Esaw Lampkin v. State

ACCEPTED
06-14-00024-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/23/2014 11:57:46 PM
DEBBIE AUTREY
CLERK

IN THE COURT OF APPEALS

SIXTH DISTRICT OF TEXAS FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
TEXARKANA, TEXAS
12/30/2014 3:12:00 PM
DEBBIE AUTREY
Clerk
ESAW LAMPKIN, §
APPELLANT §
§
VS. § APPEAL NO. 06-14-00024-CR
§
THE STATE OF TEXAS, §
APPELLEE §

APPELLEE’S BRIEF

APPEAL FROM THE 124th JUDICIAL DISTRICT COURT,

IN AND FOR GREGG COUNTY, TEXAS, CAUSE NO. 42,897-B

THE HONORABLE ALFONSO CHARLES, DISTRICT JUDGE, PRESIDING

L. Charles van Cleef
State Bar No. 00786305

P.O. Box 2432
Longview, Texas 75606-2432
903-248-8244 Telephone
903-248-8249 Facsimile
charles@vancleef.pro

COUNSEL FOR APPELLEE
 I. TABLE OF CONTENTS
I. TABLE OF CONTENTS .................................................................................................... - 2 -
II. IDENTITY OF PARTIES AND COUNSEL ...................................................................... - 5 -
III. TABLE OF AUTHORITIES ............................................................................................... - 6 -
IV. STATEMENT OF THE CASE ........................................................................................... - 8 -
V. STATEMENT REGARDING ORAL ARGUMENT ......................................................... - 9 -
VI. ISSUES PRESENTED ........................................................................................................ - 9 -
VII. STATEMENT OF FACTS .................................................................................................. - 9 -
VIII. ISSUE ONE: ................................................................................................................ - 9 -
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO APPELLANT
BECAUSE, KNOWING THAT HIS CLIENT WAS MENTALLY UNSTABLE AND
HAVING STATED THAT IN LETTERS TO HIS CLIENT, HE FAILED TO
INVESTIGATE APPELLANT’S MENTAL STATUS ......................................................... - 9 -
A. Summary of the Argument ........................................................................................... - 9 -
B. Argument And Discussion ......................................................................................... - 10 -
IX. ISSUE TWO: ..................................................................................................................... - 15 -
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO APPELLANT
BECAUSE HE FAILED TO PRESENT MITIGATING EVIDENCE AT PUNISHMENT . - 15
-
A. Summary of the Argument ......................................................................................... - 15 -
B. Argument And Discussion ......................................................................................... - 15 -
X. ISSUES THREE and FOUR: ............................................................................................ - 17 -
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TOAPPELLANT
BECAUSE, KNOWING THAT HIS CLIENT WAS MENTALLY UNSTABLE AND
HAVING STATED THAT IN LETTERS TO HIS CLIENT, AT THE LAST MINUTE
DURING TRIAL HE ORDERED THAT APPELLANT TAKE THE WITNESS STAND AT
THE PUNISHMENT PHASE .............................................................................................. - 17 -
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO APPELLANT,
PLACING APPELLANT ON THE WITNESS STAND AT PUNISHMENT WITHOUT
ADVISING HIM OF HIS FIFTH AMENDMENT RIGHTS AND OF HOW HE WOULD BE
CROSS-EXAMINED ABOUT ALL OF HIS PAST CONVICTIONS AND ABOUT THIS
CASE, EXPOSING HIM TO UNFAVORABLE SCRUTINY BY THE JURY, AND
ENABLING THE STATE TO ARGUE THAT HE “LIED”, WITHOUT OBJECTION .... - 17 -
C. Summary of the Argument ......................................................................................... - 17 -
D. Argument And Discussion ......................................................................................... - 18 -
XI. ISSUE FIVE: ..................................................................................................................... - 20 -
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO APPELLANT BECAUSE,
KNOWING THAT HIS CLIENT WAS MENTALLY UNSTABLE AND HAVING
QUESTIONED APPELLANT’S COMPETENCE, AND HAVING STATED THAT IN

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LETTERS TO HIS CLIENT, HE FAILED TO PURSUE AN EXAMINATION AND
HEARING ON THE QUESTION OF COMPETENCE .......................................................... - 20 -
E. Summary of the Argument ......................................................................................... - 20 -
B. Argument And Discussion ......................................................................................... - 20 -
XII. ISSUE SIX:........................................................................................................................ - 22 -
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO APPELLANT BECAUSE
HE FAILED TO OBJECT TO HARMFUL, PREJUDICIAL, EVIDENCE ............................ - 22 -
C. Summary of the Argument ......................................................................................... - 22 -
B. Argument And Discussion ......................................................................................... - 22 -
XIII. ISSUE SEVEN: .......................................................................................................... - 23 -
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO APPELLANT BECAUSE
HE FAILED TO OBJECT AND CARRY FORWARD THAT OBJECTION TO A MOTION
FOR MISTRIAL WHEN STATE’S COUNSEL, IN ARGUMENT AT THE
GUILT/INNOCENCE PHASE, MADE REPEATED COMMENTS ON THE FAILURE OF
APPELLANT TO TESTIFY, IN VIOLATION OF THE FIFTH AMENDMENT ................. - 23 -
C. Summary of the Argument ......................................................................................... - 23 -
B. Argument And Discussion ......................................................................................... - 24 -
XIV. ISSUE EIGHT: ........................................................................................................... - 27 -
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO APPELLANT AT THE
PUNISHMENT PHASE WHEN HE MADE ARGUMENT THAT WAS PREJUDICIAL TO
APPELLANT ............................................................................................................................ - 27 -
C. Summary of the Argument ......................................................................................... - 27 -
B. Argument And Discussion ......................................................................................... - 27 -
XV. ISSUE NINE: .................................................................................................................... - 27 -
TRIAL COUNSEL RENDERED INEFFFECTIVE ASSISTANCE BECAUSE HE FAILED TO
OBJECT TO THE ADMISSION OF EVIDENCE DERIVED FROM A BLOOD SAMPLE
DRAWN UNDER CIRCUMSTANCES THAT VIOLATED THE STANDARDS OF
SCHMERBER V. CALIFORNIA AND ROCHIN V. CALIFORNIA .................................... - 27 -
C. Summary of the Argument ......................................................................................... - 28 -
D. Argument And Discussion ......................................................................................... - 28 -
XVI. ISSUES TEN AND ELEVEN: .................................................................................. - 30 -
THE EVIDENCE WAS LEGALLY INSUFFICIENT BECAUSE THERE WAS NO
EVIDENCE BY RETROGRADE EXTRAPOLATION THAT THE RESULTS OF THE BAC
TEST SHOWED INTOXICATION AT THE TIME OFTHE OFFENSE, NOR WERE THE

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OBSERVATIONS BY AGENTS OF THE STATE SUFFICIENT TO INDICATE LOSS OF
NORMAL USE OF MENTAL AND PHYSICAL FACULTIES ............................................ - 30 -
THE EVIDENCE OF BAC CONCENTRATION SHOULD HAVE BEEN EXCLUDED AND
THE FAILURE TO SO EXCLUDE WAS HARMFUL TO APPELLANT UNDER THE
BAGHERI DECISION, SUCH THAT IT CANNOT BE SAID THAT THE VERDICT OF
GUILTY WAS NOT AFFECTED BY THE JURY’S CONSIDERATION OF THE BAC
EVIDENCE. IN ARGUMENT, THE STATE URGED THE JURY TO FIND GUILT UNDER
EITHER THEORY ................................................................................................................... - 31 -
E. Summary of the Argument ......................................................................................... - 31 -
F. Argument And Discussion ............................................................................................. - 32 -
XVII. ISSUES TWELVE and THIRTEEN: ......................................................................... - 37 -
THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO SUPPRESS EVIDENCE
TAKEN IN VIOLATION OF MIRANDA............................................................................... - 37 -
THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO INCLUDE ANART. 38.23
INSTRUCTION ........................................................................................................................ - 37 -
G. Summary of the Argument ......................................................................................... - 37 -
B. Argument And Discussion ......................................................................................... - 38 -
XVIII. ISSUE FOURTEEN: .................................................................................................. - 41 -
TRIAL COURT ERRED, ALLOWED EXTRANEOUS OFFENSE EVIDENCE ................. - 41 -
C. Summary of the Argument ......................................................................................... - 41 -
B. Argument And Discussion ......................................................................................... - 42 -
XIX. CONCLUSION AND PRAYER................................................................................ - 42 -
XX. CERTIFICATE OF SERVICE .......................................................................................... - 44 -
XXI. CERTIFICATE OF COMPLIANCE ......................................................................... - 45 -
XXII. APPENDIX ................................................................................................................ - 46 -

