Opinion of March 13, 2007, Withdrawn; Affirmed and Corrected Memorandum Opinion filed March 22, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00529-CR
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DARRELL LEON ASHER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 997336
C O R R E C T E D M E M O R A N D U M O P I N I O N
The opinion of March 13, 2007, is withdrawn because of an incorrect trial court number and issues a corrected opinion in its place.
Darrell Leon Asher appeals a conviction for intoxication manslaughter[1] on the grounds that: (1) the evidence is legally and factually insufficient to prove that he committed the offense; and (2) he was denied the effective assistance of counsel during both the guilt/innocence and punishment stages of the trial. We affirm.
Background
After being involved in an automobile collision in which the other driver suffered fatal injuries, appellant was charged with intoxication manslaughter.[2]
Sufficiency of the Evidence
Appellant=s first issue challenges the legal sufficiency of the evidence to prove that he committed the offense. However, appellant=s brief fails to identify which elements of the offense that he contends the evidence failed to prove or in what respects the evidence presented failed to prove any necessary facts.[3] Therefore, appellant=s first issue affords no basis for relief and is overruled.
Appellant=s second issue challenges the factual sufficiency of the evidence to support his conviction on the grounds that: (1) the other driver was at fault in causing the accident; (2) appellant=s lights were on when the accident occurred; and (3) one of the investigating officers did not follow police protocol when she collected and documented evidence and created the accident scene diagram.
Appellant does not dispute that he was driving while intoxicated when the accident occurred, but only whether his intoxication caused the accident.[4] However, the evidence showed that appellant was driving above the posted speed limit and did not brake or take other evasive action before the collision occurred. Appellant=s brief fails to explain how this conduct, operating either alone or concurrently with any fault of the other driver, was insufficient to prove that his intoxication was a cause of the accident.
Additionally, appellant=s brief fails to state how the other facts he asserts show that the jury=s verdict was against the great weight of the evidence. See Tex. R. App. P. 38.1(h); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). Although appellant alleges there were inconsistences in the evidence, conflicting evidence upon which the fact finder could have reached a different conclusion does not demonstrate factual insufficiency. See Santellan v. State, 939 S.W.2d 155, 166 (Tex. Crim. App. 1998). Therefore, appellant=s second issue is without merit and is overruled.
Ineffective Assistance
Appellant=s third issue contends that he was denied the effective assistance of counsel at the guilt/innocence stage of the trial because his trial counsel failed to: (1) locate crucial witnesses; (2) call his own accident reconstructionist; and (3) present any witnesses to rebut the State=s witnesses. Specifically, appellant claims that Officer Michelle Woodham, whom he argues was the most critical witness for the defense, should have been subpoenaed to rebut Detective J. T. Meredith=s implied allegations that Woodham was incompetent at collecting evidence and investigating the accident.[5] Appellant=s fourth issue contends that he was denied the effective assistance of counsel at the punishment stage of the trial because his trial counsel failed to make a sufficient argument to the jury to mitigate the punishment.
To prevail on an ineffective assistance claim, appellant must show that his defense attorney's performance fail below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Ex parte Gonzales, 204 S.W.3d 391, 393B94 (Tex. Crim. App. 2006). An ineffective assistance claim must be firmly founded in the record, and the record must affirmatively demonstrate the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal. Garza v. State, ___S.W.3d___,___ (Tex. Crim. App. 2007).
In this case, the record does not reflect trial counsel=s reasons for his actions or omissions, and thus fails to demonstrate that his conduct could not have been part of a reasonable trial strategy. See Garza, ___S.W.3d at ___. The record does, however, reflect that Officer Woodham was served with the State=s subpoena, which appellant=s trial counsel was entitled to rely on without having to file one of his own. See Tex. Code Crim. Proc. Ann. art 24.12 (Vernon 1989). Appellant also failed to develop a record of what testimony Woodham could have provided that would have made a finding of guilt any less likely. See Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App. 2005).
Additionally, during the punishment stage, appellant=s trial counsel presented four witnesses and argued on behalf of appellant. Appellant=s brief does not indicate how this argument was deficient or what further argument might have produced a more favorable outcome. Accordingly, appellant=s third and fourth issues are overruled, and the judgment
of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Corrected Memorandum Opinion filed March 22 , 2007.
Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.
Do not publish C Tex. R. App. P. 47.2(b).
[1] A jury found appellant guilty and assessed punishment at 45 years confinement.
[2] See Tex. Penal Code Ann. ' 49.08 (Vernon 2003) (a person commits intoxication manslaughter by: (1) operating a motor vehicle in a public place, (2) while intoxicated, and (3) by reason of that intoxication, causes the death of another by accident or mistake).
[3] See Tex. R. App. P. 38.1(h); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (holding that sufficiency point was insufficiently briefed); Hutto v. State, 977 S.W.2d 855, 858 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (holding where no argument is presented on how the evidence is insufficient, nothing is preserved for review).
[4] See Tex. Penal Code Ann. ' 6.04(a) (Vernon 2003) (A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor was clearly insufficient.)
[5] Appellant apparently wanted to rebut Detective Meredith=s testimony to show that Woodham properly followed police protocol and that the headlamp submitted by Woodham as evidence was actually from appellant=s pickup truck.