Willard Glen Wood v. State ( 2014 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-12-00121-CR
    Willard Glen Wood, Appellant
    v.
    The State of Texas, Appellee
    FROM THE COUNTY COURT AT LAW NO. 3 OF BELL COUNTY
    NO. 2C08-04324, HONORABLE REBECCA DEPEW, JUDGE PRESIDING
    MEMORANDUM OPINION
    Appellant Willard Glen Wood appeals his conviction for the offense of driving
    while intoxicated. See Tex. Penal Code § 49.04. In two issues, appellant contends that the trial
    court erred when it failed to grant his motion for new trial because his trial attorney rendered
    ineffective assistance of counsel. We affirm the judgment of conviction.
    BACKGROUND
    On May 22, 2008, at around 2:00 a.m., a peace officer observed a vehicle speeding,
    failing to use turn signals, and crossing over the center line. Based on these observations, the
    officer pulled the vehicle over. Appellant, who was the driver of the vehicle, told the officer that
    he “had a couple of beers” and was coming from the “All Bottoms Up Club.” The officer “could
    detect an odor” of alcohol and asked appellant to exit the vehicle. The officer observed that, after
    appellant exited the vehicle, he “was swaying,” and his eyes were “bloodshot, watery.” The officer
    “could still detect the odor of alcohol” and began administering field sobriety tests. He first
    administered the horizontal gaze nystagmus (HGN) test, and all six “clues” from the test indicated
    that appellant “was intoxicated.” The officer then attempted to administer the walk and turn test
    but appellant “was unable to get into the starting position and stay without almost falling over.”
    The officer stopped the test for safety reasons. The officer read the Form DIC-24 to appellant, but
    appellant refused to give a specimen of his breath.1 The officer then transported him to the
    intoxilyzer room. In the intoxilyzer room, the officer again read the Form DIC-24, but appellant
    did not agree to a breath test and requested his attorney.
    A complaint and information were filed, and the matter proceeded to jury trial in
    September 2011. The only witness to testify at trial was the arresting officer. He testified about
    his observations of appellant during the traffic stop and in the intoxilyzer room, the field sobriety
    tests, and his opinion that appellant was driving while intoxicated. The exhibits admitted at trial
    included the video taken from the officer’s car that recorded the traffic stop and the video from the
    intoxilyzer room.
    After the jury found appellant guilty and with the agreement of the State and the trial
    court, appellant changed his election from the jury to the court to determine punishment. The trial
    court held the hearing on punishment in November 2011. Appellant called three witnesses to
    testify. The witnesses testified about their relationship to appellant, appellant’s family life and his
    mobile DJ business, and the adverse impact that jail time or a large fine would have on appellant
    1
    The “Form DIC-24 . . . is the written component of the statutory warning required in cases
    where a peace officer requests a voluntary blood or breath specimen from a person.” State
    v. Neesley, 
    239 S.W.3d 780
    , 782 n.1 (Tex. Crim. App. 2007) (citing Tex. Transp. Code § 724.015).
    2
    and his family. Following the hearing, the trial court assessed a sentence of 180 days’ confinement
    and a fine of $500 plus court costs but suspended imposition of the sentence and placed appellant
    on community supervision for a period of one year.
    Appellant thereafter filed a motion to substitute counsel and a motion for a new trial
    on the ground that his trial attorney rendered ineffective assistance of counsel because he failed to
    “properly investigate,” consult with appellant, or “prepare a proper defense.” His specific
    complaints included the trial attorney’s alleged failure to meet with him “about the facts of the
    case,” to discuss “any possible options that [appellant] might have had available,” or to obtain the
    training materials for field sobriety tests used by the arresting officer. The trial court held an
    evidentiary hearing on the motion for new trial. Appellant and his trial attorney testified at the
    hearing, providing conflicting versions of their communications before and during the trial and
    the defense strategy. After the hearing, the trial court denied the motion for new trial. This
    appeal followed.
    DISCUSSION
    In two issues, appellant contends that the trial court erred by failing to grant his
    motion for new trial because his trial attorney rendered ineffective assistance of counsel. He urges
    that his attorney “failed to properly prepare for the trial in order to present any defense for
    appellant” and that he “failed to properly prepare a defense in that he did not familiarize himself
    with the pertinent law pertaining to the administration of standardized field sobriety testing.”
    3
    Standards of Review
    To establish ineffective assistance of counsel, an appellant must demonstrate by a
    preponderance of the evidence both deficient performance by counsel and prejudice suffered
    by the defendant. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984); Menefield v. State,
    
