Collin Terrell Lovett v. State ( 2013 )

Affirmed and Memorandum Opinion filed June 25, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00556-CR
COLLIN TERRELL LOVETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 3
Brazoria County, Texas
Trial Court Cause No. 188056
MEMORANDUM OPINION
Appellant Collin Terrell Lovett appeals his conviction of driving while
intoxicated, challenging the sufficiency of the evidence to support his conviction
and asserting that he received ineffective assistance of counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged with the misdemeanor offense of driving while
intoxicated, to which he pleaded “not guilty.” At trial, the arresting officer
testified that he was on patrol one evening and observed appellant’s vehicle
traveling at a high rate of speed with a defective taillight. The officer estimated
that the vehicle was travelling 45 miles-per-hour in a zone with posted speed limits
of 35 miles-per-hour. The officer followed the vehicle through several
intersections; at one point, the officer estimated that appellant exceeded the posted
speed limit by 10 to 15 miles-per-hour. The officer followed the vehicle for
roughly six miles before activating his emergency lights to initiate a traffic stop.
After the driver’s vehicle pulled into a nearby parking lot, the officer made
contact with appellant, the driver, and detected the strong odor of alcohol on
appellant’s breath. The officer also observed that appellant had bloodshot eyes and
slurred speech. Appellant admitted that he had consumed an alcoholic beverage.
Appellant was unable to give the correct time of evening. Appellant exited the
vehicle at the officer’s request; appellant was unsteady on his feet and stumbled.
The officer administered a horizontal-gaze nystagmus (HGN) field-sobriety
test on appellant and concluded that appellant exhibited six clues of intoxication.
The officer also attempted to administer a walk-and-turn field sobriety test and had
explained the instructions for the test to appellant. Appellant expressed a desire to
walk along a painted yellow line in the parking lot instead of walking along an
imaginary line as the officer instructed. Appellant also expressed a desire to record
the test with his cell phone and removed the phone from his pocket to film the test.
Appellant refused the officer’s instructions to put his phone away to perform the
test. The officer characterized appellant’s demeanor as belligerent. The officer
placed appellant under arrest, believing appellant to be intoxicated based on
appellant’s demeanor, bloodshot eyes, slurred speech, unsteadiness, and the odor
of alcohol on appellant’s breath.
Although appellant was asked to consent to a blood sample both at the scene
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and upon his arrival at the city jail, he refused to give consent both times. He
additionally refused to perform any other field-sobriety tests.
The officer admitted, after reviewing a video of the traffic stop on cross-
examination, that the video appeared to show that the taillights of the vehicle were
operative. The officer also admitted that appellant had informed him of a recent
head injury, to which the officer acknowledged could affect appellant’s
performance on an HGN test. The officer, on cross-examination, also testified to
the windy conditions on the night of the stop and the accuracy of an HGN test as
being seventy-seven percent. The officer did not seek a search warrant to obtain
appellant’s blood test.
A jury found appellant guilty as charged. He was fined and sentenced to
five days’ confinement.
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant asserts the evidence is insufficient to support his
conviction because the State did not prove that appellant had lost the normal use of
his mental and physical faculties. In evaluating a sufficiency challenge, we view
the evidence in the light most favorable to the verdict. Wesbrook v. State, 29
S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we,
as a court, believe the State’s evidence or believe that appellant’s evidence
outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim.
App. 1984). The verdict may not be overturned unless it is irrational or
unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d
839, 846 (Tex. Crim. App. 1991). The trier of fact “is the sole judge of the
credibility of the witnesses and of the strength of the evidence.” Fuentes v. State,
991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to
believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707
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S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence,
we presume the trier of fact resolved conflicts in favor of the prevailing party.
Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.
Crim. App. 1997).
A person commits the offense of driving while intoxicated if the person is
intoxicated while operating a motor vehicle in a public place. Tex. Penal Code
Ann. § 49.04(a) (West 2012). The term “intoxicated” means (1) not having the
normal use of mental and physical faculties by reason of the introduction of
alcohol, a controlled substance, a drug, a dangerous drug, a combination of those
substances, or any substance into the body, or (2) having an alcohol concentration
of 0.08 or more. Id. at § 49.01(2)(A)–(B) (West 2011). A conviction for the
offense of driving while intoxicated may be supported solely by circumstantial
evidence, which is as probative as direct evidence. Kuciemba v. State, 310 S.W.3d
460, 462 (Tex. Crim. App. 2010).
