Douds, Kenneth Lee

Opinion

PD-0857-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS March 16, 2015 Transmitted 3/16/2015 9:00:06 AM Accepted 3/16/2015 9:26:10 AM ABEL ACOSTA No. PD-0857-14 CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS _____________________________________________________________

NO. 14-12-00642-CR IN THE COURT OF APPEALS FOURTEENTH JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS _____________________________________________________________

THE STATE OF TEXAS Appellant

vs.

KENNETH LEE DOUDS Appellee _____________________________________________________________

NOTICE OF ADDITIONAL AUTHORITY

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, THE STATE OF TEXAS, Appellant in the above cause, and files this Notice of Additional Authorities. This notice is to inform the Court of Criminal Appeals of the following cases for their consideration in the above cause set for submission on Oral Argument on March 18, 2015 at 9:00 A.M. Both of these cases held that the defendant failed to preserve error under circumstances similar to the instant case: Cases: Lyssy v. State, 01-12-00898-CR, 2014 WL 714924 (Tex. App. – Houston [1st

Dist.] Feb 6, 2014, no pet.)(not designated for publication);

1 Kay v. State, 01-13-00595-CR, 2014 WL 3697917 (Tex. App. – Houston [1st

Dist.] July 24, 2014, no pet.)(not designated for publication).

Respectfully submitted,

/S/ DAVID BOSSERMAN David Bosserman Assistant Criminal District Attorney SBN 0267520 111 East Locust, Suite 408A Angleton, Texas 77515 (979) 864-1232 Fax (979) 864-1525

CERTIFICATE OF SERVICE

I hereby certify that a true copy of this State’s Notice of Additional Authority was served by E-service on Charles D. Adams, attorney for Appellee, in compliance with Rule 9.5 of the Rules of Appellate Procedure. A copy was also served by E-service on the State Prosecuting Attorney in compliance with Rule 68.11 of the Rules of Appellate Procedure. E-service was completed on this the 16th day of March, 2015.

Charles D. Adams Lisa C. McMinn Attorney for Appellee-Defendant State Prosecuting Attorney 7930 Broadway, Suite 106 P.O. Box 13046 Pearland, Texas 77581 Austin, Texas 78711 Bar No. 24026760 Bar No. 13803300 Email: cda@cdadamslaw.com Email: Lisa.McMinn@spa.texas.gov

2 Lyssy v. State, 429 S.W.3d 37 (2014) 2014 WL 714924

take breath or blood samples from a suspect arrested for driving while intoxicated (DWI) 429 S.W.3d 37 when the officer has reliable information from Court of Appeals of Texas, a credible source that the suspect has two prior Houston [1st Dist.]. DWI convictions, where defendant's motion Michael Joe LYSSY, Appellant to suppress, as it developed at the hearing, v. demonstrated that his challenge at trial was based The STATE of Texas, Appellee. solely on a failure to observe the statute's terms, not an attack on the constitutionality of what No. 01–12–00898–CR. | Feb. 6, 2014. it authorized. Rules App.Proc., Rule 33.1(a); V.T.C.A., Transportation Code § 724.012(b). Synopsis Background: After his motion to suppress evidence was 2 Cases that cite this headnote denied, defendant entered nolo contendere plea in the County Court at Law No. 2, Galveston County, Barbara Roberts, J., [2] Criminal Law to driving while intoxicated (DWI). Defendant appealed. Adding to or changing grounds of objection 110 Criminal Law 110XXIV Review Holdings: The Court of Appeals, Michael Massengale, J., 110XXIV(E) Presentation and Reservation in held that: Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1043 Scope and Effect of Objection [1] defendant waived for appellate review issue as to 110k1043(3) Adding to or changing grounds of constitutionality of taking blood under DWI statute, and objection To preserve the issue for appellate review, [2] dispatcher's notice of two prior DWI convictions was the appellant's issue must correspond with the reliable so as to require taking of breath or blood sample. objection he made at trial. Rules App.Proc., Rule 33.1(a). Affirmed. 1 Cases that cite this headnote

Evelyn V. Keyes, J., issued dissenting opinion. [3] Criminal Law Adding to or changing grounds of objection 110 Criminal Law West Headnotes (11) 110XXIV Review 110XXIV(E) Presentation and Reservation in [1] Criminal Law Lower Court of Grounds of Review Sufficiency and Scope of Motion 110XXIV(E)1 In General 110k1043 Scope and Effect of Objection 110 Criminal Law 110k1043(3) Adding to or changing grounds of 110XXIV Review objection 110XXIV(E) Presentation and Reservation in An objection stating one legal theory may not be Lower Court of Grounds of Review used to support a different legal theory on appeal; 110XXIV(E)1 In General 110k1044 Motion Presenting Objection this is true even if the alleged error implicates 110k1044.2 Sufficiency and Scope of Motion constitutional guaranties. Rules App.Proc., Rule 110k1044.2(1) In general 33.1(a). Defendant waived for appellate review issue 1 Cases that cite this headnote as to constitutionality of taking blood under statute requiring law enforcement officers to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Lyssy v. State, 429 S.W.3d 37 (2014) 2014 WL 714924

[4] Criminal Law Cases that cite this headnote Necessity of specific objection 110 Criminal Law [7] Criminal Law 110XXIV Review Necessity of specific objection 110XXIV(E) Presentation and Reservation in 110 Criminal Law Lower Court of Grounds of Review 110XXIV Review 110XXIV(E)1 In General 110k1043 Scope and Effect of Objection 110XXIV(E) Presentation and Reservation in 110k1043(2) Necessity of specific objection Lower Court of Grounds of Review 110XXIV(E)1 In General The purpose of requiring a specific objection 110k1043 Scope and Effect of Objection in the trial court is twofold: (1) to inform the 110k1043(2) Necessity of specific objection trial judge of the basis of the objection and give When the correct ground for exclusion was him the opportunity to rule on it; (2) to give obvious to the judge and opposing counsel, no opposing counsel the opportunity to respond to forfeiture results from a general or imprecise the complaint. Rules App.Proc., Rule 33.1(a). objection; on the other hand, when the Cases that cite this headnote context shows that a party failed to effectively communicate his argument, then the error will be deemed forfeited on appeal. [5] Criminal Law Necessity of specific objection Cases that cite this headnote 110 Criminal Law 110XXIV Review [8] Criminal Law 110XXIV(E) Presentation and Reservation in Scope and Effect of Objection Lower Court of Grounds of Review 110XXIV(E)1 In General 110 Criminal Law 110k1043 Scope and Effect of Objection 110XXIV Review 110k1043(2) Necessity of specific objection 110XXIV(E) Presentation and Reservation in A party must be specific enough so as to let the Lower Court of Grounds of Review 110XXIV(E)1 In General trial judge know what he wants, why he thinks 110k1043 Scope and Effect of Objection himself entitled to it, and do so clearly enough for 110k1043(1) In general the judge to understand him at a time when the A complaint that could, in isolation, be read trial court is in a proper position to do something to express more than one legal argument will about it. Rules App.Proc., Rule 33.1(a). generally not preserve all potentially relevant Cases that cite this headnote arguments for appeal. Rules App.Proc., Rule 33.1(a).