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 II. IDENTITY OF PARTIES AND COUNSEL

Supplement, TEX. R. APP. P. 38.2(a)(1)(A):

L. CHARLES VAN CLEEF, COUNSEL FOR APPELLANT
P.O. DRAWER 2432
LONGVIEW, TEXAS 75606-2432

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 III. TABLE OF AUTHORITIES
Cases
Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) ................................................. - 36 -
Bagheri v. State, 119 S.W.3d 755, 762 (Tex. Crim. App. 2003) .............................................. - 37 -
Bible v. State, 162 S.W.3d 234, 241-42 (Tex.Crim.App. 2005) .............................................. - 39 -
Breithaupt v. Abram, 352 U.S. 432, 435, 77 S. Ct. 408, 1 L. Ed. 2d 448, 451 (1957) ............. - 29 -
Burks v. State, 792 S.W.2d 835, 840 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd) .......... - 12 -
Burns v. State, 298 S.W.3d 697 (Tex. App. – San Antonio 2009, no pet.) .............................. - 37 -
Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001).......................................... - 24 -
Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992) ................................................. - 11 -
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) .............................................. - 35 -
Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App.1993) ..................................................... - 25 -
Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) ............. - 35 -
Ex Parte Bagley, 509 S.W.2d 332, 337-38 (Tex.Crim.App. 1974) .......................................... - 39 -
Ex Parte Cruz, 739 S.W.2d 53, 57-58 (Tex. Crim. App. 1987) ................................................ - 22 -
Ex parte LaHood, 401 S.W.3d 45, 49 (Tex.Crim.App. 2013) ....................................... - 10 -, - 11 -
Ex parte Martinez, 330 S.W.3d 891, 900 (Tex.Crim.App. 2011)............................................. - 10 -
Ex parte Moore, 395 S.W.3d 152, 156-57 (Tex.Crim.App. 2013) ........................................... - 10 -
Forte v. State, 707 S.W.2d 89, 94-95 (Tex. Crim. App. 1986) ................................................. - 33 -
Franks v. State, 712 S.W.2d 858, 860-61 (Tex.App.--Houston [1st Dist.] 1986, pet. ref'd) .... - 39 -
Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App.), cert. denied, 528 U.S. 1026, 120 S. Ct.
541, 145 L. Ed. 2d 420 (1999) .............................................................................................. - 25 -
Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007) ............................................... - 35 -
In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 25 L.Ed.2d 368 (1970) .................... - 35 -
Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) .............................................. - 23 -
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ........... - 35 -
Jones v. State, 119 S.W.3d 766, 773 n.13, 795 (Keller, P.J. concurring)(Tex.Crim.App. 2003)- 39
-
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009)................................................. - 35 -
Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007) ........................................ - 40 -
Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001) ............................................................ - 37 -

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McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim. App. 2003)............................................. - 12 -
Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 130 (Tex. 1999)................................... - 32 -
Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002) ................................................. - 11 -
Moore v. State, 999 S.W.2d 385, 394 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216, 147
L. Ed. 2d 252, 120 St. Ct. 2220 (2000) ................................................................................. - 12 -
O'Neal v. State, 999 S.W.2d 826, 832 (Tex. App.--Tyler 1999, no pet.) ................................. - 33 -
Patrick v. State, 906 S.W.2d 481, 490-91 (Tex. Crim. App.), cert. denied, 517 U.S. 1106, 116 S.
Ct. 1323, 134 L. Ed. 2d 475 (1996) ...................................................................................... - 25 -
Price v. State, 59 S.W.3d 297, 300 (Tex. App.--Fort Worth 2001, pet. ref'd) .......................... - 33 -
Rochin v. California, 342 U.S. 165, 166, 72 S. Ct. 205, 96 L. Ed. 183, 187 (1952) ................ - 29 -
Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003) .............................................. - 10 -
Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966) - 28 -, -
29 -
State v. Gill, 967 S.W.2d 540, 541 (Tex. App.--Austin 1998, pet. ref'd) ................................. - 11 -
State v. Johnston, 336 S.W.3d 649, 658 (Tex.Crim.App.), cert denied, Johnston v. Texas, 132 S.
Ct. 212 (2011) ............................................................................................................ - 28 -, - 29 -
Strickland v. Washington, 466 U.S. 668, 683-86, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674 (1984) .. -
10 -, - 11 -
Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999) .................................... - 11 -, - 16 -
Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004) ................................................. - 25 -
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ................................. - 35 -, - 36 -

Statutes
TEX. CODE CRIM. PROC.art. 46.02 § 1A(a) ............................................................................... - 12 -
TEX. PEN. CODE § 49.04(a) ....................................................................................................... - 36 -

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 IN THE COURT OF APPEALS

SIXTH DISTRICT OF TEXAS

TEXARKANA, TEXAS

ESAW LAMPKIN, §
APPELLANT §
§
VS. § APPEAL NO. 06-14-00024-CR
§
THE STATE OF TEXAS, §
APPELLEE §

APPELLEE’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

Comes now L. CHARLES VAN CLEEF, counsel for Appellee STATE OF

TEXAS, and files this, his “Appellee’s Brief”.

IV. STATEMENT OF THE CASE

Appellee is not dissatisfied with the appellant’s statement of the case. TEX. R. APP.

P. 38.2(a)(1)(B).

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 V. STATEMENT REGARDING ORAL ARGUMENT

Oral argument may assist the resolution of this Appeal.

VI. ISSUES PRESENTED

Appellee is not dissatisfied with the appellant’s list of issues presented and will

respond in the order in which they were presented. TEX. R. APP. P. 38.2(a)(1)(B).

VII. STATEMENT OF FACTS

Appellee is not dissatisfied with the appellant’s statement of facts; however, the

appellant was constrained by the word/page requirements and, where necessary to aid

understanding, the appellee will repeat those portions of the record relevant to the court’s

determination. TEX. R. APP. P. 38.2(a)(1)(B).

VIII. ISSUE ONE:

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO
APPELLANT BECAUSE, KNOWING THAT HIS CLIENT WAS
MENTALLY UNSTABLE AND HAVING STATED THAT IN LETTERS
TO HIS CLIENT, HE FAILED TO INVESTIGATE APPELLANT’S
MENTAL STATUS

A. SUMMARY OF THE ARGUMENT

Based on testimony from a hearing on the Appellant’s Motion for New Trial, the

appellant contends that his trial counsel was ineffective for failing to raise the issue of his

competency. Specifically, the appellant claims that trial counsel expressed concern, in

two letters during the month of September, 2013, regarding the “mental stability” and

“mental competency” of his client; those letters were sent to the appellant. See

Appellant’s Appendix B and C. The appellant complains that trial counsel did not obtain

TDCJ health records, which appellate counsel obtained and admitted during the hearing

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on the appellant’s motion for new trial. The appellant contends that these documents

indicate that the appellant has an IQ of 66 or 73. The appellant also highlights three

portions of the trial record in which trial counsel claimed that the appellant was confused,

rather than intoxicated, and the appellant stated that he was not good at math.

