AFFIRM; and Opinion Filed August 7, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas
No. 05-12-00940-CR
COURTNEY PIERCE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 6 Collin County, Texas Trial Court Cause No. 006-85905-2011
OPINION Before Justices FitzGerald, Francis, and Lewis Opinion by Justice Lewis Appellant Courtney Pierce was charged by information with driving while intoxicated, a
Class B misdemeanor. Appellant pleaded not guilty, and a jury convicted her as charged. The
trial court assessed punishment at ninety days in jail, probated for fifteen months and an $800
fine. In four issues, appellant challenges her conviction and alleges the trial court erred by
sustaining the State’s objection to appellant’s evidence, and by overruling appellant’s objection
to the State’s improper closing argument. Appellant also asserts she received ineffective
assistance of counsel. For the reasons below, we affirm the trial court’s judgment.
BACKGROUND
Around 2:30 a.m. on August 7, 2011, Plano police officer Ben Waite saw appellant pull
out of a gas station and drive the wrong way on the service road of Central Expressway. He
immediately pulled her car over. Officer Waite testified that when he approached appellant, he noticed she had heavy, watery eyes, and there was a strong odor of an alcoholic beverage coming
from appellant. When he asked appellant if she had been drinking, she told him she had
consumed one drink. Backup police officer Christopher Sanders also noted a strong odor of
alcohol. Appellant told him she had come from the Londoner Pub in Allen, Texas. She believed
she was in Dallas, rather than Plano. Appellant told Sanders that she had two drinks, a half-pint
and a full pint of whisky and ginger ale.
Officer Sanders administered the Standardized Field Sobriety Tests and appellant
performed poorly. She showed all six possible clues on the horizontal gaze nystagmus test, well
over the decision point of four clues that indicates intoxication. She could not complete either of
her attempts in the walk-and-turn test. Sanders ultimately stopped the test because he was afraid
she would injure herself. Finally, on the one-leg-stand test, appellant showed two clues, the
decision point for intoxication. Officer Sanders then arrested appellant and placed her in the
back seat of his police vehicle. While being transported to the Plano City jail, appellant slumped
down across the back seat and fell asleep.
Upon arrival at the Plano City jail, Officer Mica Lunt had to assist appellant out of
Sander’s car. Officer Lunt testified the entire car smelled of alcohol. Appellant almost fell
getting out of the car, and Lunt had to place his hands on her shoulders to guide her into the
building. Once he got her into the Intoxilyzer room, Officer Lunt noted that appellant had
glassy, bloodshot eyes, her speech was slurred, and she had to lean against the wall or table to
steady herself. Appellant agreed to take a breath test and eventually, was able to provide two
sufficient breath samples. The results of the Intoxilyzer test were not introduced during the
State’s case-in-chief.
Appellant reserved opening argument until after the State rested its case. During opening
statement, appellant’s counsel told the jury that appellant had gone to the Londoner Pub to play
–2– pool with a friend. He said two men purchased a drink for appellant and something must have
been placed in that drink that caused her to not be in a normal state of mind. He explained that
appellant had no memory of anything that happened from the time she sipped that drink until she
woke the next morning in the Plano jail. During presentation of her case, Appellant recalled all
three police officers and solicited testimony that some of her behavior had been unusual. She
also took the stand in her own defense.
Appellant testified she was a helicopter pilot and flew approximately six days a week.
She testified that FAA guidelines do not permit a pilot to fly while under the influence of
alcohol; a pilot cannot have consumed alcohol within eight hours before a flight; and a pilot’s
blood-alcohol content must be less than .08. She also testified that a DWI conviction is a serious
offense to the FAA that results in the pilot’s license being taken away. Appellant said she had
personal “rules” when she goes out drinking, including not drinking twelve hours before a flight
and always having cab fare or sharing a ride. Appellant admitted that around 10:30 p.m. on
August 6, 2011, she met a friend, Cindy Bliss, at the Londoner Pub in Allen, Texas. She testified
she had one drink when she first arrived and another drink around midnight. While they were
playing pool, two men started talking to her and her friend and bought them each a beer.
Appellant took a few sips of beer and started feeling “hot and sweaty.” She asserted she did not
remember anything from that point forward until she awoke the next morning in jail. She
testified she had no memory of leaving the bar, getting into her car, driving, being arrested, or
taking the Intoxilyzer test. When she got out of jail, she tried to go to an emergency clinic for a
drug test but the clinic was closed. She testified she called other clinics the next day but none
could do a “date rape drug test.” She maintained she did not voluntarily drink more than the two
drinks she ordered and a few sips of beer. She also asserted if she believed she was impaired,
she would not have driven her car away from the Londoner Pub.
