Ryan Campbell v. The State of Texas--Appeal from County Court at Law No 8 of Bexar County

MEMORANDUM OPINION
No. 04-03-00295-CR
Ryan CAMPBELL,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 8, Bexar County, Texas
Trial Court No. 800504
Honorable Karen Crouch, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: April 21, 2004

AFFIRMED

Ryan Campbell was charged with the offense of driving while intoxicated. A jury found Campbell guilty of the alleged offense, and the trial court sentenced Campbell to six months imprisonment, suspended and probated for a period of two years, and fined him $1,600. Campbell raises one issue on appeal, complaining he was denied effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution. We affirm the trial court's judgment.

Background
On November 3, 2001, at 3:30 a.m., Fair Oaks Ranch Police Officers Kevin Bryan and Robert Couture were dispatched to Fair Oaks Parkway because a "dark colored pickup [was] traveling northbound in the southbound lane." When the officers arrived at the 8200 block of Fair Oaks Parkway, they observed Campbell's vehicle in the median of the road. It appeared that Campbell's vehicle had come to rest in the median after crashing into several trees. Officer Couture discovered Campbell staggering down the road approximately a couple of hundred yards away from the accident scene.

Campbell approached Officer Couture, who had Campbell place his hands on Couture's patrol car. Officer Couture performed a pat down search on Campbell and uncovered an insulin pack on Campbell's belt. Upon questioning Campbell, Officer Couture learned Campbell was on his way home from Chacho's, a local Mexican restaurant, when a deer crossed in front of him. Campbell stated the deer caused him to swerve and crash his vehicle. Officer Couture also learned that Campbell was drinking at Chacho's. Campbell informed the officer that he had drank one margarita while at Chacho's. During his conversation with Campbell, Officer Couture observed that Campbell had bloodshot, watery eyes and that his speech was slurred. Officer Couture, however, did not smell any alcohol on Campbell's breath.

When Officer Bryan reached Campbell, Officer Couture informed Bryan that he could not detect the smell of alcohol on Campbell's breath and that there might be a problem because of Campbell's diabetes. Officer Bryan observed that Campbell had bloodshot, watery eyes and that his speech was slurred. Unlike Officer Couture, however, Officer Bryan detected the smell of alcohol on Campbell's breath. Officer Bryan proceeded to conduct several field sobriety tests on Campbell, including the horizontal gaze nystagmus test, walk and turn test, and one-leg stand test. The results of both the horizontal gaze nystagmus test and walk and turn test suggested Campbell was intoxicated. When Campbell was instructed to perform the one-leg stand test, Campbell squatted on the ground and began to cry. Campbell exclaimed, "Just take me to jail!" Officer Bryan immediately placed Campbell under arrest for driving while intoxicated. (1)

Campbell was transported to the San Antonio Police Department, where officers administered a breathalyzer test and several more field sobriety tests to Campbell. The officers videotaped Campbell as he performed these tests. The results of Campbell's breathalyzer test and field sobriety tests indicated that Campbell was intoxicated. After completing his tests, Campbell was taken to the police department nurses' station because he expressed that he was fatigued and had a headache. Medical personnel determined Campbell had a high blood sugar level and gave him eighteen units of insulin to control his condition.

A jury convicted Campbell of driving while intoxicated on December 5, 2002. On January 3, 2003, before Campbell was sentenced by the trial court, Campbell filed a motion for new trial claiming the jury's verdict was contrary to the law and the evidence. The trial court denied Campbell's motion three days later without a hearing. The trial court subsequently sentenced Campbell on January 30, 2003. The trial court sentenced Campbell to six months in jail, suspended and probated for a period of two years, and fined him $1,600. Campbell immediately acquired new counsel.

On February 28, 2003, Campbell's new attorney filed a document entitled "first amended motion for new trial or, in the alternative, second motion for new trial." This second motion was filed during the thirty-day window following the date the trial court imposed sentence in open court, see Tex. R. App. P. 21.4, and alleged Campbell was denied effective assistance of counsel at trial. The trial court immediately set Campbell's motion for a hearing on March 14, 2003. (2)

At the hearing on Campbell's motion, the trial court heard Campbell's trial attorney, Jack McGinnis, testify about his representation of Campbell. The trial court also considered affidavits from Campbell, Chris Cruz, Nicole Cruz, Elisa Cruz, and Dr. Dianne Fetchick. (3) After considering

the evidence before it, the trial court denied Campbell's motion.