These matters were raised in Appellant’s Amended Motion for New Trial. CR 27.

They were also the subject of testimony in the hearing on Appellant’s Motion for New

Trial. See, generally, RR volume 9 beginning at 23. The motion was denied, and

correctly so. CR 448-9.

B. ARGUMENT AND DISCUSSION

The standard of review for ineffective assistance of counsel is well known to the

court and amply stated in the appellant’s brief. Texas courts apply the standard set forth

in Strickland v. Washington, 466 U.S. 668, 683-86, 104 S.Ct. 2052, 2062, 80 L.Ed.2d

674 (1984). Ex parte LaHood, 401 S.W.3d 45, 49 (Tex.Crim.App. 2013); Ex parte

Martinez, 330 S.W.3d 891, 900 (Tex.Crim.App. 2011). Under that standard, the applicant

is required to show that: (1) counsel's performance fell below an objective standard of

reasonableness under prevailing professional norms and according to the necessity of the

case, and (2) counsel's performance prejudiced his defense. Strickland, 466 U.S. at 687,

104 S.Ct. at 2064; LaHood, 401 S.W.3d at 49; Ex parte Moore, 395 S.W.3d 152, 156-57

(Tex.Crim.App. 2013). A failure to make a showing under either prong defeats an

ineffective assistance claim. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.

2003). When reviewing a claim of ineffective assistance, "a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

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assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound trial strategy.'"

Strickland, 466 U.S. at 689. Counsel's action or inaction will be found to be reasonable if

the record is silent as to the facts, circumstances, or rationale behind a particular course

of action. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Prejudice

requires a showing that, but for counsel's unprofessional error, there is a reasonable

probability that the result of the proceeding would have been different. Strickland, 466

U.S. at 687, 104 S.Ct. at 2064; Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.

2002). Reasonable probability is defined as a "probability sufficient to undermine

confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

The general standard of review for claims of ineffective assistance of counsel is

whether, de novo, considering the totality of the representation, counsel's performance

was ineffective. LaHood, 401 S.W.3d at 49. However, a trial court's denial of a

defendant's motion for new trial based on ineffective assistance of counsel is reviewed

under an abuse of discretion standard. State v. Gill, 967 S.W.2d 540, 541 (Tex. App.--

Austin 1998, pet. ref'd). Therefore, appellate courts do not apply the aforementioned

Strickland test de novo. Ibid. at 542. Rather, appellate courts review the trial court's

application of the Strickland test under the abuse of discretion standard. Ibid. As such, the

court determines whether the trial court's decision was clearly wrong as to lie outside the

zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.

1992).

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 A person is legally incompetent to stand trial if the person does not have the

capacity to (1) understand the nature and object of the proceedings against him, (2)

consult with counsel, and (3) assist in preparing his defense. McDaniel v. State, 98

S.W.3d 704, 709 (Tex. Crim. App. 2003); see also TEX. CODE CRIM. PROC.art. 46.02 §

1A(a). Information necessary to sufficiently raise the issue of a defendant's incompetency

must be specific and illustrative of counsel's present inability to communicate with the

defendant. Moore v. State, 999 S.W.2d 385, 394 (Tex. Crim. App. 1999), cert. denied,

530 U.S. 1216, 147 L. Ed. 2d 252, 120 St. Ct. 2220 (2000). It is not enough for counsel to

allege unspecified difficulties in communicating with the defendant. Ibid. Evidence of

mental impairment alone does not require a competency hearing where no evidence

indicates that a defendant is incapable of consulting with counsel or understanding the

proceedings against him. Ibid. at 395. It is within the purview of the trial judge to

distinguish evidence showing impairment only from that indicating incompetency as

contemplated by the law. Ibid. at 396. Moreover, distrust of attorneys and a general

failure to cooperate are not probative of competence to stand trial. Burks v. State, 792

S.W.2d 835, 840 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd). "If such actions were

probative of incompetence, one could effectively avoid criminal justice through immature

behavior." Ibid.

As an initial matter, it should be noted that the appellant’s appeal counsel

considered the appellant to be competent to make a lengthy affidavit, which was

introduced and admitted during the hearing on the appellant’s motion for new trial. RR

volume 9 at Exhibit MNT #1. Even more significantly, nowhere in the affidavit does the

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appellant claim that he was unable to understand the proceedings or assist in his defense;

he merely complains that “I was not understanding some of [the] things that were going

on in my defense,” without any elaboration as to what those things might have been. Ibid.

Trial counsel explained that his concerns over “competency” and “instability” was

simply related to the appellant’s apparent failure to read counsel’s letters; the appellant

sent trial counsel approximately 36 pages of letters in a two month period. RR volume 9

at 24. And exasperated trial counsel considered those statements and “insult” to the

appellant, that the appellant understood as such, after which the appellant claimed that he

was, in fact, competent. Ibid. at 24-26; ibid. at 35. The appellant wrote his trial counsel,

helping in the defense, and indicated an understanding of who the state was, who the

judge was, that he wanted and examining trial, and that he wanted a change of venue.

Ibid. at 25-26. Trial counsel indicated that the appellant grasped some concepts quickly

and others not so quickly. Ibid. at 30. Despite the fact that he was asked specifically

whether he had a history of mental treatment, the appellant, who had written 36 pages of

letters in total, failed to respond. Ibid. at 33-34. Trial counsel considered the issue of

competency but when the appellant responded that he was competent, that he wanted to

defend his rights, and that he knew what he was doing, and when he failed to inform his

attorney that he had ever had any mental treatment, trial counsel decided that there was

no issue. Ibid. at 36. Trial counsel made objections during trial at the appellant’s

specific request, requested an evidentiary hearing at the appellant’s specific request,

requested a bond hearing at the appellant’s specific request. Ibid. at 36. The appellant

helped exercise peremptory strikes. Ibid. at 36-37. He understood the charges against

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him, the penalty range, disclosed pertinent facts, understood the nature of the proceedings

against him, exhibited proper courtroom behavior, and made the decision not to testify

during the guilt phase of his trial. Ibid. at 37-38. He understood the role of the judge and

jury. Ibid. at 38. He understood the purpose of the proceedings and the people involved.

Ibid. at 39. He even attempted to negotiate plea offers with the prosecutor. Ibid. at 48-

49. Another attorney who assisted defense counsel and exercising peremptory strikes

testified that he had no concerns about the appellant’s competency. Ibid. at 55.

The appellant wishes to argue that, based on mental health records and a history of

“mild” retardation, RR volume 9 at 11, the trial court abused its discretion in denying the

motion for new trial and that the appellant was incompetent to stand trial; the appellant

also seems to argue that trial counsel should have investigated the appellant’s mental

status. However, the trial court had a record that included the testimony listed above, as

well as exhibits and testimony elicited by defense counsel. As such, the trial court had

evidence that the appellant had the capacity to, and in fact, did (1) understand the nature

and object of the proceedings against him, (2) consult with counsel, and (3) assist in

preparing his defense. This obviates the need for a blind search for mental status

information; however, even the information submitted by the appellant does not

necessarily render him incompetent. Under these facts, it cannot be said that the trial

court’s decision, found at RR volume 8 at 65-67, was clearly wrong as to lie outside the

zone of reasonable disagreement. Even under a de novo review, the Record supports

counsel’s actions.

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 IX. ISSUE TWO:

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO
APPELLANT BECAUSE HE FAILED TO PRESENT MITIGATING
EVIDENCE AT PUNISHMENT

A. SUMMARY OF THE ARGUMENT

The appellant next argues that counsel was ineffective for failing to investigate

and present mitigating evidence, to wit, that the appellant had mental issues. This

argument is given short shrift in the appellant’s brief, and is best summed in footnote 2,

found on page 25 wherein the appellant argues that, upon hearing his own client refer to

MHMR in his testimony, it was incumbent upon trial counsel to move for continuance

and develop a record on the issue of mitigating evidence of diminished capacity. This

was also presented to the trial court at the hearing on the motion for new trial. See RR

volume 8 at 60. The motion was denied, and correctly so.

