Opinion
No. 05-11-00216-CR
Opinion Filed June 22, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the County Criminal Court No. 7, Dallas County, Texas, Trial Court Cause No. MC10-C7536-H.
Before Chief Justice WRIGHT and Justices FRANCIS and MYERS.
OPINION
Randy Mark Matthews appeals the trial court's order denying his application for writ of habeas corpus seeking to overturn his conviction for driving while intoxicated. In a single issue, appellant contends the trial court erred by failing to grant his application for writ of habeas corpus based on the ineffective assistance of counsel. We affirm.
Background
A jury convicted appellant of driving while intoxicated and the trial court assessed punishment at 180 days' confinement, probated for two years, and a $750 fine. The conviction was affirmed on direct appeal. See Matthews v. State, No. 05-08-01250-CR (Tex. App.-Dallas Mar. 31, 2009, pet. ref'd) (mem. op.) (not designated for publication). On October 4, 2010, appellant filed an application for writ of habeas corpus pursuant to article 11.072 of the Texas Code of Criminal Procedure. Appellant claimed that counsel had rendered ineffective assistance by failing to: (1) consult and call to testify a toxicologist; (2) call an available defense witness; (3) adequately develop defense testimony; and (4) impeach the arresting officer. At a hearing on the merits of appellant's application, counsel testified and explained that the matters appellant argued on his ineffective assistance claim were simply differences over trial strategy judged with the benefit of hindsight. After hearing the evidence, the trial court issued findings of fact and conclusions of law finding that each of the matters appellant complains of involved the exercise of reasonable professional judgment by counsel and concluding that appellant did not receive ineffective assistance of counsel.Applicable Law
An individual convicted of a misdemeanor offense may attack the validity of the conviction by way of application for writ of habeas corpus if the individual is either confined or restrained as a result of the charge or conviction or, if no longer confined, is subject to collateral legal consequences arising from the conviction. See Tex. Const. art. V, § 8; Tex. Code Crim. Proc. Ann. art. 11.09 (West 2005); Ex parte Rinkevich, 222 S.W.3d 900, 902 (Tex. App.-Dallas 2007, no pet.). In reviewing the trial judge's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial judge's ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We will uphold the trial court's ruling absent an abuse of discretion. Id. In conducting our review, we afford almost total deference to the judge's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to the trial judge's application of the law to the facts, if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. Id. If the resolution of the ultimate question turns on an application of legal standards, we review the determination de novo. Id. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). To obtain a habeas corpus relief on the grounds of ineffective assistance of counsel, appellant must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) that but for the deficiency, there is a reasonable probability the result of the proceeding would have been different. Ex parte Martinez, 330 S.W.3d 891, 900-01 (Tex. Crim. App. 2011); Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). In reviewing complaints about counsel's strategy, we are highly deferential and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Ex parte Martinez, 330 S.W.3d at 900 (quoting Strickland, 466 U.S. at 689). Counsel's strategy and tactics are not deficient unless they are so outrageous that no competent attorney would pursue them. Ex parte Harrington, 310 S.W.3d at 459. To prevail, an applicant must show "that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result was reliable." Ex parte Martinez, 330 S.W.3d at 900 (quoting Strickland, 466 U.S. at 687). It is not sufficient for an applicant to show "the errors had some conceivable effect on the outcome of the proceeding." Id. (quoting Strickland, 466 U.S. at 693). Rather, he must show "there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. (quoting Strickland, 466 U.S. at 695).Trial Evidence
At trial, the State presented evidence showing appellant crashed his car into another vehicle stopped at a red light and then left the scene, not responding to the other driver's efforts to get his attention and exchange insurance information. The other driver testified he saw appellant swerving and unable to stay within a traffic lane before the collision. A witness testified appellant never attempted to apply his brakes and icy roadway conditions that night did not contribute to the accident. Neither the other driver nor the witness, however, had enough contact with appellant to testify that he was intoxicated. To prove intoxication, the State called arresting officer Robert McMillin and admitted into evidence a videotape of appellant performing sobriety tests at the jail after his arrest. McMillin testified appellant exhibited all of the usual symptoms of being intoxicated and his balance was so unsteady McMillin did not administer any roadside field tests except the horizontal gaze nystagmus (HGN) because he feared appellant would fall and hurt himself. McMillin testified appellant did not seem to understand he had been in an accident despite extensive damage to his car. McMillin further testified that appellant performed poorly on the walk-and-turn, alphabet reciting, and backward-counting tests in the intoxilyzer room. The videotape of those tests was played to the jury. At one point, appellant confessed to the officers. McMillin testified appellant appeared less intoxicated at the jail than in the field. Appellant refused to provide breath and blood samples. Appellant's defense focused on the absence of direct evidence to show he was intoxicated at the time he drove his car. The accident took place between 12:30 a.m. and 12:45 a.m., but McMillin, a DWI task force member summoned by patrol officers at the scene, did not arrive to evaluate appellant