[6] Criminal Law Cases that cite this headnote Scope and Effect of Objection 110 Criminal Law [9] Automobiles 110XXIV Review Grounds or cause; necessity for arrest 110XXIV(E) Presentation and Reservation in 48A Automobiles Lower Court of Grounds of Review 48AIX Evidence of Sobriety Tests 110XXIV(E)1 In General 48Ak417 Grounds for Test 110k1043 Scope and Effect of Objection 48Ak419 Grounds or cause; necessity for arrest 110k1043(1) In general To decide whether a general complaint was When police officer heard from his dispatcher sufficient to preserve error for appellate review, that defendant had been convicted of “DWI context must be considered. Rules App.Proc., Second Conviction,” officer possessed reliable Rule 33.1(a). information from a credible source that

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Lyssy v. State, 429 S.W.3d 37 (2014) 2014 WL 714924

defendant had been convicted twice of driving Ultimately, the appellate court will sustain the while intoxicated (DWI), thus requiring officer trial court's ruling on a motion to suppress to take breath or blood sample from defendant; evidence if its ruling is reasonably supported by while the information communicated to officer the record and is correct on any theory of law could have been characterized as being applicable to the case. incomplete insofar as the dispatcher did not also mention a first conviction for DWI, officer Cases that cite this headnote was not required to further investigate the information he received before being entitled to rely on it in the field. V.T.C.A., Transportation Code § 724.012(b). Attorneys and Law Firms

1 Cases that cite this headnote *38 Tad Nelson, Amber Spurlock, Tad Nelson & Associates, League City, TX, for Appellant.

[10] Criminal Law Jack Roady, District Attorney, Rebecca Klaren, Assistant Review De Novo District Attorney, Galveston County, Galveston, TX, for Criminal Law Appellee. Evidence wrongfully obtained Panel consists of Justices KEYES, HIGLEY, and 110 Criminal Law MASSENGALE. 110XXIV Review 110XXIV(L) Scope of Review in General 110XXIV(L)13 Review De Novo 110k1139 In general OPINION 110 Criminal Law 110XXIV Review MICHAEL MASSENGALE, Justice. 110XXIV(O) Questions of Fact and Findings 110k1158.8 Evidence **1 This appeal concerns a Texas statute which requires a 110k1158.12 Evidence wrongfully obtained law enforcement officer to take a blood sample from a suspect A trial court's decision on a motion to suppress is arrested for driving while intoxicated when the officer has reviewed using a bifurcated standard of review; reliable information from a credible source that the suspect while the appellate court shows almost total has two prior convictions for driving while intoxicated. deference to the trial court's determinations of SeeTEX. TRANSP. CODE ANN. § 724.012(b) (West 2011). historical fact, the appellate court reviews the Appellant Michael Joe Lyssy was charged by information trial court's application of the law of search with the misdemeanor offense of driving while intoxicated. and seizure to the facts de novo. U.S.C.A. SeeTEX. PENAL CODE ANN. § 49.04 (West 2011). Lyssy Const.Amend. 4. moved to suppress evidence of a blood draw taken the night of his arrest. He argued that the report of his criminal history on Cases that cite this headnote which the officer relied was not reliable or credible because it listed a conviction for “driving while intoxicated 2nd” [11] Criminal Law but no prior DWI conviction. The trial court denied this Theory and Grounds of Decision in Lower motion. After the trial court denied his motion to suppress, Court Lyssy entered a plea of nolo contendere and was convicted of driving while intoxicated. 110 Criminal Law 110XXIV Review In his sole appellate issue, Lyssy argues that the trial court 110XXIV(L) Scope of Review in General 110XXIV(L)5 Theory and Grounds of Decision erred by denying his motion to suppress. We affirm. in Lower Court 110k1134.60 In general

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It's ... the database of all criminal Background histories, both within Texas and nationally. It's administered by the Officer Gavino Rivas of the League City Police Department individual law enforcement agencies. stopped Lyssy for failing to maintain a single lane of traffic. For League City, we place everything *39 Rivas performed a field sobriety test. He also asked there, from stolen vehicles, missing Lyssy to blow into a breathalyzer, but was refused. He then children, warrants, things like that; and arrested Lyssy. we're responsible for administering our portion of the database. Rivas called League City dispatch and asked for a report on Lyssy from two databases, the Texas Crime Information Rivas was asked how often he relies on information from Center and the National Crime Information Center (TCIC/ TCIC/NCIC. He replied, “any incident, any contact with a NCIC). Rivas provided Lyssy's license plate number and potential subject, we rely on the returns given by our dispatch his driver's license number to query. The resulting report via TCIC/NCIC.” He testified that he has found information listed multiple event cycles, including an arrest nearly seven from TCIC/NCIC to be credible and reliable in the past. When years earlier, which the database reported resulted in a guilty questioned whether he had ever had a problems with the plea and conviction for the class A misdemeanor offense of accuracy of information from the databases, he answered, “driving while intoxicated 2nd.” No other DWI conviction “On a general basis, no, sir.” The trial court denied the motion was included in the report. to suppress.

Dispatch orally reported its findings to Rivas over the radio. Pursuant to a plea bargain, Lyssy pleaded nolo contendere and In Rivas's words, “The results came back that Mr. Lyssy's was sentenced by the trial court to 365 days in jail, in addition license was suspended, that he had prior convictions for to a $300 fine. The court suspended this sentence and imposed driving while license suspended, and he had ... a conviction a twenty-four month term of community supervision. The for DWI second conviction.” Rivas testified that he did not trial court certified his right to appeal its decision on the remember hearing anything about a first offense for DWI. motion to suppress.

