Gayle Lynn Carey v. State

• Court: Court of Appeals of Texas
• Decided: November 16, 2007
• Docket: 06-07-00066-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00066-CR

GALE LYNN CAREY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law

Hunt County, Texas

Trial Court No. CR0600917

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

A Hunt County jury found Gale Lynn Carey guilty of driving while intoxicated (DWI), a class A misdemeanor. The trial court sentenced Carey to 300 days' confinement in the Hunt County Jail. On appeal, she complains of ineffective assistance of counsel.

I. FACTUAL BACKGROUND

On November 5, 2005, ranch owner, Leo Faubion, and ranch foreman, V. T. Simmons, had stopped for gasoline in Greenville. Simmons was in the driver's seat, and Faubion was the passenger. The two men had just finished fueling and had gotten back in the truck to leave the station when a car traveling at five to seven miles per hour approached them. When the two men realized that the vehicle was not going to stop, they began to start waving and yelling in an attempt to get the driver to stop. Despite their efforts, the car continued and collided with Faubion's truck near the gas pump, never having attempted to stop. The collision was minor and the driver did not hit the gas pump, although she came quite close to doing so.

Faubion and Simmons got out of the truck and went over to the vehicle to speak with the driver. The driver was Carey. Faubion testified that Carey was not upset or shaken by the accident. Instead, he testified that she seemed "[v]acant" and had a blank expression on her face. To him, Carey appeared confused and her speech lacked clarity. Though calm, she was uncooperative as Faubion tried to discuss identification and insurance information. Faubion noticed Carey's slow movements and slurred speech as he spoke with her immediately after the collision.

Carey remained confused but calm until police arrived five or ten minutes after the collision. She then became more animated, more concerned, and louder. She confused Simmons and/or Faubion, both in working clothes since the two had just come from working on the ranch, for police officers. "The woman was altered." Faubion testified that he came to court because he was subpoenaed and indicated that he would not have done so otherwise. He expressed sympathy for Carey and explained that he had been concerned that she may have had some sort of mental or emotional condition.

Greenville Police Officer Philip Spencer responded to the collision. He explained that as he asked Carey to locate certain things, she went back and forth to her car looking for those things in a disorganized manner. Spencer learned that Carey's registration was expired, and Carey could not produce a current insurance card. When Spencer asked to see her driver's license, she insisted that she had given it to Faubion. She also insisted that Faubion had identified himself as an officer when he first approached her vehicle. What initially appeared to Spencer to be a simple fender bender began to seem more suspicious when Spencer noticed Carey's slow, slurred speech, her disoriented demeanor, and her uncoordinated movements. Although Spencer did not smell alcohol on her breath, he did ask Carey if she had been drinking. He also asked if she had any medical conditions or had taken any medication. She explained that she had a back problem and took Prozac in treatment of it. Spencer testified that Carey offered an explanation that she had a hard time putting her gear shifter in park and that sometimes it would move or roll.

Nonetheless, based on Spencer's observations of Carey's behavior and speech during the fifteen or twenty minutes he had been at the scene, Spencer decided to administer standardized field sobriety tests (FSTs). He explained that FSTs are designed to test a person's mental and physical capabilities. He testified that the horizontal gaze nystagmus (HGN) test is designed to show alcohol intoxication. Carey did not demonstrate any signs of alcohol intoxication on the HGN test. Spencer then asked Carey to perform the walk-and-turn test, a test designed to test mental and physical faculties without regard to the type of intoxicant. Carey did not perform well on the walk-and-turn test. She failed to follow directions and also made several missteps in the physical aspect of the test. Similarly, on the one-legged-stand test, Carey demonstrated signs of loss of mental and physical faculties. Based on his observations and Carey's performance on the FSTs, Spencer arrested Carey for DWI.

