MICHAEL ANTHONY STUBBS, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM and Opinion Filed September 15, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00757-CR
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MICHAEL ANTHONY STUBBS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law #3
Collin County, Texas
Trial Court Cause No. 003-87821-08
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        OPINION ON RECONSIDERATION ON
PETITION FOR DISCRETIONARY REVIEW
Before Justices O'Neill, Francis, and Murphy
Opinion By Justice Murphy
        We withdraw our July 21, 2010 opinion and vacate the judgment accompanying that opinion. This is now the opinion of the Court. See Tex. R. App. P. 50.
        Michael Anthony Stubbs appeals his jury conviction for misdemeanor driving while intoxicated (DWI). In two issues, he asserts the trial court erred in denying his motion for new trial and ineffective assistance of counsel claim. We affirm.
The Trial
        The jury convicted Stubbs based on the testimony of a single witness-the arresting officer. Jacob Snyder testified he was on patrol when he observed Stubbs driving a car without a license plate. The car was weaving within its lane, causing Snyder to question whether Stubbs was having difficulty driving. Snyder stopped Stubbs and approached. Snyder noticed Stubbs had bloodshot eyes and the odor of alcohol on his breath. Snyder testified Stubbs identified himself by producing his driver's license. The license was expired and Stubbs explained it was a result of his having been deployed to Iraq. Stubbs's speech was slurred and Snyder learned Stubbs had just left a bachelor's party and had been drinking alcohol “steadily throughout the day.” According to Snyder, Stubbs stated he had his last drink approximately one-and-a-half hours before the stop. The odor of alcohol on Stubbs's breath, however, suggested to Snyder that Stubbs's last drink had been more recent. Stubbs offered to take a portable breathalyzer test to show he was “fine” to drive, but Snyder did not have one. Instead, Snyder administered standard field sobriety tests (FSTs) to determine whether Stubbs was intoxicated.
        Snyder testified Stubbs exhibited six of six clues of intoxication on the horizontal gaze nystagmus; three of eight clues on the walk-and-turn test, which requires only two clues as evidence of intoxication; and four of four clues on the one-leg stand test. Stubbs also exhibited a “very distinct” sway and vertical nystagmus, which indicated “a high dose of alcohol.” Based on the totality of circumstances, including Stubbs's driving and performance on the three tests, Snyder believed Stubbs had lost the normal use of his mental and physical faculties as a result of drinking alcohol and arrested him.
        Snyder transported Stubbs to the county jail, where a breathalyzer test was administered. Stubbs consented to the test, but when he “barely bl[e]w” into the machine, Snyder deemed Stubbs's actions to be a refusal. Snyder testified Stubbs volunteered to submit to a blood test, but that test was not one regularly offered and Snyder chose not to offer it to Stubbs. The stop and attempted breathalyzer test were recorded, and the recording of each was admitted into evidence.
        On cross-examination, Snyder acknowledged Stubbs was respectful, tried to follow all instructions, got out of the car without needing help, and walked away from the car for testing purposes without stumbling or staggering. Snyder also acknowledged that Stubbs mentioned to him that he had an upper respiratory problem and offered to show him documentation. Snyder testified, though, that even if Stubbs had provided medical records documenting the respiratory problem, Stubbs would have remained under arrest.
        After finding Stubbs guilty, and following Stubbs's testimony in the punishment phase, the jury assessed a sentence of 120 days' confinement in the county jail and a $1000 fine. Upon the jury's recommendation, the trial judge suspended the sentence and placed Stubbs on community supervision for one year.
The Motion for New Trial Hearing
        Stubbs timely filed a motion for new trial asserting an ineffective assistance claim. Stubbs claimed counsel never had a firm command of the facts of his case and did not adequately prepare for trial, failing to (1) interview potential witnesses and call any at trial; (2) investigate his upper respiratory problem and other health issues; and (3) communicate with him regarding his testimony. While Stubbs included other arguments, we address only those that are relevant to this appeal. The trial court held a hearing on the motion, and both Stubbs and counsel testified. Stubbs also called criminal defense attorney Stewart Parker as an expert witness on his behalf.
        According to Stubbs, he met three times with counsel-when he retained her, at the first trial setting, and the morning of trial. Between meetings, he communicated with her by phone once and twice via text. He and counsel discussed his health issues, the stop, witnesses, and how the case would be tried.         Stubbs stated he wanted to raise as an issue at trial that he had suffered injuries from playing contact sports while in school and from being knocked to the ground and “shook . . . up” by a bomb explosion while on a mission in Iraq. Stubbs thought this would be relevant to his performance on the FSTs. To that end, he gave counsel “full” copies of his Navy medical records. Stubbs explained he did not have a diagnosis because he was still undergoing assessments, but offered to have a Navy representative testify on his behalf regarding his experiences in Iraq and how he could continue on a mission even if affected by an explosion. Stubbs also informed counsel that fellow Navy officer Christina Mode, who had served with him in Iraq, could testify regarding the bomb explosion and other experiences in Iraq. Stubbs did not have any medical records documenting his concussions because his family could not afford medical treatment when he was a child. He did identify his father and grandfather as witnesses who could testify as to the injuries he suffered playing sports.
