHT and Justices FITZGERALD and MURPHY.
Opinion By Justice FITZGERALD.
A jury found Michael Freelan Swanhorst guilty of felony driving while intoxicated. Pursuant to an agreement between the State and Swanhorst, the trial court assessed his punishment at eight years' confinement, probated for five years. On appeal Swanhorst contends the evidence is insufficient to support his conviction, he received ineffective assistance of counsel, and the trial court improperly instructed the jury concerning his prior convictions. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm the trial court's judgment.
Sufficiency of the Evidence
In his first two issues, Swanhorst challenges the sufficiency of the evidence supporting his conviction. We apply well-known standards when reviewing challenges to the sufficiency of the evidence. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Initially, Swanhorst challenges the factual sufficiency of the jury's finding that he was intoxicated. To establish this element of the charged offense, the State was required to prove Swanhorst lacked the normal use of his mental or physical faculties by reason of the introduction of alcohol or some other intoxicant. See Tex. Penal Code Ann. § 49.01(2)(A). The State offered the testimony of Shawn Marthiljoni, a Frisco Police Department officer. Marthiljoni testified he was on patrol around midnight on December 19, 2006, when he observed Swanhorst pull out from a restaurant's driveway onto Preston Road without turning on the vehicle's lights. At that location, Preston Road is a six-lane divided road. Marthiljoni watched Swanhorst pull across the southbound lanes and stop for five full seconds, with his vehicle pulled perpendicular to the median and the car extending sideways across at least two lanes. When Swanhorst eventually turned south, Marthiljoni pulled behind him and initiated a traffic stop. Marthiljoni observed Swanhorst's eyes were bloodshot and his speech was slurred. Marthiljoni asked Swanhorst how much he had had to drink, and Swanhorst replied, "Practically nothing." Marthiljoni attempted to conduct field sobriety tests at the scene, but Swanhorst was unable to follow directions sufficiently to perform either the Horizontal Gaze Nystagmus ("HGN") test or the walk-and-turn test. Marthiljoni arrested Swanhorst, took him to the police station, and administered the sobriety tests there. Marthiljoni observed six clues of intoxication on the HGN test, when four would be a good indication of intoxication. He observed five clues of intoxication on the walk-and-turn test, when two would be a good indication of intoxication. Finally, on the one-leg stand test, Marthiljoni observed two clues of intoxication, a good indication of intoxication. Swanhorst remained confused and had difficulty following directions throughout the testing process. Marthiljoni testified that, in his opinion, Swanhorst did not have normal use of his physical or mental faculties because of introduction of alcohol into his body. Swanhorst points to facts that might indicate Swanhorst was not intoxicated: Marthiljoni did not report Swanhorst smelled of alcohol, and Swanhorst had no difficulty pulling out his driver's license for the officer. While driving, Swanhorst did not swerve, vary speeds, or cause an accident. And as to the conduct which could show intoxication, Swanhorst offers an alternative explanation for each fact: he drove across the divided road without his lights on because he was unfamiliar with his rental car and the area; his eyes were bloodshot because he was tired; what the officer thought was slurred speech was really Swanhorst's Minnesota accent; his poor test performance was caused by distractions, or a football injury, or the officer's poor administration of the tests. The jury saw the recording of Swanhorst's conduct at both the roadside stop and the police station. They were free to decide which version of the facts was more credible. See Margraves, 34 S.W.3d at 919. The State produced ample evidence of Swanhorst's intoxication, and we cannot say the jury's finding was clearly wrong and manifestly unjust. See Roberts, 220 S.W.3d at 524. We overrule Swanhorst's first issue. Swanhorst also challenges the legal and factual sufficiency of the evidence establishing he was intoxicated specifically by reason of alcohol. Initially, Swanhorst told Marthiljoni he had been drinking, although he indicated he had not drunk a great deal. Only after Swanhorst had been arrested and failed field sobriety tests did he deny that he had been drinking. Again, it was the jury's function to determine which response was more credible. See Margraves, 34 S.W.3d at 919. Likewise, the jury could determine Marthiljoni's credibility: he testified that, in his opinion, Swanhorst's intoxication was a result of alcohol. Based on our review of the entire record-whether viewing only the evidence supporting the finding or viewing all of the evidence in a neutral light-we conclude a rational factfinder could have concluded Swanhorst's intoxication was caused by alcohol. See Lane, 151 S.W.3d at 192; Roberts 220 S.W.3d at 524. We overrule Swanhorst's second issue as well. Ineffective Assistance of Counsel