B. ARGUMENT AND DISCUSSION

This issue is very similar to the first issue insofar as it rests on the assertion that

trial counsel had an obligation to inquire into the mental status of the appellant. This

issue is discussed above, in regard to issue one. However, the appellant further argues

that when the appellant testified that he had treatment or lived in a “MHMR facility of

Dallas housing.” RR volume 7 at 54. As discussed above, the appellant never disclosed,

despite a direct question, to his trial counsel that he had received mental treatment. Trial

counsel was not asked, at the hearing on the motion for new trial, why he did not request

a continuance at that point during the punishment phase.

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 However, the issue of whether the record should have been obtained by counsel or

presented at trial was expressly considered by the trial court at the hearing on the motion

for new trial:

RR volume 8 at 67. In other words, the trial court was keenly aware that the records

contained both good and bad information and determined that the appellant had not

shown prejudice by failure to obtain the records, which is also the appellant’s difficulty

here.

When reviewing a claim of ineffective assistance, "a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound trial strategy.'"

Strickland, 466 U.S. at 689. Counsel's action or inaction will be found to be reasonable if

the record is silent as to the facts, circumstances, or rationale behind a particular course

of action. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Here, the

record is silent. Further, the appellant has not and cannot show that a continuance would

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have been granted, that the information was more mitigating than not, or that the

information would have yielded a different sentence; in other words, there is no showing

of prejudice to support a conclusion of ineffective assistance of counsel. Further, it

cannot be said that the trial court abused its discretion in denying this ground for relief.

X. ISSUES THREE AND FOUR:

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE
TOAPPELLANT BECAUSE, KNOWING THAT HIS CLIENT WAS
MENTALLY UNSTABLE AND HAVING STATED THAT IN LETTERS
TO HIS CLIENT, AT THE LAST MINUTE DURING TRIAL HE
ORDERED THAT APPELLANT TAKE THE WITNESS STAND AT
THE PUNISHMENT PHASE

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO
APPELLANT, PLACING APPELLANT ON THE WITNESS STAND AT
PUNISHMENT WITHOUT ADVISING HIM OF HIS FIFTH
AMENDMENT RIGHTS AND OF HOW HE WOULD BE CROSS-
EXAMINED ABOUT ALL OF HIS PAST CONVICTIONS AND ABOUT
THIS CASE, EXPOSING HIM TO UNFAVORABLE SCRUTINY BY
THE JURY, AND ENABLING THE STATE TO ARGUE THAT HE
“LIED”, WITHOUT OBJECTION

C. SUMMARY OF THE ARGUMENT

Appellant next argues that trial counsel ordered him to testify during the

punishment phase despite a history of mental instability. This is stated as a claim of

ineffective assistance of counsel. The appellant further contends that the letter does not

warn the appellant about the dangers of waiving his Fifth Amendment right. This claim

was also considered by the trial court at the hearing on the appellant’s motion for new

trial. RR volume 8 at 67 (decision). He also argues that counsel failed to advise the

appellant of pitfalls of cross-examination, including testimony about past convictions and

enabling the prosecution to argue that he lied without objection.

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 Counsel did not “order” defendant to testify, and he personally advised Defendant

of his rights, as reflected in the record.

D. ARGUMENT AND DISCUSSION

As noted by the trial court in its decision, there was testimony to support a

conclusion that the appellant wanted to testify, regardless of any letter he was handed by

his trial counsel. RR volume 8 at 67 (decision); RR volume 8 at 15 to 19 (defense

counsel’s explanation of letter and strategy). As stated by defense counsel, numerous

convictions were already in evidence and he hoped that his client’s testimony would help

“soften the blow” with the jury. The appellant was aware of his right to remain silent,

because he exercised it during the guilt phase of the trial by not testifying. Ibid. at 37-38.

Further, there was testimony that he wanted to testify during sentencing. Ibid. at 30. The

appellant, himself, indicated his knowledge of the Fifth Amendment right to not

incriminate himself, RR volume 7 at 40, followed by an explanation from the Court. He

was present during voir dire when the attorneys and jurors discussed his Fifth

Amendment Right, as where this was stated:

- 18 -
RR volume 4 at 15. Contrary to Appellant’s suggestion, the record does reveal that trial

counsel advised him about his right to testify or not testify. RR volume 5 at 172-173.

There is no record of the specific conversation, but that was, in fact, the subject. This

was immediately prior to the defense resting. Thus, Appellant’s real argument is that trial

counsel failed to warn him of pitfalls of testifying during punishment; yet the pitfalls

identified by Appellant are essentially the same pitfalls, with regard to cross examination,

as during the guilt phase of trial. The appellant argues that an exhibit indicating a prior

conviction, Exhibit #27, concerning a misdemeanor conviction (Appellant had numerous

felony and misdemeanor convictions)was not a certified judgment of conviction, and

ascribed ineffectiveness for failing to object to it, yet can ascribe no prejudice to that

event.

The trial court did not abuse its discretion in finding that trial counsel was not

ineffective and that his reasons for wanting the appellant to testify constituted sound trial

strategy. RR volume 8 at 66-67 (decision). Appellant shows no prejudice for the

admission without objection of an uncertified conviction record of a misdemeanor,

especially in context of Appellant’s numerous other felony and misdemeanor convictions.

The fact that the appellant continued to claim he has only had one beer and was not

intoxicated (after having been found guilty, despite counsel’s written guidance on the

issue), and had to answer questions about his prior convictions, is of no moment in light

of counsel’s prior discussion on Appellant’s right to testify or not testify, trial counsel’s

guidance in punishment testimony, and Appellant’s desire to testify. Put simply, the fact

that this testimony did not go well for Appellant is Appellant’s fault, not his lawyer’s.

- 19 -
 XI. ISSUE FIVE:

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE
TO APPELLANT BECAUSE, KNOWING THAT HIS CLIENT
WAS MENTALLY UNSTABLE AND HAVING QUESTIONED
APPELLANT’S COMPETENCE, AND HAVING STATED
THAT IN LETTERS TO HIS CLIENT, HE FAILED TO
PURSUE AN EXAMINATION AND HEARING ON THE
QUESTION OF COMPETENCE

E. SUMMARY OF THE ARGUMENT

This issue is dealt with above, in relation to Issue One. Appellant argues that trial

counsel had reason to question Appellant’s competency and therefore should have

requested a competency evaluation.

B. ARGUMENT AND DISCUSSION

As stated above, trial counsel explained that his concerns over “competency” and

“instability” was simply related to the appellant’s apparent failure to read counsel’s

letters; the appellant sent trial counsel approximately 36 pages of letters in a two month

period. RR volume 9 at 24. An exasperated trial counsel considered those statements and

“insult” to the appellant, that the appellant understood as such, after which the appellant

claimed that he was, in fact, competent. Ibid. at 24-26; ibid. at 35. The appellant wrote

his trial counsel, helping in the defense, and indicated an understanding of who the state

was, who the judge was, that he wanted and examining trial, and that he wanted a change

of venue. Ibid. at 25-26. Trial counsel indicated that the appellant grasped some

concepts quickly and others not so quickly. Ibid. at 30. Despite the fact that he was

asked specifically whether he had a history of mental treatment, the appellant, who had

written 36 pages of letters in total, failed to respond. Ibid. at 33-34. Trial counsel

- 20 -
considered the issue of competency but when the appellant responded that he was

competent, that he wanted to defend his rights, and that he knew what he was doing, and

when he failed to inform his attorney that he had ever had any mental treatment, trial

counsel decided that there was no issue. Ibid. at 36. Trial counsel made objections

during trial at the appellant’s specific request, requested an evidentiary hearing at the

appellant’s specific request, requested a bond hearing at the appellant’s specific request.