Based upon this information and the mandatory blood-draw statute (Transportation Code chapter 724), Rivas requested a sample of Lyssy's blood without obtaining a warrant. Lyssy Analysis refused. Rivas transported him to the hospital where one of In his appellate brief, Lyssy offers two reasons why the blood its employees extracted a blood specimen. evidence should have been suppressed. His first reason is that the statute relied upon by the State to justify the blood At the subsequent hearing on Lyssy's motion to suppress draw, TEX. TRANSP. *40 CODE ANN. § 724.012(b), is the evidence resulting from the blood draw, Rivas testified, no longer a legitimate basis for search in light of Missouri v. “From the information I have now ... he did not have McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 two convictions.” He also testified that on the night of the (2013). His second reason is that the statute itself was not arrest, he relied on the TCIC/NCIC report to conclude that satisfied because the officer lacked reliable information that Lyssy “did have two prior convictions for driving while Lyssy had two prior convictions for driving while intoxicated, intoxicated,” and at the time he had no reason to doubt that as would require a blood draw under the statute. information from the report.

The relevant portion of the Transportation Code reads as **2 The TCIC database is maintained by the Texas follows: Department of Public Safety. Both TCIC and NCIC are updated “24/7.” Each participating law enforcement agency (b) A peace officer shall require the taking of a specimen inputs its own information on arrests. It is the responsibility of of the person's breath or blood under any of the following each agency to check the information it inputs for accuracy. circumstances if the officer arrests the person for an offense As Rivas described TCIC/NCIC: under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Lyssy v. State, 429 S.W.3d 37 (2014) 2014 WL 714924

the officer's request to submit to the taking of a specimen (Tex.Crim.App.1990)). This is true even if the alleged error voluntarily: implicates constitutional guaranties. Id.

... [4] [5] “The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial judge of the (3) at the time of the arrest, the officer possesses or basis of the objection and give him the opportunity to rule receives reliable information from a credible source on it; (2) to give opposing counsel the opportunity to respond that the person: to the complaint.” Resendez v. State, 306 S.W.3d 308, 312 ... (Tex.Crim.App.2009). “[A] party must be specific enough so as to ‘let the trial judge know what he wants, why he thinks (B) on two or more occasions, has been previously himself entitled to it, and do so *41 clearly enough for the convicted of or placed on community supervision judge to understand him at a time when the trial court is in a for an offense under Section 49.04 [Driving While proper position to do something about it.’ ” Id. at 313. Intoxicated], 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing [6] [7] To decide whether a general complaint was elements substantially similar to the elements of an sufficient to preserve error, context must be considered. offense under those sections. Id.“When the correct ground for exclusion was obvious to the judge and opposing counsel, no forfeiture results from **3 (c) The peace officer shall designate the type of a general or imprecise objection.” Id. On the other hand, specimen to be taken. “when the context shows that a party failed to effectively communicate his argument, then the error will be deemed TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B), (c). When forfeited on appeal.” Id. a person is arrested under the circumstances described in section 724.012(b), that person's refusal to submit to the The arguments and evidence at the hearing were narrowly taking of the specimen does not suspend the officer's statutory focused on whether the information requirements of section duty to take it. Id. § 724.013. 724.012(b)(3) were satisfied. The constitutionality of a search pursuant to the statute was not called into doubt. Looking I. Waiver of constitutional challenge to section to Lyssy's written motion to suppress, he likewise did not 724.012(b) specifically challenge the constitutionality of blood draws [1] In his brief, Lyssy asserts that extraction of blood made under the statute's authority. CR 17–20. Although he pursuant to section 724.012(b) is unconstitutional given the did complain that the search was warrantless and conducted Supreme Court's decision in McNeely. However, Lyssy did in the absence of exigent circumstances, he did so in a general not argue before the trial court that blood extraction pursuant form: to section 724.012(b) was unconstitutional. Lyssy's argument **4 The warrantless stop and search at the hearing on his motion to suppress was directed solely of the Defendant and the automobile at whether the statutory predicates for a blood draw were and Defendants' personal property and satisfied. RR 37–43. At no point during the hearing did he the interrogation of Defendant by the attack the legitimacy of the statute as a basis for taking blood police were void and illegal because in the absence of a warrant. they were conducted in the absence of exigent circumstances to stop the [2] [3] In order for a defendant to preserve his complaint vehicle which Defendant was driving for appellate review, he must present to the trial court and search him and the vehicle. a timely objection, request, or motion stating the specific grounds for the ruling he wishes. TEX.R.APP. P. 33.1(a). (Emphasis supplied.) Considered in context, we conclude that An appellant's issue must correspond with the objection this language was not sufficient to inform the trial court and he made at trial. Broxton v. State, 909 S.W.2d 912, 918 opposing counsel of a challenge to the validity of searches (Tex.Crim.App.1995). “ ‘An objection stating one legal under section 724.012(b). See id. at 312; cf. Buchanan v. theory may not be used to support a different legal theory on State, 207 S.W.3d 772, 777 (Tex.Crim.App.2006) ( “[T]rial appeal.’ ” Id. (quoting Johnson v. State, 803 S.W.2d 272, 292 counsel's allusions to ‘consent’ and ‘exigent circumstances'