In his third through sixth issues, Swanhorst contends he was denied effective assistance of counsel when his trial attorney failed: to secure a fair and impartial jury, to object to the prosecutor's closing argument, to object to the prosecutor's reading of the indictment and the court's charge, and to investigate the facts of the case. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that his attorney's conduct fell below an objective standard of reasonableness, and there is a reasonable probability that but for the attorney's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 695 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance, but we do not judge counsel's strategic decisions in hindsight. Instead, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. In this case, Swanhorst filed a timely motion for new trial, but he did not raise ineffective assistance of counsel in that motion as a ground for new trial. He later filed an amended motion for new trial that raised the issue of failure to investigate the facts of the case. But the amended motion was filed later than the thirtieth day after Swanhorst was sentenced; thus, it was untimely and could not be considered by the trial court. See Tex. R. App. P. 21.4(b). Accordingly, counsel was never given an opportunity to explain his actions or trial strategy on any of the complaints raised in these issues. Therefore, as was the case in Thompson, the record provides no discussion of trial counsel's purported errors and contains no discernible explanation of the motivation behind counsel's conduct. Nor does it contain any discussion of counsel's trial strategy. Because the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner). We conclude the record is insufficient to support Swanhorst's ineffective assistance complaints on direct appeal. We overrule his third, fourth, fifth, and sixth issues. Swanhorst's seventh issue contends his attorney's cumulative errors rendered his assistance ineffective. But Swanhorst has failed to show any individual examples of ineffective assistance of counsel in this direct appeal. Thus, his seventh issue is without merit. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (non-errors may not, in their cumulative effect, cause error); Brown v. State, 92 S.W.3d 655, 669 (Tex. App.-Dallas 2002), aff'd 122 S.W.3d 794 (Tex. Crim. App. 2003). Charge Error
Swanhorst was charged with felony DWI in this case because he had been convicted twice before of misdemeanor DWI. The State was required to prove those prior convictions as a jurisdictional matter. However, during trial, Swanhorst stipulated to the two prior convictions for DWI, making further proof unnecessary. When a defendant charged with felony DWI has stipulated to the two jurisdictional prior convictions, the jury charge must include (1) some reference to the jurisdictional element of the two prior DWI convictions, and (2) some reference to the defendant's stipulation and its legal effect of establishing the jurisdictional element. Martin v. State, 200 S.W.3d 635, 640-41 (Tex. Crim. App. 2006). Both of those references were made in Swanhorst's charge. Swanhorst's fundamental complaint is that in the required reference to the two prior convictions, one was identified as the offense of "Driving While Intoxicated-2D." This was a correct identification: as the charge indicates, Swanhorst was convicted in 2001 of "Driving While Intoxicated" and then in 2002 of "Driving While Intoxicated-2d." Swanhorst contends the jury could have been confused by this identification and believed Swanhorst actually had three prior convictions, rather than two. We disagree. Identifying an offense that occurred second in time as "2D" is straightforward and reasonable. Moreover, the trial court included the following instruction in its charge: With respect to the evidence admitted in the case concerning the defendant having been previously convicted twice of being intoxicated while operating a motor vehicle in a public place, if he was, you are instructed that such evidence cannot be considered by you as in any manner proving or tending to prove that the defendant was intoxicated while driving a motor vehicle in a public place on or about the 19th day of December, 2006. (Emphasis added.) We conclude no reasonable juror would have been confused by the inclusion of "2D" in the charge. The trial court did not err. We overrule Swanhorst's eighth issue. We affirm the trial court's judgment.