IN THE
TENTH COURT OF APPEALS
No. 10-15-00398-CR
ALEXANDER HARRISON KING,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 2
McLennan County, Texas
Trial Court No. 20144334 CR2
MEMORANDUM OPINION
A jury convicted Appellant Alexander Harrison King of driving while intoxicated.
The trial court sentenced him to 365 days’ confinement in the McLennan County Jail and
a $4,000 fine. The trial court suspended imposition of the sentence, placed King on
community supervision for twenty-four months, and ordered him to pay $1,500 of the
fine. King filed a motion for new trial, which was denied by the trial court after a hearing.
Sufficiency of the Evidence
A person commits the offense of driving while intoxicated if the person is
intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. §
49.04(a) (West Supp. 2016). In his first issue, King claims that the evidence was
insufficient to prove that he was operating a vehicle on the evening he was arrested. King
does not dispute that he was intoxicated at the time of his arrest.
The Court of Criminal Appeals has expressed our constitutional standard of
review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
standard gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
319, 99 S.Ct. 2781. “Each fact need not point directly and independently to
the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.”
Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of “all of the
evidence” includes evidence that was properly and improperly admitted. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
King v. State Page 2
prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct. at
2793. Further, direct and circumstantial evidence are treated equally: “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at
13. Finally, it is well established that the factfinder “is entitled to judge the credibility of
witnesses, and can choose to believe all, some, or none of the testimony presented by the
parties.” Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
The following evidence was presented at trial: DPS Trooper Jarrod Hubbard
testified that on April 26, 2014, he was dispatched to investigate a traffic accident in rural
McLennan County. In conjunction with Hubbard’s testimony, the prosecution played
the dash-cam video from Hubbard’s patrol car that recorded the events that followed.
Hubbard came upon King speaking with a McLennan County Deputy Sheriff in the area
of the reported accident. King was highly intoxicated and incoherent. A subsequent
blood test revealed that he had a blood-alcohol concentration of 0.224, almost three times
the legal limit of 0.08. King could not remember if he had been in a traffic accident and
could not remember where his vehicle was located, although he pointed generally in a
northerly direction. When asked where he was walking, King indicated that he was
going home. Hubbard knew, from his training and experience, that DWI suspects often
leave the scene of an accident in order to evade arrest and to avoid jail. Hubbard left
King in the custody of the deputy and drove northward to look for King’s vehicle.
King v. State Page 3
A short distance away, Hubbard found Marianne Holland sitting on the side of
the road close to where a truck had left the roadway and crashed in some nearby trees.
A records check on the truck revealed that it was registered to King’s mother. On the
video, Hubbard asks Holland if she is okay, and she says, yes. She further states,
“[Unintelligible] had an accident.1 I don’t know where my boyfriend went. We had an
accident, and we can’t get the truck out. I don’t know where he went at all.”
Hubbard testified that Holland told him on more than one occasion that she was
the passenger in the truck. Holland admitted this on cross-examination at King’s trial,
and it was also supported by the video. During her encounter with Hubbard, which
lasted approximately thirty minutes, Holland never indicated in any manner that she had
been driving the truck. At one point on the video, when Hubbard said to her that King
should not have been driving and could have hurt someone, she responds, “I know.”
When the deputy brought King to the scene of the accident, Hubbard administered
one field sobriety test, which indicated King was intoxicated. Another test was
attempted, but King was unable to complete it. Hubbard noticed that King had an injury
in the area of his left eye that was consistent with someone who was restrained by a seat
belt hitting the steering wheel. The air bags did not deploy in the truck after the wreck.
1
King contends that the video clearly recorded Holland stating “I had a wreck.” [Emphasis added.] But
the video is not as clear as King asserts.
King v. State Page 4
After King was evaluated by emergency medical technicians, Hubbard placed
King under arrest for driving while intoxicated. Hubbard then drove King to the hospital
to have the injury to his eye further evaluated and treated. They remained there for a
number of hours. Hubbard testified that during that time, King never denied being the
driver of the wrecked truck.
Contrary to her statements on the video, in her direct testimony at King’s trial,
Holland testified that she was driving the night of the wreck. She testified that earlier on
the day of King’s arrest, she and King had been drinking at King’s apartment with a
friend, Kyle Pratka. She testified that when they left to take Pratka home, she was driving.
She stopped for gas and then drove toward a nearby lake with King in the passenger seat.
She lost control on a gravel road and wrecked the truck. She and King discussed who
would take the blame for the wreck. King agreed to accept responsibility because her
driver’s license was suspended and she had children to care for. Holland testified that
she did not tell Hubbard that she was driving the truck because she assumed that King
had already taken the blame for the accident.
