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Opinion filed August 14, 2008
In The
Eleventh Court of Appeals
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No. 11-07-00056-CR
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HENRY ROSS HODGES, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 13142
M E M O R A N D U M O P I N I O N
The jury convicted Henry Ross Hodges of felony driving while intoxicated and assessed his punishment at eight years confinement. Hodges challenges his conviction with a single issue contending that his counsel was constitutionally ineffective because she introduced into evidence an arrest report that reflected a blood alcohol content of .308. We affirm.
Standard of Review
To determine if trial counsel rendered ineffective assistance, we must first determine whether Hodges has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and Hodges must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991). An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking as to overcome the presumption that counsel=s representation was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
The Evidence
Department of Public Safety Trooper James Lattimore testified that he was called to assist Deputy Sheriff Gary Morris with a traffic stop. When he arrived at the scene, Trooper Lattimore activated his video recording equipment and performed field sobriety tests on Hodges. Trooper Lattimore testified that the standard tests included an HGN test, a walk-and-turn test, and the one-leg stand. He also testified that Hodges failed the sobriety tests. Trial counsel attempted to undermine this testimony by showing inconsistencies between Trooper Lattimore=s arrest report and video and, in the process, introduced the report into evidence. The report reflects that he performed an HGN test; however, there was no HGN test shown on the video. Trooper Lattimore responded that Deputy Morris had already administered an HGN test before he arrived and that he simply recorded Deputy Morris=s results on his report.
The arrest report includes the notation ABAC @ .308 (PBT).@ The trial court held that, because the report had been admitted into evidence, Trooper Lattimore could now testify about Hodges=s breath test. Trooper Lattimore described the test and testified that Hodges=s test results indicated a blood alcohol content of .308. The only other reference to the portable breath test was during closing argument when the State pointed out the consistency between the portable breath test results and Hodges=s blood sample analysis.
Hodges argues that the admission of the arrest report made his conviction a formality because there was no evidence to rebut the test results. Even if we assume that the better practice would have been served by attempting to redact the reference to the portable breath test before offering the report into evidence, Hodges=s argument fails to consider the overwhelming evidence of his intoxication. The jury heard Deputy Morris testify that he observed Hodges=s vehicle veer into the oncoming lane of traffic, that he smelled alcohol coming out of Hodges=s vehicle before he actually saw Hodges, that Hodges failed a field sobriety test, and that Hodges slurred his speech and had trouble standing. The jury also heard Trooper Lattimore testify that Hodges failed his field sobriety tests and had difficulty standing and that he was taken to the hospital to obtain a blood specimen. Raymond Arthur Waller, Jr., the manager of the Abilene DPS Crime Lab, testified that Hodges=s blood sample contained .30 grams of alcohol per 100 milliliters (almost four times the legal limit) and that some people die of alcohol poisoning at this level. Finally, the jury saw the video of Hodges=s stop. Against this evidence, we cannot conclude that a reasonable probability exists that, if the jury had not heard about Hodges=s portable breath test results, it would have acquitted him. Hodges=s issue is overruled.
Holding
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
August 14, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.