Fellers, Timothy Duane v. The State of Texas--Appeal from 228th District Court of Harris County

Date issued November 7, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-01234-CR

TIMOTHY DUANE FELLERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 886225

O P I N I O N

Timothy Duane Fellers, appellant, was convicted of felony driving while intoxicated. // The jury assessed punishment at nine years confinement and a $5,000 fine. // The jury recommended community supervision as to the confinement and probation of the fine. In his sole point of error, appellant argues that he was denied effective assistance of counsel at the guilt/innocence stage of the trial. We affirm.

Facts

Appellant pulled his truck into Walter s Quick Stop on August 27, 2001. Appellant put his truck in park, laid his head back, and closed his eyes. Melissa Hudson, an employee at Walter s, called Harris County regarding appellant, concerned that something was wrong with him. An ambulance was dispatched to Walter s. Upon arriving, Robert Roundtree, a paramedic, attempted to awaken appellant by first knocking on the truck s window. After several attempts failed to awaken appellant, Roundtree opened the truck door and him awake. Roundtree s partner checked appellant s vital signs and ruled out any medical conditions. Roundtree noticed that appellant s eyes were glassed over and red, that his speech was slurred and slow, and that he smelled of alcohol.

Appellant then went into Walter s and made a purchase from Hudson. Hudson had no opinion as to whether appellant was drunk, but she testified that she did not smell any alcohol on him. Appellant left Walter s after making the purchase and was approached by Deputy Dean Allred. Allred testified that he smelled alcohol on appellant s breath, that his eyes were bloodshot and watery, and that his speech was sluggish. Allred asked appellant whether he had been drinking during the previous 24 hours, and appellant said that he had drunk three beers. Allred conducted a horizontal gaze nystagmus (HGN) test on appellant to determine whether he was intoxicated. Allred determined through the HGN test that appellant was intoxicated and then took him into custody.

Appellant was transported to a substation and refused to take the intoxilyzer test. It took 30 minutes to transport appellant to the substation and 20 minutes for Allred to read through the necessary paperwork for the intoxilyzer test. Appellant underwent a field sobriety test while being videotaped. On the videotape, appellant denied having any alcohol during the previous 24 hours and did fairly well on the field sobriety test.

Appellant was convicted of driving while intoxicated on two previous occasions, on June 17, 1987, and April 13, 1994. His trial counsel did not stipulate to the two prior driving while intoxicated convictions. Therefore, the indictment, including the two enhancement paragraphs regarding the two prior convictions, was read by the judge during jury selection. Further, the State had to offer into evidence the judgments and sentences from the two prior convictions to prove the enhancement paragraphs. Appellant s trial counsel asked Allred on cross-examination whether it was true that the HGN test was only 77 percent reliable. Allred responded that for a .10 blood alcohol level the HGN test was only 77 percent reliable. Appellant s trial counsel further asked what the reliability was for a .108 level. Allred responded that the HGN test was 94 percent reliable. The State clarified that Allred s response was regarding a .08, and not a .108, blood alcohol level by re-asking the question on redirect examination. The jury charge referenced the two prior convictions. Appellant s trial counsel did not object to the charge.

Discussion

In his sole point of error, appellant argues that he was denied effective assistance of counsel because his trial counsel failed to stipulate to appellant s prior convictions for driving while intoxicated; elicited, and then failed to object to, Allred s testimony regarding the accuracy of the HGN test; and failed to object to the jury charge. A motion for new trial filed by appellant s counsel alleged only that the verdict was contrary to the law and the evidence.

To determine if a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, appellant must demonstrate that counsel s representation fell below an objective standard of reasonableness under prevailing professional norms. Howland v. State, 966 S.W.2d 98, 104 (Tex. App. Houston [1st Dist.] 1998), aff d, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, appellant must establish that counsel s performance was so prejudicial that it deprived him of a fair trial. Id. Thus, appellant must show that a reasonable probability exists that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Howland, 966 S.W.2d at 104. Appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App. Houston [1st Dist.] 1992, pet. ref d). We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App. Houston [1st Dist.] 1996, no pet.). Appellant must overcome the presumption that trial counsel s strategy was sound. Gamble, 916 S.W.2d at 93.

An appellant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland, 466 U.S. at 690. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Although there was a motion for new trial, the motion did not raise the issue of ineffective assistance of counsel. There was not a hearing on the motion. Therefore, the record is silent as to what appellant s trial counsel s strategy was during trial. To find that trial counsel was ineffective based on any of the asserted grounds would call for speculation, which we will not do. Gamble, 916 S.W.2d at 93.

We overrule appellant s sole point of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Hedges, Keyes, and Duggan. //

Do not publish. Tex. R. App. P. 47