Spencer testified that he called for a tow truck to remove the vehicle after Carey was arrested and that the tow driver confirmed that there was a gear shift problem that caused the car to have the tendency to roll while the driver was trying to find the right gear. Spencer then took Carey to the hospital for a blood draw to which Carey had consented. Prior to the blood draw, she informed Spencer and the attending phlebotomist, Lisa Herndon, that, due to a serious medical condition unrelated to her back problem, she takes approximately twenty different medications in addition to the Prozac she had already mentioned.

Eduardo Padilla, forensic scientist for the Texas Department of Public Safety's (DPS) toxicology section and the State's expert witness, performed the testing of Carey's blood specimen. Padilla explained that when a blood sample arrives with unknown composition, the DPS laboratory performs an initial screening that tests for six classes of drugs he described as commonly abused. This testing revealed the presence of Alprazolam, from the Benzodiazepine class of drugs. Padilla testified that Alprazolam is often prescribed for anxiety and panic disorders. In addition, further testing showed the presence of Norpropoxyphene in Carey's blood sample. ⁽¹⁾ Norpropoxyphene is a "mild painkiller." He explained that the DPS laboratory does not test for any and all drugs. Specifically, Padilla testified that the DPS laboratory did not test for the presence of Prozac.

He testified that both Alprazolam and Norpropoxyphene are central nervous system depressants and, as such, could have side effects that include drowsiness, dizziness, confusion, blurred vision, slurred speech, and sluggishness. He explained that both Alprazolam and Norpropoxyphene are known to cause impairment. He also explained that the level of Alprazolam in Carey's blood sample was within the therapeutic range. ⁽²⁾ He further testified that there is a possibility of cumulative effect of more than one central nervous system depressant. According to Padilla, Alprazolam can be addictive. When asked whether Norpropoxyphene is addictive, he expressed that he believed it to be. Padilla made clear that these depressants could have impairing effect even if taken per doctor's orders regarding dosage. He described it as unlikely, however, that undetectable levels of several drugs would combine to cause impairment.

Dr. Charles F. King, Carey's witness, ⁽³⁾ testified that he had been treating Carey since June 2006, eight months after the collision at the gasoline station. He described Carey's several physical ailments and testified as to the medications which he had prescribed for Carey. He testified that Carey indicated that she had previously been prescribed Alprazolam. He also testified that he, too, prescribed Alprazolam for Carey for anxiety. He had not prescribed Norpropoxyphene, but did not know whether Carey had a prescription at the time of her arrest. He testified that during the eight office visits he and Carey had, he noticed her deliberate, slow speech and attributed her speech and other perhaps "quirky and unusual" habits to her anxious, nervous personality. The value of Dr. King's testimony regarding Carey's medication is limited to what has happened since June 2006 and what Carey told him she had taken prior to the time he began treating her.

II. APPLICABLE LAW

Ineffective assistance of counsel claims are evaluated under the two-part test formulated by the United States Supreme Court in Strickland v. Washington, requiring a showing of both deficient performance and prejudice. 466 U.S. 668, 689 (1984). A Strickland claim must be "firmly founded in the record" and "the record must affirmatively demonstrate" the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. ⁽⁴⁾ See Goodspeed, 187 S.W.3d at 392; Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); Fuller v. State, 224 S.W.3d 823, 828-29 (Tex. App.--Texarkana 2007, no pet.). This is true with regard to the question of deficient performance--in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight--where counsel's reasons for failing to do something do not appear in the record. Thompson, 9 S.W.3d at 813. The Texas Court of Criminal Appeals has said that "trial counsel should ordinarily be afforded an opportunity to explain his actions" before a court finds that he rendered ineffective assistance. See Goodspeed, 187 S.W.3d at 392 n.14 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)); Fox v. State, 175 S.W.3d 475, 485 (Tex. App.--Texarkana 2005, pet. ref'd).

Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 n.15 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)); Fox, 175 S.W.3d at 486. "[W]hen no reasonable trial strategy could justify the trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as she did." Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Representation is not ineffective simply because, in hindsight, the attorney could have or even should have done something differently. Godwin v. State, 899 S.W.2d 387, 391 (Tex. App.--Houston [14th Dist.] 1995, pet. ref'd).