–3– In rebuttal, the State called Lori Fuller, a technical supervisor with the Southwest
Institute of Forensic Science. She explained how the Intoxilyzer 5000 instrument works and
verified it was functioning properly on the night of appellant’s breath test. Fuller also explained
the Intoxilyzer tests only for ethanol, the type of alcohol that is most widely consumed.
Appellant’s blood alcohol concentration tested at 0.148 and 0.150. Fuller testified that a 130-
pound female would have had to consume the amount of alcohol equivalent to six to nine
standard alcoholic drinks between 10:30 p.m. and 12:00 a.m., or 10:30 p.m. and 2:00 a.m., to
have an alcohol concentration of 0.148 at 3:30 a.m., the time of the sample. She also testified the
Intoxilyzer does not test for drugs of any sort and does not show the presence or absence of a
“date rape drug” such as Rohypnol.
The jury found appellant guilty of driving while intoxicated. Appellant filed a motion for
new trial and motion in arrest of judgment, arguing the verdict was contrary to the law and the
evidence. After the trial court denied appellant’s motion, she timely filed this appeal.
DISCUSSION
Appellant raises four issues on appeal. First, appellant argues the trial court erred when it
sustained the State’s objection to appellant’s testimony regarding her drinking habits. Appellant
contends such testimony was evidence of a pertinent character trait, was relevant to the offense
on trial, and qualified as evidence of her habits to prove that her conduct on a particular occasion
would have been in conformity with her habit or routine practice. Second, appellant argues the
trial court erred when it overruled her objection that the State made an improper closing
argument by arguing outside the evidence. In her third and fourth issues, appellant contends she
received ineffective assistance at trial. Appellant complains that although her trial attorney
purported to present a defense that appellant was drugged with Rohypnol or a similar drug, her
trial counsel failed to present evidence regarding the presence of such a drug in appellant’s
–4– system, and the effects of such a drug. Appellant also complains that her trial counsel
improperly withdrew his objection to the State’s presentation of Fuller as a rebuttal witness.
A. Evidence of Habit
Appellant argues the trial court erred in not allowing her to present testimony regarding
her drinking habits to the jury. We review a trial court’s decision regarding the admissibility of
evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011); Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1990). A trial court abuses its discretion only if its decision
is “so clearly wrong as to lie outside the zone within which reasonable people might disagree.”
Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). If the trial court’s decision is
reasonably supported by the record and correct on any theory of law applicable to the case, we
will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Appellant contends that testimony regarding her drinking habits was pertinent character
trait evidence to support her defensive theory that had she not been drugged by Rohypnol or
some similar drug, she would not have knowingly entered her vehicle and driven while
intoxicated. Generally, character evidence is not admissible to show that a person acted in
conformity with a character trait on a particular occasion. TEX. R. EVID. 404(a); Turner v. State,
2012 WL 3207291, at *7 (Tex. App.—Fort Worth Aug. 9, 2012, no pet.). However, an accused
is allowed to introduce evidence of a specific good character trait to show that it is improbable
that she committed the offense charged where that character trait is relevant to the offense. TEX.
R. EVID. 404(a)(1)(A); Melgar v. State, 236 S.W.3d 302, 306–07 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d). Evidence of a person’s habit is relevant to prove that the conduct of the
person on a particular occasion was in conformity with the habit. TEX. R. EVID. 406; Guerrero v.
State, No. 14-10-00840-CR, 2011 WL 6808314, at *6 (Tex. App.—Houston [14th Dist.] Dec.
–5– 22, 2011, no pet.) (mem. op., not designated for publication). “Evidence of habit and character
sometimes appear similar; but while character is a generalized description of a person’s
disposition, habit describes a person’s regular response to a repeated specific situation.”
Guerrero, 2011 WL 6808314, at *6.
During appellant’s testimony, her attorney asked her to tell the jury what her habits were
regarding alcohol. The State objected based on relevance and the trial court sustained the
objection. Appellant’s counsel did not explain why such evidence was admissible, or make an
offer of proof of the actual evidence sought to be admitted. Instead, appellant’s counsel
continued questioning appellant, asking her whether she had any rules that she followed when
she went out for a drink. Appellant answered, without objection, that she does not drink within
twelve hours of a scheduled flight and always shares a ride or carries cash for a taxi whenever
she goes out drinking. She testified that she had the number for a taxi cab company programmed
into her phone. Appellant also testified that if she thought she was impaired, she did not drive
her car.