    363 S.W.3d 591
    , 592 (Tex. Crim. App. 2012). The appellant must demonstrate under the first
    prong that counsel’s performance fell below an objective standard of reasonableness under
    prevailing professional norms. 
    Strickland, 466 U.S. at 687
    –88; Ex parte Lane, 
    303 S.W.3d 702
    ,
    707 (Tex. Crim. App. 2009). To meet the second prong, the appellant has to show the existence
    of a reasonable probability—one sufficient to undermine confidence in the outcome—that but for
    counsel’s deficient performance, the result of the proceeding would have been different. 
    Strickland, 466 U.S. at 694
    ; Ex parte 
    Lane, 303 S.W.3d at 707
    . Failure to make the required showing of either
    deficient performance or sufficient prejudice defeats the ineffectiveness claim. 
    Strickland, 466 U.S. at 700
    ; see Perez v. State, 
    310 S.W.3d 890
    , 893 (Tex. Crim. App. 2010).
    Appellant raises his claim for ineffective assistance of counsel in the context of the
    trial court’s denial of his motion for new trial. We review a trial court’s denial of a motion for new
    trial “for an abuse of discretion, reversing only if the trial court’s ruling was clearly erroneous and
    arbitrary.” Okonkwo v. State, 
    398 S.W.3d 689
    , 694 (Tex. Crim. App. 2013) (citing Riley v. State,
    
    378 S.W.3d 453
    , 457 (Tex. Crim. App. 2012)). “A trial court abuses its discretion if no reasonable
    view of the record could support its ruling.” 
    Id. “This requires
    the appellate court to view the
    evidence in the light most favorable to the trial court’s ruling.” 
    Id. “In the
    absence of express
    findings, as here, we presume that the trial court made all findings, express and implied, in favor
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    of the prevailing party.” 
    Id. (citing Riley
    , 378 S.W.3d at 459). “The trial court, as factfinder, is the
    sole judge of witness credibility at a hearing on a motion for new trial.” 
    Id. “Accordingly, the
    appellate court must afford almost total deference to a trial court’s findings of historical facts as
    well as mixed questions of law and fact that turn on an evaluation of credibility and demeanor.”
    
    Id. (citing Riley
    , 378 S.W.3d at 458). Informed by the applicable standards of review, we turn to
    appellant’s issues.
    Preparation for Trial
    In his first issue, appellant contends that his trial attorney “failed to properly prepare
    for the trial in order to present any defense for appellant” “because he had not discussed the case
    with Appellant in a meaningful manner prior to trial.” Appellant further urges that his trial attorney
    “never conferred with [appellant] concerning any possible defenses or explanations for his actions
    as they appeared on the video.” The in-car video shows the officer administering the HGN test and
    then appellant attempting but failing to maintain the starting position for the walk and turn test.
    Appellant contends that he “suffered some physical problems that affected the way he would be able
    to perform the walk [and] turn field sobriety test.” Appellant asserts that his trial attorney made no
    effort to explain appellant’s poor performance on the walk and turn test at trial and that he should
    have obtained medical records as to appellant’s physical problems to explain the poor performance.
    At the hearing on the motion for new trial, appellant testified that his trial attorney
    did not watch the videos with him and that appellant had “virtually no discussion about the case”
    with his attorney prior to trial, such as the facts that appellant had physical problems with his legs
    and was traveling late at night between different clubs as part of his business at the time of the
    5
    traffic stop. Appellant testified about his business and his physical problems. He testified that
    “aneurysms in both legs” affected his ability to perform the walk and turn test. Appellant urges that,
    at a minimum, his trial attorney could have called one of the witnesses who testified at the
    sentencing hearing to address appellant’s physical problems with his legs. That witness testified
    to an incident in which appellant “couldn’t hardly move around because his leg was hurting
    real bad.”
    The trial attorney’s testimony directly conflicted with appellant’s testimony. The
    trial attorney testified that he met with appellant at least ten times prior to trial to discuss the case
    and that he watched the videos and discussed them with appellant. His “Client Summary” record
    that was admitted as an exhibit at the hearing was consistent with his testimony. The record showed
    that the attorney had over five hours of “case review” prior to the trial as well as eight hours of trial
    preparation. The trial attorney also testified that he had discussions with the prosecutor, researched
    the law, and reviewed the police reports and videos. The trial attorney testified that his strategy was
    to “contest the State’s case and show that they couldn’t meet their burden.” He testified that he
    thought that the video of the traffic stop was of “poor quality” and that, after hearing the officer’s
    testimony, he did not believe that there was a need to call appellant. The record shows that the trial
    attorney cross-examined the officer about his experience and training to perform the field sobriety
    tests, the officer’s administration of the tests on appellant, the videos, and observations about
    appellant that supported a finding that appellant was not intoxicated.2
    2
    For example, the trial attorney questioned the officer about his requests for appellant’s
    driver’s license and insurance information, and the officer did not recall appellant “fumbling” to get
    information for the officer. As to the walk and turn test, the trial attorney questioned the officer
    6
    Under the applicable standard of review, we presume that the trial court found the
    trial attorney’s testimony credible, and resolved the conflicts in the testimony between the trial
    attorney and appellant against appellant. 
    Okonkwo, 398 S.W.3d at 694
    . We also presume that the
    trial court found appellant’s testimony not credible as to the effect of his alleged physical problems
    on his ability to perform the walk and turn test. See 
    id. Although appellant
    complains about his
    trial attorney’s failure to obtain medical records, appellant did not provide medical records or other
    evidence to corroborate his testimony that a physical condition affected his ability to perform the
    walk and turn test.3 As to the witness who testified at the sentencing hearing, he testified about an
    about the usual procedure for administering the test, which includes a demonstration of how to
    perform the test. The officer did not give appellant a demonstration before stopping the test. As to
    the videos, the trial attorney made the following argument:
    [W]hen you looked at [the videos], Mr. Wood is not swaying. Mr. Wood goes into
    his pocket, pulls out chapstick, uses it. He’s calm. He’s collected. He’s even much
    more calm when he goes to the police station. And that’s when you get a better
    quality of what’s going on. And he tells him, I’m not participating. Get me a lawyer.
    The trial attorney references a portion of the video from the traffic stop in which appellant clearly
    takes chapstick out of his pocket, uses it, and then puts the chapstick back in his pocket. The video
    from the traffic stop also is dark, inaudible, blurry, and indecipherable at times, particularly during
    the administration of the HGN test.
    3
    During cross-examination, the trial attorney elicited the following testimony from
    the officer:
    [Defense Attorney]:    Did he offer you a reason on why he was unstable on his feet?
    [Officer]:             No. He didn’t.
    [Defense Attorney]:    Did you ask?
    [Officer]:             I believe I did.
    [Defense Attorney]:    Where is that in your report?
    7
    incident that occurred a few months before the hearing on the motion for new trial. The trial court
    could have disregarded this evidence because it concerned an incident occurring several years after
    the day of the traffic stop. Further, the trial court also saw the videos that showed appellant’s
    movements and actions during the traffic stop and in the intoxilyzer room.
    On this record, the trial court could have concluded that the trial attorney’s
    consultation with appellant and preparation for trial did not fall below an objective standard of
    reasonableness under prevailing professional norms. See 
    Strickland, 466 U.S. at 687
    –88; Ex parte
    