until 1:30 a.m. McMillin admitted that he did not know whether appellant possessed the normal use of his mental and physical faculties at the time he was driving. After counsel took McMillin on voir dire, the trial court disallowed his testimony about appellant's failing performance on the HGN test because McMillin could not say with certainty he had checked appellant's eyes for equal pupil sizing before performing the test. To explain how appellant could have been sober while driving and yet appear intoxicated to McMillin and on the videotape, the defense called Martin Baylor to testify. Baylor recounted that he and appellant attended a party at which appellant did not drink any alcohol. After the party, Baylor, appellant, and others continued socializing at Champs, a bar and restaurant. Over the course of two hours, appellant drank two vodka and tonics. Appellant swallowed an Actifed tablet at 12:25 a.m. as the group left Champs. At the time the group parted company, appellant did not appear intoxicated to Baylor. The defense introduced into evidence a box of Actifed tablets with a printed warning not to mix the medication with alcohol. The defense conceded appellant was intoxicated on the videotape, but argued appellant's intoxication arose after he was finished driving, as the Actifed took effect.Analysis
Although appellant conceded in his writ application that counsel "had the right idea about how to defend [appellant]," appellant criticized counsel for not pursuing the defense more aggressively and comprehensively. Appellant contends counsel should have consulted a toxicologist and put on expert testimony, called a second witness to testify who was with appellant at the party and at Champs, and impeached McMillin with his prior, inconsistent testimony. Appellant contends that counsel rendered ineffective assistance at every phase of trial from voir dire to closing argument. We will address each of appellant's specific complaints in turn. First, appellant contends counsel rendered ineffective assistance by failing to consult and call to testify a toxicologist to provide guidance and an expert opinion on the metabolism of the alcohol and Actifed appellant consumed. Appellant contends that counsel's failure to consult with an expert toxicologist caused counsel to put on a defense "that was not scientifically sound, that was not based in fact, and that was defeated by the very evidence put on by the defense." To support his contention, appellant presented to the trial court as an exhibit to his habeas application the affidavit and report of Dr. Gary Wimbish, a forensic toxicologist. Using Baylor's account of appellant's drinking and drug consumption, Wimbish opined that appellant was not intoxicated at the time he was driving. According to Wimbish, the antihistamine in the Actifed would have begun affecting appellant between 12:45 a.m. and 1:00 a.m., with the effects increasing to the point of affecting his psychomotor skills between 1:30 a.m. and 2:30 a.m., producing the signs of intoxication McMillin observed and that were present on the videotape. During the habeas hearing, counsel explained that it was a judgment call on his part not to consult with or call an expert to testify. Counsel believed he had a well-educated jury capable of understanding "that it was going to take some time for any type of synergistic effect to take place," and that the general population would realize that cold medication would not begin to take affect within five minutes. As a matter of trial strategy, counsel chose to focus his case on the State's lack of direct evidence to show appellant was intoxicated at the time he drove. As counsel explained it, his strategy emphasized to the jury that "there was no evidence of what [appellant's] mental and physical faculties were like at the time of the accident. [The State] didn't have any proof of it. All they had was guessing and speculation." The trial court concluded it was reasonable for counsel to rely on the jury's common sense regarding the delayed effect the medication would have on appellant. Reviewing the ruling under the proper standard, we cannot conclude counsel's failure to consult or call an expert witness fell below an objective standard of reasonableness. See Martinez, 330 S.W.3d at 900. On appeal, appellant raises for the first time a contention that counsel's failure to consult an expert led counsel to rely upon his own experience, recklessly relayed to the jury during voir dire, that he had felt intoxicated about twenty minutes after drinking two beers and taking a Benadryl tablet. Appellant points out that Wimbush's opinion shows the effect of Actifed is slower than counsel's experience with Benadryl. Because some testimony showed the accident may have occurred as late as 12:45 a.m., twenty minutes after appellant swallowed the Actifed, appellant surmises counsel's anecdote may have caused the jury to conclude appellant was intoxicated at the time he was driving. Appellant did not complain about counsel's anecdote in his application for writ of habeas corpus. He may not raise it for the first time on appeal. See Ex parte Tucker, 977 S.W.2d 713, 714-15 (Tex. App.-Fort Worth 1998), pet. dism'd, 3 S.W.3d 576 (Tex. Crim. App. 1999) (per curiam); Greenville v. State, 798 S.W.2d 361, 362-63 (Tex. App.