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do not necessarily or exclusively refer to Chapter 14, so as to court's ruling if its ruling is ‘reasonably supported by the make it ‘obvious' that the appellant was raising it in addition record and is correct on any theory of law applicable to the to his purely constitutional claims.”). case.’ ” Valtierra, at 447–48 (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006)). [8] It is true that Lyssy's appellate objection to the constitutionality of the search hinges on his claim that exigent **5 The Transportation Code establishes that motor vehicle circumstances were absent. Still, this is not sufficient to operators who are arrested for DWI offenses are deemed to interpret Lyssy's written motion to suppress as a challenge have consented, subject to the remainder of the chapter, “to to the constitutionality of searches pursuant to the statute. the taking of one or more specimens of the person's breath or This is because “a complaint that could, in isolation, be blood for analysis to determine the alcohol concentration or read to express more than one legal argument will generally the presence in the person's body of a controlled substance, not preserve all potentially relevant arguments for appeal.” drug, dangerous drug, or other substance.” TEX. TRANSP. Resendez, 306 S.W.3d at 314. As the Court of Criminal CODE ANN. § 724.011(a). 2 Separate from the concept of Appeals has held, “Only when there are clear contextual clues implied consent by drivers arrested on suspicion of DWI, indicating that the party was, in fact, making a particular the statute also requires an officer to take a breath or blood argument will that argument be preserved.” Id. The context specimen when “at the time of the arrest, the officer possesses of the motion to suppress, as it developed at the hearing, or receives reliable information from a credible source that demonstrates that Lyssy's challenge was based solely on a the person ... on two or more occasions, has been previously failure to observe the statute's terms, not an attack on the convicted of or placed on community supervision for [driving constitutionality of what it authorizes. See id. We conclude while intoxicated] ....”Id.§ 724.012(b)(3). 3 that Lyssy forfeited his objection to the constitutionality of taking blood under section 724.012(b). See id. at 316–17. As 2 The dissent misreads the statute when it alleges that such, we assume, without deciding, the constitutionality of our holding “vitiates” the implied consent statute. As section 724.012(b) for purposes of this appeal. 1 noted above, the consent that is “deemed” by the statute is triggered by the arrest for the DWI offense, and 1 The dissent declares McNeely to be “inapplicable” on the that deemed consent is not conditioned on two prior merits. This is an unresolved issue. See, e.g., Aviles v. DWI convictions. SeeTEX. TRANSP. CODE ANN. § Texas, –––U.S. ––––, 134 S.Ct. 902, 187 L.Ed.2d 767 724.011(a) (West 2011). The statute anticipates that (2014) (order vacating judgment and remanding case for despite this deemed consent, a person nevertheless may reconsideration in light of McNeely ). refuse the request of a peace officer to submit to the taking of a specimen. In that event, certain consequences II. Reliability of information to justify blood draw result, including license suspension and confiscation. [9] [10] [11] Lyssy's second argument is that even See, e.g., id. § 724.032. if section 724.012(b) is a constitutional *42 basis for a 3 The officer's possession or receipt of “reliable warrantless search, “the blood draw must still be excluded information from a credible source that the person ... on because the information received by Officer Rivas had two or more occasions, has been previously convicted of an error on its face making it internally inconsistent and or placed on community supervision for [driving while unreliable.” We review a trial court's decision on a motion intoxicated],”id.§ 724.012(b)(3), is therefore significant to suppress using a bifurcated standard of review. Valtierra not as a precondition for deemed consent, as suggested v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010). While by the dissent, but instead because it is one of the we show “almost total deference” to the trial court's conditions under which a peace officer “shall require” determinations of historical fact, we review its application of the taking of the specimen, even in the face of the person's refusal to submit voluntarily. Id.§ 724.012(b). the law of search and seizure to the facts de novo. Id. Since Accordingly, the dissent's suggestion that the court the trial judge in this case did not make express findings of holds “that an officer's subjective belief that an implied fact, we will imply “the necessary fact findings that would consent statute has been satisfied is sufficient to imply support the trial court's ruling if the evidence (viewed in the consent” completely misconstrues both the operation of light most favorable to the trial court's ruling) supports these the statute and our application of it, and we disavow that implied fact findings.” State v. Kelly, 204 S.W.3d 808, 819 mischaracterization of our holding. (Tex.Crim.App.2006). Ultimately, “[w]e will sustain the trial

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Lyssy does not challenge the credibility of TCIC/NCIC as a source of information or the credibility of the League City **6 In the present case, Rivas was told by the dispatcher that Police Department dispatcher as a conduit of TCIC/NCIC Lyssy had a conviction for “DWI Second Conviction.” As information to an officer in the field. What he does challenge in Comperry, this information implied multiple convictions is the reliability of the information Rivas received from the for driving while intoxicated. See id. While the information dispatcher: he asserts that it contained an error that made communicated to Rivas could be characterized as being it internally inconsistent. Specifically, Rivas was told that incomplete insofar as the dispatcher did not also mention Lyssy had a conviction for “DWI Second Conviction,” but a first conviction for DWI, Rivas did not have to further he was not specifically informed of any other convictions investigate the information he received “before being entitled *43 for driving while intoxicated. Lyssy thus argues that to rely on it” in the field. See id.; see also State v. the information Rivas received was patently inconsistent and Terrazas, 406 S.W.3d 689, 694 (Tex.App.-El Paso 2013, therefore unreliable. no pet.) (“[L]aw enforcement investigating or confirming criminal history is not a requirement under [the blood draw Rivas testified that he relies on TCIC/NCIC for “any contact statute].”). 4 with a potential subject,” that he has found information from the database to be credible and reliable, and that “on a general 4 Like the court in State v. Flores, 392 S.W.3d 229 basis,” he has had no problems with the accuracy of the (Tex.App.-San Antonio 2012, pet. ref'd), “we do not database. Any discrepancy inferred from the bare fact that mean to suggest that information contained in the NCIC/ Rivas was informed of a “DWI Second Conviction” but TCIC is per se reliable.” Id. at 237. Nothing in our not a first conviction for driving while intoxicated did not opinion should be taken to suggest the impropriety of necessarily render the information Rivas received from his a challenge to reliance on such information given an dispatcher unreliable. appropriate record. See id. (“[A] trial court must make the finding of reliability of the information based on the In Comperry v. State, an officer arrested the defendant for specific evidence presented.”). driving while intoxicated and took him to jail. 375 S.W.3d Later, with the benefit of additional information obtained by 508, 510 (Tex.App.-Houston [14th Dist.] 2012, no pet.). the time of the hearing on the motion to suppress, Rivas Once there, the officer obtained a TCIC printout for the testified that the report contained an error. But nothing defendant. Id. The report listed two convictions for driving contained in the information received from TCIC/NCIC or while intoxicated, one in Harris County and one in Galveston in the information communicated by the dispatcher to Rivas County. Id. In reality, the defendant had only been convicted rose to the level of a *44 glaring contradiction that would once of DWI. Id. at 511. The event cycle for the Galveston undermine the general reliability of the information coming County matter recited that the defendant had been arrested from a source that has not been challenged on the basis for DWI. Id. at 510. It then listed two convictions—one for of its credibility. The trial court therefore reasonably could obstructing a highway and one for DWI—but the defendant have concluded that the report's inclusion of a conviction actually had been convicted only of obstructing a highway. Id. specifically identified as “driving while intoxicated 2nd” was The defendant further argued that the information contained not rendered facially unreliable simply because the report did in the TCIC report contained “facial irregularities” because not also separately identify the preceding DWI conviction. the convictions were “the result of the same plea on the same date, in the same court, and under the same cause number.” We conclude that the record supports the conclusion that Id. at 516–17. The defendant argued that the irregularities when Rivas heard from his dispatcher that Lyssy had should have alerted the officer and spurred an investigation been convicted of “DWI Second Conviction,” he possessed of the underlying facts. Id. Despite the trial court's finding reliable information from a credible source that Lyssy had that the information was “confusing and possibly incorrect in been convicted twice of driving while intoxicated. See the way it [was] displayed,”id. at 511, the court of appeals Terrazas, 406 S.W.3d at 694; State v. Flores, 392 S.W.3d 229, rejected the defendant's position. See id. at 517. It reasoned 238 (Tex.App.-San Antonio 2012, pet. ref'd); Comperry, 375 that the TCIC record “plainly reflected” multiple convictions S.W.3d at 518. We therefore overrule Lyssy's issue. for driving while intoxicated and that an officer need not “so closely examine a TCIC report before being entitled to rely on it.” Id.