Applicable Law

We review a trial court's denial of a motion for new trial for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). The trial court is given great deference and may be overruled only if its decision is arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). (4)

The standard for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). To reverse a criminal defendant's conviction on ineffective assistance of counsel grounds, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812. Any allegations of ineffectiveness must be firmly founded in the record, and the defendant must overcome the strong presumption that counsel rendered adequate assistance and that counsel's actions were the result of sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Instances of Alleged Ineffective Assistance

In his sole issue, Campbell alleges the cumulative effect of defense counsel's trial errors amounted to ineffective assistance of counsel. Campbell alleges on appeal that he was denied effective assistance of counsel because trial counsel failed to: (1) properly prepare for trial; (2) secure an expert witness to testify about the effect Campbell's diabetes may have had on his breathalyzer and field sobriety tests; (3) properly counsel the defense witnesses before their trial testimony; (4) object to the admission of Campbell's breathalyzer test results; (5) object to the admission of the audio portion of the video made of Campbell by officers at the San Antonio Police Department; (6) subpoena the medical personnel who tested Campbell's blood sugar levels at the San Antonio Police Department; (7) obtain the medical records from Campbell's treatment at the San Antonio Police Department; (8) determine the precise amount of alcohol Campbell consumed before the accident; and (9) object when the prosecutor cross-examined Campbell about driving the wrong way down Fair Oaks Parkway.

Inadequate Trial Preparation

Campbell alleges defense counsel did not adequately prepare for trial because counsel failed to interview Nicole Cruz, Elisa Cruz, and Jeff Affeldt. Campbell believes defense counsel should have interviewed these witnesses because they were with him at Chacho's before the accident and could tell counsel that he was not acting intoxicated at the restaurant. According to Campbell, defense counsel would have been able to make more informed decisions during trial had he interviewed these witnesses.

A criminal defense attorney must have a firm command of the facts of the case as well as the governing law before the attorney can render reasonably effective assistance of counsel. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Counsel must make reasonable investigations, or make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691. A decision not to investigate "must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to trial counsel's judgments." Id. A conviction is not to be reversed unless the consequence of counsel's failure to investigate "'is that the only viable defense available to the accused is not advanced[,]' and 'there is a reasonable probability that, but for counsel's [failure to advance the defense], the result of the proceeding would have been different.'" McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996) (citations omitted).

At the motion for new trial hearing, defense counsel testified that he did not interview or call the witnesses in question because these witnesses could not account for what Campbell had to drink between the time he left the restaurant and the time of his accident. Defense counsel stated that Campbell's accident did not occur until approximately one hour after he left the restaurant, and that Nicole Cruz, Elisa Cruz, and Jeff Affeldt were not with Campbell during this time period. According to defense counsel, he felt it was more advantageous to focus his trial preparation on the witness who could account for Campbell's entire alcohol consumption that night, Chris Cruz.

The record shows that counsel provided a reasonable explanation for his actions. Counsel decided that further interviews were unnecessary because he had the best witness available concerning Campbell's alcohol consumption. There is no indication that any new or helpful information would have been acquired or that counsel's decision regarding Nicole Cruz, Elisa Cruz, and Jeff Affeldt in any way limited or impeded Campbell's defense. Therefore, we cannot conclude defense counsel was deficient in this regard.

Campbell further contends defense counsel did not adequately prepare for trial because counsel failed to investigate whether Campbell may have suffered a head injury during his accident. According to Campbell, there is evidence that his windshield was broken during the accident. He claims there is also evidence that he suffered memory loss and that he complained to Chris Cruz that he had "hit his head" during the accident. Had counsel conducted a proper investigation, Campbell believes counsel could have explained to the jury that some of his behavior following the accident was attributable to a head injury, not intoxication.