Ibid. at 36. The appellant helped exercise peremptory strikes. Ibid. at 36-37. He

understood the charges against him, the penalty range, disclosed pertinent facts,

understood the nature of the proceedings against him, exhibited proper courtroom

behavior, and made the decision not to testify during the guilt phase of his trial. Ibid. at

37-38. He understood the role of the judge and jury. Ibid. at 38. He understood the

purpose of the proceedings and the people involved. Ibid. at 39. He even attempted to

negotiate plea offers with the prosecutor. Ibid. at 48-49. Another attorney who assisted

defense counsel and exercising peremptory strikes testified that he had no concerns about

the appellant’s competency. Ibid. at 55.

The trial court had a record that included the testimony listed above, as well as

exhibits and testimony elicited by defense counsel. As such, the trial court had evidence

that the appellant had the capacity to, and in fact, did (1) understand the nature and object

of the proceedings against him, (2) consult with counsel, and (3) assist in preparing his

defense. Counsel did not fail to do anything, nor was there any prejudice from any failure

because the trial court reviewed the evidence and found Appellant competent. The trial

court determined that Appellant was, in fact, competent and that counsel was not

- 21 -
ineffective for failing to obtain the records. Even under a de novo review, the Record

supports counsel’s actions.

XII. ISSUE SIX:

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE
TO APPELLANT BECAUSE HE FAILED TO OBJECT TO
HARMFUL, PREJUDICIAL, EVIDENCE

C. SUMMARY OF THE ARGUMENT

Appelant claims that State’s Exhibits 6 and 7 (photographs) were admitted without

objection, and without proper predicate. Appellant claims that the photographs were

blurry and therefore did not corroborate testimony of the officer that the appellant’s eyes

appeared “glassy,” that one cannot discern the irises and pupils, and that the eyeballs

themselves lack definition. Appellant contends that exhibit #12, a video, contained “little

or no evidence relative to any contested issue it trial” from the 17th minute forward, yet

its admissibility was never challenged. Appellant argues that the sole purpose of

introducing the video was to show hostility by the appellant. Appellant concludes that

the hazy photographs and video caused the appellant to look like “some sort of hazy,

blurry, form or as a ‘zombie’, or as someone making threats.”

Rather, this appears to be attempt by defense counsel to undermine the weight of

the evidence.

B. ARGUMENT AND DISCUSSION

The constitutional right to counsel does not mean errorless counsel or counsel

whose competency is judged by hindsight. Ex Parte Cruz, 739 S.W.2d 53, 57-58 (Tex.

Crim. App. 1987). Rather, the right to effective assistance of counsel means counsel

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reasonably likely to render effective assistance of counsel. Ibid. An isolated failure to

object to certain procedural mistakes or improper evidence does not constitute ineffective

assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).

Neither is counsel rendered ineffective merely because counsel may have made a mistake

during trial or because other counsel might have tried the case differently. Ibid.

Without more evidence, the udnersigned and this Court can only guess at trial

counsel’s reasons, if any, for not objecting to the evidence, but it does appear that counsel

later argued that the photographs and video were not very good, and hence that they were

not evidence entitled to much weight, if any. The Court, and the undersigned, must

assume that there was some strategy at work, and in any case there has been no showing

of prejudice. Defense counsel made the cited comments in closing (discussed below), as

a means of undermining the State’s case. See Issue Eight, below. That is the only record

before this Court.

XIII. ISSUE SEVEN:

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE
TO APPELLANT BECAUSE HE FAILED TO OBJECT AND
CARRY FORWARD THAT OBJECTION TO A MOTION FOR
MISTRIAL WHEN STATE’S COUNSEL, IN ARGUMENT AT
THE GUILT/INNOCENCE PHASE, MADE REPEATED
COMMENTS ON THE FAILURE OF APPELLANT TO
TESTIFY, IN VIOLATION OF THE FIFTH AMENDMENT

C. SUMMARY OF THE ARGUMENT

Appellant claims the trial counsel was ineffective for failing to request a mistrial

during closing argument of the guilt phase of trial when the following was stated:

- 23 -
Appellant’s Brief at 36, quoting RR volume 6 at 33. The objection was overruled. Ibid.

Appellant also complains about the following:

Ibid. Appellant complains that this was a comment on his failure to testify, without

objection.

These were not comments on a failure to testify; rather, they were simply

rhetorical devices to suggest that there was no excuse for drunk driving.

B. ARGUMENT AND DISCUSSION

To determine if a prosecutor's comment constituted an impermissible reference to

an accused's failure to testify and violated article 38.08 of the Texas Code of Criminal

Procedure, courts decide whether the language used was manifestly intended or was of

such a character that the jury naturally and necessarily would have considered it to be a

comment on the defendant's failure to testify. See Bustamante v. State, 48 S.W.3d 761,

765 (Tex. Crim. App. 2001); Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App.),

- 24 -
cert. denied, 528 U.S. 1026, 120 S. Ct. 541, 145 L. Ed. 2d 420 (1999). The offending

language must be viewed from the jury's standpoint, and the implication that the

comment referred to the accused's failure to testify must be clear. Bustamante, 48 S.W.3d

at 765; Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). A mere indirect

or implied allusion to the defendant's failure to testify does not violate the accused's right

to remain silent. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Patrick v.

State, 906 S.W.2d 481, 490-91 (Tex. Crim. App.), cert. denied, 517 U.S. 1106, 116 S. Ct.

1323, 134 L. Ed. 2d 475 (1996). A remark that calls attention to the absence of evidence

only the defendant can supply will result in reversal, but "if the language can reasonably

be construed to refer to appellant's failure to produce evidence other than his own

testimony, the comment is not improper." Patrick, 906 S.W.2d at 491.

The first cited language from closing argument merely states “we talked about

having no excuse, right?” The string objection from defense counsel which was

overruled; defense counsel had no obligation to move for mistrial following the denial of

his objection. To preserve error with regard to an improper jury argument, a defendant

must pursue an adverse ruling. TEX. R. APP. P. 52(a). That is, the defendant must: (1)

make a timely and specific objection; (2) if the objection is sustained, request a curative

instruction; and (3) if the instruction is given, move for a mistrial. Cook v. State, 858

S.W.2d 467, 473 (Tex.Crim.App.1993). When the court overrules one of the defendant's

objections, the defendant preserved error. See Cook, 858 S.W.2d at 473 (after court

sustained defendant's objection, defendant did not ask for limiting instruction or move for

- 25 -
mistrial). There was no reason to make a request for mistrial following the adverse

ruling.

With regard to both the first and second quote, both of which concern the fact that

there is no excuse for drunk driving, neither constituted a comment on the appellant’s

failure to testify. This ground for relief is puzzling, as “you have no excuse” and “there is

no excuse” is a common rhetorical argument, and, at worst, is mere indirect or implied

allusion to the defendant's failure to testify. The fact that there is no excuse for drinking

and driving, as acknowledged by Appellant, was a theme of the trial. “You have no

excuse” is the same as “there is no excuse,” and neither invites the conclusion that the

appellant should have taken the stand to provide an excuse. Trial counsel did object to

the first instance of this language, but learning the Court’s ruling and, perhaps, having

more time to reflect on why his objection was overruled, trial counsel did not object

again. It could also be that trial counsel decided not to risk drawing greater attention to

the line of argument with another objection. This was not discussed at the hearing on the

motion for new trial, so the record is not sufficient for a full analysis. However,

Appellant cannot show that trial counsel’s failure to object the second time was the result

of anything other than strategy, nor can he point to any prejudice resulting therefrom.

