COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00431-CR
DERRICK CASH SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-06227-B
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MEMORANDUM OPINION1
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Upon his plea of not guilty, a jury convicted Appellant Derrick Cash Smith
of driving while intoxicated (DWI), and upon his plea of true to a prior
misdemeanor DWI conviction, the trial court found him guilty of enhanced
misdemeanor DWI and sentenced him to pay a $500 fine and to serve 350 days’
confinement, suspending imposition of the confinement portion of the sentence
1
See Tex. R. App. P. 47.4.
and placing Appellant on community supervision for eighteen months. Appellant
agreed to serve five days in jail as a condition of community supervision. In three
issues, Appellant challenges the voluntariness of his plea and contends that his
trial counsel was ineffective. Because we hold that the trial court did not
reversibly err by failing to admonish Appellant and that Appellant did not satisfy
his burden to prove ineffective assistance of trial counsel, we affirm the trial
court’s judgment.
Statement of Facts
The information charged that on or about February 8, 2014, Appellant
“operate[d] a motor vehicle in a public place in Denton County, Texas, while
intoxicated.” The information did not allege a definition of intoxication or specific
intoxicants. The information included an allegation that Appellant had a previous
1990 misdemeanor DWI conviction. The parties waived the taking of voir dire by
the court reporter. Appellant waived arraignment. A Denton County Community
Supervision and Corrections Department document bearing the date April 7,
2015, and filed with the county clerk indicates that Appellant is a citizen of the
United States. Blank space follows the term “Alien Reg#” on the document.
The jury heard the following evidence in the August 27, 2015 trial. On
February 8, 2014, at around 9:15 p.m., Officer Mark Pool of the Carrollton Police
Department noticed a black Dodge truck parked in the parking lot of a RaceTrac
gas station. The driver’s head was down, and he “appeared to be messing
around with something in his hands, around his arms.” Officer Pool followed the
2
truck into the roadway. The driver did not stop at the stop line for a red light at an
intersection. Then the driver turned right into the farthest lane from him at that
red light instead of turning into the nearest available lane. Officer Pool stopped
the vehicle for traffic violations; Appellant was the driver. Officer Pool testified
that he did not smell alcohol and that Appellant seemed fine, was calm, and was
not acting anxious. Appellant consented to a search of the truck by Officer Pool;
nothing incriminating was found.
Meanwhile, another officer, Officer William Carmichael, had arrived. He
testified that when Officer Pool asked Appellant to exit the vehicle so that it could
be searched, Appellant walked by him. As Appellant walked by Officer
Carmichael, Officer Carmichael noted that Appellant “was kind of emitting an
odor of an alcoholic beverage” and exhibiting “sort of . . . gait ataxia,” “kind of a
plod walk.” An ataxic gait is “[a]n unsteady, staggering gait” in which “walking is
uncoordinated.”2 Officer Carmichael clarified that Smith had walked with “a
heavy step every step that [was] consistent from side to side” and on both feet.
Officer Carmichael testified that when asked about problems with his ankles,
knees, or hips, Appellant said that he had sprained his ankle the previous day but
conceded that he was not having any issues walking. Officer Carmichael then
conducted standardized field sobriety tests. He testified that Appellant failed the
walk-and-turn test and the one-leg stand. Officer Carmichael testified that he
2
“Ataxia,” http://www.hopkinsmedicine.org/neurology_neurosurgery/centers
_clinics/movement_disorders/ataxia/conditions/ (last visited 6/22/16).
3
observed only two out of six clues on the horizontal gaze nystagmus (HGN) test,
a score which does not indicate intoxication, but he abandoned the test because
he believed that Appellant was not being cooperative and was deliberately not
focusing on the stimulus. On cross-examination, Officer Carmichael conceded
that no portion of the HGN test appears on the video recording of the arrest
scene and that while he conducted the HGN test behind the truck, he moved
Appellant “right in front of the camera” for the other two standardized tests.
Appellant had told Officer Carmichael that he had taken Xanax and Zofran
earlier that morning but initially denied having drunk any alcohol. Officer
Carmichael therefore also administered two nonstandard tests, the Romberg test
and an eye test for lack of convergence. To administer the Romberg test, an
officer has the subject stand with his feet together and his arms at his sides. The
officer then directs the subject to raise his head, close his eyes, and estimate
thirty seconds. The officer evaluates the estimate but also looks for swaying and
fluttering eyelids as signs that the person is under the influence of a depressant.
