Angel Arcadio Ruiz v. The State of Texas--Appeal from 70th District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ANGEL ARCADIO RUIZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

'

'

'

'

'

No. 08-02-00386-CR

Appeal from the

70th District Court

of Ector County, Texas

(TC# A-28,408)

MEMORANDUM OPINION

Angel Arcadio Ruiz appeals his conviction for driving while intoxicated. We affirm.

Facts

Ruiz was initially stopped for driving at night without his headlights on and for failing to stay within a single lane. After failing two field sobriety tests, standing with one leg raised and walking a straight line heel-to-toe, he was placed under arrest. The officers did note that Ruiz suffered from throat cancer and a head injury. Ruiz attempted three times to perform on an intoxilyzer machine, but was unable to produce enough air to register a valid reading. Ruiz was unable to tell police how he had sustained the head injury. The officer noted it looked like an old scratch. In a videotape of the arrest admitted into evidence, Ruiz is seen telling the officer that he had been drinking alcohol, and had about 10 beers. Before being booked into the jail, Ruiz=s throat cancer was checked by a nurse, but the officer did not know if the nurse also looked at the head injury.

During trial, the State called two witnesses--the officers involved in the arrest. Ruiz=s counsel cross-examined both witnesses. He questioned both officers about Ruiz=s medical condition eliciting their agreement that illness can make some people appear to be intoxicated when they are not. After the State rested its case, the defense called no witnesses and also rested.

Ineffective Assistance

In his sole point of error, Ruiz claims that he received ineffective assistance of counsel at trial, based on his trial counsel=s failure to present medical evidence concerning his head injury.

The Strickland test provides a two-prong test to determine whether counsel=s representation was so inadequate as to violate a defendant=s Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). First, the defendant must show that his counsel=s performance fell below an objective standard of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997). Second, assuming the defendant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, appellant must show a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (citing Hernandez, 726 S.W.2d at 55).

In reviewing defense counsel=s representation at trial, we engage in Aa strong presumption@ that actions of counsel were within the wide range of reasonably professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). The burden is on the appellant to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id.

Ruiz filed a motion for a new trial, but no hearing was ever held to inquire as to Ruiz=s claim of ineffective assistance. Typically, the record on direct appeal does not fully reflect alleged failings of trial counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). A defendant can challenge the presumption of effectiveness by furnishing the appellate court with a record that allows the court to weigh whether counsel=s actions were based on sound trial strategy. Parmer v. State, 38 S.W.3d 661, 666 (Tex. App.--Austin 2000, pet. ref=d). A hearing on a motion for a new trial can provide that record. Id. Inadequate representation will be found only if counsel=s actions are absent any plausible basis. Id. A record lacking any explanation of motivation behind trial counsel=s actions generally fails to establish whether his or her actions were of strategic design or the result of negligence. Thompson, 9 S.W.3d at 813-14.

In his appellate brief, counsel for Ruiz asks this Court to excuse his failure to obtain a hearing, as appellate counsel was not aware of the need to present medical evidence until after reading the reporter=s record. The reporter=s record was not prepared until after the deadline for such hearing. Ruiz cites no authority which would allow us to proceed as he requests.

To the contrary, the State correctly contends Ruiz must obtain a hearing on ineffective assistance before it can be considered by an appellate court or the point is waived, citing Toney v. State, 783 S.W.2d 740, 742 (Tex. App.--El Paso 1990, pet. ref=d). However, that court did not hold that a failure to have a hearing constitutes waiver, only that it is usually necessary in order to adequately present the issue. Id. The State points out that trial counsel conducted voir dire, Agave a good opening Statement . . . vigorously cross examined all of the State=s witnesses,@ and Aalso gave a good final argument.@

Under these circumstances, we find the record inadequate to establish ineffective assistance of counsel. Ruiz=s sole point of error is overruled.

Conclusion

The judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

February 12, 2004

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)