In the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia, 57 S.W.3d at 440; Hankey v. State, 231 S.W.3d 54, 57 (Tex. App.--Texarkana 2007, no pet.). We begin our analysis of an ineffective assistance claim with the presumptions that counsel performed competently at trial and that counsel's decisions were reasonably professional and were motivated by sound trial strategy. See Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hankey, 231 S.W.3d 54. With these standards in mind, we address the litany of alleged errors committed by defense counsel during trial.

III. DISCUSSION OF CAREY'S CONTENTIONS

A. Failure to Record Portion of Jury Selection

Carey complains of trial counsel's failure to object to the court reporter's failure to record the trial court's discussions with individual veniremembers who may not have been qualified to serve as a juror or who may have been subject to one of the statutory exemptions. On appeal, she maintains that the failure to object to the absence of a record prevented appellate counsel and, "potentially" this Court from reviewing the qualification process. She does not specify the harm that may have been demonstrated by the record of these portions of the proceedings; she speaks only of potential error in the qualification process.

Her position, then, is similar to the one addressed and, ultimately, rejected in Gonzales v. State, 732 S.W.2d 67, 68 (Tex. App.--Austin 1987, no pet.), and McQueen v. State, 702 S.W.2d 302, 303 (Tex. App.--Houston [1st Dist.] 1985, no pet.). In response to this contention, the Austin court explained as follows:

Initially, appellant complains that his trial counsel failed to request that a record be made of voir dire. He alleges no specific harm other than "failure to preserve any possible error." It appears that he is requesting this Court to hold, as a matter of law, that failure to request the recordation of voir dire in the selection of the jury is ineffective assistance of counsel. He cites no cases, nor have we located any, that support the appellant's contention. We refuse to hold that failure to request recordation of voir dire is per se ineffective assistance of counsel requiring reversal because harm has not been shown, and an appellate court cannot speculate as to what may or may not have transpired at trial.

Gonzales, 732 S.W.2d at 68. Appellant must raise on appeal some injury resulting from the failure to request transcription. See Rivera v. State, 981 S.W.2d 336, 339 (Tex. App.--Houston [14th Dist.] 1998, no pet.); Ybarra v. State, 890 S.W.2d 98, 112 (Tex. App.--San Antonio 1994, pet. ref'd); Lopez v. State, 838 S.W.2d 758, 760 (Tex. App.--Corpus Christi 1992, no pet.). Here, Carey has not pointed to any specific harm, nor has she demonstrated the requisite prejudice under Strickland.

B. Leading Questions

Carey also complains of trial counsel's failure to object to leading questions asked of State's witness, Faubion, with whose truck Carey had collided. She also points to trial counsel's failure to object to leading questions asked of Officer Spencer, phlebotomist Herndon, and toxicologist Padilla.

Leading questions are questions that suggest the desired answer. See Tinlin v. State, 983 S.W.2d 65, 70 (Tex. App.--Fort Worth 1998, pet. ref'd). Rule 611(c) of the Texas Rules of Evidence provides that leading questions may be used on the direct examination of a witness as necessary to develop his testimony. Tex. R. Evid. 611(c). Permitting leading questions on direct examination is a matter within the sound discretion of the trial court. Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000). A defendant can show an abuse of discretion only by showing that such leading questions were unduly prejudicial. See id.; Hernandez v. State, 643 S.W.2d 397, 400 (Tex. Crim. App. 1982).

Assuming without deciding that each of the several instances to which Carey refers are instances of improperly leading a witness, we, nevertheless, recognize that trial counsel may have had a reasonable, strategic decision for not objecting to those questions. We have recognized such a strategy in response to a similar contention of ineffective assistance of counsel: "[T]rial counsel may elect to refrain from objecting to an improper question to avoid calling attention to damaging evidence that is otherwise admissible or merely cumulative." Young v. State, 10 S.W.3d 705, 713 (Tex. App.--Texarkana 1999, pet. ref'd). ⁽⁵⁾ In Young, we acknowledged that unless the witness is determined to be a hostile witness, an adverse party, or a witness identified with an adverse party, counsel should not ask leading questions on direct examination except to develop testimony. See id. at 713 n.29 (citing Tex. R. Evid. 611(c)). Despite this rule, however, we concluded that "it is sound trial strategy for opposing counsel to choose not to object to leading questions when the evidence will come in anyway." Id. at 713.