Appellant points to the following nine factors that he claims tend to show
that he had not lost the normal use of his mental and physical faculties:
The taillights of appellant’s vehicle were properly working;
The officer’s lengthy pursuit did not support probable cause for
the stop;
The officer failed to allow use of a yellow parking line for the
walk-and-turn test;
Appellant properly parked his vehicle;
Appellant properly produced his driver’s license and insurance;
The windy conditions, his head injury, and “reduced accuracy”
compromised the HGN test results;
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The officer failed to note in a report that appellant had
bloodshot eyes and slurred speech;
The officer actually arrested appellant for failing to cooperate;
and
The officer failed to obtain a blood-test search warrant.
Appellant provides no citation to legal authority in support of any of these points.
See Tex. R. App. P. 38.1(i). Based on these points, appellant asks this court to re-
evaluate the weight and credibility of the evidence, which this court will not do in
a sufficiency analysis. See Zill v. State, 355 S.W.3d 778, 786 (Tex. App.—
Houston [1st Dist.] 2011, no pet.). To the degree that the noted factors turned on
the officer’s credibility, the finders of fact were entitled to believe or disbelieve,
any, some, none, or all of the officer’s testimony, weigh the testimony and
evidence, and resolve any conflicts in the evidence. See Fuentes, 991 S.W.2d at
271; Sharp, 707 S.W.2d at 614; Zill, 355 S.W.3d at 787. The jury’s resolution of
conflicts against appellant does not render the evidence insufficient. See Zill, 355
S.W.3d at 787 & n.6 (rejecting argument that some facts showed accused was a
“good” driver and not intoxicated because a sufficiency review considers all of the
evidence the jury considered).
As a general rule, the testimony of a peace officer that a person is
intoxicated provides sufficient evidence to establish the element of intoxication.
See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (reasoning that an
officer’s testimony that a person was intoxicated provided sufficient evidence to
establish the element of intoxication); Kiffe v. State, 361 S.W.3d 104, 108 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d). The record contains evidence of the
officer’s belief that appellant was intoxicated because the officer detected the
strong odor of alcohol emitting from appellant’s breath and that appellant had
bloodshot eyes, slurred speech, and was unsteady on his feet, all of which support a
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finding of intoxication. See Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App.
2001) (“Since the definition of ‘intoxicated’ includes ‘not having the normal use of
mental or physical faculties,’ any sign of impairment in the appellant’s ability to
speak would be circumstantially relevant to whether he was legally intoxicated
while driving.”); Cotton v. State, 686 S.W.2d 140, 143 n.3 (Tex. Crim. App. 1985)
(enumerating non-exhaustive list of signs of intoxication, including slurred speech,
bloodshot eyes, the odor of alcohol, unsteady balance, and staggered gait).
According to the officer, appellant displayed all six clues of intoxication on the
HGN test. See Zill, 355 S.W.3d at 786. Appellant indicated to the officer that he
had consumed an alcoholic beverage that evening. See id. Appellant refused to
comply with the officer’s directions to put the cell phone away and refused to
perform the walk-and-turn test as instructed. See Kirsch v. State, 306 S.W.3d 738,
745 (Tex. Crim. App. 2010) (providing that inability to perform field-sobriety tests
or follow directions logically raise an inference that the accused was intoxicated);
Zill, 355 S.W.3d at 786. The record also reflects appellant’s refusal to submit to a
blood-alcohol test or to perform other field-sobriety tests after his arrest. An
accused’s refusal to submit to standard field-sobriety tests or submit to a blood-
alcohol test is relevant evidence of intoxication. See Bartlett v. State, 270 S.W.3d
147, 153 (Tex. Crim. App. 2008); Barraza v. State, 733 S.W.2d 379, 381 (Tex.
App.—Corpus Christi 1987), aff’d, 790 S.W.2d 654 (Tex. Crim. App. 1990)
(holding that there is no significant difference between a refusal to take a field-
sobriety test and a refusal to perform a breath test for evidentiary purposes). See
also Tex. Transp. Code Ann. § 724.061 (“A person’s refusal of a request by an
officer to submit to the taking of a specimen of breath or blood, whether the refusal
was express or the result of an intentional failure to give the specimen, may be
introduced into evidence at the person’s trial.”). Additionally, appellant’s speeding
is a factor the jury could have considered because speeding can indicate impaired
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mental judgment. See Zill, 355 S.W.3d at 786.