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At the subsequent hearing on Lyssy's motion to suppress the Conclusion evidence resulting from the blood draw, it became clear that We affirm the judgment of the trial court. Lyssy had only one previous DWI conviction and that the TCIC/NCIC report had labeled his 2004 DWI conviction as “driving while intoxicated 2nd.” Officer Rivas testified that, although he relied on the TCIC/NCIC report to conclude KEYES, J., dissenting. that Lyssy had two prior DWI convictions at the time *45 of his arrest for the current offense, he understood “[f]rom EVELYN V. KEYES, Justice, dissenting. the information [he has] now” that Lyssy did not have two **6 I respectfully dissent. Appellant Michael Joe Lyssy convictions. pleaded nolo contendere to the misdemeanor offense of driving while intoxicated (“DWI”) pursuant to a plea bargain and the trial court sentenced him to 365 days in jail and imposed a $300 fine. 1 The court suspended this sentence Analysis and imposed a twenty-four month term of community Lyssy argues that the blood evidence should have been supervision. Lyssy appeals the trial court's denial of his suppressed because (1) the statute relied upon by the State motion to suppress evidence of a blood draw taken the night to justify the blood draw, Texas Transportation Code section of his arrest on the ground that he did not consent to the 724.012(b), is no longer a legitimate basis for search in warrantless blood draw upon which he was convicted and light of Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. that his constitutional rights were thereby violated. I agree. I 1552, 185 L.Ed.2d 696 (2013) and (2) the conditions for would reverse and remand for a new trial. implying consent to draw blood without a warrant under section 724.012(b) itself were not satisfied and, therefore, 1 SeeTEX. PENAL CODE ANN. § 49.04 (West the blood draw violated his constitutional rights. SeeTEX. Supp.2011). TRANSP. CODE ANN. § 724.012(b)(3) (West 2011).

The taking of a blood specimen is a search and seizure Background under the Fourth Amendment. Schmerber v. California, Officer G. Rivas of the League City Police Department 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 stopped Lyssy for failing to maintain a single lane of traffic. (1966). A warrantless search or seizure is per se unreasonable Officer Rivas performed a field sobriety test. He also asked unless it falls under a recognized exception to a warrant. Lyssy to blow into a breathalyzer, but Lyssy refused. Officer Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, Rivas then arrested Lyssy. Officer Rivas called League City 514, 19 L.Ed.2d 576 (1967); Walter v. State, 28 S.W.3d dispatch and requested a report on Lyssy from two databases, 538, 541 (Tex.Crim.App.2000). One such exception is a the Texas Crime Information Center and the National Crime search conducted pursuant to consent. See Schneckloth v. Information Center (“TCIC/NCIC”). The resulting report Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043–44, showed that Lyssy had been convicted in 2004 for the offense 36 L.Ed.2d 854 (1973). The Court of Criminal Appeals of “driving while intoxicated 2nd.” No other DWI conviction has stated that “[t]he implied consent law does just that was included in the report. —it implies a suspect's consent to a search in certain instances. This is important when there is no search warrant, **7 Officer Rivas testified that he understood from since it is another method of conducting a constitutionally dispatch's oral report that Lyssy “had ... a conviction for valid search.” Beeman v. State, 86 S.W.3d 613, 615 DWI second conviction.” However, he also testified that he (Tex.Crim.App.2002). The court held, did not remember hearing anything about a driving while The implied consent law expands intoxicated, first offense. Based on his understanding of the on the State's search capabilities by TCIC/NCIC report, he requested a sample of Lyssy's blood providing a framework for drawing without obtaining a warrant. Lyssy refused. Rivas transported DWI suspects' blood in the absence him to a hospital, and one of its employees extracted a blood of a search warrant. It gives specimen.