        Stubbs also identified his friend Jeremy Stein as a witness. Stubbs thought Stein would be a benefit to his defense because he and Stein had spent the day of the arrest together and Stein was a passenger in Stubbs's car at the time of the stop. Stubbs also thought his friend Daniel Brazel could serve as a character witness and testify as to how Stubbs would not jeopardize his Navy career by drinking and driving. Counsel testified she heard Brazel's name for the first time at the new trial hearing, testimony Stubbs does not contest on appeal.
        Stubbs testified counsel told him the testimony of Mode would not be necessary and that he would not need to get a Navy representative to testify because she would retain a medical expert. Counsel did not discuss the other witnesses with him and did not “really” discuss with him whether he would testify at trial. Although counsel did not prepare him to testify, Stubbs assumed he would testify and expected to testify.         Stubbs and counsel discussed “briefly” how the case would proceed at trial by text the day before trial and in person the day of trial. He learned when he met with counsel that she would not be calling a medical expert and was shocked she did not call him or anyone else as a witness at the guilt-innocence phase of trial.
        On cross-examination, Stubbs admitted he had not been hospitalized for any injuries following the bomb explosion, had not received any treatment during the three months after the explosion, and was not looking to be discharged from the Navy due to any medical reasons. He also admitted he did not report the concussions he had suffered as a child on his Navy application, and his Navy records showed two prior misdemeanor convictions and a history of drug use. Stubbs testified he could see how “possibly” counsel's looking at the Navy records might have affected how she tried the case, including her decision not to call him as a witness at the guilt-innocence phase of trial. He respected that decision. Stubbs further testified he had told counsel he drank eighty- three ounces of beer-more than a six-pack-prior to the stop. He said he could “understand” how counsel might have decided not to call Stein as a witness so that information would not be placed before the jury.
        Parker testified based on hearing Stubbs's testimony at the motion for new trial hearing and his review the morning of the hearing of the motion and supporting affidavit. He testified that at a minimum defense counsel should investigate the facts and law of the case; advise the client of the right to testify, to have a jury trial, and to plead not guilty or guilty; and to discuss with the client various evidentiary and tactical matters. He described the video in a DWI case as a “key to the case” and said he could not imagine going to trial without going over the video with the client. He also performs at least minimum preparation for the client to testify, even if the plan is not to offer testimony, and spends “quite a bit of time” preparing the client if he anticipates offering testimony. His criticism with defense counsel here was that she and Stubbs had never gone over the video; Stubbs was not prepared to testify and had no understanding of his rights; it would be strategically good for the jury to know Stubbs is a member of the armed forces; and “if in fact” Stubbs had injuries that might affect his ability to perform on FSTs, a uniformed witness to talk about the medical problems would be important. From hearing Stubbs's testimony and reviewing the motion for new trial and supporting documents, Stewart opined that Stubbs did not receive effective assistance of counsel because he did not receive appropriate advice and witnesses could have been presented that were not properly investigated. On cross-examination, Stewart admitted he did not talk to Stubbs's trial counsel, did not review her file or any of the things she did, never watched the video, and never read the transcripts in the case.
        Trial counsel testified she had been licensed and practicing as an attorney since April 1999 and had tried approximately eighty jury trials. At her first meeting with Stubbs, he provided her detailed summaries of his activities the day of the arrest, the stop and arrest, and his experience in Iraq. He also told her about the concussions he suffered as a result of his participation in martial arts and the upper respiratory condition and other medical problems he suffered as a result of his service in Iraq. Stubbs told her he had medical records regarding the medical problems stemming from his time in Iraq. Though he had no records of his concussions, he said his father could testify as to those.
        Counsel testified she fully investigated the case. Within days of the initial meeting, she requested all of Stubbs's Navy medical records and any health assessments, thinking documentation of Stubbs's respiratory problem would help defend his performance on the breathalyzer test . Because she was unfamiliar with military practices in Iraq and Stubbs's claimed upper respiratory problem, she asked Stubbs to send her information about his service in Iraq. She also requested the in-car video and police report.