Appellant contends that the video, which was admitted into evidence, rebuts
or contradicts the officer’s testimony because it reflects that the officer asked only
once for a driver’s license and to put away the cell phone and does not reflect that
appellant stumbled. The video is not required to convict appellant because an
officer’s testimony, standing alone, can be sufficient to support the elements of
intoxication. See Annis, 578 S.W.2d at 407; Kiffe, 361 S.W.3d at 108. Moreover,
the video reflects appellant’s refusal to comply with the officer’s instructions to put
his cell phone away and refusal to perform the walk-and-turn test, which supports
the officer’s testimony. See Zill, 355 S.W.3d at 788 (concluding that a jury could
view a video and determine whether an accused’s behavior appeared to be the
result of intoxication).
Likewise, even though appellant complains that the officer did not include in
his report that appellant had bloodshot eyes or slurred speech, the offense report is
not required to convict appellant in light of the officer’s testimony. See Annis, 578
S.W.2d at 407; Kiffe, 361 S.W.3d at 108; Zill, 355 S.W.3d at 877–88 (rejecting
argument in a sufficiency review that officer failed to include facts in an offense
report). Appellant also points to the officer’s testimony of the windy conditions,
the reliability of HGN tests, and information the officer learned about appellant’s
prior head injury as affecting the sufficiency of the evidence. These factors were
but one portion of a larger body of evidence within the jury’s province for
consideration. See Zill, 355 S.W.3d at 787 (rejecting argument that behavior
during a traffic stop was the result of a head injury and not intoxication). Even
taking these arguments into consideration, the record contains sufficient evidence
to support appellant’s conviction. See id.
Viewing the evidence in the light most favorable to the jury’s verdict, a
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rational factfinder could have determined from the evidence that appellant
committed the offense of driving while intoxicated by operating a motor vehicle in
a public place while intoxicated. See Tex. Penal Code Ann. § 49.04(a); Zill, 355
S.W.3d at 788 (concluding evidence was sufficient to support conviction for
driving while intoxicated based on the following factors: speeding, strong odor of
alcohol, glassy eyes, slurred speech, having consumed alcoholic beverages earlier
in evening, swaying, exhibiting six of six clues in an HGN test, failure to complete
walk-and-turn test, failure to follow officer’s instructions, and refusal to submit to
a blood or breath sample). We conclude the evidence is sufficient to support
appellant’s conviction. See id. Accordingly, we overrule appellant’s first issue.
INEFFECTIVE-ASSISTANCE-OF-COUNSEL ARGUMENT
In his second issue, appellant asserts that he was denied effective assistance
of counsel because his trial counsel failed to file a motion to suppress evidence on
the grounds that the officer lacked reasonable suspicion to stop appellant’s vehicle.
Appellant claims that because the officer’s testimony was contradicted by the
video, trial counsel had no sound trial strategy in failing to challenge the validity of
the traffic stop.
Both the United States and Texas Constitutions guarantee an accused the
right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex.
Code Crim. Proc. Ann. art. 1.051 (West 2005). This right necessarily includes the
right to reasonably effective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945
S.W.2d 830, 835 (Tex. Crim. App. 1997). To establish ineffective assistance of
counsel, an appellant must show by a preponderance of the evidence that (1) trial
counsel’s representation fell below an objective standard of reasonableness, based
on prevailing professional norms; and (2) there is a reasonable probability that the
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result of the proceeding would have been different but for trial counsel’s deficient
performance. Strickland, 466 U.S. at 687–92; Jackson v. State, 973 S.W.2d 954,
956 (Tex. Crim. App. 1998).