Officer Carmichael testified that Appellant’s estimate was “pretty close” and that
Appellant did not sway at all but that Appellant’s eyelids “fluttered” pronouncedly,
indicating that he was under the influence of a depressant. According to Officer
Carmichael, Appellant performed normally on the test for lack of convergence;
that is, Appellant’s eyes converged, or crossed, as Officer Carmichael moved the
stimulus closer to the bridge of Appellant’s nose.
4
Medical records admitted at trial showed that instead of having a sprained
ankle, Appellant had fractured the fifth metatarsal on his right foot. Officer
Carmichael had testified that he would have expected a person with a broken
foot to “limp and favor a leg.” He also admitted on cross-examination, however,
that he would not have expected someone with a broken foot to perform well on
the walk-and-turn test. Officer Carmichael testified that the one-leg stand test
would not be affected by a broken foot if the suspect stood on the uninjured foot.
Medical records also showed that Appellant suffered from general anxiety
disorder. Officer Carmichael admitted on cross-examination that anxiety could
affect a person’s ability to perform the field sobriety tests in some circumstances.
But he reiterated on redirect examination that Appellant had seemed fairly
relaxed that night and not anxious. Officer Carmichael decided that he had
probable cause to arrest Appellant for DWI and arrested him. Appellant refused
a blood test, so the police took Appellant’s blood pursuant to a warrant.
Officer Micah Hasper testified that he was a City of Carrollton detention
officer. In that role, he also functioned as a certified blood technician. He drew
Appellant’s blood at 11:27 p.m. Officer Hasper remembered Appellant saying at
the time of the blood draw that he was feeling pretty anxious and asking how to
get his medication.
Andrew Macey, the drug section supervisor at the Texas Department of
Public Safety (DPS) crime lab in Garland, testified that Appellant’s blood alcohol
concentration (BAC) was found to be .077. On cross-examination, Macey
5
admitted that the BAC had a .008 measurement of uncertainty. The following
dialogue also occurred:
Q. Okay. So what can you say at the time of the stop, at 9:12?
A. Well, it depends on when the last drink was.
Q. And you don’t know that?
A. Correct.
Q. So can you say with any scientific certainty that at 9:12—
under that fact scenario that was given to you by [the
prosecutor], that at 9:12—in that scenario, a person driving at
9:12 was greater than .08?
A. I do not know given the facts that I was given.
Q. So that’s a no, you don’t know?
A. Correct.
Q. So it’s possible given those facts that the person that was
driving at 9:12 was actually under a .08?
A. It’s a possibility.
Q. And you’re using the number based on .077, which you agree
there is a margin of error of plus or minus .008?
A. Correct.
Q. So just to be clear, you cannot say that the person in the
scenario, the hypothetical that [the prosecutor] gave you at the
time of driving his vehicle was per se intoxicated?
A. I do not know.
Eduardo Padilla, a forensic scientist and the custodian of records for the
Austin DPS crime lab, testified that Appellant’s blood also contained .069
milligrams per liter of alprazolam, the generic name for Xanax, and less than .05
milligrams per liter of nordiazepam, a metabolite or byproduct of diazepam, the
6
generic name of Valium. Padilla further testified that alprazolam and diazepam,
as well as alcohol, are central nervous system depressants. Padilla also testified
that the level of alprazolam in Appellant’s blood was too high for a person taking
the drug for anxiety but within the normal range if a person took the drug for
panic attacks. Padilla additionally testified that a warning label accompanies
Xanax and instructs the patient not to take it with alcohol because the two
substances can produce “an additive effect, meaning that the total effect is the
sum of the two drugs working together to produce a greater effect,” and can
increase impairment.
On cross-examination, Padilla admitted that he did not know if Appellant
had panic attacks, what he was prescribed, or the levels of those prescriptions.
Padilla also admitted that he could not say that someone with a .077 alcohol
concentration plus a .069 concentration of Xanax was legally intoxicated, just that
the likelihood was higher, and that he could not say that the combination of
alcohol and drugs impaired Appellant. Padilla further testified that the minute
level of diazepam in Appellant’s blood merely indicated prior usage of the drug,
and Padilla admitted that because the lab “see[s] them commonly together,” he
“imagine[d]” that doctors prescribe Xanax and Valium together for anxiety.
