Ex parte Bowman

533 S.W.3d 337
CourtCourt of Criminal Appeals of Texas
DecidedJune 28, 2017
DocketNO. PD-0208-16
StatusPublished
Cited by26 cases

This text of 533 S.W.3d 337 (Ex parte Bowman) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex parte Bowman, 533 S.W.3d 337 (Tex. 2017).

Opinions

OPINION

Yeary, J.,

delivered the opinion of the Court

in which Keller, P.J., and Keasler, Hervey, Keel and Walker, JJ., joined.

Appellant was arrested for the misdemeanor offense of driving while intoxicated (“DWI”) on September 24, 2004. In a jury trial, he was convicted of that offense on January 11, 2005. His punishment was assessed at 180 days in county jail; probated for a period of one year, and an $800 fine. Although he originally intended to appeal his conviction, Appellant filed a motion to dismiss the appeal, which was granted on January 6, 2006. On September 27, 2013— more than seven and a half years after his conviction became final by the dismissal of his appeal — Appellant filed a post-conviction application for writ of habeas corpus under Article 11.072 of the Code of Crimi-. nal Procedure, alleging that his trial counsel’s representation had been constitution[340]*340ally deficient to his substantial detriment. Tex. Code Crim. Proc. art. 11.072.

The convicting court conducted a hearing on the writ application and ultimately denied relief.1 On appeal,2 however, the First Court of Appeals reversed, concluding that counsel had performed deficiently and that Appellant had suffered prejudice. Ex parte Bowman, 444 S.W.3d 272, 282 (Tex. App.—Houston [1st Dist.] 2014). The court of appeals rejected the State’s attempt to rely on the equitable doctrine of laches to bar habeas corpus relief on the ground that the State had not invoked laches during the writ hearing at the convicting court level. Id. at 279. On the State’s petition for discretionary review, however, this Court vacated the judgment of the court of appeals and remanded the cause for further proceedings, holding that the State did not forfeit .its laches argument by failing to raise it first in the convicting court. Ex parte Bowman, 447 S.W.3d 887, 888 (Tex. Crim. App. 2014).

The court of appeals remanded the cause, in turn, to the convicting court for further factual development in a hearing on the laches issue. Ex parte Bowman, 483 S.W.3d 726, 731 (Tex. App.—Houston [1st Dist.] 2016). After conducting the hearing, the convicting court concluded that Appellant should be barred by laches from obtaining habeas corpus relief. The court of appeals reversed the convicting court again, however, holding that laches did not bar Appellant from pursuing his ineffective assistance of counsel claim, and once again granting Appellant relief on that claim. Id. at 738, 741. We granted the State’s second petition for discretionary review with respect to two issues: 1) Did the court of appeals err to reach the merits of Appellant’s habeas claim when he waited over seven and a half years to assert it; and, if not, then, 2) in any event, did the court of appeals err to hold that Appellant established ineffective assistance of counsel at his 2005 trial for DWI. Because we hold that the court of appeals erred to find trial counsel ineffective, we need not address the laches issue.

BACKGROUND

The Offense

After jet-skiing in the afternoon with one friend, and then drinking at least one glass of wine at the apartment of another friend before briefly falling asleep on her couch, Appellant drove home in the early morning hours of September 24, 2004. Officer William H. Lindsey of the Houston Police Department clocked Appellant driving sixty miles per hour in a thirty-five mile per hour speed zone and pulled him over into the parking lot of a gentlemen’s club. Lindsey observed no other infractions of the law before stopping Appellant. Once he did stop Appellant, however, Lindsey detected the odor of alcohol on his breath. He therefore asked Appellant to submit to field sobriety testing. At first, Appellant refused to do any of the field sobriety tests, claiming that he had prior injuries to his knee and ankle. But when Lindsey placed him in handcuffs, Appellant agreed to undergo the testing. Lind[341]*341sey then uncuffed Appellant and began administering the horizontal gaze nystag-mus test. From that test, Lindsey perceived six signs of intoxication. Lindsey next asked Appellant to perform the leg-lift test, but Appellant was unable to do it. He did, however, perform the heel-to-toe test, after which Lindsey arrested him for driving while intoxicated. The sobriety testing and subsequent arrest were recorded on Lindsey’s dash camera. Down at the station house, Appellant refused to submit to a breathalyzer test or further physical sobriety testing. He was later charged with misdemeanor DWI.

