COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00150-CR
JON JASON COBLE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR12509
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MEMORANDUM OPINION 1
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Appellant Jon Jason Coble appeals from his conviction for driving while
intoxicated (DWI). In one issue, he asserts that the trial court erred by failing to
suppress the blood-alcohol evidence, which was seized without a warrant. In a
second issue raised in the alternative, Coble argues that if error in admitting the
evidence was forfeited as a result of an objection that was not sufficiently
specific, trial counsel was constitutionally ineffective. Concluding that trial
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See Tex. R. App. P. 47.4.
counsel forfeited any error but that there is no record evidence of deficient
performance, we affirm the trial court’s judgment.
I. BACKGROUND
On May 4, 2013, around 8:00 p.m., Sergeant Richard Odom with the Hood
County Sheriff’s Department was patrolling an area around a local highway.
While stopped at an intersection, Odom heard “tires squealing” from a blue Volvo
as it left the intersection. Odom followed the Volvo, which “rapidly accelerate[d]”
up to the car in front of it and weaved within its lane, causing Odom to turn on his
dashboard camera. 2 The driver of the Volvo changed lanes without signaling
and changed lanes again without signaling in order to get in front of the other car.
Odom turned on his patrol lights to pull the Volvo over. The driver of the
Volvo continued at the same speed, causing Odom to turn on his siren. The
driver of the Volvo pulled over. Odom approached the driver of the Volvo, Coble,
and asked for Coble’s driver’s license. Coble stated he did not have his license
and gave Odom his passport. Odom could smell alcohol and noticed that
Coble’s speech was slurred. Coble also had problems opening the glove
compartment to get his insurance information. Odom asked Coble to get out of
the car to perform field-sobriety tests. Although Coble refused to perform all of
the tests, Coble exhibited six out of a possible six clues of intoxication on the
2
Although weaving within a lane is not a traffic violation, Odom stated it is
an indicator that the driver is intoxicated.
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horizontal-gaze-nystagmus test. Coble admitted he had a “little bit” to drink and
that he had taken a Xanax.
Odom arrested Coble for DWI. Odom read Coble the required statutory
warnings before Odom requested a blood specimen to determine Coble’s blood-
alcohol concentration. See Tex. Transp. Code Ann. § 724.015 (West Supp.
2014). Coble refused to provide a blood specimen. Odom then checked Coble’s
name in the criminal database and discovered that Coble had previously been
convicted of DWI at least two times. Based on a statute requiring a police officer
to take a breath or blood specimen if an arrestee refuses the officer’s request to
supply a specimen and if the officer has credible information that the arrestee
has twice previously been convicted of DWI, Odom drove Coble to a hospital for
a mandatory blood draw. See id. § 724.012(b)(3)(B) (West 2011). The blood
test revealed that Coble had a blood-alcohol content of .223, which was almost
three times the legal limit. See Tex. Penal Code Ann. § 49.01(2)(B) (West 2011).
A grand jury indicted Coble for DWI and included four offense-
enhancement paragraphs, which alleged that Coble has previously been
convicted of DWI in January 1988, February 2000, May 2000, and February
2012. See id. §§ 49.04(a), 49.09(b) (West Supp. 2014). At trial, Coble’s main
defensive argument was that he was not the person who was arrested that night
and had his blood drawn, i.e., he contested identity. He also objected to the
testimony of the officer, contending that Odom did not have probable cause to
arrest him, which the trial court overruled. When the State sought admission of
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the blood-alcohol evidence, Coble’s trial counsel objected that the sample had
been taken “illegally,” without his consent, and in violation of his Fifth
Amendment rights. The trial court admitted the results of the blood test. The jury
found Coble guilty of DWI with four prior DWI convictions and assessed his
punishment at ten years’ confinement and a $10,000 fine. Coble did not file a
motion for new trial but did file a notice of appeal.
II. FORFEITURE
In his first issue, Coble argues that the trial court erred by admitting the
blood-alcohol evidence over trial counsel’s objection. He asserts that the
evidence should have been suppressed because the warrantless seizure, in the
absence of facts establishing an exception to the warrant requirement, violated
the Fourth Amendment.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d
252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.