-Beaumont 1990, no pet.). Appellant next contends counsel rendered ineffective assistance by not impeaching McMillin with his inconsistent testimony from an earlier administrative license revocation (ALR) hearing. By not aggressively impeaching McMillin, appellant contends counsel foreclosed a strong line of defense. Counsel told the jury during his opening statement that he would impeach McMillin with the record of the ALR hearing if McMillin strayed from his earlier testimony. Despite what appellant characterizes as counsel's "promise" to the jury, counsel did not confront McMillin with his prior testimony from the ALR hearing. McMillin's trial testimony painted appellant as more intoxicated than he had described appellant as being during the ALR hearing. Further, there were inconsistent details such as whether appellant was sitting in his car or standing when McMillin arrived. And, significantly, McMillin had testified during the ALR hearing that appellant had no trouble standing when McMillin first approached but had a hard time standing later on during the encounter. During cross-examination, counsel asked McMillin whether he had personal knowledge of the state of appellant's mental and physical faculties at the time appellant was driving. McMillin conceded that he did not. During the habeas proceeding, counsel could not recall the differences between McMillin's testimonies but explained that it did not matter because McMillin's credibility was not the crux of the defense's case. The trial court found counsel was not ineffective for failing to impeach McMillin with the details in the ALR hearing transcript because "the details in the transcript were not the main focus of [counsel's] theory of the case." Having obtained from McMillin the critical evidence the defense needed to advance its trial strategy, we cannot conclude counsel's determination to forgo further attacks on McMillin's credibility was not part of a reasonable trial strategy. Appellant next contends counsel rendered ineffective assistance by failing to call Andrea Lenoir to testify even though she was at the courthouse, willing to testify, and counsel had promised the jury two defense witnesses during opening statement. Lenoir was another of appellant's friends who had attended the party and accompanied appellant to Champs. Pointing to Lenoir's affidavit submitted in support of his habeas application, appellant contends Lenoir would have confirmed Baylor's account that appellant had only two drinks and was sober when he left Champs. Determining what witnesses to call at trial is a matter of trial strategy. See Ortiz v. State, 866 S.W.2d 312, 315 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd). During the habeas hearing, counsel testified he interviewed both Baylor and Lenoir before trial. Lenoir could confirm Baylor's account that appellant had only two drinks and appeared sober but she did not see him take the Actifed. Counsel explained he did not call Lenoir to testify at trial because she had told him she did not want to testify and she would do so only if counsel thought it was absolutely necessary. Counsel was concerned that her reluctance might impact her credibility and be detrimental to the defense. Counsel believed Baylor could provide the necessary testimony about appellant's drinks, the Actifed, and his sobriety. Appellant disputes counsel's characterization of Lenoir as a reluctant witness, pointing out that she averred her willingness to testify in her affidavit. As the State responds, Lenoir averred she was "prepared to testify" but her affidavit is silent about her willingness to testify. Any conflicts in the evidence were for the trial court to resolve. We defer to the trial court's credibility judgment. See Ex parte Peterson, 117 S.W.2d at 819; Ex parte Karlson, 282 S.W.3d 118, 128 (Tex. App.-Fort Worth 2009, pet. ref'd). See also Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006) (reviewing court gives deference to trial court's fact findings on matters of credibility even when evidence is submitted by written affidavit). Appellant next complains counsel gave a poor closing argument compromised by his failure to develop critical evidence during the trial. Because this allegation was not made before the trial court, it is not properly before this Court. See Tucker, 977 S.W.2d at 714-15. Finally, in his reply brief, appellant raises several new contentions. In his reply brief, appellant broadens his attack on counsel's performance, citing the failure to consult an expert as proof "counsel did nothing to investigate the specific facts of [appellant's] case." Appellant asserts the jury was required to accept McMillin's uncontradicted testimony. Appellant contends counsel could not have been following a reasonable trial strategy when he told the jury Lenoir would testify after ascertaining from her that she was a reluctant witness. Appellant further contends that not calling Lenoir after promising the jury that he would is analogous to the missing witness rule allowing the jury to infer that the missing witness's testimony would be adverse to appellant. Because these contentions were raised for the first time in his reply brief and are not responsive to the State's brief, we need not address them. See Tex. R. App. P. 38.3; Houston v. State, 286 S.W.3d 604, 612 (Tex. App.-Beaumont 2009, pet. ref'd), cert. denied, 130 S.Ct. 1082 (2010). Each of appellant's criticisms of counsel's assistance is grounded on a strategic disagreement about counsel's decision to emphasize the State's lack of evidence. The fact that habeas counsel would choose a different trial strategy emphasizing different evidence does not show appellant received ineffective assistance of counsel. See Miniel v. State, 831 S.W.2d 310, 325 (Tex. Crim. App. 1992). The trial court found counsel "is an extremely well-qualified, experienced DWI trial attorney with thirteen years experience as a defense attorney and former prosecutor, who is well respected in the field of DWI defense." The record supports the trial court's finding.Conclusion
Having considered appellant's complaints about counsel's performance as well as the trial court's findings of fact and conclusions of law, we cannot conclude appellant has shown that counsel's performance fell below an objective standard of reasonableness or that there is a reasonable probability the result of the proceeding would have been different. See Martinez, 330 S.W.3d at 900-01. Thus, we conclude the trial court did not abuse its discretion in denying appellant's application for writ of habeas corpus. We overrule appellant's sole issue. We affirm the trial court's order denying appellant the relief sought by his application for writ of habeas corpus.The videotape is not included in our record on appeal.
The record does not reflect how many partygoers continued on to Champs. Baylor's testimony does not mention anyone else. The affidavits of Baylor and Andrea Lenoir indicate that several people convened at Champs.