Here, again, there is a strong presumption that trial counsel performed within the wide range of reasonably professional assistance. See id. There is also a presumption that trial counsel's conduct was based on a reasonable trial strategy. Strickland, 466 U.S. at 689. Because the record provides no evidence to explain why trial counsel failed to object to the State's leading of its witnesses, Carey has failed to rebut the presumption that trial counsel's conduct was a reasonable trial strategy. We, therefore, conclude that she has not made the required showing that trial counsel committed error by failing to object to the State's leading questions.

C. Predicate for Admission

Carey complains of trial counsel's failure to object to the lack of proper predicate for admission of the audio portion of State's Exhibit 6, a videotape of the incident recorded by Officer Spencer upon his arrival at the scene of the accident. Carey complains that admission of the tape was harmful in that it showed to the jury Carey's slurred speech, confusion, and inconsistent statements.

In order to show ineffectiveness in failing to object, Carey must demonstrate that if counsel had objected on the indicated grounds, the trial court would have erred in overruling the objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). Rule 901 of the Texas Rules of Evidence governs the authentication and admissibility of electronic recording evidence and provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a); Leos v. State, 883 S.W.2d 209, 211 (Tex. Crim. App. 1994). Subsection (b) provides a nonexclusive list of methods to authenticate evidence. Tex. R. Evid. 901(b). One example given is the testimony of a witness with knowledge that a matter is what it is claimed to be. Tex. R. Evid. 901(b)(1). Another is "[i]dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at anytime under circumstances connecting it with the alleged speaker." Tex. R. Evid. 901(b)(5); Thornton v. State, 994 S.W.2d 845, 855 (Tex. App.--Fort Worth 1999, pet. ref'd).

Here, Officer Spencer testified that State's Exhibit 6 was a copy of his "in-car" videotape that he made on the day of the collision. When asked whether "the video and the audio . . . fairly and accurately reflect[s] or capture[s] the events as they happened on November the 5th, 2005," Spencer answered, "Yes." Based on such testimony, the trial court would not have abused its discretion by overruling an objection based on Rule 901. Without showing that the trial court would have abused its discretion by overruling an objection, Carey cannot establish that the trial counsel's failure to lodge such an objection amounted to ineffective assistance of counsel.

D. Hearsay

Carey contends that trial counsel was ineffective by failing to object to Officer Spencer's hearsay testimony regarding Faubion's statements at the accident scene. More specifically, she complains of the officer's testimony regarding Faubion's statement at the scene concerning the whereabouts of Carey's license.

We begin by noting that the failure to object to inadmissible evidence does not necessarily constitute ineffective assistance. See Greene v. State, 928 S.W.2d 119, 123 (Tex. App.--San Antonio 1996, no pet.). The testimony of which Carey complains mirrors Faubion's own testimony given earlier in the proceeding. So, assuming that the statements in question do constitute inadmissible hearsay, trial counsel may have decided to forego an objection since the jury had already heard Faubion's testimony. Counsel may have considered that an objection to this arguable hearsay, the substance of which had already been put before the jury, would be futile or serve only to emphasize the testimony. Since the record does not demonstrate trial counsel's reasoning in not objecting to this testimony, we presume that counsel made the decision based on a reasonable trial strategy.

E. Scope of Testimony

Carey further complains of the trial counsel's failure to object to the State's questions directed at DPS forensic toxicologist Padilla concerning the addictiveness and side effects of certain prescription medication and the purposes for which those medications are commonly prescribed. It is unclear the precise basis on which Carey contends this testimony was objectionable. We read her contention as one which asserts that Padilla's testimony fell outside the permissible scope of his expertise under Rule 702 of the Texas Rules of Evidence. See Tex. R. Evid. 702.

