Harold Dwayne Kirby, Jr. v. The State of Texas--Appeal from County Crim Court No 7 of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-97-024-CR

HAROLD DWAYNE KIRBY, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court No. 7

Dallas County, Texas

Trial Court # MB89-28742-H

O P I N I O N

Appellant Kirby appeals his conviction for driving while intoxicated, for which he was assessed 90 days in jail and a $1,000 fine. Imposition of sentence was suspended and Appellant was placed on probation for 24 months.

On May 16, 1989, at 2:45 a.m., Officer Thompson observed a vehicle driven by Appellant stop in the middle of the street, then proceed down the street, and fail to maintain a single lane of traffic. Officer Thompson stopped Appellant. There was alcohol on his breath, his eyes were blood-shot, and his speech was slurred. Officer Thompson had Appellant perform field-sobriety tests, determined he was intoxicated, and arrested him. At the police station, Appellant's breath test indicated a breath-alcohol level of 0.13.

At trial, Officer Thompson and Ronald Oliver, a technical supervisor of the Dallas County Medical Examiner's Office, testified for the State. Appellant and John Castle, a defense expert, testified for the defense.

A jury found Appellant guilty, and the judge assessed 90 days in jail and a fine, probated for 24 months.

A motion for a new trial was filed by Appellant alleging ineffective assistance of counsel which, after a hearing, was denied by the trial court.

Appellant appeals on two points of error.

Point one asserts "Appellant has been denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution."

The standard of review where ineffective assistance of counsel is alleged is set out in Strickland v. Washington, 466 U.S. 688, and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). These cases require a showing that counsel's performance was deficient by norms of the community, plus a showing that the deficiency so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result. This is judged by a totality of counsel's representation and not by isolated acts and omissions. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. app. 1980).

The burden of proving ineffective assistance of counsel is on Appellant and must be proved by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).

Appellant asserts: (1) that his trial counsel was ineffective for not calling witnesses who could offer exculpatory evidence; and (2) that counsel neglected his case.

The evidence against Appellant was from Officer Thompson who testified that he was intoxicated, and from witness Oliver who operated the breathalyzer and testified it was in good working order, showing Appellant with a 0.13 breath-alcohol level.

Appellant's counsel presented testimony by Appellant, who denied he was intoxicated, and by witness Castle, a defense expert in DWI cases, who testified the breathalyzer equipment was not reliable and over-registered alcohol content in the breath of persons being tested. He further testified that the equipment used to test Appellant had been replaced by newer equipment.

Appellant claims the continuances for six years, which his counsel either secured or agreed to, were detrimental to his defense, and that witnesses who could have testified for him were harder to reach after six years.

Defense counsel may have continued the case as a strategic move. At the hearing for a new trial, Appellant did not subpoena defense counsel or any of the absent witnesses complained about.

The record reflects defense counsel was alert, made numerous relevant objections during voir dire and during trial. Defense counsel presented expert witness Castle who testified the breathalyzer equipment taking Appellant's breath-alcohol content was not reliable, over-reported alcohol content in subjects' breath, and had been replaced by updated equipment.

Appellant has not established by a preponderance of the evidence the elements of a successful claim of ineffective counsel, and has not shown but for his counsel's performance that there is a reasonable probability the results of the trial would have been different.

Point one is overruled.

Point two asserts "the trial court abused its discretion in failing to grant a new trial in the interest of justice."

The decision to grant or deny a new trial rests in the sound discretion of the trial court, and in the absences of an abuse of discretion, an appellate court may not reverse the trial court's decision. State v. Gonzales, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993). The motion for a new trial was based on a claim of ineffective assistance of counsel. Appellant did not subpoena defense counsel or any of the witnesses, he asserted could have been called at trial, for the hearing on the motion for a new trial. The Judge who heard the motion for a new trial had presided over the trial and witnessed defense counsel's performance. It was within the Judge's discretion to deny Appellant's motion for a new trial and we cannot say, from the record before us, that the trial court abused its discretion in so doing.

Point two is overruled and the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 26, 1997

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