COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-140-CR
BEATE ELIZABETH EGERTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Beate Elizabeth Egerton appeals her conviction for misdemeanor
driving while intoxicated (“DWI”). We affirm.
Background
Grapevine Police Officer Wes Spillers saw Appellant run a stop sign and
initiated a traffic stop. He smelled alcohol on Appellant’s breath, and her eyes
were bloodshot. After Appellant failed the horizontal-gaze nystagmus test, the
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… See Tex. R. App. P. 47.4.
walk-and-turn test, and the one-leg stand test, Officer Spillers arrested her for
DWI.
Officer Jimmy Pollozani, a certified Intoxilyzer operator, administered an
Intoxilyzer test to Appellant. Michele O’Neal, a senior forensic chemist with the
Tarrant County Medical Examiner’s Office and the person responsible for
overseeing Intoxilyzer instruments and operators, testified extensively and
without objection about the theory and operation of the Intoxilyzer 5000. Upon
review of Appellant’s Intoxilyzer test strip, she testified that the test was valid.
She said that Appellant’s two breath samples, taken two minutes apart,
indicated a blood alcohol concentration of 0.145 and 0.153.
A jury convicted Appellant of DWI, and the trial court—in accordance
with an agreement between Appellant and the State—assessed punishment of
a $550 fine and thirty days in jail.
Admission of Testimony Concerning
Horizontal-Gaze Nystagmus and Breath Tests
In her first two issues, Appellant argues that the trial court erred (1) by
admitting Officer Spiller’s testimony about Appellant’s performance on the
horizontal-gaze nystagmus test because the State failed to establish that Officer
Spiller had properly conducted the test and (2) by admitting the results of
Appellant’s breath test because O’Neal could not demonstrate sufficient
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expertise regarding the scientific theory underlying the operation of the
Intoxilyzer 5000.
To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
1070 (1999). An objection must be made as soon as the basis for the
objection becomes apparent. Tex. R. Evid. 103(a)(1); Lagrone v. State, 942
S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk
v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987).
Appellant did not present either of her evidentiary complaints to the trial
court. She therefore failed to preserve her complaints for review, and we
overrule her first two issues.
Ineffective Assistance
In her third issue, Appellant agues that her trial counsel rendered
ineffective assistance by failing to object to the evidence made the basis of her
first two issues.
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that her counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
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probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
Under the first Strickland prong, review of counsel’s representation is
highly deferential, and the reviewing court indulges a strong presumption that
counsel’s conduct fell within a wide range of reasonable representation.
Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will
rarely be in a position on direct appeal to fairly evaluate the merits of an
ineffective assistance claim. Thompson, 9 S.W.3d at 813–14. “In the majority
of cases, the record on direct appeal is undeveloped and cannot adequately
reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W.3d at 740
(quoting Mallett, 65 S.W.3d at 63). To overcome the presumption of
reasonable professional assistance, “any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007). As the court of criminal appeals stated in a recent
opinion,
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We have consistently observed that usually “the record on
direct appeal will not be sufficient to show that counsel’s
representation was so deficient and so lacking tactical or strategic
decision-making as to overcome the strong presumption that
counsel’s conduct was reasonable and professional.” Here, we can
only speculate why counsel acted or failed to act; thus, we
presume that counsel’s actions were within the wide range of
reasonable and professional assistance. We overrule appellant’s
ineffective assistance of counsel points of error.
Beatty v. State, No. AP-75010, 2009 WL 619191, at *10 (Tex. Crim. App.
Mar. 11, 2009) (per curiam) (not designated for publication) (citations omitted).
In this case, Appellant did not file a motion for new trial or otherwise
develop a record concerning the motives behind trial counsel’s decision not to
object to the testimony in question. As in Beatty, we can only speculate why
counsel acted or failed to act; thus, we presume counsel’s actions were within
the wide range of reasonable and professional assistance. See id. We overrule
Appellant’s ineffective assistance issue.
Conclusion
Having overruled all of Appellant’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: GARDNER, J.; CAYCE, C.J.; and MCCOY, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 25, 2009
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Beate Elizabeth Egerton v. State
Combined Opinion