Letbetter, Sidney v. State ( 2003 )

Opinion of April 3, 2003 Withdrawn; Affirmed and Substituted Memorandum Opinion filed April 24, 2003

Opinion of April 3, 2003 Withdrawn; Affirmed and Substituted Memorandum Opinion filed April 24, 2003.

In The

Fourteenth Court of Appeals

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NO.  14-02-00677-CR

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SIDNEY LETBETTER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court at Law Number Four

Harris County, Texas

Trial Court Cause No.  1096527

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S U B S T I T U T E D   M E M O R A N D U M   O P I N I O N

            The opinion previously issued in this case on April 3, 2003, is withdrawn and this substituted  memorandum opinion is issued in its place.

            After a jury trial, appellant Sidney Letbetter, was found guilty of driving while intoxicated, and sentenced by the court to thirty-two days’ confinement in the Harris County jail and a $500 fine.  On appeal, appellant raises ineffective assistance of counsel as his sole issue.  We affirm.

Factual Background

            Late in the evening of January 14, 2002, complainant Crystal Hightower’s vehicle was struck from behind by appellant’s vehicle at an intersection in north Harris County, Texas.  Hightower immediately called her boyfriend to tell him about the accident.  As Hightower and appellant began exchanging information, she noticed that he had an overwhelming odor of alcohol about him and slurred speech.  Two of appellant’s friends who had been following him in a separate car urged Hightower to simply exchange information with appellant and forego calling the police, as they had been drinking and did not want appellant to be arrested. Appellant nodded his head in agreement with his friends’ request.  However, after Hightower’s boyfriend spoke with appellant on Hightower’s cellular phone, he urged her to call the police.  Hightower’s boyfriend arrived at the scene before the police, and noticed appellant’s glassy eyes and strong odor of alcohol. 

            Police officers arrived at the scene some forty-five minutes after the accident, and immediately suspected appellant was under the influence of alcohol due to his slurred speech, droopiness, strong odor of alcohol, slow response time to questioning, and poor balance.  Appellant admitted to one officer that he had just left a bar after having two drinks, an antidepressant, and some cough medicine.  When the officer administered a one-leg stand field sobriety test, appellant almost fell down, dropped his foot six times in ten seconds, and exhibited significant swaying during a second test.  When the officer performed a horizontal gaze nystagmus test, he observed six clues suggestive of intoxication.  Appellant was placed under arrest for driving while intoxicated and taken to the police station.  Appellant’s breath test taken around midnight revealed an alcohol concentration of 0.10, in excess of the 0.08 required for intoxication.

            In a videotape of appellant taken at the police station, appellant admitted he had not eaten any food all day, had taken some cough and cold medicine, had consumed two alcoholic drinks  within a half hour of the accident, and was absolutely under the influence of medication and alcohol at the time of the videotaping.  Later at trial, the waitress who had served appellant his drinks that evening testified to serving him two jumbo hot dogs and four alcoholic drinks, two of which he “chug-a-lugged” as he was leaving the bar.

            Ricky Duane Viser, the State’s expert witness on retrograde extrapolation, testified at trial that under the State’s hypothetical fact situations, a person would have had an alcohol concentration of between 0.11 and 0.14 at the time of the accident, assuming a concentration of 0.10 at midnight.  The hypothetical situations assumed a 200-pound male involved in a motor vehicle accident at 10:15 p.m., who consumed his first drink at 9:30 p.m. and his last drink at 10:00 p.m., both with food and without food.  Defense counsel vigorously cross-examined Viser, attacking his assumptions, hypotheticals, and the resulting extrapolation of alcohol concentration.  Viser admitted that some of the factors mentioned by defense counsel, such as hematocrit, total amount of alcohol consumed, and “tolerance,” would be useful in determining a precise extrapolation calculation, but are not critical and do not prevent extrapolation of an alcohol concentration range.  Viser also testified to the synergistic and additive effects of combining alcohol with antidepressants and cough and cold medications, which effects would compound the intoxication.  The trial court overruled appellant’s motion to strike all of Viser’s testimony on the basis it lacked sufficient hypothetical facts upon which to base a retrograde extrapolation.  The court essentially stated that appellant’s complaints went to the weight, not the admissibility, of the extrapolations.

            During his case in chief, appellant presented his own extrapolation expert, toxicologist Ernest Lykissa.  Lykissa disagreed with Viser’s calculations, testifying that given a hypothetical of a person consuming five drinks and two large hot dogs between 9:30 p.m. and 10:00 p.m., he would expect an alcohol concentration of 0.05 or less at 10:00 p.m.  Under cross-examination, however, he testified that when combined with certain medications such as cough and cold remedies, even one drink could make a person intoxicated, and consuming alcohol with an antidepressant such as Zoloft could cause not only intoxication, but hallucinations.  Testifying on his own behalf, appellant stated he had taken his regular Zoloft antidepressant that morning, had three ounces of Nyquil around 4:30 that afternoon, and

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consumed two hot dogs and five bourbon-and-sodas during the forty-five minutes he was at the bar that night, “chug-a-lugging” two of the drinks as he was leaving.  He also took a swallow of Nyquil while waiting for the police to arrive after the accident.  He denied being intoxicated when he left the bar, and stated he had felt fine at the time of the accident.  According to appellant, he began to feel intoxicated when the police arrived, and by the time he was videotaped at the station, he was intoxicated. 