Appellant contends she should have been allowed to present evidence that as a
responsible helicopter pilot who would lose her license if she were convicted of driving while
intoxicated, she always carries cash for a taxi, has a taxi cab company programmed into her
telephone, or shares a ride with another person. She also contends she should have been allowed
to testify further regarding her drinking habits to show that she would not have knowingly
entered her vehicle and driven while intoxicated. However, our review of the record reflects that
appellant testified, without objection, to all of these things. It is well settled that an error in
admission or exclusion of evidence is cured where the same evidence comes in elsewhere
without objection. See Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); see also
Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (holding that to show harm, the
–6– excluded evidence must be controlling on a material issue and not cumulative of other evidence);
Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref’d) (holding there is
no harm when complained-of evidence was admitted through other testimony). Appellant’s
counsel did not make an offer of proof with respect to any additional evidence sought to be
admitted so we are unable to determine what evidence, if any, was excluded. Having nothing to
review, we overrule appellant’s first issue.
B. Improper Closing Argument
In her second issue, appellant argues the trial court erred when it overruled her objection
that the State’s closing argument was improper. Even though appellant’s trial defense was based
on the theory that she must have been drugged, she now complains it was outside the evidence
for the State to argue she was not drugged because there was no trial evidence that she was
drugged. Permissible jury argument generally falls into one of four areas: (1) summation of the
evidence presented at trial; (2) reasonable deductions drawn from the evidence; (3) responses to
argument by defense counsel; and (4) pleas for law enforcement. Brown v. State, 270 S.W.3d
564, 570 (Tex. Crim. App. 2008); Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.
2000). The State is permitted to draw reasonable inferences from the evidence and is afforded
wide latitude in its jury argument so long as the argument is supported by the evidence and is
made in good faith. Griffin v. State, 554 S.W.2d 688, 690 (Tex. Crim. App. 1977); Jimenez v.
State, 240 S.W.3d 384, 407 (Tex. App.—Austin 2007, pet. ref’d).
The record contains no evidence that appellant had a date rape drug in her system.
However, the record reflects that appellant’s defense was based on the theory that something
must have been placed in her drink because she never would have voluntarily driven while
intoxicated. In his opening argument, appellant’s trial counsel told the jury they believed
something had been placed in appellant’s drink. Appellant then testified she did not remember
–7– what happened on the night in question. She also testified of her efforts to be drug tested once
she was released from jail. During closing argument, appellant’s trial counsel conceded
appellant voluntarily ordered and drank two drinks, but argued that appellant’s actions during the
rest of the evening were not voluntary. He argued the State had not proved beyond a reasonable
doubt that appellant voluntarily drove her car while intoxicated.
In its closing argument, the State first reviewed the evidence of appellant’s intoxication.
The State then responded to the closing argument of appellant’s trial counsel, stating “he wants
you to believe that the defendant was drugged.” The State asked the jury to consider all the
evidence that appellant was not drugged and use their common sense, keeping in mind that the
purpose of date rape drugs is to make the victim incapable of fighting off a rapist. Defense
counsel did not object the first time the State discussed the purpose of date rape drugs. See TEX.
R. APP. P. 33.1 (requiring a timely objection in order to preserve error); see also Davis v. State,
329 S.W.3d 798, 823 (Tex. Crim. App. 2010). The second time the State reminded the jury of
the purpose of date rape drugs, appellant’s counsel objected to the State arguing outside of the
evidence. The trial court overruled appellant’s objection, stating the State was making a
reasonable deduction. The State then referenced the purpose of date rape drugs a third time,
without objection by defense counsel.
To preserve a complaint about improper jury argument, a defendant must object each
time the impermissible argument is made, or the complaint is waived. See Davis, 329 S.W.3d at
823; see also Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (defendant’s failure to
object to a jury argument forfeits his right to complain about the argument on appeal). We
conclude appellant failed to preserve her complaint for appeal. Davis, 329 S.W.3d at 823. Even
if we were to reach the merits of this allegation, appellant’s claim would fail because the
–8– prosecutor’s argument was a reasonable deduction from the evidence and an answer to the
argument of opposing counsel. Id. Appellant’s second issue is overruled.
C. Ineffective Assistance of Counsel
In her third and fourth issues, appellant maintains she was denied effective assistance of
counsel because her trial counsel: (1) failed to call an expert witness to develop evidence that
she had Rohypnol in her system; (2) failed to call an expert witness to testify as to the effects of
Rohypnol and similar date rape drugs; and (3) withdrew his objection to the State’s rebuttal
witness. In response, the State argues the record is inadequate to support appellant’s complaints.