In assessing appellant’s claims, we apply a strong presumption that trial
counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). We presume counsel’s actions and decisions were reasonably professional
and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768,
771 (Tex. Crim. App. 1994). When, as in this case, there is no proper evidentiary
record developed at a hearing on a motion for new trial, it is extremely difficult to
show that trial counsel’s performance was deficient. See Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002). The Court of Criminal Appeals has stated that it
should be a rare case in which an appellate court finds ineffective assistance on a
record that is silent as to counsel’s trial strategy. See Andrews v. State, 159 S.W.3d
98, 103 (Tex.Crim.App.2005). On such a silent record, this court can find
ineffective assistance of counsel only if the challenged conduct was “‘so
outrageous that no competent attorney would have engaged in it.’” Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Counsel is not required to engage in the filing of futile motions. See Mooney
v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991); Hollis v. State, 219 S.W.3d
446, 456 (Tex. App.—Austin 2007, no pet.). To show ineffective assistance for
failing to file a motion to suppress, appellant first must show that a motion to
suppress evidence, had one been filed, would have been granted. See Jackson, 973
S.W.2d at 957. As the movant, appellant would have been required to produce
evidence that defeated the presumption of proper police conduct. Id.
The record reflects that the officer initiated the stop of appellant’s vehicle on
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two grounds: a defective taillight and excessive speed. An officer may stop and
detain a person if the officer has reasonable suspicion that a traffic violation was in
progress or had been committed. Kelly v. State, 331 S.W.3d 541, 549 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d). Reasonable suspicion exists if the
officer has specific, articulable facts that, when combined with rational inferences
from those facts, would lead him reasonably to conclude that a particular person
actually is, has been, or soon will be engaged in criminal activity. Ford v. State,
158 S.W.3d 488, 492 (Tex. Crim. App. 2005); Mount v. State, 217 S.W.3d 716,
727–28 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Appellant asserts that the video contradicts the officer’s testimony that
appellant’s vehicle had defective taillights. The officer testified that the taillight
was defective as a result of a light bulb being out or an electrical “short” in the
light’s wiring. It is a violation of the law to operate a motor vehicle with
equipment that does not comply with the Texas Transportation Code. See Tex.
Transp. Code Ann. § 547.004(a)(2) (West 2011). The Transportation Code
specifies that a vehicle manufactured and assembled before 1960 must be equipped
with at least one stoplamp mounted to the rear of the vehicle. Tex. Transp. Code
Ann. § 547.323(b)–(d) (West 2011) (referring to “stoplamps” that “shall emit a red
or amber light, or a color between red and amber, that is . . . displayed when the
vehicle service brake is applied.”). The officer agreed on cross-examination that,
as reflected in the video, the taillight appeared to be operative. Proof of the actual
commission of the offense is not a statutory prerequisite to support reasonable
suspicion in order to overcome a motion to suppress. See Valencia v. State, 820
S.W.2d 397, 400 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (rejecting
argument that arrest was invalid for lack of probable cause because it was not
certain whether accused actually committed all of the elements of a traffic offense).
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Appellant also challenges the officer’s testimony as failing to support an
inference of speeding because appellant’s speed was not captured on either the
video or by radar equipment and because the officer followed appellant’s vehicle
for six miles before activating his emergency equipment. The record contains the
officer’s testimony that the deputy, himself, pursued appellant’s vehicle at speeds
10 to 15 miles-per-hour over the posted speed limit before ultimately catching up
with appellant’s vehicle. Speeding is a violation of the Texas Transportation Code.
See Tex. Transp. Code Ann. § 545.351(a) (West 2011). Driving at a speed in
excess of the speed limit is prima facie evidence that the speed is not reasonable
and prudent and that the speed is unlawful. Tex. Transp. Code Ann. § 545.352(a)
(West 2011). When a law-enforcement officer observes a vehicle and believes the
vehicle to be traveling fifteen miles over the posted speed limit, a traffic stop is
justified. See Hesskew v. Tex. Dep’t Pub. Safety, 144 S.W.3d 189, 191 (Tex.
App.—Tyler 2004, no pet.) (concluding evidence was sufficient to show that
accused violated a traffic regulation).
We presume that trial counsel exercised reasonable professional judgment in
exercising a decision not to file a pretrial motion to suppress, and we do not
speculate as to counsel’s reason for that decision. See Crawford v. State, 355
S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (involving an
ineffective-assistance-of-counsel claim for failure to file a pretrial motion to
suppress evidence related to officer’s traffic stop). Appellant has not demonstrated
that a motion to suppress would have been successful. Likewise, given that the
officer’s testimony supports reasonable suspicion for initiating the stop, appellant
has not demonstrated that the outcome of trial probably would have been different
had his trial counsel filed a motion to suppress. See id. We overrule appellant’s
second issue.
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The trial court’s judgment is affirmed.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Christopher, and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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