Pamela J. Loftus v. State

• Court: Court of Appeals of Texas
• Decided: September 11, 2018
• Docket: 07-17-00103-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00103-CR

PAMELA J. LOFTUS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 54th District Court 1 McLennan County, Texas Trial Court No. 2015-2343-C2, Honorable Matt Johnson, Presiding

September 11, 2018

MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.

Appellant, Pamela J. Loftus, was convicted of driving while intoxicated. In three

points of error, appellant challenges the sufficiency of the evidence to support her

conviction and the effectiveness of her trial counsel. We will affirm.

1 Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the

Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3. Background

On August 12, 2015, a Woodway police officer observed a vehicle traveling at a

high rate of speed, with its headlights flashing off and on and its left and right turn signals

alternately activated. Using his radar, the officer determined the vehicle was traveling at

ninety-two miles per hour in a sixty-mile-per-hour zone. He stopped the vehicle and

identified the driver as appellant. He observed signs of intoxication and two open

containers of vodka in appellant’s car. After field tests indicated appellant was

intoxicated, the officer placed her under arrest.

Appellant was charged and convicted by a jury of the offense of felony driving while

intoxicated. The jury assessed punishment at ten years’ imprisonment in the Texas

Department of Criminal Justice, Institutional Division, and a $1,000 fine.

Discussion

Issue 1: Sufficiency of evidence establishing prior convictions

In her first issue, appellant asserts that the evidence was insufficient to establish

she had previously been convicted two times for driving while intoxicated. A person

commits the offense of felony driving while intoxicated when (1) the party was intoxicated

while driving and (2) the party has at least two prior convictions for “any other offense

related” to driving while intoxicated. TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp.

2017). “Any other offense” includes the offense of driving while intoxicated, as described

in section 49.04(a). Id. at § 49.09(c)(1)(A). To establish that a defendant has been

convicted of a prior offense, the State must prove beyond a reasonable doubt that a prior

conviction exists and the defendant is linked to that conviction. Flowers v. State, 220

2 S.W.3d 919, 921 (Tex. Crim. App. 2007). Under Texas substantive law, the fact of a prior

conviction does not have to be proven in any specific manner; any type of evidence might

suffice. Id. at 921-22.

At trial, the State presented fingerprint records and court records from Travis

County as evidence to establish appellant’s prior DWI convictions. The fingerprint tech

supervisor from the Austin Police Department testified that her office kept arrest records,

including fingerprints, for people booked into the Travis County jail. She identified State’s

Exhibits 2 and 3 (and others) as copies of fingerprints of “Pamela Joy Loftus.” The

fingerprint cards included the name “Pamela Joy Loftus,” and other identifying

information, such as race, sex, hair color, eye color, height, weight, birthdate, Social

Security number, and Texas driver’s license number.

Next, a captain from the McLennan County Sheriff’s Department testified that he

took appellant’s fingerprints in connection with the instant case. He identified State’s

Exhibit 21 as the fingerprint card he took from appellant. He further testified that he

compared the impressions he took from appellant with the impressions on the Austin

Police Department fingerprint cards (State’s Exhibits 2 and 3), and concluded that the

impressions were all made by appellant. State’s Exhibit 2 was dated October 6, 2010;

State’s Exhibit 3 was dated October 13, 2010.

The captain also identified State’s Exhibits 4 and 5, which were judgment packets

for 2011 judgments in which a defendant named Pamela Joy Loftus was found guilty of

the offense of driving while intoxicated in Travis County, based upon her plea of guilty.

One offense was committed on October 6, 2010, and one on October 13, 2010. The

judgment packets did not contain fingerprint cards. They reflected that the defendant,

3 Pamela Joy Loftus, was a white female (like appellant) and had the same date of birth as

appellant. The Texas state identifying number on State’s Exhibit 4 matched the one on

State’s Exhibit 5, linking appellant to both exhibits.

State’s Exhibits 4 and 5 both included a “motion to revoke community supervision”

and “defendant’s plea of true” to the motion. The motions to revoke were both based on

the State’s allegation that “Pamela Joy Loftus” committed the offense of driving while

intoxicated on August 12, 2015, in McLennan County. The motions further alleged that

the defendant had two open containers of vodka in her possession at the time of her

arrest.

In addition to this documentary proof, there was testimonial evidence linking

appellant to the two prior DWI convictions. Appellant’s parole officer testified that

appellant had been convicted of two DWI felonies in Travis County. The parole officer

did not know the cause numbers for those offenses. The officer who arrested appellant

testified that when he ran her information, he discovered that she had four prior

convictions for DWI.