First, we observe that testimony as to the effects and intended use of medications would likely fall within the scope of the toxicology field. We observe that Dorland's Illustrated Medical Dictionary 1926 (30th ed. 2003) defines toxicology as being "the sum of what is known regarding poisons; the scientific study of poisons, their actions, their detection, and the treatment of the conditions produced by them." We find nothing to suggest that Padilla was not qualified to testify on the therapeutic levels of the medication at issue. To the contrary, the subject appears to be well within his profession. As such, the trial court would not have abused its discretion by overruling an objection to his testimony had trial counsel lodged one. Again, without a showing to that effect, Carey cannot prevail in an attempt to demonstrate this as being an example of ineffective assistance of counsel.

Further, advocates must be free to choose to not make objections even if they have a legal basis for doing so. McKinny v. State, 76 S.W.3d 463, 473 (Tex. App.--Houston [1st Dist.] 2002, no pet.). Here, trial counsel was faced with explaining and/or minimizing the laboratory results that showed the presence of two prescription medications that are generally accepted as addictive and impairing. We observe from trial counsel's cross-examination of Padilla that her strategy appears to have been to point out that the presence of Alprazolam in Carey's system was within the therapeutic range and that the quantity of the drug present in the blood did not necessarily mean a person is impaired. It appears that trial counsel emphasized that the level was within the therapeutic range and that--at even toward the higher end of the therapeutic range--a person may or may not be impaired. From Padilla's testimony, trial counsel also developed evidence that the quantity of a medication present in a sample does not go to the issue of whether a person is abusing the prescription drug. Padilla's testimony also provided Carey with additional evidence that the medication does have a medical purpose. A legitimate trial strategy is to minimize the damaging evidence against Carey. Allowing or even eliciting Padilla's testimony as to the effects and therapeutic levels of Alprazolam may have been part of such a strategy.

F. Requests for Instructions to Disregard

Carey also complains of trial counsel's failure to request an instruction to the jury to disregard inappropriate testimony elicited by the State after defense counsel successfully objected to the questioning. We note that promptness of trial counsel's objections prevented the witness from answering the challenged question. Therefore, it could be said that there was no evidence that the jury had to disregard. See Bass v. State, 713 S.W.2d 782, 785 (Tex. App.--Houston [14th Dist.] 1986, no pet.) (suggesting that the fact that the witness never answered the objected-to question rendered any error harmless).

Going further, the trial court instructed the jury generally: "You must not concern yourself with any testimony or exhibits to which an objection was sustained or that I instruct you to disregard." On appeal, we generally presume the jury follows the trial court's instructions in the manner presented. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); Reynolds v. State, 227 S.W.3d 355, 367 (Tex. App.--Texarkana 2007, no pet.).

In one instance, the State asked Dr. King whether the two drugs present in Carey's system were "commonly abused drugs," to which Dr. King answered, "Yes." Immediately following the objection, trial counsel asked to approach the bench, and after a discussion off the record, the trial court sustained trial counsel's objection. Trial counsel did not request an instruction to disregard. In this instance, Dr. King's answer did get before the jury, and trial counsel did not request an instruction to disregard following her successful objection. We do not know the precise basis of her objection, nor do we know the substance of the bench conference. Nevertheless, assuming that trial counsel erroneously failed to request an instruction to disregard, we conclude that an isolated failure to request an instruction to disregard, in this context, would not constitute ineffective assistance of counsel.

G. Jury Charge

Carey also directs us to trial counsel's failure to object to the jury charge. The jury charge included the statutory definition of "intoxication" as (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more. See Tex. Penal Code Ann. § 49.01 (Vernon 2003). Of course, the evidence was clear that Carey was not intoxicated due to alcohol consumption. In fact, Officer Spencer indicated that he did not smell alcohol on Carey and that her performance on the HGN test did not indicate alcohol intoxication.

