Alton Wessley Williams v. State of Texas--Appeal from 2nd District Court of Cherokee County

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NO. 12-01-00066-CR










Alton Wesley Williams ("Appellant") appeals his conviction for the offense of driving while intoxicated. A jury found him guilty and assessed his punishment at five years of imprisonment. He raises four issues on appeal complaining that his counsel was ineffective, that the trial court's rulings were erroneous, and that the evidence was factually and legally insufficient. We affirm.

Factual Background

Appellant's vehicle was observed going off the side of the road and then drifting toward the center by Randy Hatch ("Hatch") on State Highway 84 in Cherokee County. Hatch is a criminal investigator for the Cherokee County districts attorney's office and has been a peace officer for 30 years. Hatch followed Appellant for a distance until Appellant pulled over to the side of the road. Hatch pulled his vehicle over also. He approached Appellant and requested his driver's license. Because of the smell of alcoholic beverage and Appellant's behavior, Hatch formed an opinion, based on his experience, that Appellant was intoxicated. He called the Cherokee County sheriff's office and requested that a state highway patrolman be dispatched to his location. Trooper Andrew Sitgreaves ("Sitgreaves") responded. Based on his experience and the sobriety tests administered to Appellant, Sitgreaves formed an opinion that Appellant was intoxicated and arrested Appellant for driving while intoxicated.

Appellant testified that he had not been drinking on that day and was not intoxicated. He stated that he had shared a six-pack of beer with his sister at her home the prior evening. Before being stopped, he explained that he had been home and then gone shopping. While at home, he talked with his sons. His sons testified that their father was not drinking that day and was not intoxicated when they saw him.

Ineffective Assistance of Counsel

In his first issue, Appellant contends that his trial counsel was ineffective. Specifically, Appellant contends that his counsel failed to object to certain language in the indictment and failed to file pre-trial motions.

To show ineffective assistance of counsel, Appellant must demonstrate that (1) his trial counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) there was a reasonable probability that, but for counsel's errors, the result of the proceeding would have differed. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). "Whether the Strickland standard has been met is to be judged by the 'totality of the representation,' rather than by isolated acts or omissions of trial counsel, and the test is applied at the time of trial. The burden of proving ineffectiveness rests upon the defendant by a preponderance of the evidence." Strickland, 466 U.S. at 689, 104 S. Ct. at 2064. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996); Ex parte Cruz, 739 S.W.2d 53, 59 (Tex. Crim. App. 1987). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." McFarland, 928 S.W.2d at 500.

The review of counsel's representation is highly deferential; we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Appellant can rebut this presumption by showing that (1) his attorney's representation was unreasonable under prevailing professional norms, and (2) the challenged action was not sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Howard v. State, 894 S.W.2d 104, 106 (Tex. App.-Beaumont 1995, pet. ref'd). We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for trial counsel's action. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. 1981); Weeks v. State, 894 S.W.2d 390, 391 (Tex. App.-Dallas 1994, no pet.).

In order to meet the first prong of the Strickland test, Appellant must not only specifically identify the deficiencies in counsel's performance, but must identify the specific action which should have been made and provide authority in support of his argument that the action would have been meritorious. See Valdes-Fuerte v. State, 892 S.W.2d 103, 112 (Tex. App.-San Antonio 1994, no pet.) (citing Simms v. State, 848 S.W.2d 754, 758 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd)). When the record contains no evidence of the reasoning behind trial counsel's action, we cannot conclude counsel's performance was deficient. See Jackson, 877 S.W.2d at 771-72.

A silent record does not require an appellate court to speculate on the reason for trial counsel's decisions and is generally insufficient to address claims of ineffective assistance of counsel in light of the strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance. A trial record is directed to the issues of guilt/innocence and punishment. It is difficult to review Appellant's allegations of ineffective assistance of counsel from a record that does not specifically address those issues.

The indictment alleges that Appellant did not have the normal use of his mental and physical faculties. Appellant complains that his counsel should have objected that the phrase "mental and physical faculties" was in the conjunctive rather than the disjunctive. However, the record is silent as to why he did not object. Of course, the burden on the State is more difficult when the pleading is in the conjunctive rather than the disjunctive. Furthermore, the record in this case contains no evidence relating to why counsel did not file pre-trial motions. There is nothing to indicate to us that the actions of trial counsel were not trial strategy or that he needed pre-trial discovery. We are unable to determine that counsel's actions were not part of his trial strategy. A silent record, as to counsel's thought processes, does not require us to speculate on the reason for trial counsel's decisions. Ryan v. State, 937 S.W.2d 93, 98 (Tex. App.-Beaumont 1996, pet. ref'd). Appellant's first issue is overruled.

Denial of Hearing on Motion for New Trial

Appellant asserts the trial court erroneously denied him an evidentiary hearing on his motion for new trial. He contends the right to an evidentiary hearing is absolute if the motion for new trial is timely filed and properly presented to the trial court. Contrary to Appellant's contention, the right to a hearing on a motion for new trial is not an absolute right. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). A defendant must meet two criteria before a trial court abuses its discretion by not hearing a motion for new trial. Id. at 815-16. First, the defendant must present a motion for new trial raising matters not determinable from the record. Id. at 816. Second, the motion must be supported by affidavit specifically showing the truth of the grounds of the attack. Id.