Holland testified that after the accident, she went with King to his attorney’s office
“and we told him that I was driving, we sure did.” Holland also provided an affidavit to
King’s attorney, in which she swore that she was the driver of the vehicle and that no one
had ever asked her who the driver was. She did not go to the police with that information
upon the advice of King’s attorney.
King v. State Page 5
King argues that his conviction should be overturned because the only evidence
showing that he was driving the vehicle was Holland’s prior inconsistent statement that
she was the passenger in the vehicle. Assuming without deciding, however, that a prior
inconsistent statement alone is insufficient to support a conviction, we conclude that
Holland’s statements are not the only evidence establishing that King was operating the
vehicle on the night that he was arrested. In addition to Holland’s statements to Hubbard
that she was a passenger, the evidence establishing that King was the driver of the
wrecked truck includes: (1) King fled from the site of the wreck. “Flight from the scene
of a crime is circumstantial evidence of guilt.” Nunez v. State, 215 S.W.3d 537, 541 (Tex.
App.—Waco 2007, pet. ref’d). (2) The truck was registered to King’s mother. (3) King
had a set of keys to the truck in his pocket. (4) Hubbard testified that King never denied
being the driver. (5) Hubbard testified that King was injured in a manner consistent with
hitting the steering wheel while Holland was not.
King asserts that Hubbard’s conclusion regarding the injury to his eye is mere
speculation rather than evidence that he was the driver of the truck. Hubbard admitted
on cross-examination that the injury could have been suffered by someone sitting in the
passenger seat who was not wearing a seat belt. He further testified, however, that both
Holland and King told him that they were wearing seat belts when the wreck occurred.
Hubbard’s testimony that the injury to King’s eye is consistent with hitting the steering
King v. State Page 6
wheel is therefore evidence in addition to Holland’s prior inconsistent statements that
established King was the driver of the wrecked truck.
King further argues that the evidence clearly shows that Holland was the driver.
King points to her recantation, her “admission” on the video that she was the driver, her
affidavit, her lack of motive to lie, and her acknowledgement that she could be prosecuted
for giving false testimony. But the jury is the exclusive judge of the facts, the credibility
of the witnesses, and the weight to be given to the witnesses’ testimony. Jaggers v. State,
125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). A jury may believe
all, some, or none of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Crim. App. 1986). By finding King guilty, the jury obviously disbelieved portions of
Holland’s testimony and believed the evidence discussed above that establishes that King
was the driver of the vehicle. As the reviewing court, we “should not substantially
intrude upon the jury’s role as the sole judge of the weight and credibility of witness
testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).
We conclude that the evidence was sufficient for a rational fact finder to find
beyond a reasonable doubt that King was operating the truck on the evening of his arrest.
King’s first issue is overruled.
Motion for New Trial
In his second issue, King contends that the trial court erred in overruling his
motion for new trial. We review a trial judge’s denial of a motion for new trial under an
King v. State Page 7
abuse of discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014);
Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). “We do not substitute our
judgment for that of the trial court; rather, we decide whether the trial court’s decision
was arbitrary or unreasonable.” Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.
2006). “A trial judge abuses his discretion in denying a motion for new trial when no
reasonable view of the record could support his ruling.” Colyer, 428 S.W.3d at 122; Holden,
201 S.W.3d at 763. “We view the evidence in the light most favorable to the trial judge’s
ruling and presume that all reasonable factual findings that could have been made
against the losing party were made against that losing party.” Colyer, 428 S.W.3d at 122;
Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997).
At a motion for new trial hearing, the judge alone determines the credibility of the
witnesses. Colyer, 428 S.W.3d at 122; Salazar, 38 S.W.3d at 148. Even if the testimony is
not controverted or subject to cross-examination, the trial judge has discretion to
disbelieve that testimony. Colyer, 428 S.W.3d at 122; Masterson v. State, 155 S.W.3d 167,
171 (Tex. Crim. App. 2005).
King first argues that the trial court should have granted a new trial because he
established that his conviction was the result of ineffective assistance of counsel. To
prevail on an ineffective assistance of counsel claim, the familiar Strickland v. Washington
test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471
(2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d
King v. State Page 8
674 (1984)); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (same). Under
Strickland, a defendant must prove by a preponderance of the evidence that (1) counsel’s
performance was deficient, and (2) the defense was prejudiced by counsel’s deficient
performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104
S.Ct. at 2064; Andrews, 159 S.W.3d at 101. To satisfy the first prong, the appellant must
prove by a preponderance of the evidence “that trial counsel’s performance fell below an
objective standard of reasonableness under the prevailing professional norms.” Lopez v.
State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). To satisfy the second prong, the
appellant must then show that “there is a reasonable probability, or a probability
sufficient to undermine confidence in the outcome, that the result of the proceeding
would have been different.” Id. Absent both showings, an appellate court cannot
conclude that the conviction resulted from a breakdown in the adversarial process that
renders the result unreliable. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App.
