Derek Dwight Brown v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00057-CR
________________
DEREK DWIGHT BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 20-06-06721-CR
________________________________________________________________________
MEMORANDUM OPINION
A jury convicted Derek Dwight Brown of the third-degree felony offense of
driving while intoxicated (DWI), after two prior DWI convictions. See Tex. Penal
Code Ann. §§ 49.04, 49.09(b)(2). Brown pleaded “true” to two enhancements, the
parties agreed to the sentence, and the trial court sentenced Brown to twenty-five
years of confinement. See id. § 12.42(d) (providing punishment range for habitual
offenders of twenty-five to ninety-nine years). In two issues, Brown contends his
appointed trial counsel was ineffective for failing to request funds under Texas Code
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of Criminal Procedure article 26.05(d) to investigate and retain an expert to evaluate:
(1) the failure of the video equipment used to record the traffic violation that resulted
in the stop; and (2) whether the headlights and taillights on his vehicle functioned
properly the night he was arrested. As explained herein, we affirm the trial court’s
judgment.
BACKGROUND
One evening around 10 p.m., Officer Patrick Murphy saw Brown turn right in
front of his patrol car, and he noticed his headlights weren’t on. When Brown
completed the turn, Officer Murphy didn’t think Brown had his taillights on either,
but because the headlights from Murphy’s car were illuminating the rear of Brown’s
car as Brown completed his turn, Murphy testified he wasn’t sure. Officer Murphy
added that he followed Brown’s car a short distance to determine whether Brown’s
taillights were illuminated. When he observed Brown make another right-hand turn,
he saw Brown’s headlights and taillights were off. As Murphy was preparing to stop
Brown, he observed Brown make a “wide” turn and cross over the center line,
another traffic violation. However, Murphy testified he stopped Brown for driving
without his lights on, not the improper turn.
When Murphy approached the passenger side of Brown’s car, he smelled an
odor of alcohol and observed Brown was slurring his speech. Murphy told Brown
that the initial reason for the stop was for driving without his lights on. Murphy
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contacted another officer, Alex Miseldine, who was certified to administer
standardized field sobriety tests. When Miseldine arrived on the scene, Brown
admitted that he was intoxicated and had four 16-ounce Busch Light beers. Before
Miseldine could administer all the standardized field sobriety tests (SFSTs), Brown
told them to stop and take him to jail. A Toxicology Section Supervisor for the Texas
Department of Public Safety Crime lab testified, and toxicology results admitted at
trial showed that Brown’s blood alcohol content was .28 or three-and-a-half times
the legal limit of .08.
Video evidence was admitted at trial, which included Murphy’s dashcam. The
video shows that after Murphy stopped Brown, he turned on his flashers.
Murphy testified that he did not know why his dashcam did not start recording
thirty seconds before he activated his lights. Here, the recording started immediately
when he activated his lights, at which point, by Murphy’s account, the traffic
violations Brown committed had already occurred. Murphy testified that he did not
stop Brown until he was “100 percent sure I did not see any taillights.” Murphy
added that he has never had his dashcam fail to record properly before. Murphy
testified he did not know why it did not work, and he did not edit the video. Murphy
agreed that it “absolutely” would have been helpful for the jury to see what occurred
in the thirty seconds before his dashcam started recording.
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Along with the dashcam video, Miseldine’s and Murphy’s bodycam video
was admitted at trial. Whether Brown’s headlights or taillights were working and the
reason for the initial stop was the central issues at trial. Murphy testified that even
though the video did not capture whether Brown’s lights were off before the stop,
his dashcam shows that Brown’s lights were off when he approached Brown’s
vehicle, came on as he returned to his patrol vehicle, and remained on throughout
the stop. Murphy confirmed that the headlights and taillights in Brown’s car
functioned on the evening the stop occurred.
The defense called Rosendo “Roy” Jimenez, a retired sergeant with the
Montgomery County Sheriff’s Office (MCSO), to testify as an expert regarding the
traffic stop. 1 Jimenez had worked for MCSO for thirty-seven years. Jimenez was
Brown’s brother-in-law and testified that part of his duties included reviewing traffic
stops for training purposes and “proper techniques.” It was the first time Jimenez
testified as an expert. Jimenez described his investigation of the stop, which included
reviewing the video and going to the scene to take photographs and measurements.
A diagram Jimenez prepared of the scene and the photographs he took were admitted
at trial. He explained the importance of the dashcam video to substantiate an officer’s
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Jimenez testified that he retired as a sergeant from the MCSO in 2015 but
continued to work as a reserve officer until the morning of trial. He testified he quit
that morning, because there may have been “some issues” with his involvement in
this case and policy.
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justification for making a traffic stop. In this case, Jimenez explained the missing
30-seconds of the video from Murphy’s dashcam was a concern, because it was
important to substantiate Murphy’s claim about the reasons he stopped Brown.
Jimenez added that “[w]ithout the video, we don’t know . . . what actually happened
out there.” Jimenez also testified another problem with the stop was that if Murphy
observed Brown without lights on, he should have stopped him sooner rather than
following him and allowing him to proceed onto a more heavily trafficked street.
According to Jimenez, there were obstructions at the scene, which in his opinion
could have impeded Murphy’s view. Jimenez also testified that he saw Brown’s car
after the stop, and his lights worked.
The charge included an article 38.23 instruction advising jurors that if they
found the initial stop was illegal, they could not consider any of the evidence after
the stop. The jury found Brown guilty of felony DWI. In the punishment hearing,
Brown pleaded true to two felony enhancements. Relying on an agreement as to
punishment, the trial court sentenced Brown to twenty-five years of incarceration.