App.—Fort Worth 2013, pet. ref’d). A reviewing court should not address the
merits of an issue that has not been preserved for appeal. Wilson v. State, 311
S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g); Sample, 405 S.W.3d at
300.
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Here, trial counsel objected to admission of the blood-test results because
they had been obtained “illegally” and in violation of Coble’s Fifth Amendment
rights. This objection did not specifically inform the trial court that his complaint
arose under the Fourth Amendment or that he was attacking the lack of a
warrant, which is his appellate argument. The context surrounding trial counsel’s
objection likewise did not inform the trial court of the specific grounds of his
objection. At trial, Coble challenged the State’s case on multiple grounds: he
was not the perpetrator of this crime, Odom did not have probable cause to
arrest Coble, Coble did not consent to giving a specimen, and the blood
specimen violated his Fifth Amendment rights. Coble never challenged the lack
of a warrant or otherwise raised the Fourth Amendment in the trial court.
Therefore, trial counsel’s general objections that the blood specimen was taken
“illegally,” in violation of the Fifth Amendment, without consent, and without his
established identity cannot be construed to include a Fourth Amendment
challenge. See Clark v. State, 365 S.W.3d 333, 339–40 (Tex. Crim. App. 2012);
Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988); Cotterill v. State, No.
2-02-343-CR, 2003 WL 21666626, at *4 (Tex. App.—Fort Worth July 17, 2003,
pet. ref’d) (mem. op., not designated for publication); Anderson v. State, 628
S.W.2d 513, 515 (Tex. App.—Corpus Christi 1982, no pet.); accord On Lee v.
United States, 343 U.S. 747, 749 n.3, 72 S. Ct. 967, 970 n.3 (1952) (dictum); cf.
Wiggins v. State, No. 14-01-00083-CR, 2002 WL 122163, at *2 (Tex. App.—
Houston [14th Dist.] Jan. 31, 2002, no pet.) (not designated for publication)
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(concluding Fourth Amendment appellate argument preserved based on context
of trial objection, which referenced probable cause and the exclusionary rule).
We conclude Coble’s appellate argument was forfeited; thus, we may not
address it. We overrule Coble’s first issue.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Alternatively, Coble asserts that if trial counsel failed to properly object to
the admission of the blood test, he was constitutionally ineffective for failing to do
so.
A. STANDARD OF REVIEW
The test to determine the effectiveness of counsel requires Coble to show
by a preponderance of the evidence that (1) counsel’s representation fell below
the standard of prevailing professional norms and (2) there is a reasonable
probability that, but for these unprofessional errors, the outcome of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687–89, 104 S. Ct. 2052, 2064–65 (1984); Menefield v. State, 363 S.W.3d 591,
592 (Tex. Crim. App. 2012). Review of counsel’s representation is highly
deferential, and the reviewing court indulges a strong presumption that counsel’s
conduct fell within a wide range of reasonable representation. Salinas v. State,
163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63
(Tex. Crim. App. 2001).
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Direct appeal is usually an inadequate vehicle for raising an ineffective-
assistance-of-counsel claim because the record is generally undeveloped.
Menefield, 363 S.W.3d at 592–93; Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). This statement is true with regard to the deficient-performance
prong of the inquiry when counsel’s reasons for failing to do something do not
appear in the record. Menefield, 363 S.W.3d at 593; Thompson, 9 S.W.3d at
813. It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record. Mata v. State, 226
S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective.” Menefield, 363 S.W.3d at 593 (quoting Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial counsel is not given that
opportunity, then the appellate court should not find deficient performance unless
the challenged conduct was “so outrageous that no competent attorney would
have engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.
App. 2001)).
B. APPLICATION
Coble bases his claim on the effect of Missouri v. McNeely, a United
States Supreme Court case decided eleven months before Coble’s trial that held
that the natural dissipation of alcohol in the bloodstream does not present a per
se exigent circumstance justifying a blood test without a warrant in all DWI cases.