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officers an additional weapon in their 49.06, or 49.065, Penal Code....”TEX. TRANSP. CODE investigative arsenal, enabling them ANN. § 724.012(b)(3)(B) (emphasis added). Section 724.013 to draw blood in certain limited provides, “Except as provided by Section 724.012(b), a circumstances even without a search specimen may not be taken if a person refuses to submit to warrant. the taking of a specimen designated by a peace officer.” Id. § 724.013 (West 2011). Id. at 616. Here, Officer Rivas received information from a reliable Both the United States Supreme Court and the Court of source relating Lyssy's prior DWI history, as required by Criminal Appeals have recognized a two-part analysis for section 724.012(b)(3)(B)—but that dispatch report listed only determining the legality of a blood draw: reviewing courts one prior DWI conviction. The officer's explanation for his must determine (1) whether the police were justified in ordering the blood drawn—that he believed from the report requiring the defendant to submit to a blood test and (2) that Lyssy actually had two previous DWI convictions—does whether the means and procedures employed in taking the not alter the fact that the statutory conditions for implying blood respected the relevant Fourth Amendment standards of Lyssy's consent to the blood draw were not met. Indeed, reasonableness. See State v. Johnston, 336 S.W.3d 649, 658 the majority's holding—that an officer's subjective belief that (Tex.Crim.App.2011) (citing Schmerber, 384 U.S. at 768, 86 an implied consent statute has been satisfied is sufficient to S.Ct. at 1834). imply consent—vitiates both the implied consent statute and the underlying constitutional concept of implied consent to a **8 Appellant argues that the United States Supreme Court's warrantless search. Under the majority's reading of the statute, recent holding in Missouri v. McNeely invalidates his blood consent to a warrantless search is implied whenever an officer draw. I disagree. In McNeely, the Supreme Court clarified the believes in good faith that he has complied with the law in meaning of “exigency” in the context of a warrantless blood ordering a search. Neither the implied consent statute nor draw, holding that the natural metabolization of alcohol in the constitutional Fourth Amendment restrictions on searches the bloodstream, without more, does not constitute exigent and seizures would have any meaning if the beliefs of police circumstances; rather, “exigency” must be determined case- officers were their own warrant for the validity of a search of by-case based on the totality of the circumstances. 133 a person or place or the seizure of a blood specimen regardless S.Ct. at 1560, 1568. Nothing in that opinion invalidated of the facts. Texas's implied consent statute. In fact, in Section III of McNeely, Justice Sotomayor, writing for a four-justice **9 I would hold that the subjective beliefs of an officer plurality, implicitly characterized implied consent statutes, do not satisfy the objective requirements of the implied including a specific reference to section 724.012(b), as consent statute. The implied consent statute required that collateral to the exigency concerns underlying the issue Officer Rivas have reliable information from a credible before the Supreme Court. Id. at 1566–67 & n. 9. Thus, source that Lyssy had at least two prior DWI convictions, I conclude that McNeely is inapplicable to the current but Lyssy had only one previous conviction—Officer Rivas's case, which involved the application of Texas's implied misunderstanding of the report notwithstanding. The fact *46 consent statute, and it does not render that statute that the report labeled Lyssy's single previous conviction as unconstitutional. “driving while intoxicated 2nd” might make Officer Rivas's belief at the time he subjected Lyssy to the blood draw Texas's implied consent statute, Transportation Code section reasonable, but it does not alter the material facts—the report 724.012(b)(3)(B), provides that “[a] peace officer shall listed only one previous DWI conviction, and Lyssy, in fact, require the taking of a specimen of the person's breath or had only one prior DWI conviction. Section 724.012(b)(3) blood ... if the officer arrests the person for an offense under (B), by its plain language, does not imply consent when a Chapter 49, Penal Code, involving the operation of a motor suspect has only one previous DWI conviction. Therefore, in vehicle ... and the person refuses the officer's request to the absence of a search warrant or actual consent, the blood submit to the taking of a specimen voluntarily” if, “at the evidence here is not admissible. time of the arrest, the officer possesses or receives reliable information from a credible source that the person ...on I would hold that because the statutory conditions for two or more occasions, has been previously convicted of ... implying Lyssy's consent to the search were not satisfied, an offense under Section 49.04 [the DWI statute], 49.05,

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the evidence of the warrantless blood draw should have been I would therefore sustain Lyssy's point of error. suppressed.

“If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, Conclusion the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable For the foregoing reasons, I would reverse the judgment of doubt that the error did not contribute to the *47 conviction the trial court and remand for a new trial. or punishment.” TEX.R.APP. P. 44.2. I cannot conclude beyond a reasonable doubt that the results of a warrantless Parallel Citations blood test taken without consent—actual or implied—and showing a blood alcohol level that supported a conviction for 2014 WL 714924 (Tex.App.-Hous. (1 Dist.)) DWI did not contribute to Lyssy's conviction.

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A jury found Kay guilty and sentenced him to 19 years' confinement in prison. In two issues, Kay (1) challenges KeyCite Yellow Flag - Negative Treatment the constitutionality of section 724.012 of the Texas Declined to Follow by Leal v. State, Tex.App.-Hous. (14 Dist.), Transportation Code, which requires a law enforcement November 13, 2014 officer to take a blood sample from a suspect arrested for 2014 WL 3697917 driving while intoxicated when the suspect has refused to Only the Westlaw citation is currently available. submit to the blood draw voluntarily and the officer has reliable information from a credible source that the suspect SEE TX R RAP RULE 47.2 FOR has two prior convictions for driving while intoxicated, and DESIGNATION AND SIGNING OF OPINIONS. (2) argues that he was denied effective assistance of counsel. We affirm. MEMORANDUM OPINION Do Not Publish. TEX. R. APP. P. 47.2(b). Court of Appeals of Texas, Houston (1st Dist.). Background

Milton Wayne KAY, Appellant On June 3, 2012, Officer P. McDonald 1 of the Orange v. Police Department stopped Kay for not wearing his seatbelt The STATE of Texas, Appellee. and for having an expired vehicle registration sticker. While conducting the traffic stop, Officer McDonald smelled No. 01–13–00595–CR. | July 24, 2014. alcohol and observed Kay slurring his speech. Officer McDonald conducted field sobriety tests, and indicated that On Appeal from the 260th District Court, Orange County, Kay was intoxicated, and then placed Kay under arrest and Texas, Trial Court Case No. D–120519–R. transported him to the Orange County Jail. Attorneys and Law Firms 1 Officer McDonald testified at the hearing on Kay's Charles Sexton, for Milton Wayne Kay. motion to suppress and at trial.

Cory Andrew Kneeland, for The State of Texas. At the jail, Kay refused to submit to a blood draw voluntarily. However, when Officer McDonald had earlier placed Kay in Panel consists of Chief Justice RADACK and Justices custody, dispatch had provided Kay's criminal history report MASSENGALE and HUDDLE. to Officer McDonald. The report showed that Kay had two prior DWI convictions. Relying on section 724.012(b) of the Transportation Code, Officer McDonald directed a nurse at MEMORANDUM OPINION the jail to perform a warrantless blood draw on Kay. The results indicated that Kay had a blood alcohol concentration REBECA HUDDLE, Justice. of .24 grams of ethanol per 100 milliliters of blood, which was three times the legal limit. *1 Appellant Milton Wayne Kay was charged by indictment for felony driving while intoxicated (“DWI”).SeeTEX. Kay moved to suppress the blood alcohol test's results because PENAL CODE ANN. § 49.04 (West Supp.2013). The the blood was taken without his consent and without a indictment further alleged an enhancement for two prior warrant. At the hearing on Kay's motion to suppress, Officer driving while intoxicated convictions, in 1989 and 2000. Kay McDonald testified that he ordered the blood draw because moved to quash the indictment, arguing that his prior DWI he had a good faith belief that Kay had two previous DWI convictions could not be used to enhance his DWI charge convictions. The basis for his belief was Kay's criminal to a felony because they were over ten years old, and the history report, given to him by dispatch, which indicated Kay trial court denied his motion. Kay also moved to suppress the had two prior DWI convictions. The trial court denied the warrantless blood draw and video recording, both of which motion, explaining: “[B]ased upon the fact that the statute in were taken on the night of his arrest, and the trial court denied the state of Texas does allow for the non-warrant blood draw his motion. if ... the defendant has two prior convictions for DWI, which