Appellant's counsel timely filed a motion for new trial. The motion for new trial states that the verdict was contrary to the evidence and that counsel was ineffective. Counsel filed an affidavit merely swearing, in effect, that the statements were true and correct. The motion also contained an order on which the trial court could grant or deny. The trial court did neither, and the motion was overruled by operation of law. There is nothing in the record to show that Appellant did more than file the motion.

Rule 21.6 of the Texas Rules of Appellate Procedure (formerly Rule 31(e)(3)) contemplates that a defendant's motion for new trial somehow be brought to the trial court's attention for a ruling or be overruled by operation of law. Compare Martinez v. State, 846 S.W.2d 345, 346 (Tex. App.- Corpus Christi 1992, pet. ref'd) (defendant timely "presented" his motion for new trial to the trial court as evidenced by trial court's consideration of the motion and by its order overruling it), with,Enard v. State, 764 S.W.2d 574, 575 (Tex. App.-Houston [14th Dist.] 1989, no pet.) (defendant did not timely "present" his motion for new trial to the trial court because there was nothing in the record to indicate the trial court was on notice that defendant desired a hearing to present evidence in support of his motion for new trial and his motion for new trial was overruled by operation of law).

In Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998), the court of criminal appeals held that the term "present" as used in Rule 31(c)(1) means the record must show the movant for a new trial sustained the burden of actually delivering the motion for new trial to the trial court or otherwise bringing the motion to the attention or actual notice of the trial court. Therefore, in order to present a motion for new trial, the movant must give the trial court actual notice that it has timely filed a motion for new trial and request a hearing on the motion within ten days of filing it. The presentment must be directed to the trial court or another authorized to act on behalf of the trial court. The presentment must result in actual notice to the trial court. Carranza, 960 S.W.2d at 78. Having failed to present the motion for new trial to the trial court, Appellant's second issue overruled.

Qualifications of Police Officer

Appellant's third issue contends that the State did not qualify Sitgreaves as an expert witness on Horizontal Gaze Nystagmus Test, standardized field sobriety tests, or the Intoxilyzer test. By contrast, the record shows that Sitgreaves testified he was certified and had attended training in all three areas. He further stated that the Department of Public Safety has a continuing education and training program in these areas. This was done prior to any objection by Appellant. Accordingly, issue three is overruled.

Sufficiency of the Evidence

Legal Sufficiency

Appellant's fourth and final issue maintains that the evidence presented by the State is both legally and factually insufficient to support the jury's verdict. Where a party seeks reversal of a conviction on grounds of both legal and factual insufficiency, an appellate court must first determine whether the evidence adduced at trial was legally sufficient to support the verdict. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Our determination of sufficiency of the evidence requires that we review all evidence, both admissible and inadmissible. Gardner v. State, 699 S.W.2d 831, 835 (Tex. Crim. App. 1985). The standard of review that a court must follow in making a determination of legal sufficiency requires that it ask whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). While conducting this review, a court does not reevaluate the weight and credibility of the evidence but merely ensures that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

The indictment alleged that Appellant operated a motor vehicle in a public place while intoxicated by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol into the body. Tex. Pen. Code Ann. 49.04 (Vernon 1995). The State's evidence established that Appellant was seen by Hatch driving a motor vehicle in Cherokee County in an erratic manner. Hatch observed him immediately after he exited the vehicle. Appellant appeared to be intoxicated to Hatch who could smell the odor of alcoholic beverage on Appellant's person. Hatch radioed for a DPS unit. Sitgreaves arrived in about ten or fifteen minutes. After administering several field sobriety tests, the horizontal gaze nystagmus tests, and generally observing Appellant, Sitgreaves formed an opinion that Appellant was very intoxicated. Sitgreaves testified that Appellant did not provide a breath specimen because he only pretended to blow into the Intoxilyzer machine. The State further presented evidence that Appellant had twice before been convicted of driving while intoxicated.

After reviewing the record in the light most favorable to the conviction, we find the evidence to be legally sufficient for a rational jury to find beyond a reasonable doubt that Appellant was driving while intoxicated. As a result, we overrule Appellant's issue challenging the legal sufficiency of the evidence.

Factual Sufficiency

After a court of appeals has determined that the evidence is legally sufficient to support the verdict, it must proceed to review all the evidence in a claim of factual insufficiency. Clewis, 922 S.W.2d at 133. In conducting a factual sufficiency review, the appellate court must view all of the evidence impartially and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 135; Bilby v. State, 892 S.W.2d 864, 875 (Tex. Crim. App. 1994), cert. denied, 515 U.S. 1162, 115 S. Ct. 2617, 192 L. Ed. 2d 860 (1995). However, this court must not substitute its judgment for that of the jury. It is not the role of an appellate court to interfere with the jury in resolving conflicts in the evidence or determining the weight and credibility to be accorded varying witnesses' testimony. Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.-El Paso 1996, pet. ref'd).

The defense called Appellant and his two sons as witnesses. Each testified that, although Appellant had a long history of alcohol abuse, he was not drinking on the day in question. The sons testified that Appellant had finally quit drinking after he received severe injuries in an automobile accident which had been caused by his intoxication. However, Appellant testified that he had drank a six-pack of beer the prior evening.

In view of all the evidence in the trial, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The jury heard the testimony of the police officers and that of Appellant and his family. They chose to believe the police officers. Accordingly, we overrule Appellant's factual sufficiency issue.

The judgment of the trial court is affirmed.





Opinion delivered January 23, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.