Clifford Leviene Powell v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00503-CR
___________________________
CLIFFORD LEVIENE POWELL, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 9
Tarrant County, Texas
Trial Court No. 1495687
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellant Clifford Leviene Powell appeals from his conviction for driving
while intoxicated. After his arrest, police drew his blood under a blood-draw warrant.
In his sole point, Powell contends that he was denied effective assistance of trial
counsel because his trial counsel did not “challenge the unconstitutional
unreasonableness of the blood draw despite the absence of any predicate that it was
performed in a sanitary place by a competently trained nurse or technician.” We
affirm.
I. The Blood Draw
On the night of March 28, 2017, Powell, driving a white Nissan, straddled
traffic lanes, slowed to nearly a stop, and then turned into oncoming traffic. A
Mansfield police officer witnessed this driving and initiated a traffic stop. Powell
initially complied with the stop but then fled. The police officer began pursuing
Powell, as did other Mansfield officers. While fleeing, Powell weaved in and out of
traffic with his lights off, nearly hitting other cars; the officers eventually succeeded in
stopping him. Powell had bloodshot eyes, and his breath smelled of alcohol. One of
the officers testified at trial that based on Powell’s driving behavior, his eyes, his
demeanor, the smell of alcohol, and the fact that officers found alcohol in a cooler in
the Nissan’s trunk, he believed that Powell “had lost the normal use of his mental and
physical faculties due to the introduction of an alcoholic beverage.”
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Officers arrested Powell and took him to the city jail, where he declined to
consent to a blood draw, and so officers applied for and received a blood-draw
warrant. Powell was taken to the nurse’s station at the jail for the blood draw, which
was done by Nurse Kim Barnes. Asked at trial about the nurse’s title or position, a
Mansfield police officer testified, “I want to say she’s an LVN, a licensed vocational
nurse.” Testing of Powell’s blood showed a blood-alcohol concentration of 0.096.
The State charged Powell with operating a motor vehicle in a public place while
he was intoxicated. See Tex. Penal Code Ann. § 49.04(a), (b). At trial, Powell’s attorney
did not object to admission of the blood-test evidence. The jury found Powell guilty,
and the trial court sentenced him to serve forty days in jail and to pay a $500 fine.
Powell did not file a motion for new trial. He now appeals.
II. Standard of Review for Claims of Ineffective Assistance of Counsel
The Sixth Amendment guarantees a criminal defendant the effective assistance
of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.
amend. VI. To establish ineffective assistance, an appellant must prove by a
preponderance of the evidence that his counsel’s representation was deficient and that
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.
2013). The record must affirmatively show that the claim has merit. Thompson v. State,
9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
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In evaluating counsel’s effectiveness under the deficient-performance prong,
we review the totality of the representation and the particular circumstances of the
case to determine whether counsel provided reasonable assistance under all the
circumstances and prevailing professional norms at the time of the alleged error. See
Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson,
9 S.W.3d at 813–14. Our review of counsel’s representation is highly deferential, and
we indulge a strong presumption that counsel’s conduct was not deficient. Nava,
415 S.W.3d at 307–08.
Direct appeal is usually inadequate for raising an ineffective-assistance-of-
counsel claim because the record generally does not show counsel’s reasons for any
alleged deficient performance. See Menefield v. State, 363 S.W.3d 591, 592–93 (Tex.
Crim. App. 2012); Thompson, 9 S.W.3d at 813–14. An appellate court may not infer
ineffective assistance simply from an unclear record or from a record that does not
show why counsel failed to do something. Menefield, 363 S.W.3d at 593; Mata v. State,
226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Moreover, trial counsel “should
ordinarily be afforded an opportunity to explain his actions before being denounced
as ineffective.” Menefield, 363 S.W.3d at 593. Without trial counsel’s having that
opportunity, we should not conclude that counsel performed deficiently unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Nava, 415 S.W.3d at 308.
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Ineffective-assistance claims are usually best addressed by a postconviction writ
of habeas corpus because the record generally is more developed, particularly
regarding counsel’s strategic decisions. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011); see Thompson, 9 S.W.3d at 814 & n.6; Ex parte Torres, 943 S.W.2d 469, 475–
76 (Tex. Crim. App. 1997).
III. Law on Blood Draws
Traditional Fourth Amendment principles determine whether a blood draw
was performed in a reasonable manner. State v. Johnston, 336 S.W.3d 649, 661 (Tex.
Crim. App. 2011). “Accordingly, the reasonableness of the manner in which a DWI
suspect’s blood is drawn should be assayed on an objective, case-by-case basis in light
of the totality of the circumstances surrounding the draw.” Id. To be reasonable, a
blood draw should be conducted in a safe place in which to draw blood, but it need
not be conducted in a hospital or clinic. Id. at 662. Compliance with transportation
code section 724.017 is one way, but not the only way, to establish reasonableness
under the Fourth Amendment. Id. at 661; see Tex. Transp. Code Ann. § 724.017.
IV. Discussion
An LVN drew Powell’s blood at a nurse’s station at the jail. See Walters v. State,
No. 02-11-00474-CR, 2013 WL 1149306, at *4–5 (Tex. App.—Fort Worth Mar. 21,
2013, no pet.) (mem. op., not designated for publication) (overruling appellant’s
contention that an LVN lacked the qualifications to perform a blood draw). The trial
testimony, the Mansfield Police Department Blood Specimen Procedure Form
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completed in this case, and the body-camera recording of the blood draw all show
that the nurse disinfected Powell’s arm before drawing his blood. In addition, nothing
in the record suggests that the nurse’s station was an unsafe place to draw blood. And
although the record does not affirmatively show compliance with transportation code
section 724.017, the State was not required to prove such compliance. See Johnston,
336 S.W.3d at 661.
No record evidence exists indicating that Powell’s blood was drawn in an
unsafe place or that the blood draw was unreasonable. The record is silent about why
Powell’s attorney did not object to the blood-test evidence, and from the record we
cannot conclude that his attorney’s failure to object was conduct “so outrageous that
no competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308; see
Johnston, 336 S.W.3d at 662; see also Donnelly v. State, No. 02-14-00303-CR,
2015 WL 3422140, at *3 (Tex. App.—Fort Worth May 28, 2015, no pet.) (mem. op.,
not designated for publication) (holding that the record’s silence as to counsel’s
reasons for failing to object to the admission of blood-test results precluded a
conclusion that counsel was deficient). We therefore hold that Powell did not satisfy
his burden to prove ineffective assistance of trial counsel, and we overrule his only
point.
V. Conclusion
Having overruled Powell’s sole point, we affirm the trial court’s judgment.
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/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 28, 2019
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