We note that the jury charge tracks the statutory definition of intoxication. See Tex. Penal Code Ann. § 49.01. When a defendant in the reverse situation of Carey directly challenged the jury charge language relating to "other intoxicants" and when there was no evidence of any other intoxicant other than alcohol, the Corpus Christi court rejected such a contention. Benn v. State, 110 S.W.3d 645, 648 (Tex. App.--Corpus Christi 2003, no pet.). Benn, like Carey, argued that use of the statutory definition authorized the jury to convict him for something never proven. Id. at 649. The court concluded that use of the statutory definition was not error. Id.; see also Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) ("Following the law as it is set out by the Texas Legislature will not be deemed error on the part of the trial judge."). The court added that the record demonstrated "the complete absence of harm." Benn, 110 S.W.3d at 649. Benn relied a great deal on Erickson v. State, 13 S.W.3d 850 (Tex. App.--Austin 2000, pet. ref'd). In Erickson, the definition of intoxication included in the jury charge "roughly conform[ed]" to the statutory definition. Id. at 851. Erickson argued that the definition, when viewed in conjunction with the application paragraph, authorized conviction on a theory not supported by evidence. Id. In rejecting his contention, the Austin court emphasized that the State never suggested intoxication by any substance other than alcohol; evidence and jury argument from both sides made clear that only alcohol intoxication was at issue. Id. at 852.

On similar reasoning, we cannot conclude that trial counsel was ineffective for failing to object to the use of the statutory definition in the jury charge. See Parker v. State, 119 S.W.3d 350, 357 (Tex. App.--Waco 2003, pet. ref'd) (concluding that when jury charge was not erroneous, trial counsel was not ineffective for failing to object to it).

H. Trial Court's Comment

After Dr. King's testimony, the trial court called for a brief recess, after which the following exchange took place:

THE COURT: You may be seated. I said 1:45, right? Isn't that what I said? I think we said 1:45, so we're right on time this afternoon.

Ms. Blacknall, are you ready to call your next witness?

[Counsel for Carey]: Yes, Your Honor. At this time the defense rests.

THE COURT: All right. Mr. Dailey, anything in rebuttal from the State?

[Counsel for the State]: The State closes.

THE COURT: Defense closes?

[Counsel for Carey]: Yes, Your Honor.

THE COURT: All right. Ladies and gentlemen of the jury, that was unexpected for the Court. Give me one second to get back in our place.

Ladies and gentlemen of the jury, at this time, all of the evidence is now before you in this case. However, you have not yet been given the law and the Court's charge, and you have not yet heard closing argument from each side. We're going to take a brief recess at this time. I know it seems odd that we just brought you out, but we had to bring you out so both sides could rest and close on the record and in the presence of the jury.

Carey now points to trial counsel's failure to object to the trial court's "unexpected" comment as ineffective assistance, characterizing the trial court's statement as an improper comment on the weight of the evidence. We look first to the Texas Code of Criminal Procedure:

In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.

Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). A trial court improperly comments on the weight of the evidence if it makes a statement that implies approval of the State's argument, that indicates any disbelief in the defense's position, or that diminishes the credibility of the defense's approach to its case. Hoang v. State, 997 S.W.2d 678, 681 (Tex. App.--Texarkana 1999, no pet.). It is well established that comments on the evidence or other remarks by the trial court constitute reversible error only if they are reasonably calculated to benefit the State or prejudice the defendant's rights. Davis v. State, 651 S.W.2d 787, 789 (Tex. Crim. App. 1983).

To illustrate, we find it helpful to view the trial court's comment in light of remarks found to have run afoul of the above-referenced principles. For instance, in Blue v. State, 41 S.W.3d 129, 130 (Tex. Crim. App. 2000), the trial court told the jury panel as voir dire began that the delay it had experienced was the result of ongoing plea negotiations; that the defendant "has been back and forth so I finally told him I had enough of that, we are going to trial"; and that "I prefer the defendant to plead because it gives us more time to get things done . . . . We were all trying to work toward that and save you time and cost of time, which you have been sitting here and I apologize about that." The court concluded that comments of the trial court tainted Blue's presumption of innocence in front of the venire. Id. at 132.