    Lane, 303 S.W.3d at 707
    . Thus, we cannot say that the trial court abused its discretion by denying
    appellant’s motion for new trial based on his trial attorney’s alleged failure to consult with appellant
    or prepare a defense for him. On this basis, we overrule appellant’s first issue and need not address
    the second prong of appellant’s ineffective assistance claim as to this issue. See 
    Strickland, 466 U.S. at 700
    .
    Standards for Administration of Field Sobriety Tests
    In his second issue, appellant contends that his trial attorney rendered ineffective
    assistance of counsel because his trial attorney “failed to properly prepare a defense in that he did
    not familiarize himself with the pertinent law pertaining to the administration of standardized field
    sobriety testing.” Appellant focuses on his trial attorney’s lack of familiarity with Emerson v. State,
    
    880 S.W.2d 759
    (Tex. Crim. App. 1994),4 and the arresting officer’s apparent lack of awareness of
    [Officer]:              It’s not.
    4
    In Emerson, the court of criminal appeals discusses the technique and reliability of the
    HGN test. See generally Emerson v. State, 
    880 S.W.2d 759
    (Tex. Crim. App. 1994). In that case,
    after concluding that the test was relevant and reliable, the court affirmed the admission of the
    8
    the standards promulgated by the National Highway Traffic Safety Administration (NHTSA).
    Appellant contends that, because his trial attorney was not familiar with the pertinent law, he was
    unable to properly cross-examine the officer.
    The record, however, shows that the trial attorney had the appropriate standards and
    guidelines before him during his cross-examination of the officer and that the officer was
    appropriately trained to perform field sobriety tests. The officer testified that his training was
    approved through the Texas Commission on Law Enforcement Officer Standards and Education.
    Those standards incorporate the standards promulgated by the NHTSA. See 
    Emerson, 880 S.W.2d at 766
    . At the hearing on the motion for new trial, the trial attorney testified that he familiarized
    himself with the applicable standards by reviewing the Standard Field Sobriety Testing Manual and
    materials he had from the Texas Criminal Defense Lawyers Association.
    We must presume that the trial court resolved the conflicts in the testimony between
    the trial attorney and appellant against appellant. See 
    Okonkwo, 398 S.W.3d at 694
    . Finding the
    trial attorney’s testimony credible, the trial court could have concluded that the attorney’s
    familiarity with the applicable standards for field sobriety testing did not fall below an objective
    standard of reasonableness under prevailing professional norms. See 
    Strickland, 466 U.S. at 687
    –88; Ex parte 
    Lane, 303 S.W.3d at 707
    . Thus, we cannot say that the trial court abused its
    discretion by denying appellant’s motion for new trial based on his trial attorney’s alleged failure
    “to properly familiarize himself with the pertinent law pertaining to the administration of
    standardized field sobriety testing.” On this basis, we overrule appellant’s second issue and need
    officer’s testimony concerning the defendant’s performance on the HGN test. 
    Id. at 769–70.
    9
    not address the second prong of appellant’s ineffective assistance claim as to this issue. See
    
    Strickland, 466 U.S. at 700
    .
    CONCLUSION
    For these reasons, we affirm the judgment of conviction.
    __________________________________________
    Melissa Goodwin, Justice
    Before Chief Justice Jones, Justices Rose and Goodwin
    Affirmed
    Filed: April 30, 2014
    Do Not Publish
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