Opinion issued August 6, 2026
In The
Court of Appeals
For The
First District of Texas
place. Zanes filed a motion for new trial alleging ineffective assistance of trial counsel, which was denied after a hearing. On appeal, Zanes argues she received ineffective assistance of trial counsel and appellate counsel in presenting the motion for new trial. We affirm.
Background
Zanes was pulled over for driving 70 miles per hour in a 60 mile per hour zone. At the time, her ten-year-old grandson was in the front passenger seat.2 The officer noticed that Zanes’s speech was slurred and “thick-tongued.” He did not smell alcohol, so he asked Zanes if she had taken any medication. She admitted to taking her anxiety medication about 20 minutes before she was stopped. The officer’s body and dash camera footage showed that during the traffic stop, Zanes displayed signs of impairment during standardized field sobriety tests. She also struggled to follow instructions and maintain her balance.
Zanes was arrested and a warrant to test a sample of her blood yielded results showing the presence of phentermine, clonazepam, codeine, and delta-THC. After reviewing the video footage, police reports, and toxicology lab results, the State’s drug recognition expert opined that the clonazepam in Zanes’s system correlated to the impairment symptoms she displayed in roadside testing.
2 The disputed element of the offense at trial was whether Zanes was intoxicated. The grandson’s presence in the car and his age were undisputed.
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Zanes’s husband testified for the defense. He said that Zanes recently had her front teeth pulled, and the missing teeth caused her to have trouble speaking clearly. He also testified that Zanes had consulted a doctor about lowering her clonazepam dosage because it was making her too lethargic, and the doctor had cut the dose in half. He was surprised by the report that Zanes had told the responding officer that she had taken double her dose. Zanes’s husband said that when pulled over, Zanes had just picked up her grandson from school because he was suspended.
The State argued that Zanes understood the effects of her medications and chose to drive with her grandson in the car anyway. The defense did not dispute that Zanes had taken medication but contended that she was not intoxicated. According to the defense, Zanes’s behavior stemmed from stress and anxiety related to her grandson’s school conduct. The jury found Zanes guilty.
Zanes filed a motion for new trial alleging ineffective assistance of counsel.
The motion was denied after a hearing. Zanes appealed.
Ineffective Assistance of Trial Counsel Zanes argues that she received ineffective assistance from her trial counsel.
We address each allegation of ineffectiveness in turn. A. General Standards for Ineffective Assistance of Counsel To prove she received ineffective assistance of counsel, a defendant must show (1) her counsel’s performance was deficient, and (2) the deficiency prejudiced
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the defense. Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The first Strickland prong requires a defendant to establish her trial counsel’s performance fell below an objective standard of reasonableness in light of prevailing professional norms and the necessity of the case. Id. Review of a claim of ineffective assistance of counsel is highly deferential. Strickland, 466 U.S. 689. “The defendant must overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance and that the conduct constituted sound trial strategy.” Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017) (citation and internal quotation omitted).
B. The trial court did not abuse its discretion in overruling Zanes’s motion for new trial.
The trial court did not abuse its discretion in overruling Zanes’s motion for new trial. On appeal and in the motion for new trial and hearing, she argues that trial counsel was ineffective because he failed to call an expert witness, failed to investigate evidence and witnesses from her grandson’s school, failed to adequately consult with her before trial, and failed to adequately cross-examine the responding officer.
1. Standard of Review on Zanes’s Motion for New Trial Ineffective assistance of counsel may be raised in a motion for new trial. See Smith, 286 S.W.3d at 340. We review the trial court’s ruling on such a motion under
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an abuse of discretion standard, reversing “only if the trial court’s ruling was clearly erroneous and arbitrary.” Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). An abuse of discretion occurs when no reasonable view of the record would support the trial court’s ruling. Id. In applying this standard, we review the evidence in the light most favorable to the trial court’s ruling on the motion for new trial. State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014). The trial court, as factfinder, is the sole judge of witness credibility at a new-trial hearing. Okonkwo, 398 S.W.3d at 694. In the absence of express findings, we presume that the trial court made all findings in favor of the prevailing party. Id. We impute implicit factual findings that support the trial court’s ultimate ruling on the motion for new trial when such implicit factual findings are supported by the record. Id.
2. Evidence at the Motion for New Trial Hearing During the hearing on the motion for new trial, Zanes testified that she told her counsel that when she picked up her grandson, she spoke to a school resource officer, a secretary, and a principal, but her counsel did not call these witnesses or obtain the video surveillance of her time at the school. She also testified that her counsel was ineffective for failing to consult a toxicology expert regarding the effects of her prescribed medications and her reported use of CBD cream to manage hand pain. Zanes testified that her counsel did not adequately consult with her
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leading up to trial. He neither met outside of the courtroom nor reviewed the field sobriety test videos with her.