The trial court's remark "[y]ou can try that on appeal," was of considerable concern to the court in Hernandez v. State, 507 S.W.2d 209, 211 (Tex. Crim. App. 1974). The court concluded that the remark carried "the implication that appellant's conviction was a foregone conclusion in the eyes of the court." Id. Although the court ultimately concluded that the trial court's instruction to the jury that the authority to find defendant guilty rested solely with the jury cured the error, the court's treatment of the remark indicates that the comment from the bench was improper. See id. at 211-12. Here, Carey contends the trial court's comment that the end of the case had come about unexpectedly necessarily conveyed to the jury the trial court's opinion of the case: "This remark indicated to the jury that the trial court was surprised that the defense was already resting its case and thus convey[ed] that if that's all the Appellant had for the jury, her conviction was a foregone conclusion." We do not read the comment as such. A reasonable reading of the trial court's comment in its context demonstrates that the trial court had simply expected the trial to continue into the afternoon. It was not a clear comment on the quality of Carey's case. It appears that the trial court was concerned with maintaining its schedule and the unexpected comment seems to go only to that scheduling concern. Any other meaning is too far attenuated for it to fall within Article 38.05's prohibition against comments from the bench on the weight of the evidence. The remark from the bench did not constitute an improper comment on the evidence, and thus, trial counsel's failure to object to it does not constitute error. See Resendez v. State, 160 S.W.3d 181, 190 (Tex. App.--Corpus Christi 2005, no pet.).

IV. CONCLUSION

Since there was no record developed for the purpose of evaluating an ineffective assistance claim, we are required to give a great deal of deference to trial counsel's reasoning for the decisions made during trial. The record before us does not demonstrate that Carey's trial counsel rendered ineffective assistance.

We overrule Carey's contentions and affirm the trial court's judgment.

Bailey C. Moseley

Justice

Date Submitted: October 18, 2007

Date Decided: November 16, 2007

Do Not Publish

1. Padilla testified that the DPS laboratory does not test quantity of Norpropoxyphene in the blood. He simply testified that the drug was present in Carey's blood.

2. Specifically, the level of Alprazolam in Carey's blood was 0.087 milligrams per liter. The therapeutic range is 0.02 to 0.10 milligrams per liter, and a person may or may not experience impairing side effects at the low end of the therapeutic range. Padilla agreed that Carey's level was at the high end of the therapeutic range, but was careful to add that the level of impairment at that 0.087 level would depend on the person.

3. The trial court did not permit Dr. King to testify as an expert because of Carey's untimely notice to the State designating Dr. King as an expert witness.

4. A claim of ineffective assistance is better pursued by way of habeas corpus, with which there is some opportunity for the record to have been developed regarding trial counsel's reasons for his actions. See Goodspeed, 187 S.W.3d 390; Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002).

5. Sister courts have acknowledged similar strategies. See Velasquez v. State, 941 S.W.2d 303, 310 (Tex. App.--Corpus Christi 1997, pet. ref'd) (stating that "we are mindful that it may actually be good trial strategy to avoid objecting to inconsequential testimony so as to avoid antagonizing the jury with frequent objections"); Ruiz v. State, 726 S.W.2d 587, 591 (Tex. App.--Houston [14th Dist.] 1987), overruled on other grounds, 761 S.W.2d 4 (Tex. Crim. App. 1988) (recognizing that "[m]aking many objections to leading questions would only tend to inflame the minds of the jury by appearing to be antagonizing and unnecessarily prolonging the trial"); Henderson v. State, 704 S.W.2d 536, 538 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd) (concluding that "[f]ailing to object to every introduction of improper evidence or questioning does not indicate that appellant's representation was ineffective. Not objecting can be a trial strategy." (Citations omitted.)).