Appellant has not pointed to any evidence that would tend to contradict the finding

that she had previously been convicted of driving while intoxicated. Instead, she argues

that the State did not link the prior convictions to her because the evidence of those

convictions did not include fingerprints. However, fingerprints are not required to link a

defendant to a prior conviction. See id. at 921, 925 (State proved up prior DWI conviction

even though conviction document did not include appellant’s fingerprints). As the Court

of Criminal Appeals explained in Flowers, the evidence presented may be likened to

pieces of a jigsaw puzzle, where the pieces alone may have little meaning, but when put

4 together, form a picture showing that the defendant is the same person who committed

the alleged prior offense. Id. at 923.

After reviewing the evidence, we conclude that the record contains sufficient

information linking appellant to two prior convictions for driving while intoxicated. We

accordingly overrule appellant’s first issue.

Issue 2: Ineffective assistance of counsel; hearsay

In her second issue, appellant contends that her trial counsel was ineffective

because he failed to object to a portion of an exhibit offered into evidence by the State.

Specifically, appellant argues that her trial counsel was ineffective for allowing the State

to introduce hearsay contained within State’s Exhibit 4. Part of State’s Exhibit 4 was the

affidavit for warrant of arrest and detention related to the October 6, 2010 DWI. The

affidavit included the name, race, sex, and date of birth of the alleged offender.

Appellant’s trial counsel unsuccessfully objected that the document had not been properly

authenticated, but did not object to the contents of the exhibit. Appellant urges that the

arrest affidavit contained testimonial statements and was not admissible. She further

argues that she was harmed by the admission of the affidavit, since it included the

birthdate linking appellant to the judgment. Appellant suggests that without that link, the

State would not have been able to establish one of the elements of the offense.

To prevail on an ineffective assistance of counsel claim, a party must prove that

counsel’s representation fell below an objective standard of reasonableness and there is

a reasonable probability that, but for counsel’s deficiency, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). We indulge a strong presumption that counsel’s 5 conduct fell within the wide range of reasonable assistance. Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994).

Even if we were to assume that trial counsel performed deficiently in failing to make

a hearsay objection, appellant has not shown that a successful objection would have

changed the outcome of her trial. Appellant was linked to the prior judgments not only by

her birthdate on the arrest affidavit, but by in-court testimony and the motion to revoke

probation and appellant’s plea of true to the allegations in the motion. Because the jury

had additional information from which it could have identified appellant as the person

convicted for the two referenced offenses, we cannot conclude that the result of the

proceeding would have been different, as required under Strickland. See Strickland, 466

U.S. at 694. We therefore overrule appellant’s second issue.

Issue 3: Ineffective assistance of counsel; jury selection

In her third issue, appellant maintains her trial counsel was ineffective because he

failed to challenge for cause two prospective jurors during voir dire. Specifically, appellant

asserts that two venire members, Karen Blanco and John Malone, were subject to a

challenge for cause because they indicated they could not be fair toward appellant due

to their previous experiences with drunk drivers, yet her trial counsel did not move to strike

either of them for cause. See TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9) (West 2006)

(a challenge for cause may be made to a juror who has a bias or prejudice in favor of or

against a defendant). However, appellant’s trial counsel exercised two of his peremptory

strikes on Blanco and Malone, and neither served on the jury.

Again, we apply the standard set forth in Strickland when reviewing the

effectiveness of counsel. Under that standard, appellant must show her counsel’s 6 performance was deficient and that the deficient performance prejudiced her defense.

Strickland, 466 U.S. at 687-88, 694.

We will first analyze whether appellant has satisfied the second prong of the

Strickland test. Appellant claims she can establish prejudice because her trial counsel

used peremptory strikes on Blanco and Malone that could have been used elsewhere.

However, she does not state that there were other jurors she would have chosen to

remove from the panel by those strikes, nor does she identify those jurors, nor does she

suggest that she was forced to accept objectionable jurors. See Holland v. State, 761

S.W.2d 307, 318 (Tex. Crim. App. 1988) (no showing of harm where complaining party

does not show he was forced to accept objectionable juror); Callaway v. State, 818

S.W.2d 816, 838 (Tex. App.—Amarillo 1991, pet. ref’d) (same). Because appellant has

not demonstrated how the claimed misuse of two peremptory challenges harmed her, she

has failed to show that she was prejudiced or that the outcome of her trial would have

been different. We therefore reject appellant’s ineffectiveness claim because she has not

satisfied the second prong of the Strickland test. Appellant’s third issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

Judy C. Parker Justice

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