To prevail on a claim of ineffective assistance of counsel, an appellant must meet the
two-pronged test established by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984), and adopted by Texas two years later in Hernandez v. State, 726 S.W.2d 53
(Tex. Crim. App. 1986). Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
Appellant must show that (1) trial counsel’s representation fell below an objective standard of
reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability
that the result of the proceeding would have been different but for trial counsel’s deficient
performance. Strickland, 466 U.S. at 688–92; Lopez, 343 S.W.3d at 142. Appellant bears the
burden of proving her claims by a preponderance of the evidence. Lopez, 343 S.W.3d at 142. It
is not enough to merely show, through the benefit of hindsight, that trial counsel’s actions were
questionable. Id. at 142–43.
Review of counsel’s representation is highly deferential, and we indulge a strong
presumption that counsel’s conduct fell within a wide range of reasonable representation.
Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Salinas v. State, 163 S.W.3d
734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001).
To overcome the presumption of reasonable professional assistance, “any allegation of
–9– ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” Salinas, 163 S.W.3d at 740 (quoting Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).
Appellant filed a motion for new trial; however, the motion did not assert any claims that
appellant received ineffective assistance of trial counsel. There is no record of a hearing at
which appellant’s trial counsel was afforded the opportunity to explain his actions or trial
strategy. When no evidentiary record is developed at a hearing on a motion for new trial, it is
extremely difficult to show that trial counsel’s performance was deficient. See Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002) (trial counsel should ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective). 1
In her third issue, appellant argues her trial counsel’s ineffectiveness prevented
presentation of her defense that she did not engage in the voluntary act of driving while
intoxicated due to being drugged by a date rape drug. She contends her trial attorney was
ineffective because he failed to present expert testimony regarding the presence of Rohypnol in
appellant’s system and the effects that Rohypnol or a similar drug has on a person. “A criminal
defense lawyer has a duty to make an independent investigation of the facts of a case, which
includes seeking out and interviewing potential witnesses.” Brennan v. State, 334 S.W.3d 64, 71
(Tex. App.—Dallas 2009, no pet.). Here, the record is silent as to the extent of trial counsel’s
investigation of the facts of this case and the effects of Rohypnol. Although appellant opines
that an expert would not be difficult to find, there is no evidence that such an expert was
available to testify at trial or that such testimony would have been beneficial to appellant. See
Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986); Garza v. State, 298 S.W.3d 837, 842
1 Absent a record from a hearing on a motion for new trial, a reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. For that reason, the Texas Supreme Court has repeatedly stated that such claims are more appropriately urged in a hearing on an application for a writ of habeas corpus. See Lopez, 343 S.W.3d at 143.
–10– (Tex. App.—Amarillo 2009, no pet.). Ascertaining trial counsel’s reasoning concerning these
issues would require us to speculate, which we cannot do. Brennan, 334 S.W.3d at 73. In the
face of this silent record, we conclude that appellant failed to overcome the strong presumption
of reasonable assistance. See Thompson, 9 S.W.3d at 813. Appellant’s third issue is overruled.
In her fourth issue, appellant complains that her trial counsel was ineffective because he
withdrew his objection to the State’s rebuttal witness. At the close of the defense’s case, the
State called Lori Fuller, Technical Supervisor for Southwest Institute of Forensic Sciences, as a
rebuttal witness. Appellant’s trial counsel objected, arguing that Fuller’s testimony would not
augment or rebut any of the testimony heard in the trial. The trial court questioned counsel’s
objection, noting that appellant’s testimony was that she was not intoxicated and perhaps
Rohypnol was involved. The State argued that Fuller’s testimony would directly rebut
appellant’s testimony and show that it was alcohol in her system that caused her to be
intoxicated. At that point, appellant’s trial counsel withdrew his objection.
The record is silent as to why trial counsel decided to withdraw his objection to the
State’s rebuttal witness. An attorney’s decision to withdraw his objection to a witness is a
strategic decision. We cannot speculate beyond the record provided, and must presume the
actions taken by trial counsel were part of a strategic plan for representing his client. Brennan,
334 S.W.3d at 74. Due to the lack of evidence in the record concerning trial counsel’s reasons
for withdrawing his objection to Fuller’s rebuttal testimony, we are unable to conclude that
appellant’s trial counsel’s performance was deficient. Appellant’s fourth issue is overruled.
–11– CONCLUSION
Having overruled all of appellant’s issues, we affirm the trial court’s judgment.
/David Lewis/ DAVID LEWIS JUSTICE
Do Not Publish Tex. R. App. P. 47
120940F.U05
–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
COURTNEY PIERCE, Appellant On Appeal from the County Court at Law No. 6, Collin County, Texas No. 05-12-00940-CR V. Trial Court Cause No. 006-85905-2011. Opinion delivered by Justice Lewis. THE STATE OF TEXAS, Appellee Justices FitzGerald and Francis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 7th day of August, 2013.
–13–