            On appeal, he contends his counsel was ineffective in failing to seek suppression of Viser’s retrograde extrapolations.

Analysis

            We examine ineffective assistance of counsel claims under well-established standards.  See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986).  It is appellant’s burden to show by a preponderance of the evidence that trial counsel’s performance was deficient because it fell below prevailing professional norms, and that the deficiency prejudiced appellant; that is, but for the deficiency, there is a reasonable probability the result of the proceeding would have been different.  See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  A reasonable probability is one sufficient to undermine confidence in the outcome.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson at 812.

            Here, appellant contends trial counsel was ineffective in his failure to timely object to the retrograde extrapolation testimony, and in failing to file a pre-trial motion to suppress Viser’s testimony. Appellant claims the extrapolation testimony was faulty because it did not meet the requirements of Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001).  His argument does not point to any specific non-compliance with the Mata requirements, but rather, takes the position that Viser’s first extrapolation was erroneous in its hypothetical assumption that appellant had no food to eat that day, and Viser’s opinion contradicted appellant’s own expert who was clearly the more experienced and qualified scientist.  Appellant argues that had the issue been tested by a pre-trial motion to suppress, the court may have ruled the evidence inadmissible, which may have negated the need for appellant’s expert to testify.  Thus, the jury may have been spared from listening to damaging testimony about the synergistic effect of appellant’s alcohol and medication consumption, therefore resulting in a different jury verdict.

            We first address appellant’s underlying burden to present a record sufficient to review the alleged ineffectiveness, as without this foundation, his arguments fail. Appellate review of defense counsel’s representation is highly deferential and presumes counsel’s actions fell within the wide range of reasonable and professional assistance.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The Texas Court of Criminal Appeals has consistently stated that the record on direct appeal will normally not be sufficient to show counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional.  Id.; Mitchell, 68 S.W.3d at 642; Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  As that court recently reiterated, rarely will the trial record contain sufficient information to permit an appellate court to fairly evaluate the merits of such a serious allegation, as the record will simply be undeveloped.  Bone at 833.  This case is no different.  As in those instances cited by the Court of Criminal Appeals, nothing in the record before us proves counsel’s actions were the product of an unreasoned or unreasonable strategy, or that there was a fair probability that it led to either an unreliable guilty verdict or unjust punishment.  See Bone at 834. 

            Even assuming appellant presented a sufficiently developed record on appeal, the lynchpin of his position is that a motion to suppress or a timely objection to Viser’s testimony would have been granted; this is an essential element of his burden of proof.  See Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998); Pipkin v. State, 997 S.W.2d 710, 712 (Tex.  App.—Houston [1st Dist.] 1999, pet. refused).  We note that although appellant’s objection to Viser’s extrapolation testimony came well after the conclusion of such testimony, the trial court ruled on the merits of the objection, noting there was more than enough information on which to base a reliable retrograde extrapolation under Mata. We find defense counsel was not ineffective in failing to timely object to Viser’s testimony.

            Appellant also fails to establish that a pretrial motion to suppress Viser’s testimony would have been granted.  He places significant emphasis on Viser’s hypothetical assumption that appellant had not consumed food with the alcohol.  Appellant argues that such hypothetical should have been excluded, as the waitress testified to serving appellant two jumbo hot dogs with his drinks that night. However, it is not clear from the record whether appellant consumed the hot dogs before leaving.  Although the waitress testified that she brought appellant two hot dogs right before he left, she never stated appellant ate them, as he had been in a hurry to leave to go and eat dinner.  While being videotaped at the police station, appellant stated he had not eaten any food all day, and that he had consumed an entire bottle of cough and cold medicine.  Even appellant’s own trial testimony fails to clarify the uncertainty.  Based on the record, we cannot say appellant has shown counsel ineffective in failing to seek suppression of Viser’s extrapolation testimony. 

            We likewise cannot say appellant met his burden of proving the suppression motion would have been granted under Mata. Although appellant argues a pretrial suppression motion could have attacked Viser’s testimony as insufficient and unreliable under Mata, the trial court rejected counsel’s Mata objections.  In Mata, the Court of Criminal Appeals set forth several factors for the trial court to use in evaluating the reliability of a retrograde extrapolation, such as weight and gender, drinking patterns and tolerance, how much the person drank at the time in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat before, during or after the drinking.  Mata at 916.  The court noted, however, that an extrapolation expert need not know every single personal fact about the defendant in order to produce a reliable extrapolation.  Id.  Appellant’s counsel was not ineffective in failing to file a pretrial motion to suppress under Mata.  See Jackson, 973 S.W.2d at 957.

            Finally, even assuming deficient representation, appellant fails to affirmatively prove harm from counsel’s failure to file a suppression motion. The basis of his alleged harm is grounded in a series of speculations — that the suppression motion may have been granted, thus possibly rendering Lykissa’s testimony unnecessary, therefore, the jury might have been spared from listening to damaging testimony regarding the synergistic effects of alcohol and medications, which may have led to a different verdict.  This amounts to little more than vague, inarticulate guesswork, which is not a legal basis for finding counsel incompetent.  See Bone, 77 S.W.3d at 836; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Conclusion

            Appellant has failed to meet his burden of proving ineffectiveness of counsel under either prong of the Strickland test.  His sole issue on appeal is overruled, and the judgment is affirmed.

                                                                        /s/        Eva M. Guzman

                                                                                    Justice

Judgment rendered and Substituted Memorandum Opinion filed April 24, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).