- 26 -
 XIV. ISSUE EIGHT:

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE
TO APPELLANT AT THE PUNISHMENT PHASE WHEN HE
MADE ARGUMENT THAT WAS PREJUDICIAL TO
APPELLANT

C. SUMMARY OF THE ARGUMENT

Appellant claims the trial counsel was ineffective for arguing that the State’s

pictures, which Appellant’s counsel now characterizes as “Appellant’s pictures,” as

grainy and scary.

B. ARGUMENT AND DISCUSSION

Trial counsel was clearly drawing attention to the poor quality of the State’s

pictures, as is his job, in attempting to undermine the weight of that evidence. The end of

the paragraph quoted by Appellant belies Appellant’s assertion:

RR volume 6 at 25. This is not ineffective assistance of counsel; it is effective assistance

of counsel.

XV. ISSUE NINE:

TRIAL COUNSEL RENDERED INEFFFECTIVE ASSISTANCE
BECAUSE HE FAILED TO OBJECT TO THE ADMISSION OF
EVIDENCE DERIVED FROM A BLOOD SAMPLE DRAWN
UNDER CIRCUMSTANCES THAT VIOLATED THE
STANDARDS OF SCHMERBER V. CALIFORNIA AND
ROCHIN V. CALIFORNIA

- 27 -
 C. SUMMARY OF THE ARGUMENT

Appellant claims that trial counsel was ineffective for failing to object to the

introduction at admission of blood alcohol analysis because of the manner in which the

blood sample was obtained. Specifically, the appellant claims that his blood was taken

by force in violation of the Schmerber and Rochin case holdings, among others.

Counsel was not ineffective because there was no constitutional issue regarding

the blood draw.

D. ARGUMENT AND DISCUSSION

A blood draw is a search and seizure under the Fourth Amendment. Schmerber v.

California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966), State v.

Johnston, 336 S.W.3d 649, 658 (Tex.Crim.App.), cert denied, Johnston v. Texas, 132 S.

Ct. 212 (2011). Schmerber established a two-part analysis for determining the legality of

a compulsory blood draw and it requires a court to examine:

1. whether the police were justified in requiring the defendant to submit to a
blood test; and
2. whether the means and procedures employed in taking the defendant's
blood respected relevant Fourth Amendment standards of reasonableness.

Schmerber, 384 U.S. at 768, 86 S.Ct. at 1834; see Johnston, 336 S.W.3d at 658. The

second part of the analysis contains two discrete questions. First, when resolving the

reasonableness of the "means" employed, it must be determined whether the test chosen

was reasonable. Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836; Johnston, 336 S.W.3d at

658. Second, when resolving the reasonableness of the procedures employed, it must be

determined whether the test was performed in a reasonable manner. Schmerber, 384

- 28 -
U.S. at 771-72, 86 S.Ct. at 1836; Johnston, 336 S.W.3d at 658. Appellant challenges

the second prong.

In Rochin v. California, 342 U.S. 165, 166, 72 S. Ct. 205, 96 L. Ed. 183, 187

(1952), police directed a doctor to administer an emetic solution to the defendant to

induce vomiting after he swallowed two capsules that had been on a nightstand in his

bedroom. The Supreme Court distinguished Rochin because there is "nothing 'brutal' or

'offensive' in the taking of a sample of blood when done . . . under the protective eye of

a physician." Breithaupt v. Abram, 352 U.S. 432, 435, 77 S. Ct. 408, 1 L. Ed. 2d 448,

451 (1957). In Schmerber, the Supreme Court also held that the taking of the blood

sample did not violate the defendant's privilege against self-incrimination or his right to

counsel (because a blood sample is nontestimonial evidence), or his right to be free

from unreasonable searches (because the sample was taken incident to a lawful arrest,

was justified by the exigencies of preserving the evidence, and was taken by a doctor in

a hospital environment according to accepted medical practices). Schmerber, 384 U.S.

at 765, 772.

In Johnson, the Court of Criminal Appeals observed that “it is not out of the norm,

even in a medical setting, to restrain an uncooperative DWI suspect in order to obtain a

blood sample.” State v. Johnston, 336 S.W.3d 649, 663 (Tex. Crim. App.), cert.

denied, Johnston v. Texas, 132 S. Ct. 212 (2011).

The testimony established that the appellant was yelling and cussing, stating that the

officers would not get his blood. RR volume 5 104-106. The officers obtained a

warrant, Appellant still refused to cooperate, and he was restrained. Ibid. There was no

- 29 -
evidence that he was actually injured, and the Appellant stopped resisting while being

held on the bed by his shirt. Ibid. When the nurse had sufficient blood, the procedure

was over. Ibid. at 106. The nurse, Don Leach, testified that the officers held

Appellant’s arms down so he wouldn’t move. RR volume 5 at 145. Appellant claimed

his wrists hurt, he was checked by a doctor, and he went to jail. Ibid. As Johnson holds,

it is normal procedure to restrain an uncooperative DWI suspect in order to obtain a

blood sample. Appellant’s argument that “no doubt Dean used force, throwing

Appellant face down with hands cuffed behind him,” Appellant’s Brief at 62. That is

just surmise and not supported by the record—there is no testimony about throwing

anyone; the testimony is that the Trooper pushed appellant to the bed to control him.

There was nothing brutal about the procedure, and nothing to object to by trial counsel.

Trial counsel was, therefore, not ineffective in failing to make a useless objection to

evidence, thereby drawing more attention to its damning nature.

XVI. ISSUES TEN AND ELEVEN:

THE EVIDENCE WAS LEGALLY INSUFFICIENT BECAUSE
THERE WAS NO EVIDENCE BY RETROGRADE
EXTRAPOLATION THAT THE RESULTS OF THE BAC TEST
SHOWED INTOXICATION AT THE TIME OFTHE OFFENSE,
NOR WERE THE OBSERVATIONS BY AGENTS OF THE
STATE SUFFICIENT TO INDICATE LOSS OF NORMAL USE
OF MENTAL AND PHYSICAL FACULTIES

- 30 -
 THE EVIDENCE OF BAC CONCENTRATION SHOULD
HAVE BEEN EXCLUDED AND THE FAILURE TO SO
EXCLUDE WAS HARMFUL TO APPELLANT UNDER THE
BAGHERI DECISION, SUCH THAT IT CANNOT BE SAID
THAT THE VERDICT OF GUILTY WAS NOT AFFECTED BY
THE JURY’S CONSIDERATION OF THE BAC EVIDENCE. IN
ARGUMENT, THE STATE URGED THE JURY TO FIND
GUILT UNDER EITHER THEORY

E. SUMMARY OF THE ARGUMENT

Appellant’s argument seems to assume that the sole expert at trial, who testified

about the intoxilyzer results, should have been excluded because it was, in effect,

retrograde analysis showing the blood alcohol level at the time of arrest, or that the

evidence of intoxication was insufficient because there was no retrograde analysis.

Both arguments are incorrect because the cited evidence was not represented as

retrograde extrapolation.

- 31 -
 Neither party presented retrograde analysis or argument.

F. ARGUMENT AND DISCUSSION

Nothing in Texas' statutory framework specifically mandates extrapolation

evidence. Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 130 (Tex. 1999). There

was no testimony concerning retrograde analysis; the expert mentioned by Appellant,

Ms. Ream, did not testify about retrograde analysis—her testimony was, basically, this

is what the blood alcohol concentration was when the blood was taken approximately

two hours and 19 minutes after Appellant’s arrest. RR volume 5 at 161. Appellant

claims that this means “there was no probative evidence to prove Appellant intoxicated

at time of the offense under the BAC ‘per se’ definition,” and leaps to the conclusion

that the “State’s evidence was legally insufficient.” Appellant’s Brief at 48. In fact,

defense counsel asked Ms. Ream,

Ibid. He did not press for an answer to the first question. It was never asked by any other

participant in the trial. In sum, no extrapolation evidence was presented, and its

reliability was not a question for the Court or jury. It is likely that the prosecutor did not

- 32 -
ask for extrapolation specifically because 2 hours and 19 minutes would be past the limits

of reliability for extrapolation.