Defense counsel testified at the new trial hearing that he considered a head injury defense but did not focus on it because Campbell did not seek treatment for a head injury following his accident. Counsel also stated he did not focus on the defense because Campbell's mother, who is a doctor, did not observe any injuries to Campbell's head. Once again, the record reflects that defense counsel made an informed and knowledgeable decision regarding utilizing a head injury defense. Thus, we cannot conclude counsel was defective for failing to further investigate this issue. See Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App.1983) (holding that just because another attorney, including defendant's appellate counsel, might have pursued a different course of action does not necessarily indicate ineffective assistance).

Failure to Secure Expert Witnesses

Campbell argues defense counsel was also deficient in failing to secure an expert witness to testify about the effect his diabetes may have had on his breathalyzer and field sobriety test scores. Campbell contends that he needed testimony from an expert to support his defense that a diabetic attack caused him to appear intoxicated on the night of his arrest. Trial counsel's failure to call a medical expert, however, is irrelevant absent a showing that an expert witness was available to testify on this issue and that the expert's testimony would have benefitted Campbell. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).

In support of his motion for new trial, Campbell attached an affidavit from a doctor certified in internal medicine and endocrinology, Dr. Dianne Fetchick. Dr. Fetchick's affidavit states that Campbell suffers from type I diabetes, and that on the night of Campbell's arrest he had "a very high blood sugar count." It further provides, "[b]ased on my medical training and experience, I would expect a person with such a high blood sugar count could be suffering from ketoacidosis." Dr. Fetchick's affidavit explains that ketoacidosis is a medical condition where brain function is impaired so that a person would have difficulty following instructions, lose fine motor skills, and become lethargic and confused. Dr. Fetchick further explains that a person suffering from ketoacidosis will have an odor on their breath that smells similar to the odor of alcohol.

Dr. Fetchick's affidavit, however, neither demonstrates that Fetchick was actually prepared to testify in support of Campbell's defense nor demonstrates that her testimony would have actually benefitted Campbell, as she did not conclude Campbell was in fact suffering from ketoacidosis on the night of his arrest. Without such evidence, we cannot conclude defense counsel was defective for failing to secure a medical expert.

Failure to Properly Prepare the Witnesses

Campbell contends defense counsel failed to adequately prepare him for his trial testimony. Campbell claims defense counsel should have reviewed with him the video recording of Officer Bryan and Officer Couture's arrest to give him an opportunity prepare a rational explanation for the events depicted on the video. Although counsel admitted at the motion for new trial hearing that he did not personally review the tape with Campbell, counsel testified that he had Campbell review the tape without him sometime before trial. Simply because Campbell's appellate counsel would have pursued a different course of action to prepare Campbell for trial does not necessarily indicate defense counsel was ineffective for preparing Campbell in the manner that he did. See Hawkins, 660 S.W.2d at 75. We therefore hold defense counsel's representation was not deficient in this regard.

Campbell also argues defense counsel should have reviewed the video recording of his arrest with Chris Cruz so that Cruz could testify that the videotape does not portray Campbell acting as he normally acts. At the motion for new trial hearing, defense counsel testified he did not review the video with Cruz because he determined he could adequately address the issue of Campbell's prearrest behavior by simply asking Cruz whether Campbell was acting normal the last time he saw Campbell. Once again, counsel's decision appears to have been based on a reasonable trial strategy; therefore, we cannot conclude defense counsel's representation was deficient in this regard.

Failure to Object to Breath Test Results

Campbell contends that defense counsel should have voiced a relevancy objection when the State allowed Bexar County Breath test technical supervisor George Allan McDougall to testify that Campbell's breathalyzer test results were .150 and .151 two hours after his arrest. Campbell claims defense counsel should have objected because such results were irrelevant without retrograde extrapolation testimony, citing this court's holding in Stewart v. State, 103 S.W.3d 483 (Tex. App.--San Antonio 2003), rev'd, 2004 WL 385585 (Tex. Crim. App. 2004). The court of criminal appeals, however, recently overruled Stewart because the court determined that breath test evidence

may be relevant without retrograde extrapolation evidence. Stewart v. State, No. 324-03, 2004 WL 385585, at *2 (Tex. Crim. App. Mar. 3, 2004). Therefore, defense counsel was not deficient because he failed to make a relevancy objection to McDougall's testimony.