ANALYSIS
In two issues, Brown complains of ineffective assistance of counsel, arguing
that his attorney failed to request funds to hire an investigator and an expert to
evaluate whether the headlights and taillights on his vehicle functioned properly on
the night his arrest occurred, and the failure of the video equipment used to record
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the traffic violation that led to the stop. See Tex. Code Crim. Proc. Ann. art. 26.05(d)
(providing for reimbursement for appointed counsel to hire an investigator and
experts). The State counters that a claim for ineffective assistance of counsel based
on a failure to call a witness requires showing that the witness was available to testify
and their testimony would have benefitted the appellant. The State further argues
that because Brown’s trial counsel was not afforded an opportunity to respond to his
claims of ineffective assistance, Brown failed to show that trial counsel was
constitutionally ineffective.
“Evaluating claims of ineffective assistance of counsel under the Sixth
Amendment involves a two-pronged test: (1) whether counsel was deficient, and (2)
whether the defendant suffered prejudice as a result of counsel’s error.” Hart v. State,
667 S.W.3d 774, 781 (Tex. Crim. App. 2023) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). To establish counsel’s deficient performance, an appellant
must show by a preponderance of evidence that counsel’s actions fell below an
objective standard of reasonableness. Id.; see also Strickland, 466 U.S. at 687–88.
“Under Strickland, the defendant must prove, by a preponderance of the evidence,
that there is, in fact, no plausible professional reason for a specific act or omission.”
Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Our review of counsel’s
performance is highly deferential, and we presume they provided reasonable
assistance. See id. at 833. We afford counsel a strong presumption that their conduct
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falls within a wide range of reasonable professional assistance, and a defendant must
overcome this presumption that the challenged action might be considered sound
trial strategy. Strickland, 466 U.S. at 689; Hart, 667 S.W.3d at 781; Johnson v. State,
624 S.W.3d 579, 586 (Tex. Crim. App. 2021) (citation omitted). To overcome this
presumption, “[a]ny allegation of ineffectiveness must be firmly founded in the
record and the record must affirmatively demonstrate the ineffectiveness.”
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996); see also Johnson,
624 S.W.3d at 586; Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
“Under most circumstances, the record on direct appeal will not be sufficient
to show that counsel’s representation was so deficient and so lacking in tactical or
strategic decision-making as to overcome the strong presumption that counsel’s
conduct was reasonable and professional.” Scheanette v. State, 144 S.W.3d 503, 510
(Tex. Crim. App. 2004); see also Hart, 667 S.W.3d at 782. Ordinarily, trial counsel
should be given an opportunity to explain their conduct before being considered
ineffective. Hart, 667 S.W.3d at 782. Without this, and in the face of an undeveloped
record on direct appeal, we “‘commonly assume a strategic motive if any can be
imagined and find counsel’s performance deficient only if the conduct was so
outrageous that no competent attorney would have engaged in it.’” Id. (quoting
Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013)). We will consider
counsel’s actions deficient only if we find no reasonable trial strategy could justify
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counsel’s acts or omissions, regardless of their subjective reasoning. See id. (quoting
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)).
Here, Brown did not file a motion for new trial, and the record is undeveloped
regarding counsel’s trial strategy and decisions pertaining to experts. With no
opportunity for trial counsel to explain his actions, we assume he had a strategic
reason for his decision. See Hart, 667 S.W.3d at 782. The record reveals that
although trial counsel did not request funds for an expert, counsel had Jimenez testify
as a defense expert regarding the traffic stop, dashcam recording, Brown’s vehicle
lights, and what he felt Murphy did incorrectly during the stop. Jimenez also testified
that he investigated, which he described for the jury. The record is silent about trial
counsel’s reasons for not retaining additional experts.
To establish ineffective assistance of counsel for failing to call expert
witnesses, a defendant must show that he would have benefitted from the
testimony. Ex parte Flores, 387 S.W.3d 626, 638 n.54 (Tex. Crim. App.
2012) (citation omitted). Without this showing, an attorney’s failure to call a witness
does not establish that trial counsel was ineffective. King v. State, 649 S.W.2d 42,
44 (Tex. Crim. App. 1983) (citing Hunnicutt v. State, 531 S.W.2d 618 (Tex. Crim.
App. 1976)). Brown has not shown that another expert’s testimony would have
benefitted him, thus he has not established trial counsel was ineffective. See Ex parte
Flores, 387 S.W.3d at 638 n.54; King, 649 S.W.2d at 44. We will not speculate to
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find counsel ineffective on an undeveloped record. See Ex parte Flores, 387 S.W.3d
at 633. From this trial record, we can imagine a strategic motivation for not retaining
or calling another expert, and Brown has failed to overcome the presumption that
this was sound trial strategy. See id.; see also Strickland, 466 U.S. at 689; Hart, 667
S.W.3d at 782; Lopez, 343 S.W.3d at 143. We hold that Brown failed to establish
trial counsel’s performance was deficient. See Strickland, 466 U.S. at 687; Hart, 667
S.W.3d 784. We overrule issues one and two.
CONCLUSION
Having overruled Brown’s issues, we affirm the trial court’s judgment.
AFFIRMED.
W. SCOTT GOLEMON
Chief Justice
Submitted on July 21, 2023
Opinion Delivered September 13, 2023
Do Not Publish
Before Golemon, C.J., Horton and Wright, JJ.
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