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has been admitted and stipulated here, the Court is going to and the person refuses the officer's request to submit to the deny the Motion to Suppress as to the blood draw without taking of a specimen voluntarily” if, “at the time of the arrest, a warrant.”It later denied Kay's motion for new trial, which the officer possesses or receives reliable information from a raised the same issue, along with two issues regarding jury credible source that the person ... on two or more occasions, instructions. has been previously convicted of ... an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code.”TEX. TRANSP. *2 After Kay filed his notice of appeal, his trial counsel CODE ANN. § 724.012(b)(3)(B). Driving while intoxicated moved to withdraw. The appeal was abated and the trial court is an offense under section 49.04 of the Penal Code. SeeTEX. held a hearing at which it granted the request to withdraw and PENAL CODE ANN. § 49.04. When a person is arrested appointed new appellate counsel. During the same hearing, under the circumstances described in section 724.012(b), that the trial court also heard testimony from Kay and his trial person's refusal to submit to the taking of the specimen does counsel regarding Kay's contention that trial counsel rendered not suspend the officer's statutory duty to take it. Id. § 724.013 ineffective assistance by failing to convey a plea offer to Kay. (West 2011).

B. Analysis Transportation Code Section 724.012 Relying on McNeely, Kay contends that section 724.012 violates the Fourth Amendment. But Kay did not challenge Citing Missouri v. McNeely, 133 S.Ct. 1552 (2013), Kay the constitutionality of section 724.012 in the trial court. contends that section 724.012 of the Texas Transportation Rather, Kay's argument in his motion to suppress and at Code is unconstitutional because it “impermissibly narrows the hearing on that motion was that (1) the blood draw was [Kay's] Constitutionally guaranteed right to be free from warrantless and taken over his refusal to voluntarily provide unreasonable searches of his person and seizure of his bodily a blood sample and (2) Kay's two prior convictions were fluids without a warrant and without any showing of exigent too remote in time to serve as the two prior convictions circumstances.” required by section 724.012(b). At no point did Kay attack the constitutionality of section 724.012(b). A. Applicable Law The taking of a blood specimen is a search and seizure *3 At the hearing on Kay's motion to suppress, Kay's under the Fourth Amendment. Schmerber v. California, 384 counsel focused on the fact that Kay “did not agree for his U.S. 757, 767, 86 S.Ct. 1826, 1834 (1966). A warrantless blood to be taken,” and that the State had the burden to show search or seizure is per se unreasonable, unless it falls under there were circumstances present that allowed the State to a recognized exception to the warrant requirement. Katz v. take a warrantless blood draw. 2 Counsel argued that United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514 (1967); Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000). 2 The State agreed it had the burden and would lay the One such exception is a search conducted pursuant to foundation at trial to prove that Kay had two prior consent. See Schneckloth v. Bustamonte, 412 U.S. 218, convictions which allowed for the warrantless blood 219, 93 S.Ct. 2041, 2043–44 (1973). Likewise, implied draw. consent law “implies a suspect's consent to a search in certain instances. This is important when there is no there may be exceptions where you don't have to get a search warrant, since it is another method of conducting a warrant under [McNeely ]; but the State does have the constitutionally valid search.”Beeman v. State, 86 S.W.3d burden of proof to carry that issue ... [to show] what 613, 615 (Tex.Crim.App.2002). circumstances they don't have to get a warrant, and we have agreed on the record no warrant was issued in this case ... Section 724.012(b)(3)(B) of the Texas Transportation Code Kay did not agree for his blood to be taken.... provides implied consent to draw blood without a warrant in Counsel also argued that Kay's two prior DWI convictions limited circumstance. It states: “[a] peace officer shall require could not satisfy the statute because they were each more the taking of a specimen of the person's breath or blood ... than ten years old. Counsel did not argue that section if the officer arrests the person for an offense under Chapter 724.012, the implied-consent statute, is unconstitutional 49, Penal Code, involving the operation of a motor vehicle ... under McNeely or otherwise. 3