133 S. Ct. 1552, 1567–68 (2013) (5-4 opinion). Since McNeely, the Texas courts
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of appeals have attempted to interpret the effect of McNeely on Texas law. The
majority of the courts that have addressed the issue have concluded that the
mandatory-blood-draw statute in conjunction with the implied-consent statute
contained in section 724.011 of the transportation code are not exceptions to the
warrant requirement; thus, any warrantless blood draw must be based on a well-
recognized exception to the warrant requirement. Tex. Transp. Code Ann. §
724.011(a) (West 2011); see, e.g., Gentry v. State, No. 12-13-00168-CR, 2014
WL 4215544, at *3–4 (Tex. App.—Tyler Aug. 27, 2014, pet. filed) (mem. op., not
designated for publication) (collecting cases from San Antonio, Amarillo,
Eastland, and Corpus Christi Courts of Appeals and concluding that mandatory-
blood-draw and implied-consent statutes are not exceptions to the warrant
requirement); Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.—Texarkana
2014, pet. granted) (relying on decisions by Amarillo and Corpus Christi Courts of
Appeals to conclude that mandatory-blood-draw statute is not an exception to the
warrant requirement). However, one court concluded that proof of compliance
with the procedural requirements of the mandatory-blood-draw statute was
sufficient to imply an arrestee’s consent to a warrantless blood draw, dispensing
with the warrant requirement. Perez v. State, No. 01-12-01001-CR, 2014 WL
943126, at *6–7 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet. h.).
In sum, the import of McNeely on Texas’s mandatory-blood-draw and
implied-consent statutes was unsettled at the time of Coble’s trial and remains
unsettled today. Indeed, McNeely did not address directly the effect of
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mandatory-blood-draw or implied-consent statutes on the warrant requirement.
The McNeely Court merely concluded that natural alcohol dissipation cannot be
considered a per se exigent circumstance justifying a warrantless seizure of a
blood specimen in all DWI cases. 133 S. Ct. at 1567–68.
Absent a record in this case explaining counsel’s reasoning for failing to
move to suppress the blood-alcohol evidence on the basis of McNeely, we may
not conclude that counsel was constitutionally deficient. Indeed, Odom never
asserted that the natural dissipation of alcohol was an exigent circumstance that
he relied on to dispense with the warrant requirement; thus, trial counsel could
have concluded that McNeely did not apply to the admission of Coble’s blood
specimen. See, e.g., State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App.
2013) (“[W]e have repeatedly declined to find counsel ineffective for failing to
take a specific action on an unsettled issue.”). Further, it appears that counsel
was following Coble’s direction regarding trial strategy, which focused on Coble’s
contention that he was not the person who was arrested and compelled to give a
blood specimen:
Mr. Coble wants me, of course, on the record to deny that he’s
intoxicated. He tells us and he . . . believes the evidence is going to
show that he did not commit any traffic violations . . . .
He denies doing many of the things the officers say, and he
wants me on his behalf to deny he’s the person that’s depicted in
this videotape. He claims that evidence has been manufactured and
created in a false light and it depicts someone else and not him
present at the scene. Also contends in the case that he was not
taken to the hospital to draw any blood, and that he has no
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recollection of being taken to a hospital to draw blood, and has no
recollection of refusing to provide any kind of a sample.
Even so, we may not second-guess trial counsel’s actions in the absence
of a record. See, e.g., Kennedy v. State, 402 S.W.3d 796, 798 (Tex. App.—Fort
Worth 2013, pet. ref’d), petition for cert. filed, (U.S. June 9, 2014) (No. 13-
10784). Here, Coble did not file a motion for new trial or otherwise give trial
counsel an opportunity to explain his decisions. In the absence of any record to
explain trial counsel’s actions or inactions, Coble has not met his burden to show
that his trial counsel’s conduct was not the result of a sound trial strategy and,
therefore, was deficient. See Davis v. State, 930 S.W.2d 765, 769 (Tex. App.—
Houston [1st Dist.] 1996, pet. ref’d). Counsel’s conduct was not so outrageous
that the lack of an explanatory record is excused. See Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005). Further, Coble concedes that it is
“unknown” whether the outcome of Coble’s case would have been different if
counsel had objected on the basis of McNeely or the Fourth Amendment. It is
Coble’s burden to establish the prejudice prong of Strickland, which he has failed
to do. We overrule Coble’s second issue.
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IV. CONCLUSION
Having overruled Coble’s issues, we affirm the trial court’s judgment. See
Tex. R. App. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 16, 2014
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