        Of the records she requested and received, the recording of the stop was the most beneficial. Counsel explained the Navy records did not substantiate Stubbs's health complaints, but the recording of the stop documented much of what Stubbs wanted the jury to know: that he asked for a blood and portable breath test and told Snyder he had recently returned from serving in Iraq, had been close to explosions, and had suffered from an upper respiratory problem as documented in his medical records. The recording also showed Stubbs performing, in counsel's opinion, “very well” on the FSTs. Because of the lack of documentation of any health issues, counsel did not think a medical expert was necessary and discussed with Stubbs that she would instead try to retain an FST expert.
        The night before trial, counsel reviewed with Stubbs his background information, his performance on the FSTs, and how she would pick a jury. She also confirmed with him that his Navy records did not contain a medical diagnosis and informed him she would mention his military experience in her opening statement. Counsel discussed with Stubbs whether he should testify and advised that he not. She explained that, as discussed at the initial meeting, she rarely recommends to her DWI clients that they testify because a DWI case is “really . . . about the cross-examination of the police officer.” Stubbs stated he trusted her and would follow her recommendation.
        Counsel testified she was unable to secure an FST expert, but based on her review of the recording of the stop, anticipated opening statement, and anticipated cross-examination of the officer, she did not think one was necessary. She also did not think the testimony of the witnesses Stubbs identified would be helpful-the testimony of Stubbs's father and grandfather would not help, because no medical records existed documenting the concussions; the testimony of Stein would not help, because he was “drunk” himself at the time of the arrest; and the testimony of Mode would not help, because it would be similar to Stubbs's. Counsel testified Stubbs approved everything she did.
        On cross-examination, counsel admitted she interviewed only Stubbs's father and Mode; she did not interview Stein or Stubbs's grandfather. She also admitted that opening statements are not evidence. She was unsure what she told Stubbs about his getting a Navy expert to testify, but she did not think one would be necessary because Stubbs had no diagnosed medical condition.
         Standard of Review and Applicable Law
        We review a trial court's ruling on a motion for new trial under an abuse of discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). In conducting our review, we do not substitute our judgment for that of the trial court. Id. Instead, viewing the evidence in the light most favorable to the court's ruling, and presuming all factual findings that could have been made against the losing party were made, we decide whether the court's decision was arbitrary or unreasonable. Id.
        To be entitled to a new trial based on an ineffective assistance of counsel claim, a defendant must show by a preponderance of the evidence (1) deficient performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411 (2010). The first prong requires the defendant to show counsel's performance fell below an objective standard of reasonableness or professional norms. Strickland, 466 U.S. at 687-88; Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009), cert. denied, 129 S. Ct. 89 (2008). The second prong requires the defendant to show that a reasonable probability, sufficient to undermine confidence in the outcome, exists that but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Lane, 303 S.W.3d at 707. A defendant's failure to satisfy one prong negates a court's need to consider the other prong. Williams, 301 S.W.3d at 687.
        In determining whether a defendant has met his burden, we consider the totality of representation and the particular circumstances of each case. Lane, 303 S.W.3d at 707. We presume counsel's conduct fell within the wide range of reasonable professional assistance and do not judge counsel's actions in hindsight. Strickland, 466 U.S. at 689; Lane, 303 S.W.3d at 707. The fact that another attorney might have pursued a different strategy at trial is not sufficient to prove counsel was ineffective. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004).
Discussion
        Stubbs's ineffective assistance claim rests on (1) his assertions at the new trial hearing that counsel failed to interview and call any witnesses, investigate his upper respiratory condition, and communicate with him concerning his testimony; and (2) counsel's failure to object to the prosecutor's reference, in rebuttal argument at the guilt-innocence phase of trial, to Stubbs's not testifying. With respect to the latter, Stubbs asserts the jury gave “some” weight to this improper comment and his rights were violated. With respect to the former, he relies on testimony from the new trial hearing. He maintains that had the jury been allowed to consider his head injuries and upper respiratory problem, the events leading up to his arrest, and his repeated requests for a blood test, a reasonable probability exists the results would have been different. In response, the State argues Stubbs failed to meet his burden. We agree with the State.
        Viewing the evidence in the light most favorable to the trial court's ruling, the record reflects counsel investigated the case and prepared for trial. She requested the Navy records, police report, and recording of the stop. She also asked Stubbs to provide her with information about his service in Iraq. Of the materials requested, the recording of the stop was the most beneficial because it showed Stubbs asked for a blood and portable breath test and told Snyder that he had recently returned from serving in Iraq, had been close to explosions, and had suffered from an upper respiratory problem as documented in his medical records-facts Stubbs wanted presented to the jury. The recording also documented Stubbs's appearance and gait.
        Counsel's knowledge of the facts of the case was reflected in her opening statement at trial. She referenced Stubbs's military service and the recording of the stop, pointing out to the jury that Stubbs did not lose his balance stepping out of the car or walking to the back of the car and did not sway in the intoxilyzer room.