The Trial

In December of 2004, Appellant replaced his originally retained attorney with new counsel, Ned Barnett. The trial judge made it clear to Barnett, however, that he would be expected to go forward on the original trial date set for January 11, 2005. In a jury trial on that date, Lindsey testified against Appellant as summarized above, and the video of Appellant’s field sobriety testing was admitted into evidence. In addition, Officer Raymond Cibul-ski testified that, once Appellant arrived at the station house, he refused to submit a sample of his breath for blood-alcohol analysis. Though Cibulski smelled “a strong odor of an alcoholic beverage on [Appellant’s] breath,” saw his “red bloodshot eyes,” and heard his “slurred speech,” he was unwilling to state an opinion about whether Appellant was intoxicated. Officer Chris Green gave Appellant another “opportunity to perform motor skill exercises[,]” but Appellant “refused them all.” Like Cibulski, Green perceived “a strong odor of alcoholic beverage on [Appellant’s] breath and red, glassy eyes.” But he was also unwilling to offer the opinion that Appellant had necessarily been intoxicated. Lindsey had no such reluctance, confidently asserting at several points during trial that it was his opinion that Appellant had lost the normal use of his physical and mental faculties because of alcohol intoxication.

On cross-examination of Lindsey, Barnett established that, for eighteen years, Lindsey’s duties as a Houston police officer had “focus[ed]” on DWI investigations, most recently as a member of a “D.W.I. task force[.]” Lindsey testified that both Cibulski and Green were also members of the DWI task force. Lindsey acknowledged that he is off duty when he testifies in court, for which he gets “paid overtime, time and a half.” He testified that during the previous year he had made four hundred and seventy-six arrests for driving while intoxicated:

Q. So, whenever you make an arrest and you go to court in your off time, you’re getting time and a half?
A. I’m required to be here by law, yes, sir.
Q. And that is part of your job description?
A. You’re a police officer, you’re expected to either — it’s part of your job. I don’t see how you can be a police officer and not make an arrest or not write tickets if you’re in the street, that’s correct.
Q. Testifying is part of your job description?
A. If you make arrests, yes, sir, it comes with the territory.
Q. You make a lot of D.W.I. arrests, don’t you?

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ex Parte Mirna Briceno De Aguil v. the State of Texas
Tex. App. Ct., 9th Dist. (Beaumont), 2026
Ex Parte Dexter Hypolite v. .
Court of Appeals of Texas, 2025
The State of Texas v. Gabriela Quiroz MacEdo
Court of Appeals of Texas, 2024
William Harold Masterson v. the State of Texas
Court of Appeals of Texas, 2024
Timothy Duane Poor v. the State of Texas
Court of Appeals of Texas, 2024
Deaundric Jaquay Dorsey v. the State of Texas
Court of Appeals of Texas, 2024
Cynthia D Willis v. the State of Texas
Court of Appeals of Texas, 2023
Ex Parte Omar Alonso v. the State of Texas
Court of Appeals of Texas, 2023
Ex Parte Carlos Noe Gallegos
Court of Appeals of Texas, 2022
Stephen Allen Holt v. the State of Texas
Court of Appeals of Texas, 2022
Ex Parte William Cane Luce
Court of Appeals of Texas, 2022
Ex Parte Fabian Garcia
Court of Appeals of Texas, 2021
Ex Parte Jaime v. Mancilla
Court of Appeals of Texas, 2021
Ex Parte: Koffi Semegnon Doke
Court of Appeals of Texas, 2021
Matthew Nicholas Sloan v. State
Court of Appeals of Texas, 2021
Ex Parte: Keith Tehdai Chitsaka
Court of Appeals of Texas, 2021
Ex Parte: Carlos Maldonado
Court of Appeals of Texas, 2020
State v. Andrew Sutter
Court of Appeals of Texas, 2019

Cite This Page — Counsel Stack

Bluebook (online)
533 S.W.3d 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-bowman-texcrimapp-2017.