COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00553-CR
STEVEN DEWAYNE KNIGHT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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Appellant Steven Dewayne Knight appeals his conviction for felony driving
while intoxicated (DWI). We affirm the trial court’s judgment.
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See Tex. R. App. P. 47.4.
I. Background
On May 8, 2011, Knight was at a restaurant when the owner of the
restaurant noticed that Knight appeared to be intoxicated. Knight was alone.
Knight began “stumbling” out of the restaurant to get in his car, and the
restaurant owner called the police. Officer Frank Carroll responded to the call
and quickly located Knight’s car. Officer Carroll saw Knight pull into a
convenience store and stop at a gasoline pump. Officer Carroll parked his car
behind Knight’s, and Knight got out of the driver’s side of the car and began
walking toward Officer Carroll. Knight smelled of alcohol, slurred his words, kept
his hand on his car for balance, and began to urinate on himself while talking to
Officer Carroll. Knight told Officer Carroll that his driver’s license had been
suspended, but gave him a state-issued identification card. He also told Officer
Carroll he was not driving.
Officer Carroll checked Knight’s identification information and determined
that Knight had two prior DWI convictions. Knight refused to perform the field
sobriety tests. Officer Carroll put Knight in handcuffs and began taking him to the
patrol car. At this point, Knight became “belligerent,” “vulgar,” and
“argumentative.” For example, Officer Carroll testified that Knight stated “he was
going to kick my a[--]” and that “he was going to f[---] my wife.” Officer Carroll
took Knight to have his blood drawn at a hospital, where it was discovered
Knight’s blood alcohol concentration was four times the legal limit. See Tex.
Penal Code Ann. § 49.01(2)(B) (West 2011).
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Knight was indicted for felony DWI based on his two prior DWI convictions.
See id. §§ 49.04(a), 49.09(b)(2) (West Supp. 2012). Specifically, the indictment
charged that Knight “did . . . drive and operate a motor vehicle in a public place
while . . . intoxicated.”
At trial, Knight’s defensive theory was that he was not the driver. Indeed,
the keys were not in the car when police officers inventoried the car after Knight’s
arrest, and Knight did not have the keys when he arrived at the jail. 2 The State
contended during closing arguments that Knight’s assertion that he was not
driving was not credible:
[I]f in fact I was looking at going to prison for a DWI, and I was not
driving, I wouldn’t have told Officer Carroll that statement one time
when he originally made contact with me that I wasn’t driving; I
would have been saying nothing but, “I was not driving. I was not
driving.” That’s all he would have heard on the way to the
Springtown Police Department, that’s all he would have heard on the
way to the Weatherford Regional Hospital, that’s all the other officer
would have heard when he came up to assist with the blood draw.
That’s all the phlebotomist would have heard. “I was not driving.”
That’s all you would have heard from me, if, in fact, that were true
and that wasn’t a lie.
The jury found Knight guilty.
At punishment, Knight pleaded true to the enhancement paragraphs, which
alleged that Knight previously was convicted of DWI and aggravated assault with
2
This is the only evidence in the record that suggests Knight was not alone
in the car. As noted above, Officer Carroll saw Knight get out of the driver’s side
of his car. Further, Knight was alone before he got in his car.
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a deadly weapon. The jury assessed Knight’s punishment at confinement for life.
See id. § 12.42(d). This appeal followed.
II. Admission of Knight’s Statement
In his first point, Knight argues that the trial court abused its discretion by
admitting his statement regarding Officer Carroll’s wife because it was
inadmissible character evidence and was overly prejudicial. Before eliciting the
disputed testimony from Officer Carroll, Knight objected that such evidence was
not relevant and was too prejudicial. See Tex. R. Evid. 403, 404(b). The trial
court overruled the objection, concluding that the statements were
“contemporaneous with the arrest” and “go to the probative value of whether or
not his mental faculties are there.” We review the trial court’s admission of the
statement under an abuse-of-discretion standard. See Lum v. State, 903 S.W.2d
365, 371 (Tex. App.—Texarkana 1995, pet. ref’d).
The trial court did not abuse its discretion by admitting the statement over
Knight’s objection under rule 403. Knight’s demeanor—including his threatening
statements to Officer Carroll, his slurred speech, and his lack of motor control—
was directly relevant to the issue of intoxication. See Jones v. State, 795 S.W.2d
171, 175 (Tex. Crim. App. 1990); Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex.