Failure to Object to Post-Arrest Video

Campbell also claims that defense counsel should have objected to the admission of the audio portion of the videotape made at the San Antonio Police Department because it contains irrelevant and prejudicial evidence. When claiming ineffective assistance for failing to object, an appellant must demonstrate that if trial counsel had objected, the trial court would have committed error in overruling the objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).

At the San Antonio Police Department, one of the officers allowed Campbell to make a telephone call to his mother. This phone call was captured on video. During Campbell's phone conversation with his mother, Campbell was argumentative and used offensive language. Campbell claims this phone conversation was irrelevant and prejudicial to his case, citing Texas Rules of Evidence 402 and 403. (5)

We believe Campbell's phone conversation is relevant because it provides a physical exemplar of Campbell's demeanor and manner of speech, which could be used by the jury as evidence of Campbell's intoxication level. Therefore, the trial court would not have erred by overruling a Rule 402 objection to the audio portion of the video. Although this phone conversation may have portrayed Campbell in a negative light, the trial court likely would have found that the probative nature of this evidence outweighed its prejudicial effect even if counsel had raised a Rule 403 objection. It is unlikely that the jury would have convicted Campbell due to an argument with his mother, as the seriousness of the argument pales in comparison to the seriousness of his other conduct that night. Nevertheless, even if we were to assume that the trial court would have erred in overruling a Rule 403 objection in this instance, an isolated failure to object to inadmissible evidence does not constitute ineffective assistance of counsel. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (recognizing an isolated failure to object to improper evidence does not constitute ineffective assistance of counsel).

Additional Trial Errors

Campbell also contends defense counsel was deficient because he failed to: (1) subpoena the medical personnel who tested Campbell's blood sugar levels at the San Antonio Police Department; (2) obtain the medical records from Campbell's treatment at the San Antonio Police Department; (3) determine the precise amount of alcohol Campbell consumed before the accident; and (4) object when the prosecutor cross-examined Campbell about driving the wrong way down Fair Oaks Parkway. Notably, Campbell did not raise any of the aforementioned complaints in either his motion for new trial or at the motion for new trial hearing. The record therefore contains no evidence as to why defense counsel did not obtain subpoena medical personnel from the police department, secure Campbell's medical records, determine the exact amount of alcohol Campbell consumed, or object during the State's cross-examination of Campbell. An appellate court must presume that defense counsel had a plausible reason for his actions. See Thompson, 9 S.W.3d at 814. To know defense counsel's reasoning concerning the aforementioned matters would require us to speculate, which we cannot do. Consequently, we hold the presumption of sound trial strategy has not been overcome by Campbell as to these issues.

Conclusion

Based on the foregoing, we cannot say Campbell was denied effective assistance of counsel. Therefore, we overrule Campbell's sole appellate issue and affirm the trial court's judgment.

Catherine Stone, Justice

Do Not Publish

1. The record indicates that Officer Couture finally noticed "a really strong odor of an intoxicating beverage" on Campbell's breath after Officer Bryan had handcuffed Campbell and placed him into one of their patrol cars.

2. Because the court could rescind its order denying Campbell's original motion for new trial, it could properly consider Campbell's "first amended motion for new trial or, in the alternative, second motion for new trial." See Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998).

3. The trial court also had before it an affidavit from attorney James Pape; however, this affidavit was filed with a document entitled "second amended motion for new trial or, in the alternative, amended second motion for new trial," which was filed with the court on March 10, 2003. The amended motion and affidavit were not properly before the court because they were filed more than thirty-days after the trial court imposed Campbell's sentence. See Tex. R. App. P. 21.4(b) ("Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.").

4. We note that, in an unpublished opinion, the court of criminal appeals has recently reaffirmed the abuse of discretion standard for review of a trial court's ruling on a motion for new trial. See State v. Jones, No. 678-02, 2004 WL 231309, *8 (Tex. Crim. App. Jan. 28, 2004) (not designated for publication). The court further noted that despite the abuse of discretion standard, reviewing courts are not bound by the trial court's legal conclusion on the issue of ineffectiveness, and they may independently decide the issue while still granting deference to the trial court's findings on subsidiary fact issues. Id.

5. Texas Rule of Evidence 402 provides, "[a]ll relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible." Tex. R. Evid. 402. Texas Rule of Evidence 403 provides, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403.