In any case, extrapolation evidence was not required. See Forte v. State, 707

S.W.2d 89, 94-95 (Tex. Crim. App. 1986) (holding that defendant committed DWI

offense without consideration of extrapolation evidence); Price v. State, 59 S.W.3d 297,

300 (Tex. App.--Fort Worth 2001, pet. ref'd) (holding that extrapolation is not required if

other evidence proves intoxication beyond a reasonable doubt); O'Neal v. State, 999

S.W.2d 826, 832 (Tex. App.--Tyler 1999, no pet.) (determining that extrapolation not

required to find defendant guilty of intoxication per se). Here, on July 12, 2013, Deputy

Cassin, saw Appellant driving a red truck, in reverse, the wrong way down an off-ramp of

Interstate 20. RR volume 5 at 38-39. Appellant pulled right in front of the officer,

ignopring a yield sign, as he approached. Ibid. at 41. The officer smelled alcohol on

Appellant, Appellant had bloddshot and watery eyes, and his speech was slurred. Ibid.;

Ibid. at 80-81. Appellant gave the officer information that did not match the officer’s

computer nor dispatch. Ibid. at 48-49. Deputy Cassin called for assistance from a

Trooper, Trooper Dean. Ibid. at 49-50. The jury watched video captured by Deputy

Cassin’s car. Ibid at 52-57. They viewed photos of the Appellant. Ibid at 78-79. After

having received a Miranda warning,

Trooper Dean arrived and also noted that the appellant had red and glassy eyes,

and smelled of alcohol. Ibid. at 92. He asked the appellant how much he had been

drinking and appellant responded one 16 ounce beer. Ibid. The Trooper testified that he

then performed a horizontal gaze nystagmus test, and the ways that the plaintiff exhibited

- 33 -
four out of six clues of intoxication. Ibid. at 94-95. Since the appellant was already

under arrest for another offense and in handcuffs, he could not perform other tests. Ibid.

however, the Trooper continued to speak with him and the appellant changes answer to

one to three 16 ounce beers. Ibid. at 96. The appellant described his level of

intoxication, on a scale of 0 to 10 (completely sober to the most intoxicated he had ever

heard of anyone being) and the appellant answered that he was a five. Ibid. the Trooper

asked for a specimen of the appellant’s blood — Appellant refused — and completed a

search warrant; the warrant was issued by Judge. Ibid. at 97. At the hospital, the

appellant was cussing and yelling and told the Trooper “you’re not sticking a goddamn

needle in my motherfucking arm,” claimed that the warrant was not valid, and refused to

cooperate. Ibid. at 104-105. He had to be restrained in order for us blood to be taken.

Ibid. at 105-106. The jury was able to watch video from the Trooper’s car as well. Ibid.

at 107-109. The appellant admitted that he might be intoxicated. Ibid. at 114. The

Trooper also indicated that the appellant had slurred speech. Ibid. at 139.

In direct response to Appellant’s Issue Ten, there was no evidence by retrograde

extrapolation, probably, because it could not reliably be done after two hours. The

undersigned does not know the answer to that question definitively, but there was no

retrograde extrapolation evidence presented by either side and the jury was left to decide

how much weight to give to the alcohol concentration in the appellant’s blood when it

was taken. However, there was other evidence from which the jury could determine that

the appellant was intoxicated.

- 34 -
 This Court reviews legal and factual sufficiency challenges using the same

standard of review. Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.]

2010, pet. ref'd). Under this standard, evidence is insufficient to support a conviction if,

considering all the record evidence in the light most favorable to the verdict, no rational

factfinder could have found that each essential element of the charged offense was

proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068,

1071, 25 L.Ed.2d 368 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the

light most favorable to the verdict, the evidence is insufficient under this standard in two

circumstances: (1) the record contains no evidence, or merely a "modicum" of evidence,

probative of an element of the offense; or (2) the evidence conclusively establishes a

reasonable doubt. See Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S. Ct. at 2786, 2789 &

n. 11; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. Additionally, the

evidence is insufficient as a matter of law if the acts alleged do not constitute the criminal

offense charged. Williams, 235 S.W.3d at 750.

An appellate court determines whether the necessary inferences are reasonable

based upon the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007) (citing Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). In

viewing the record, direct and circumstantial evidence are treated equally. Ibid.

Circumstantial evidence is as probative as direct evidence in establishing the guilt of an

- 35 -
actor, and circumstantial evidence alone can be sufficient to establish guilt. Ibid. An

appellate court presumes that the factfinder resolved any conflicting inferences in favor

of the verdict and defers to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Clayton, 235 S.W.3d at 778. An appellate court also defers to the factfinder's

evaluation of the credibility and weight of the evidence. See Williams, 235 S.W.3d at

750.

A person is guilty of driving while intoxicated "if the person is intoxicated while

operating a motor vehicle in a public place." TEX. PEN. CODE § 49.04(a). As a general

rule, the testimony of an officer that a person is intoxicated provides sufficient evidence

to establish the element of intoxication for the offense of DWI. See Annis v. State, 578

S.W.2d 406, 407 (Tex. Crim. App. 1979) (reasoning that officer's testimony that person

was intoxicated provided sufficient evidence to establish element of intoxication).

Combined with odd driving, including backing the wrong way on an exit ramp, cutting

off a police car despite a yield sign, the time of night, glassy eyes, bloodshot eyes, and

the smell of alcohol, Trooper’s Dean’s conclusion that Appellant was intoxicated gave

the jury sufficient evidence, even without the blood alcohol level of .111, to support a

conclusion that the appellant was driving while intoxicated. However, the State did not

present extrapolation evidence, and neither did the defense; nor did the defense develop

any theory or argument that the blood test result was too old or deserved less weight or

credibility. Accordingly, Appellee respectfully contends that the blood evidence should

have been considered by the jury.

- 36 -
 The cases cited by Appellant— Bagheri v. State, 119 S.W.3d 755, 762 (Tex. Crim.

App. 2003), Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001), and Burns v. State,

298 S.W.3d 697 (Tex. App. – San Antonio 2009, no pet.)—simply have no application

here. Each of those case concerned the erroneous admission of extrapolation testimony.

No extrapolation testimony was elicited in Appellant’s trial. No expert claimed to know

Appellant’s blood alcohol level at the time he was driving. Those cases are simply

inapplicable.

The blood alcohol evidence was not improperly admitted, and there was no

retrograde extrapolation; however, even absent the blood alcohol evidence, considering

all the other record evidence in the light most favorable to the verdict, it cannot be said

that no rational factfinder could have found that each essential element of the charged

offense was proven beyond a reasonable doubt.

XVII. ISSUES TWELVE AND THIRTEEN:

THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO
SUPPRESS EVIDENCE TAKEN IN VIOLATION OF
MIRANDA

THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO
INCLUDE ANART. 38.23 INSTRUCTION

G. SUMMARY OF THE ARGUMENT

Appellant claims that trial court erred in failing to suppress Appellant’s verbal

admissions and failing to instruct the jury under Article 38.23. This argument is based on

trial counsel’s objection because the appellant was not visible (but was audible) in the

video and that his client was “confused” and did not properly waive his rights. The court

- 37 -
correctly concluded that the “confused” argument was simply that, argument. RR

volume 5 at 62. At the time Trooper Dean arrived, Appellant was already under arrest for

possession of a stolen vehicle and had been mirandized. The gravamen of the argument

is that Trooper Dean should have mirandized the appellant again. The court found that

the Miranda warning given by officer Cassin was sufficient and that the questions by

Trooper Dean during the field sobriety test were only investigative. Ibid. the appellant

argues that, as a result of the error, the horizontal gaze nystagmus test results, the

appellant’s estimate of his intoxication, the number of beers he drank, and the Trooper’s

observations and testimony based on the responses of the appellant to his questions were

presented to the jury when they should not have been.