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3 For its part, he State argued at the hearing that McNeely not be used to support a different legal theory on appeal,” “specifically seems to endorse” the constitutionality of even when asserting a constitutional challenge). Accordingly, the implied-consent statute. we hold that Kay's challenge to the constitutionality of section 724.012(b) was not preserved for our review. Kay's written motion to suppress likewise did not challenge SeeTEX.R.APP. P. 33.1; see also Lyssy v. State, 429 S.W.3d the constitutionality of blood draws taken under the authority 37, 41 (Tex.App.-Houston [1st Dist.] 2014, no pet.)(holding of section 724.012(b). Although Kay complained in his that appellant waived his constitutional challenge to section motion to suppress that the warrantless taking of his blood 724.012(b) where “[t]he context of the motion to suppress, violated the United States and Texas Constitutions, he did so as it developed at the hearing, demonstrates that [appellant's] only generally: challenge was based solely on a failure to observe the [E]vidence in this case has been statute's terms, not an attack on the constitutionality of what illegally obtained ...in violation of the it authorizes.”). United States Constitution, the Texas Constitution, and Texas Statutory *4 We overrule Kay's first issue. Laws ... [T]he blood specimen was extracted from [Kay] without his permission and without a search Ineffective Assistance of Counsel warrant.Generally, tak[ing] of a blood sample is a search and seizure within In his second issue, Kay contends that his trial counsel the meaning of the Fourth Amendment rendered ineffective assistance by failing to inform Kay to the United States Constitution ... of a plea offer. Kay contends this warrants reversal and Article I, section 9 of the Texas reinstatement of the State's plea offer. Constitution requires that a search warrant be issued ... In addition, Article 38.23 of the Texas Code A. Standard of Review and Applicable Law of Criminal Procedure forbids any Both the federal and state constitutions guarantee an accused evidence obtained in violation of the right to have the assistance of counsel. SeeU.S. CONST. the law to be admitted against an amend. VI; TEX. CONST. art. I, § 10; TEX.CODE CRIM. accused.... PROC. ANN. art. 1.051 (West Supp.2013). The right to counsel includes the right to reasonably effective assistance (Emphasis added). (Citations omitted). of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d Considered in context, we conclude that Kay's complaint 830, 835 (Tex.Crim.App.1997). Both state and federal claims to the trial court was not sufficient to inform the trial of ineffective assistance of counsel are evaluated under the court that Kay challenged the constitutionality of section two prong analysis of Strickland. Thompson v. State, 9 724.012(b).See Resendez v. State, 306 S.W.3d 308, 314 S.W.3d 808, 812 (Tex.Crim.App.1999). (Tex.Crim.App.2009) (holding that “[o]nly when there are clear contextual clues indicating that the party was, in The first prong requires the appellant to demonstrate that fact, making a particular argument will that argument be counsel's performance was deficient, meaning that counsel preserved”). The record demonstrates that Kay's motion to made errors so serious that he was not functioning as the suppress, as it was developed at the hearing, was based solely “counsel” guaranteed by the Sixth Amendment.Strickland, on the fact that the blood was drawn over his objection and 466 U.S. at 687, 104 S.Ct. at 2064. The second prong requires without a warrant. Kay's counsel seemingly ignored section the appellant to show that counsel's deficient performance 724.012 at the hearing; thus, even considering context, prejudiced the defense. Strickland, 466 U.S. at 687, 104 nothing in the record suggests that Kay alerted the trial S.Ct. at 2064. To establish prejudice, the appellant must court that he sought to challenge the constitutionality of the prove there is a reasonable probability that but for counsel's implied-consent statute authorizing Kay's blood draw. See deficient performance, the result of the proceeding would Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995) have been different. Jackson v. State, 973 S.W.2d 954, (holding that an “objection stating one legal theory may 956 (Tex.Crim.App.1998). Unless an appellant can prove

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both prongs, an appellate court must not find counsel's since been informed that there may have been a plea offer at representation to be ineffective. Strickland, 466 U.S. at 687, some point. 4 104 S.Ct. at 2064. 4 There is a supplemental reporter's record of a “hearing to There is a strong presumption that counsel's conduct fell present additional evidence,” which the trial court held within the wide range of reasonable professional assistance. after Kay was appointed new appellate counsel. Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim .App.1994). On direct appeal, a The trial court did not have authority to hold an evidentiary reviewing court will rarely be able to fairly evaluate the merits hearing regarding Kay's ineffective assistance claim because of an ineffective-assistance claim because the record on direct our order of abatement did not provide for such a hearing. appeal is usually undeveloped and inadequately reflective SeeTEX.R.APP. P. 25.2(g) (“Once the record has been filed of the reasons for defense counsel's actions at trial. Mata in the appellate court, all further proceedings in the trial v. State, 226 S.W.3d 425, 430 (Tex.Crim.App.2007). The court—except as provided otherwise by law or by these lack of a clear record usually will prevent the appellant from rules—will be suspended until the trial court receives the meeting the first prong of Strickland, as the reasonableness appellate-court mandate.”). Even when an appeal is abated, of counsel's choices and actions during trial can be proven “[a] trial court is not authorized to conduct an evidentiary deficient only through facts that do not normally appear hearing to develop a record of new testimony and other in the appellate record. Id. In order for an appellate court evidence that was not presented at trial, or developed on to find on direct appeal that counsel was ineffective, motion for new trial.”Lewis v. State, 711 S.W .2d 41, 43– counsel's deficiency must be affirmatively demonstrated 44 (Tex.Crim.App.1986) (emphasis in original) (holding in the trial record. Lopez v. State, 343 S.W.3d 137, 142 that trial court “exceeded her authority under the mandate (Tex.Crim.App.2011). When the record is silent as to of abatement” by holding evidentiary hearing to develop counsel's reasons for his conduct, finding counsel ineffective evidence on ineffective assistance claim because appellant would call for speculation by the appellate court. Stults v. failed to present such evidence at trial or in motion for new State, 23 S.W.3d 198, 208 (Tex.App.-Houston [14th Dist.] trial). Accordingly, we do not consider the testimony from 2000, pet. ref'd). An appellate court will not speculate about the evidentiary hearing that was held while the case was the reasons underlying defense counsel's decisions to find abated. Disregarding the evidence adduced at that hearing, counsel ineffective. Id.;Jackson, 877 S.W.2d at 771. the record does not affirmatively show that any plea offer actually was extended by the State or that Kay's trial counsel failed to convey an offer to him. See Lopez, 343 S.W.3d at B. Analysis 142 (stating that the record must affirmatively demonstrate *5 Kay filed a motion for new trial, but it did not raise the alleged ineffectiveness to find ineffective counsel). Thus, an ineffective assistance claim. On appeal, he contends that we cannot conclude that Kay has established that his trial the State offered a plea bargain of seven years in prison counsel's representation fell below an objective standard of and that his trial counsel failed to communicate that offer reasonableness. See Jenkins v. State, No. 01–03–00185–CR, to Kay. Kay further contends that his trial counsel failed 2004 WL 1233996, at *7 (Tex.App.-Houston [1st Dist.] June to intelligently assess and communicate the offer because 3, 2004, no pet.)(mem. op., not designated for publication) counsel misunderstood the law. Specifically, Kay argues that (holding appellant failed to show his counsel's performance his trial counsel erroneously believed that the State was was deficient because there was no record that appellant's prohibited from using Kay's two prior DWI convictions as counsel failed to inform him of plea offer or that State ever predicates for a felony DWI charge because they were more proposed plea bargain). Accordingly, we hold that Kay failed than ten years old. to meet the first prong of Strickland.

We abated this appeal and ordered the trial court to hold a *6 We overrule Kay's second issue. hearing on Kay's trial counsel's motion to withdraw. On the same day that the trial court held a hearing on and granted the motion to withdraw, it heard testimony from Kay to the effect Conclusion that no plea offer was communicated to him but that he had We affirm the trial court's judgment.

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