Crim. App. 1985). Thus, even though Knight’s statement about Officer Carroll’s
wife arguably was prejudicial, such prejudice was not outweighed by its probative
value to an issue to be submitted to the fact-finder. See State v. Mechler, 153
S.W.3d 435, 440 (Tex. Crim. App. 2005).
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Likewise, the trial court did not abuse its discretion by admitting Knight’s
statement over Knight’s rule 404(b) objection. Knight argues that the only
probative value of the statement lies in its support of an inference of character
conformity; thus, it is inadmissible under rule 404(b). See, e.g., Montgomery v.
State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh’g).
Indeed, an accused cannot be tried for some collateral crime or for being a
criminal generally. See Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App.
1983). To introduce evidence of other crimes, wrongs, or acts, the proponent of
the evidence must satisfy the trial court that the other crime, wrong, or act has
relevance apart from its tendency to prove character conformity; that it tends to
establish some elemental fact, such as identity or intent; that it tends to establish
some evidentiary fact (such as motive, opportunity, or preparation) leading
inferentially to an elemental fact; or that it rebuts a defensive theory by showing,
for example, absence of mistake or accident. See Montgomery, 810 S.W.2d at
387–88; see also Tex. R. Evid. 404(b). Evidence of an extraneous offense,
wrong, or act that logically serves the purpose of proving motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident
is relevant beyond its tendency to prove the character of a person to show that
he acted in conformity therewith. See Montgomery, 810 S.W.2d at 387. Here,
as noted by the trial court, the evidence was relevant to show Knight’s loss of
mental faculties due to intoxication at the time of the traffic stop. Tex. Penal
Code Ann. § 49.01(2)(A); see Lopez v. State, No. 10-11-00115-CR, 2013 WL
5
765711, at *7 (Tex. App.—Waco Feb. 28, 2013, no pet.) (mem. op., not
designated for publication); Saxer v. State, 115 S.W.3d 765, 778–80 (Tex.
App.—Beaumont 2003, pet. ref’d); Smith v. State, No. 09-97-00175-CR, 1999
WL 64262, at *2 (Tex. App.—Beaumont Feb. 10, 1999, no pet.) (not designated
for publication). Thus, the evidence was admissible under rule 404(b), and the
trial court did not abuse its discretion in its admission. We overrule point one.
III. Ineffective Assistance of Counsel
In his second point, Knight argues that his trial counsel was constitutionally
ineffective because he failed to object to the State’s closing jury argument, which
commented on his post-arrest silence. To establish ineffective assistance of
counsel, the appellant must show by a preponderance of the evidence that his
counsel’s representation fell below the standard of prevailing professional norms
and that there is a reasonable probability that, but for counsel’s deficiency, the
result of the trial would have been different. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984); Davis v. State, 278 S.W.3d 346, 352
(Tex. Crim. App. 2009). In other words, for a claim of ineffective assistance of
counsel to succeed, the record must demonstrate both deficient performance by
counsel and prejudice suffered by the defendant. 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,
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163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63
(Tex. Crim. App. 2001).
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, 9 S.W.3d at 813. 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), cert. denied, 537 U.S. 1195 (2003)).
Here, it is clear that counsel’s failure to object fell within the wide range of
reasonable representation our standard of review presumes because the State’s
arguments were in direct response to Knight’s defensive theory—that he was not
the driver—and were not a comment on Knight’s post-arrest silence. See
Hernandez v. State, 939 S.W.2d 692, 695 (Tex. App.—Fort Worth 1997, pet.
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ref’d) (holding State’s argument, which referred to defendant’s failure to explain
his theory that someone else committed the crime, was not a comment on
defendant’s failure to testify); Mowbray v. State, 788 S.W.2d 658, 665 (Tex.
App.—Corpus Christi 1990, pet. ref’d) (holding State’s argument referencing
defendant’s election not to testify was either a restatement of the charge or
answer to defense argument), cert. denied, 498 U.S. 1101 (1991). See generally
Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992) (listing permissible
areas of jury argument, including answering opposing counsel’s argument), cert.
denied, 510 U.S. 829 (1993). Therefore, the record presented on direct appeal
does not show deficient performance by counsel, which is fatal to Knight’s
ineffective-assistance-of-counsel claim. We overrule point two.
IV. Conclusion
Having overruled Knight’s two points, we affirm the trial court’s judgment.
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 23, 2012
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