        Counsel's cross-examination of Snyder similarly reflected her preparation for trial. She elicited from Snyder that Stubbs's weaving within his lane was not a traffic offense nor a clue of intoxication and she questioned him in detail about the FSTs. Counsel also elicited that Stubbs signaled to turn and stopped immediately upon seeing the emergency lights, was cooperative and respectful, and was steady as he exited the car. In her closing argument, counsel reiterated Stubbs's military service and summarized the favorable facts.
        This record shows counsel was able to present a defense and render effective assistance, without subjecting Stubbs or any of his other witnesses to cross-examination that would reveal such unfavorable facts as Stubbs's prior drug use and the lack of medical records documenting a history of concussions. See Strickland, 466 U.S. at 689 (“The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”).
Failure to Investigate Upper Respiratory Condition
        Although Stubbs argues counsel's performance was deficient because she did not investigate his upper respiratory condition, the record reflects she reviewed the Navy records. Because the records did not substantiate Stubbs's health complaints and contained no medical diagnoses, counsel concluded a medical expert would not be useful. Stubbs's confirmation that he had received no diagnoses and his admission that he was not looking to be discharged from the Navy due to any medical reasons validate counsel's decision.
        Stubbs argues in his brief that the record contains no diagnoses “because the respiratory condition was delayed.” He further argues that had counsel “spoken to military personnel, she would have been aware that upper respiratory problem was a medical condition associated with close proximity to [bomb] explosions.” Parker testified that “if” in fact Stubbs had injuries that might affect his ability to perform on FSTs, a uniformed witness to talk about the medical problems would be important. Stubbs offered no testimony, however, that he had any diagnosed injuries or that any witness could testify that the injuries affected his ability to perform on the FSTs. On this record, we cannot conclude counsel's strategy with respect to Stubbs's upper respiratory condition was unreasonable.
Failure to Interview and Call Witnesses
        We also cannot conclude counsel's decisions with respect to the identified witnesses was unreasonable. Although counsel did not interview all of the witnesses Stubbs identified, she was aware of the testimony they could provide and ruled out calling them as witnesses at trial based on objective standards-(1) the testimony of Stubbs's father and grandfather concerning the concussions Stubbs suffered playing contact sports could not be corroborated with medical records; (2) Mode's testimony would be no different than Stubbs's; and (3) Stein was intoxicated at the time of the stop. According to counsel, Stubbs approved her actions. While in hindsight Stubbs might disagree with counsel's strategy, this disapproval is not sufficient to prove counsel was ineffective.
Failure to Communicate with Stubbs Concerning His Testimony
        Stubbs testified at the new trial hearing that counsel did not “really” discuss with him whether he would testify at trial and did not prepare him to testify. Counsel testified, however, that she explained to Stubbs at the initial meeting her recommendation to DWI clients against testifying because the case is often won on the cross-examination of the officer. Before trial, she discussed her philosophy again with Stubbs and advised him not to testify. Where conflicting evidence exists, we presume the trial court made a finding against the losing party. See Charles, 146 S.W.3d at 208. Although Parker testified that counsel should have prepared Stubbs to testify regardless of whether it was her intent to call him as a witness, Stubbs did not testify. Accordingly, Stubbs's assertion that counsel failed to communicate with him regarding his testimony fails to demonstrate that but for such a failure, the result would have been different. See Strickland, 466 U.S. at 687, 694.
Failure to Object to Prosecutor's Rebuttal Argument
        Stubbs's final basis for arguing counsel was deficient stems from the following remarks by the prosecutor: “You didn't hear anyone take the stand and tell you he had medical problems. You didn't hear anyone take the stand and tell you that he had problems that would create these tests to be invalid.” Stubbs argues these remarks were an improper comment on his failure to testify and counsel should have objected. See Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (comment on defendant's failure to testify violates defendant's Fifth Amendment privilege against self-incrimination). A prosecutor's remark is an impermissible comment on a defendant's failure to testify when it alludes to evidence that only the defendant could provide. Cook v. State, 702 S.W.2d 597, 600 (Tex. Crim. App. 1984) (op. on reh'g). When, as here, the comment is indirect and concerns the defendant's failure to produce testimony from sources other than himself, the comment is not improper. See Hicks v. State, 837 S.W.2d 686, 692 (Tex. App.-Houston [1st Dist.] 1992, no pet.). Because the comment was not improper, counsel's failure to object does not show ineffective representation.
Conclusion
        Having concluded Stubbs failed to establish counsel was deficient, we overrule Stubbs's two issues and affirm the trial court's judgment.
 
                                                          
                                                          MARY MURPHY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090757F.U05
 
 
 

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