Trial counsel testified that he met with Zanes multiple times before trial, including in the courtroom and library and contacted her regularly by phone and text. He was standby counsel when she represented herself, and he took over as lead counsel about a year before trial. Trial counsel did not contact individuals with the school or obtain school surveillance video because he did not think it would help Zanes’s case. Trial counsel did not seek a toxicology expert because he had learned from Zanes’s family members that she smoked marijuana, and he wanted to avoid cross-examination on that topic.
At the conclusion of testimony during the hearing, the trial court asked Zanes’s counsel about the allegation in the motion for rehearing that an officer had told Zanes during the booking process that he thought she was no longer impaired but that it was too late to change course. Counsel informed the court that he found no evidence to corroborate what Zanes told him.
At the end of the hearing, the trial court denied the motion. The trial court declined to speculate whether the witnesses that trial counsel did not call would have been favorable to Zanes’s defense and agreed that no evidence presented at the hearing showed that the arresting officer said Zanes was no longer intoxicated during the booking process.
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3. The trial court’s Strickland findings were not an abuse of discretion.
After reviewing the transcript of the motion for new trial hearing, we find no abuse of discretion in the trial court’s conclusion that the record failed to show ineffective assistance of counsel. We address each ground alleged in the motion.
(1) Failure to Call Expert Witnesses In the first ground of her motion for new trial, Zanes argued that she received ineffective assistance at trial because her attorney failed to call an expert witness to explain the toxicology evidence. She claims that the expert could opine that the marijuana found in her system resulted from her use of CBD lotion.
In order to prove ineffective assistance in failing to call expert witnesses, Zanes must demonstrate that experts were available to testify and that their testimony would have benefited her defense. See Washington v. State, 417 S.W.3d 713, 725 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Nothing in the record suggests either that an expert witness was contacted and was willing to testify or what testimony such an expert would have provided.
Moreover, trial counsel testified that there were strategic reasons for not calling a toxicology expert. Trial counsel said he learned during family interviews that Zanes may have smoked marijuana, and he was concerned that such a witness would face cross-examination about Zanes’s marijuana use. To be successful on an ineffective assistance claim, the appellant must show that the choices made by trial
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counsel were not part of any reasonable trial strategy. Wynkoop v. State, 251 S.W.3d 628, 631 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding trial court did not abuse discretion in denying motion for new trial alleging ineffectiveness based on trial counsel’s failure to call expert witness when counsel testified to strategic reasons for doing so). A toxicology expert could have undermined counsel’s emotional distress defense by focusing more attention on chemical impairment and highlighting the evidence that supported the State’s intoxication theory. See Lair v. State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“The decision whether to present witnesses is largely a matter of trial strategy.”). Zanes did not meet her burden to show how the outcome of the proceeding would have been different if counsel had called a toxicology expert, and the record supports the trial court’s implied determination that trial counsel’s decision not to call an expert witness was reasonable trial strategy.
The trial court did not abuse its discretion in denying the motion for new trial on this ground.
(2) Failure to Investigate and Call Witnesses Zanes also argued in her motion for new trial that her counsel was ineffective for failing to interview or call witnesses from her grandson’s school or obtain surveillance video from the school. As with the failure to call an expert witness, in order to succeed on an ineffective assistance claim based on failure to present
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testimony from these witnesses, Zanes needed to show that they were available to testify and that their testimony would have been of some benefit to the defense. Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (internal quotation omitted).
At the hearing on the motion for new trial, Zanes’s trial counsel testified that while this evidence may have established a timeline of events up to the traffic stop, it would not have been helpful to Zanes’s case. A timeline leading up to the traffic stop would not have negated the evidence of impairment that arose during and after Zanes was pulled over. Zanes did not establish that further investigation or calling these fact witnesses would have benefited her. Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (stating failure to call witness does not demonstrate ineffective assistance without showing that witness was available to testify and testimony would have benefited defendant).
The trial court did not abuse its discretion in denying Zanes’s motion for new trial on this ground.
(3) Failure to Cross-Examine Responding Officer In her motion for new trial, Zanes asserted that her trial counsel was ineffective for failing to cross-examine the responding officer adequately or present video of his statements. The motion alleged that after her arrest, when Zanes was
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being processed, the officer told her that she no longer appeared intoxicated but that it was too late to reverse course.
No additional evidence related to this claim was presented during the motion for new trial. During the hearing, the trial court questioned Zanes’s appellate attorney on this allegation, and the attorney responded that Zanes had told him the interaction took place. Zanes did not meet her burden to show that the officer was willing to testify and that his testimony would have benefited her defense. See Perez, 310 S.W.3d at 894.
The trial court did not abuse its discretion in denying her motion for new trial on this ground.