1999).
The standard for evaluating a trial court’s denial of a motion for new trial does not
change merely because a defendant raises ineffective assistance of counsel. The appellate
court does not review such a claim de novo, but determines whether the trial court abused
its discretion in denying the claim. Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—
Corpus Christi 2011, pet. ref’d); State v. Gill, 967 S.W.2d 540, 542 (Tex. App.—Austin 1998,
pet. ref’d); see also Schoenbauer v. State, 85 S.W.3d 400, 402 (Tex. App.—Tyler 2002, no pet.)
King v. State Page 9
(“When the appellant has presented evidence on his counsel’s alleged ineffectiveness at
a hearing on a motion for new trial, we review the application of the test pronounced in
Strickland . . . through the prism of an abuse of discretion standard.”). “We must
determine whether the trial court’s application of Strickland and its subsequent decision
to deny the motion for new trial were so outside the zone of reasonable disagreement that
they are subject to reversal.” Schoenbauer, 85 S.W.3d at 402.
King argues that his trial counsel was ineffective for failing to call Andrea and
Gabriel McGrew (King’s mother and stepfather) to testify.2 During the hearing on the
motion for new trial, the McGrews both testified that they had talked with Holland after
King’s arrest and that she had told them that she had been driving the truck when it
wrecked. Holland was “inconsolable” and “sobbing” during their telephone
conversations, and she told the McGrews that King had “taken the fall” for her, which
she repeated numerous times. The McGrews also testified that King was unfamiliar with
the area where the wreck occurred because he was originally from Cedar Park, but
Holland knew exactly how to take them to the scene of the wreck.
King’s trial counsel testified that he did not call the McGrews because he believed
their testimony was inadmissible hearsay and was merely cumulative and corroborative
of Holland’s. He believed Holland’s affidavit was sufficient to rebut the prosecution’s
2
To the extent King also contends that his trial counsel was ineffective for failing to call Kyle Pratka, who had been
drinking with King and Holland before Holland’s arrest, to testify, the complaint is inadequately briefed and presents
nothing for review. TEX. R. APP. P. 38.1(h), (i).
King v. State Page 10
accusation that she had made up her story shortly before trial. Introduction of the
affidavit also eliminated the opportunity for the prosecutor to cross-examine a live
witness. King’s trial counsel further believed that the jury would not credit the McGrews’
testimony because of their relationship to King.
King argues that his trial counsel’s performance was deficient because there was
no reason for him not to call the McGrews to testify. King contends that, contrary to his
trial counsel’s belief, the statements given to the McGrews by Holland would not have
been excludable as hearsay. King further claims that trial counsel’s belief that the jury
would not have believed the McGrews because they were his parents was not reasonable
under the circumstances. King also argues that he was prejudiced by his trial counsel’s
failure to call the McGrews to testify. King asserts that the identity of the driver was the
only issue in the case, that Holland was the only witness who had personal knowledge
of who had driven,3 and that she had been impeached by the prosecution. King contends
that the McGrews’ testimony would therefore have significantly influenced the jury
because it undisputedly corroborated Holland’s testimony.
“Counsel’s failure to call witnesses at the guilt/innocence stage of a trial is
irrelevant absent a showing that the witnesses were available and that [a]ppellant would
have benefitted from their testimony.” Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.—
3King states in his brief that he “did not testify, and in fact was so drunk at the time he did not remember
what had happened.”
King v. State Page 11
Tyler 1996, pet. ref’d) (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)). Here,
even if King established that the McGrews’ testimony would have been admissible, he
did not show that he would have benefitted from the testimony to such an extent that his
trial counsel was ineffective for not calling the McGrews to testify. Andrea McGrew’s
demeanor on cross-examination during the hearing on the motion for new trial was
argumentative. See Sanders v. State, 346 S.W.3d 26, 34 (Tex. App.—Fort Worth 2011, pet.
ref’d) (stating that it may be reasonable trial strategy for counsel to choose not to call
witnesses he believes are unreliable and unbelievable). The McGrews’ testimony would
also have been cumulative of Holland’s affidavit. See Holland v. State, 761 S.W.2d 307, 319
(Tex. Crim. App. 1988) (explaining that appellant would not have benefitted from
cumulative testimony); Tutt, 940 S.W.2d at 121. The admission of Holland’s affidavit into
evidence had shown that shortly after the accident and long before the trial, she claimed
she was the driver.
