MICHAEL JAMES FOLEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed June 23, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01556-CR
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MICHAEL JAMES FOLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 2
Collin County, Texas
Trial Court Cause No. 002-84594-04
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MEMORANDUM OPINION
Before Chief Justice Thomas and Justices Moseley and Lang
Opinion By Justice Moseley
        A jury convicted Michael James Foley of driving while intoxicated (DWI). The trial court assessed punishment at ninety days in jail, probated for eighteen months, and a $1200 fine. In three points of error, Foley appeals, claiming the evidence was legally and factually insufficient to sustain the conviction for DWI, and he did not receive effective assistance of counsel.
        The background of the case and the evidence adduced at trial are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. See Tex. R. App. P. 47.1, 47.4. For the reasons set forth below, we affirm the trial court's judgment.
Legal and Factual Sufficiency
 
        We apply the appropriate standards of review to Foley's legal and factual sufficiency challenges in his first and second points of error. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (legal sufficiency); see also Garza v. State, 213 S.W.3d 338, 344 (Tex. Crim. App. 2007) (factual sufficiency); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (factual sufficiency), cert. denied, 128 S. Ct. 87 (2007); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (factual sufficiency); Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002) (appellate court measures sufficiency of evidence against hypothetically correct jury charge authorized by indictment).
        The State was required to prove beyond a reasonable doubt that Foley was intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). “Intoxicated” means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances or any other substance into the body, or by having an alcohol concentration of 0.08 or more. See id. § 49.01(2) (Vernon 2003). “Normal use” means the manner in which a normal non-intoxicated person would be able to use his mental or physical faculties. See Ford v. State, 129 S.W.3d 541, 545-46 (Tex. App.-Dallas 2003, pet. ref'd). Refusal to take an Intoxilyzer test may be considered as evidence of intoxication. See Tex. Transp. Code Ann. § 724.061 (Vernon 1999); see also Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001). The uncorroborated testimony of an arresting officer is sufficient to prove the element of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979); Watkins v. State, 741 S.W.2d 546, 549 (Tex. App.-Dallas 1987, pet. ref'd).
        The only contested element of the DWI offense is intoxication. The record includes evidence that Officer Coy Clements stopped Foley's car after Clements observed Foley speeding and failing to signal a left turn. When Clements approached Foley's car, Clements noticed the odor of alcohol and that Foley had bloodshot, watery eyes. Foley admitted that he had three drinks and that he believed the alcohol was adversely affecting his driving.
        Clements asked Foley to step out of his vehicle to administer standardized field sobriety tests. Clements is certified to perform these tests. All three sobriety tests indicated that Foley was intoxicated. Clements arrested Foley and took him to the police station where Foley refused to take an Intoxilyzer test. The stop, sobriety tests, arrest, and refusal to take the Intoxilyzer test were recorded on videotape. In Clements's opinion, Foley had lost normal use of his mental and physical faculties and was therefore intoxicated.
        Foley argues the evidence was factually insufficient because sobriety tests are not “normal” human behavior and should not be the standard for determining normal use of mental and physical faculties when actual human behavior is observed. We reject Foley's argument. See, e.g., Ford 129 S.W.3d at 551 (considering field sobriety tests in concluding evidence factually sufficient to uphold DWI conviction). Foley also argues that the videotape shows he drove better than the sober officer and was responsive, able to walk around without difficulty, and conversed clearly and cogently. However, the jury is the sole judge of a witness's credibility and resolves all conflicts in the evidence. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.-Dallas 1991, pet. ref'd).
        Having considered the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found all elements of DWI, including that Foley was intoxicated, beyond a reasonable doubt. Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95. Further, after reviewing the evidence in a neutral light, we cannot say the evidence supporting the conviction, including the evidence as to intoxication, is so obviously weak as to undermine confidence in the fact finder's determination or is greatly outweighed by contrary proof. See Garza, 213 S.W.3d 338 at 344; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414. We overrule Foley's first two points of error.
Ineffective Assistance of Counsel
 
        In his third point of error, Foley contends his trial counsel was ineffective because counsel made no pretrial motions, no objections during the State's voir dire or closing, very few objections during trial, and only one objection to the charge. The State responds that counsel's voir dire and opening statement were thorough, counsel raised inconsistencies during cross-examination of the State's only witness, and counsel demonstrated that some of Foley's behavior did not indicate intoxication.
        To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). The appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without evidence of the strategy involved concerning counsel's actions at trial, the reviewing court will presume sound trial strategy, see Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 814, and should not find deficient performance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
        Here, Foley's claim of ineffective assistance of counsel fails because there is no record showing counsel had an opportunity to explain his reasons or strategy. See Goodspeed, 187 S.W.3d at 392; Rylander, 101 S.W.3d at 111; Thompson, 9 S.W.3d at 814. Moreover, Foley's claim as presented on appeal is vague, seldom pointing to a specific point in the record where counsel's conduct was ineffective. Rather, he broadly argues that counsel was not adversarial enough. Thus, Foley has not demonstrated that counsel's conduct was so outrageous that no competent attorney would have engaged in it. See Garcia, 57 S.W.3d at 440. We overrule Foley's third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061556F.U05