Defense counsel offered Appellant’s medical records, which were
admitted, but called no witnesses before resting. Defense counsel stated, “No
objection,” to the proposed charge.
7
During deliberations, the jury asked to view the dash cam video and the
medical records.
After the jury found Appellant guilty of DWI and was released, the trial
court announced a recess for the parties to “talk” about a punishment agreement.
After the recess, Appellant pled true to the allegation that he had previously been
convicted of DWI. The trial court accepted the plea and the agreement that
Appellant had apparently reached with the State, found him guilty of the
enhanced misdemeanor offense of DWI, and sentenced him to 350 days’
confinement in jail, suspended for eighteen months, and a $500 fine.
Having obtained new counsel after his conviction, Appellant filed a motion
for new trial. The trial court initially granted the motion for new trial, but after
briefing and amended briefing, the trial court ultimately denied the motion for new
trial. Appellant’s request for permission to appeal despite the bargain reached
with the State, which apparently included a waiver of his right to appeal, was
granted. The record before us does not contain a recitation of the bargain, any
plea-bargain documents, or a signed waiver of appeal.
At the hearing on his motion for new trial, Appellant testified that he had
wanted to testify in his own defense at trial and present his medical records, but
his former defense counsel would not let him. Appellant also testified that his
former defense counsel never showed him the records of his prior conviction.
Appellant further testified that former defense counsel coerced him into agreeing
to the sentencing bargain, stating to Appellant, “[T]his is the best deal you’re
8
going to get,” and, regarding the five days’ confinement as a condition of
community supervision,
[I]f we approach the judge, you’re probably going to get 30 days or
maybe even more.” And so [former defense counsel] was putting
[Appellant] in a state of fear, anxiety, pressure, and [Appellant] was
very afraid that if [he] did approach the judge that [he] could get that
30 days. And [former defense counsel] kind of coerced [Appellant]
into going ahead and signing that document by his statements and
kind of in a very demanding demeanor, voice, so to speak.
Former defense counsel was not called as a witness at the hearing on the
motion for new trial, nor was an affidavit from him submitted.
Guilty Plea Admonishments
In his second issue, Appellant contends that the trial court erred by failing
to admonish him under article 26.13 of the code of criminal procedure.3 Article
26.13 does not apply to misdemeanors.4 Appellant also appears to complain that
his plea of true to the offense enhancement allegation is insufficient to support
his conviction of the enhanced misdemeanor. The State’s burden of proving an
enhancement allegation is satisfied when a defendant pleads true.5 Finally,
3
Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2015).
4
See State v. Guerrero, 400 S.W.3d 576, 589 (Tex. Crim. App. 2013)
(noting Texas Court of Criminal Appeals has repeatedly held article 26.13
statutory admonishments are not required in misdemeanor cases).
5
Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App.) (op. on reh’g),
cert. denied, 454 U.S. 840 (1981); see Bryant v. State, 187 S.W.3d 397, 401–02
(Tex. Crim. App. 2005) (holding stipulation to prior convictions relieves State of
burden of otherwise proving that element).
9
Appellant pled not guilty. We therefore reject all his complaints premised upon a
guilty plea. We overrule Appellant’s second issue.
Ineffective Assistance of Counsel
In his remaining two issues, Appellant complains of ineffective assistance
of counsel. Broadly mentioning “the black letter language of the Sixth
Amendment” and “current case law,” Appellant argues that we must review at
least his third issue in the light most favorable to him. We reject this contention
as inadequately briefed.6
Standard of Review
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that his counsel’s representation was deficient
and that the deficiency prejudiced the defense.7 An ineffective-assistance claim
must be “firmly founded in the record,” and “the record must affirmatively
demonstrate” the meritorious nature of the claim.8
Direct appeal is usually an inadequate vehicle for raising an ineffective-
6
See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex.
Crim. App. 2011) (citing cases), cert. denied, 132 S. Ct. 2712 (2012).
7
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez
v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
8
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
10
assistance-of-counsel claim because the record is generally undeveloped.9 In
evaluating the effectiveness of counsel under the deficient-performance prong,
we look to the totality of the representation and the particular circumstances of
each case.10 The issue is whether counsel’s assistance was reasonable under
all the circumstances and prevailing professional norms at the time of the alleged
error.11 Review of counsel’s representation is highly deferential, and the
reviewing court indulges a strong presumption that counsel’s conduct was not
deficient.12
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record.13 Trial counsel “should
ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.”14 If trial counsel is not given that opportunity, we
should not conclude that counsel’s performance was deficient unless the
9
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012);
Thompson, 9 S.W.3d at 813–14.