King argues that the McGrews’ testimony was not cumulative in at least one
respect—they would have testified about King’s unfamiliarity with the area where the
wreck occurred and Holland’s knowledge of the area because she took the McGrews to
see where the wreck occurred. But the benefit of such testimony is questionable. At the
hearing on the motion for new trial, Andrea McGrew testified that, while King was
originally from Cedar Park, he had been living in the Waco area for approximately seven
months while attending Texas State Technical College. King could have become familiar
King v. State Page 12
with the area in that amount of time. Also, the McGrews’ testimony would not have
negated the fact that King could have been directed by Holland to the location where the
accident occurred.
King further claims that his trial counsel was ineffective for not objecting to
Holland’s statements to Hubbard on the video as hearsay. This issue was not raised in
King’s motion for new trial or during the hearing on the motion for new trial. Therefore,
the trial court could not have erred in overruling the motion for new trial on this issue.
Furthermore, because the issue was not raised in King’s motion for new trial or during
the hearing on the motion for new trial, the record is silent as to trial counsel’s reasons
for his decision not to object.
To overcome the strong presumption that counsel’s actions and decisions were
reasonably professional and motivated by sound trial strategy, any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. See Salinas v. State, 163 S.W.3d 734, 740 (Tex.
Crim. App. 2005); Thompson, 9 S.W.3d at 813. When the record is silent regarding the
reasons for counsel’s conduct, a finding that counsel was ineffective would require
impermissible speculation by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex.
App.—Houston [1st Dist.] 1996, no pet.) (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).
King v. State Page 13
In light of the foregoing, we conclude that King did not establish by a
preponderance of the evidence that his trial counsel provided ineffective assistance.
We now turn to King’s argument that the trial court erred in overruling his motion
for new trial because he is actually innocent of driving while intoxicated. To the extent
an “innocence” claim is cognizable outside of a successive habeas petition,4 the trial court
did not err in determining that King was not actually innocent.
The courts have recognized two types of innocence claims. “The first—a Herrera
claim—is a substantive claim in which the person asserts a ‘bare claim of innocence’ based
solely on newly discovered evidence.” Ex parte Brown, 205 S.W.3d 538, 544 (Tex. Crim.
App. 2006) (citing Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)).
Establishing such a claim “is a Herculean task,” requiring a defendant to show “by clear
and convincing evidence that, despite the evidence of guilt that supports the conviction,
no reasonable juror could have found the applicant guilty in light of the new evidence.”
Id. at 545 (quoting Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002)). “The term
‘newly discovered evidence’ refers to evidence that was not known to the applicant at the
time of trial and could not be known to him even with the exercise of due diligence.” Id.
King argues that Holland’s statements to the McGrews after the accident
constitute “newly produced” evidence that he is innocent. However, an actual innocence
4
See State v. Young, 265 S.W.3d 697, 705 (Tex. App.—Austin 2008, pet. denied.) (“’Actual innocence’ is a
term of art that has consistently been used by Texas courts to describe a basis for collaterally attacking,
through habeas corpus, a final criminal conviction on constitutional grounds.”).
King v. State Page 14
claim requires “newly discovered” or “newly available” evidence, not evidence that is
“newly produced.” As noted, the evidence must have been unknown to the defendant
at the time of trial and must have been evidence that could not have been known by him
even with the exercise of due diligence. Id. The substance of the McGrews’ testimony
was known to King before trial. Therefore, King did not identify any newly discovered
evidence in this case.
“The other type of innocence claim—a Schlup claim—is one that ‘does not by itself
provide a basis for relief,’ but is intertwined with constitutional error that renders a
person’s conviction constitutionally invalid.” Id. at 544-545 (quoting Schlup v. Delo, 513
U.S. 298, 315, 115 S.Ct. 851, 861, 130 L.Ed.2d 808 (1995)). It is “a procedural claim in which
applicant’s claim of innocence does not provide a basis for relief, but is tied to a showing
of constitutional error. . . .” Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002).
A Schlup claim of innocence is “not itself a constitutional claim, but instead a gateway
through which a habeas petitioner must pass to have his otherwise barred constitutional
claim considered on the merits.” Id. at 676 (quoting Herrera, 506 U.S. at 404, 133 S.Ct. at
862). A defendant raising such a claim must show “that it is more likely than not that no
reasonable juror would have convicted him. . . .” Ex parte Elizondo, 947 S.W.2d 202, 209
(Tex. Crim. App. 1996); see also Franklin, 72 S.W.3d at 676.
The only constitutional error alleged by King that could arguably provide relief
under Schlup is that his conviction was the result of ineffective assistance of counsel. But
King v. State Page 15
because we have concluded that King did not establish that his trial counsel provided
ineffective assistance, we conclude that King also had no basis for an innocence claim
under Schlup.
Because we conclude that King failed to establish either ineffective assistance of
counsel or actual innocence, we hold that the trial court did not abuse its discretion in
denying King’s motion for new trial. King’s second issue is overruled.
Having overruled both of King’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 26, 2017
Do not publish
[CR25]
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