Harris, Robert Dale v. State

• Court: Court of Appeals of Texas
• Decided: March 8, 2001
• Docket: 13-99-00219-CR
• Status: Published

Opinion

NUMBER 13-99-219-CR COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ROBERT DALE HARRIS

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 329th District Court of Wharton County, Texas.

____________________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and Kennedy⁽¹⁾

Opinion by Justice Kennedy

Appellant was convicted by a jury of third degree felony driving while intoxicated (DWI). The same jury assessed punishment at confinement for ten years and a fine of $7,500. It recommended probation for the incarceration but not for the fine. The trial court sentenced appellant to ten years probation and a fine of $7,500.

Appellant, in his single point of error, alleges that he was denied effective assistance of counsel at trial. Specifically, he first notes that trial counsel filed a motion for continuance one week prior to trial which was unsworn and upon which counsel never requested a ruling. The continuance was sought in order to permit counsel to retain, as co-counsel, someone better versed in the trial of DWI cases.

Appellant also complains that trial counsel did not object to lengthy testimony by the arresting officer about the results of a field sobriety test administered to appellant called a horizontal gaze nystagmus (HGN) test, during which testimony the officer quantified the results of the test to indicate appellant's blood alcohol level. The complaint also alleges a failure to object to the officer's quantifying the result of an intoxilizer test. Appellant cites Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994) for the proposition that a witness may not use HGN evidence to quantify a defendant's blood alcohol content. Emerson, 880 S.W.2d at 769.

The arresting officer did quantify the blood alcohol content from both the HGN test and the breathalyzer test.⁽²⁾

However, he also testified that he was a certified Breathalyzer intoxilizer operator. Presumably, trial counsel could have objected to his quantification of the results of both tests. Possibly, his objection would have been sustained. However, ineffective assistance is judged by a broader yardstick than the failure to make a single objection.

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-part test to prove ineffective assistance of counsel. The defendant must show that: (1) his attorney's performance was deficient and (2) there is a reasonable probability that counsel's deficient performance prejudiced the defense. Id. at 687. Texas courts have adopted this test. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994), cert. denied, 508 U.S. 963 (1999).

This Court has analyzed the matter of ineffective assistance of counsel, as follows:

The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. 1979). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d at 500. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Absent both showings an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Ex parte Menchaca, 854 S.W.2d at 131. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Ex Parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991).

Stone v. State, 17 S.W.3d 348, 350 (Tex. App. -- Corpus Christi, 2000 pet. ref'd).

The inability of trial counsel to get the assistance of co-counsel and his failure to make one objection hardly rise to the level of deficient performance. In view of other evidence of appellant's intoxication,⁽³⁾

it is a stretch to say that, but for the jury having heard the arresting officer's quantification of the results of either test, it would have acquitted appellant. Appellant has failed to meet either prong of Strickland.

We overrule the single point of error and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 8th day of March, 2001.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. The evidence showed that appellant was offered a breath test and that he blew into the receptacle once, then refused to blow again. Appellant testified that the intoxilizer registered .093 or 0.98 when he blew into it. The arresting officer was called on rebuttal and testified that he saw a reading of 1.39 when appellant blew into the intoxilizer. He then answered the question by the prosecutor, "And that would be above the legal limit of .10, correct?" by saying "Yes, ma'am."

3. In addition to the arresting officer's testimony about appellant's erratic, and drunken demeanor, an enforcement agent with the Alcoholic Beverage Commission testified. He was present in the Wharton County jail when appellant was brought in and testified that he heard loud profanity being used and, when he went to check on it, found that it came from appellant. He testified in detail to appellant's appearance and actions and concluded that appellant was intoxicated.