10
Thompson, 9 S.W.3d at 813.
11
See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415
S.W.3d at 307.
12
Nava, 415 S.W.3d at 307–08.
13
Menefield, 363 S.W.3d at 593; Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
14
Menefield, 363 S.W.3d at 593.
11
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.”15
The prejudice prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, that is, a trial with
a reliable result.16 In other words, an appellant must show a reasonable
probability that, without the deficient performance, the result of the proceeding
would have been different.17 A reasonable probability is a probability sufficient to
undermine confidence in the outcome.18 The ultimate focus of our inquiry must
be on the fundamental fairness of the proceeding in which the result is being
challenged.19
In his first issue, Appellant contends that former defense counsel told him
that if he elected to have the trial court assess his punishment, he was
guaranteed to receive at least thirty days’ confinement in jail, that the trial court
would not consider any arguments for fewer days in jail as a condition of
community supervision, and that only by agreeing to the State’s plea deal could
Appellant avoid lengthy jail time. Appellant also complains that former defense
15
Nava, 415 S.W.3d at 308.
16
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
17
Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308.
18
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at
308.
19
Strickland, 466 U.S. at 697, 104 S. Ct. at 2070.
12
counsel either did not investigate the legality of Appellant’s prior DWI conviction
or did not explain it well enough to him and did not give him a copy of the State’s
evidence to review. Appellant further complains that former defense counsel did
not advise him as to his immigration status. But former defense counsel was not
a witness in the hearing on the motion for new trial. Further, no evidence in the
record indicates that the advice to take the deal was bad advice, that former
defense counsel did not investigate Appellant’s prior DWI conviction, or that
former defense counsel did not discuss immigration consequences, if any, with
Appellant, who, as the only statement in the record on the subject indicates, is
not an immigrant subject to deportation. The Texas Court of Criminal Appeals
has explained that “[u]nder normal circumstances, the record on direct appeal will
not be sufficient to show that counsel’s representation was so deficient and so
lacking in tactical or strategic decisionmaking as to overcome the presumption
that counsel’s conduct was reasonable and professional.”20 That is the situation
here, especially since former defense counsel did not testify at the hearing on the
motion for new trial or submit an affidavit. We therefore overrule Appellant’s first
issue.
In his third issue, Appellant complains of other aspects of former defense
counsel’s performance. Appellant contends that former defense counsel
repeatedly mentioned Appellant’s broken foot and use of prescription anxiety
20
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
13
medications and that this strategy seemed to be the sole mitigating evidence to
combat the State’s evidence of .077 BAC. Appellant complains that former
defense counsel never used the medical records to cross-examine the State’s
witnesses or to refute the State’s toxicological theories and that former defense
counsel mostly said nothing while the State’s witnesses testified unimpeded by
objections. Appellant also complains that former defense counsel failed to call
an expert or to present any qualified expert witness medical testimony to support
Appellant’s only viable defense. Appellant additionally complains that former
defense counsel would not allow him to testify in his own defense.
Our review of the record shows that former defense counsel vigorously
cross-examined the State’s witnesses and that his theory of the case seemed to
be that (1) the stop, while supported by traffic violations, was supported by traffic
violations that drivers commonly commit regardless of sobriety; (2) the negative
results of any field sobriety test could be attributed to Appellant’s medical
conditions; and (3) Appellant was not intoxicated under either definition of
intoxication. While former defense counsel did not call an expert, to prove
ineffective assistance, Appellant would have to show that an expert was available
to testify and that the expert’s testimony would help Appellant’s case.21 Appellant
has done neither. Finally, even if the trial court believed Appellant’s testimony at
the hearing on his motion for new trial that former defense counsel prevented him
21
See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); see also
Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).
14
from testifying, Appellant has not shown a reasonable probability that the
outcome of the trial would have been different if he had testified.22 Accordingly,
Appellant has not met his burden to prove ineffective assistance.23 We overrule
his third issue.
Conclusion
Having overruled Appellant’s three issues, we affirm the trial court’s
judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 30, 2016
22
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at
308.
23
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at
308.
15