(4) Failure to Communicate with Zanes Zanes alleges that her trial counsel was ineffective for failing to adequately communicate with her during trial preparation. She testified that she never met with trial counsel except in the courtroom on days she was scheduled to appear. Trial counsel testified that at first his role was standby counsel because Zanes was representing herself. A year before trial, trial counsel took over from Zanes as lead counsel on the case. He met with her in the courtroom and law library and communicated with her by phone and text. He spoke with her family members as well.
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The trial court was entitled to credit counsel’s testimony over Zanes’s conflicting account. Okonkwo, 398 S.W.3d at 694 (stating trial court is sole judge of weight and credibility of evidence at motion for new trial hearing). Moreover, Zanes did not establish how additional communication would have benefited her or led to a better trial result. See Strickland, 466 U.S. at 694 (requiring defendant to show that there is a reasonable probability that, but for counsel’s deficiency, result of proceeding would have been different.). Accordingly, Zanes has not met her burden to obtain reversal on this basis, and the trial court did not abuse its discretion in denying her motion on this ground. C. The record does not support Zanes’s new ground of ineffective assistance.
On appeal, Zanes argues for the first time that trial counsel was ineffective for failing to file a written pretrial objection to the certificate of analysis for toxicology lab results. See TEX. CODE CRIM. PROC. art. 38.41 (requiring State to file certificate of analysis 20 days before trial, and defense counsel to file any written objection to use of certificate not later than 10th day before trial begins). While trial counsel objected orally at trial based on the Confrontation Clause, the objection was overruled because the statute requires written notice at least ten days before trial. See id.
Zanes did not raise this issue in her motion for new trial, so trial counsel was not questioned about this allegation of ineffectiveness at the hearing on the motion.
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The Texas Court of Criminal Appeals has said, “Trial counsel ‘should ordinarily be afforded an opportunity to explain his actions’ before being denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). As a result, allegations of ineffectiveness “must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999)). “[T]he presumption of a sound trial strategy cannot be overcome absent evidence in the record of the attorney’s reasons for his conduct.” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (quoting Busby v. State, 990 S.W.2d 263, 269 (Tex. Crim. App. 1999)).
As in Menefield, trial counsel may have had strategic reasons for failing to file a written objection to the certificate of analysis. Menefield, 363 S.W.3d at 593 (stating avoiding practical consequences of written objection could be sound trial strategy). The practical consequence of a timely written objection to a certificate of analysis is that the State must call the forensic scientist who tested the specimen as a witness, rather than simply seeking admission of the toxicology report at trial. Id. Trial counsel may have made the strategic decision not to force the State to call the live witness as that would have put more emphasis on the presence of multiple controlled substances in Zanes’s blood.
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Where an appellate record is silent on why trial counsel failed to take certain actions, the appellant has “failed to rebut the presumption that trial counsel’s decision was in some way—be it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson, 9 S.W.3d at 814. Zanes did not meet her burden to establish ineffective assistance of trial counsel on this ground.
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We overrule Zanes’s issues related to ineffectiveness of her trial counsel.
Ineffective Assistance of Appellate Counsel On appeal, Zanes argues that her appellate counsel “unreasonably failed to support the claim of trial counsel’s ineffectiveness.” She alleges that appellate counsel failed to develop evidence at the motion for new trial hearing.
The record on appeal does not affirmatively show that appellate counsel was ineffective in failing to present more evidence at the hearing. See Bone, 77 S.W.3d at 833 n.13 (stating allegations of effectiveness must be firmly founded in the record). The record reflects that appellate counsel presented a viable ineffective assistance of counsel claim, supported with testimony from both Zanes and her trial counsel. The trial court heard Zanes’s testimony regarding her dental surgery, prescribed medication, and interactions with school personnel. The trial court also heard Zanes’s trial counsel’s testimony explaining his strategies and decisions. We
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cannot speculate about appellate counsel’s reasoning for calling some witnesses and not others. See Martinez, 330 S.W.3d at 901.
Zanes has not met her burden to rebut the presumption that her counsel’s decisions at the motion for new trial hearing were reasonable. We overrule Zanes’s issue related to ineffectiveness of her appellate counsel.
Conclusion3
We affirm the trial court’s judgment.
Susanna Dokupil
Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil. Do not publish. TEX. R. APP. P. 47.2(b).
3 This opinion will not prevent appellant from raising ineffective assistance of counsel claims in an application for writ of habeas corpus, should she choose to pursue that avenue of relief. Ex parte Varelas, 45 S.W.3d 627, 629–30 (Tex. Crim. App. 2001)
(stating claims of ineffective assistance of counsel are cognizable through application for writ of habeas corpus, even if the claim was raised and rejected on direct appeal).