Trial counsel requested an Article 38.23 instruction to the jury, but the trial court

denied that request. RR volume 6 at 4-7.

An Article 38.23 instruction was not warranted because there were no factual issues.

Further, trial counsel did not propose a specific instruction in order to preserve error.

B. ARGUMENT AND DISCUSSION

Trooper Dean considered Appellant under arrest when he arrived; Appellant was in

handcuffs. RR volume 5 at 92. Appellee must concede that this was a custodial

interrogation despite the fact that, under normal circumstances, the Trooper’s questions

would be considered investigatory only.

In a situation in which a suspect is warned about his Miranda rights, a break in the

questioning occurs, and questioning resumes without new Miranda warnings, the

Miranda warnings administered in the first interview remain effective as to admissions

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made during the second interview if, in the totality of the circumstances, the second

interview is essentially a continuation of the first. Bible v. State, 162 S.W.3d 234, 241-42

(Tex.Crim.App. 2005); Jones v. State, 119 S.W.3d 766, 773 n.13, 795 (Keller, P.J.

concurring)(Tex.Crim.App. 2003), cert. denied, 542 U.S. 905, 124 S. Ct. 2836, 159 L.

Ed. 2d 270 (2004); Ex Parte Bagley, 509 S.W.2d 332, 337-38 (Tex.Crim.App. 1974);

Franks v. State, 712 S.W.2d 858, 860-61 (Tex.App.--Houston [1st Dist.] 1986, pet. ref'd).

In determining whether Miranda warnings previously administered remain effective in a

subsequent interview, courts consider: (1) the passage of time; (2) whether the interviews

are conducted by different people; (3) whether the interviews relate to different offenses;

and (4) whether the suspect is asked during the second interview if he received the

warnings earlier, if he remembers the warnings, and if he wishes to invoke his rights.

Bible, 162 S.W.3d at 242; Jones, 119 S.W.3d at 773 n.13.

Appellant creates a confusing picture. The testimony of Deputy Cassin, as reflected

on the Trooper’s video, was the Trooper Dean was on scene and instructed Cassin to

Mirandize Appellant. Both officers were present at that time. RR volume 5 at 57. This

matched the officers’ testimony at the Suppression Hearing. RR volume 3 at 10. Cassin

testified that the Appellant “shook” his head “up and down in the affirmative and said

yes” when asked if he understood. RR volume 5 at 57. This is also corroborated by the

video, State’s Exhibit #4, at 23:05:55 to 23:05:16. The reading of the rights is

videotaped; Appellant is slightly off screen and indicated that he understood his rights.

RR volume 5 at 56-58. All parties and voices were identified. This meets the

requirements of Article 38.22 §§ 2 and 3, and Miranda. The undersigned finds no

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authority to the effect that when there is more than one officer present, all officers must

separately Mirandize a custodial suspect, or that a custodial suspect must be Mirandized

separately for each crime.

A defendant's right to the submission of a jury instruction under article 38.23 is

limited to disputed issues of fact material to a claim of a constitutional or statutory

violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d 504,

509-10 (Tex. Crim. App. 2007). In order to be entitled to such jury instruction, the

defendant must meet three requirements:

(1) the evidence heard by the jury must raise an issue of fact;

(2) the evidence on that fact must be affirmatively contested; and

(3) that contested factual issue must be material to the lawfulness of the

challenged conduct in obtaining the evidence.

Ibid. at 510. The contested factual issue must be essential to the resolution of the legality

of the challenged conduct; if other facts, not in dispute, are sufficient to support the

lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the

jury because it is not material to the ultimate admissibility of the evidence. Ibid. at 510-

11.

Additionally, in order to be entitled to an article 38.23 instruction a defendant must

request an instruction on a specific historical fact. Ibid. at 511. When a defendant does

not present a proposed article 38.23 jury instruction asking the jury to decide a specific

disputed historical fact, any potential error in the charge should be reviewed only for

egregious harm. See Ibid. at 513.

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 Here, trial counsel requested a 38.23 instruction with regard to the knowing and

voluntary nature of Appellant’s waiver of his “statutory warnings.” RR volume 6 at 4-5.

The Court denied the request because the waiver was made on video and the officer

testified that Appellant nodded his head “yes,” indicating he understood the rights. The

Court considered the request to invite nullification under those circumstances because

there was no evidence to suggest that the waiver was unknowing or involuntary; in other

words, there was no factual dispute for the jury to resolve. Ibid. With no factual

controversy, the Court concluded that whether the waiver was valid amounted to a

question of law, which would be inappropriate for the jury. Ibid. at 6-7. In the absence

of facts to support the defense request, the Court was correct to deny the request.

Further, defense counsel did not present a specific proposed jury instruction to the

Court; any potential error was thus waived.

XVIII. ISSUE FOURTEEN:

TRIAL COURT ERRED, ALLOWED EXTRANEOUS
OFFENSE EVIDENCE

C. SUMMARY OF THE ARGUMENT

The parties agreed not to mention to the jury that Appellant had stoeln the truck he

was driving. However, this presented some difficulty at trial. In particular, the Court

allowed testimony that Appellant failed to notice that the ignition was punched out; the

State argued that this was evidence that Appellant was intoxicated, because Appellant

claimed to not notice the missing ignition, and the testimony was allowed over a defense

objection. RR volume 5 at 109-112. Notably, the “agreement” was a motion and Order in

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limine, and defense counsel had no objection to the initially edited video which included

an exchange mentioning the punched out ignition. Ibid.

B. ARGUMENT AND DISCUSSION

There was no mention during the trial, in the jury’s presence, of the truck being

stolen. The Court correctly determined that if the ignition was punched out and

Appellant, the driver, failed to notice that, then his inattention to such details could be

probative of his intoxication. RR volume 5 at 111-112. This appears solely on video and

not in any questioning of a witness. Fortunately, the Court’s conclusion is based on

common sense and is well grounded. There was no evidence of an extraneous offense, as

alleged by Appellant; rather, there was simply evidence that Appellant wasn’t paying

attention to the condition of the vehicle he was admittedly driving. This point of error is

without merit.

XIX. CONCLUSION AND PRAYER

Appellant has presented numerous grounds for relief, both for ineffective

assistance of counsel and substantive grounds. However, this was a simple case of

driving while intoxicated 3rd or more, enhanced. The undersigned finds no error in the

record and respectfully requests that upon review of this case the Court of Appeals affirm

Appellant’s conviction and sentence.

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 Respectfully submitted,

/s/ L. Charles van Cleef

_______________________________
L. Charles van Cleef
State Bar No. 00786305

P.O. Box 2432
Longview, Texas 75606-2432
(903) 248-8244 Telephone
(903) 248-8249 Facsimile

COUNSEL FOR APPELLEE

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 XX. CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been

forwarded by email/e-filing to:

Hough-Lewis “Lew” Dunn
Attorney at Law
201 E. Methvin, Suite 102
P.O. Box 2226
Longview, TX 75606
dunn@texramp.net

on this Tuesday, December 23, 2014.

/s/ L. Charles van Cleef

_________________________________
L. Charles van Cleef

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 XXI. CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing document complies with Rule 9 of the Texas

Rules of Appellate Procedure, regarding length of documents, in that exclusive of

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, issues presented, statement of

jurisdiction, statement procedural history, signature, proof of service, certification,

certificate of compliance, and appendix, it consists of 8.413 words.

/s/ L. Charles van Cleef

_________________________________
L. Charles van Cleef

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 XXII. APPENDIX

Appellee does not require any items in an Appendix beyond those submitted in

Appellant’s Appendix. TEX. R. APP. P. 38.2(c).

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