Affirmed and Memorandum Opinion filed October 29, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-00241-CR
                             NO. 14-14-00242-CR

                         GRISELDA AZA, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 174th District Court
                            Harris County, Texas
                  Trial Court Cause Nos. 1366175 & 1366176

                      MEMORANDUM OPINION

      Appellant killed two people in a drunk-driving accident when she ran
through a red light and collided with another vehicle. The State charged her with
two counts of intoxication manslaughter, and she pleaded guilty to each count
without an agreed recommendation as to punishment. On both counts, the trial
court sentenced her to fifteen years’ imprisonment and ordered that the sentences
were to run concurrently. Now, in a single issue on appeal, appellant argues that
she was denied the effective assistance of trial counsel because counsel never
moved to suppress the results of a blood draw that proved her intoxication.

      We review claims of ineffective assistance of counsel under the standard set
forth in Strickland v. Washington, 466 U.S. 688 (1984). Under Strickland, the
defendant must prove that her trial counsel’s representation was deficient, and that
the deficient performance was so serious that it deprived her of a fair trial. Id. at
687. Counsel’s representation is deficient if it falls below an objective standard of
reasonableness. Id. at 688. A deficient performance will only deprive the defendant
of a fair trial if it prejudices the defense. Id. at 691–92. To demonstrate prejudice,
there must be a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. at 694. Failure to make
the required showing of either deficient performance or sufficient prejudice defeats
the claim of ineffectiveness. Id. at 697. This test is applied to claims arising under
both the United States and Texas Constitutions. See Hernandez v. State, 726
S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

      Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that counsel’s actions 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 the record is silent as to counsel’s
strategy, we will not conclude that the defendant received ineffective assistance
unless the challenged conduct was “so outrageous that no competent attorney
would have engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). Rarely will the trial record contain sufficient information to
permit a reviewing court to fairly evaluate the merits of such a serious allegation.
See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of
cases, the defendant is unable to meet the first prong of the Strickland test because

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the record on direct appeal is underdeveloped and does not adequately reflect the
alleged failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex.
Crim. App. 2007).

      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Isolated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for examination.
See Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Moreover, it
is not sufficient that the defendant show, with the benefit of hindsight, that her
counsel’s actions or omissions during trial were merely of questionable
competence. See Mata, 226 S.W.3d at 430. Rather, to establish that counsel’s acts
or omissions were outside the range of professionally competent assistance, the
defendant must show that counsel’s errors were so serious that she was not
functioning as counsel. See Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.
App. 1995).

      The blood draw at issue revealed that appellant had an alcohol concentration
that was nearly three times the legal limit. Appellant contends that if this evidence
had been suppressed, then she would have been in a better position to negotiate a
more favorable plea bargain, or perhaps even proceed to trial.

      She argues further that this evidence could have been suppressed because it
was obtained pursuant to a mandatory blood-draw statute, rather than a court-
issued warrant. Appellant refers specifically to Section 724.012(b)(1)(A) of the
Texas Transportation Code, which mandates the taking of a blood specimen in
certain cases where an individual has died as a direct result of a drunk-driving

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accident. Appellant takes issue with this statute, claiming that it cannot operate as
an exception to the Fourth Amendment’s warrant requirement. She relies on a
recent decision from this court, in which we held that the State had not proved its
burden of showing an exigency exception for another warrantless blood draw,
despite facts that implicated a different provision of the same statute. See Douds v.
State, 434 S.W.3d 842, 862 (Tex. App.—Houston [14th Dist.] 2014) (en banc) (op.
on reh’g), rev’d on other grounds, — S.W.3d —, 2015 WL 5981121 (Tex. Crim.
App. Oct. 14, 2015).

      We need not address the challenge to the blood-draw statute because the
record does not affirmatively demonstrate counsel’s ineffectiveness. Appellant did
not file a motion for new trial, and thus, the record is completely silent as to
counsel’s tactics and strategy regarding the treatment of the blood-draw evidence.
We cannot deem counsel’s performance constitutionally deficient without
speculating as to counsel’s motivations, which we are not permitted to do. See
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“Any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.”).

      Moreover, we note that the record does not affirmatively demonstrate that
the blood draw was obtained without a warrant, which is an essential premise to
appellant’s claim. The only evidence of the circumstances surrounding the blood
draw is recited in a presentence investigation report. The report states that
appellant was transported to a hospital after the accident, and that a “mandatory
blood sample” was obtained there “for medical reasons.” There is no discussion
indicating whether or not the State procured a warrant to obtain the blood
specimen. The mere mention of the word “mandatory” does not mean that the
blood draw was necessarily warrantless.

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         We further note that the presentence investigation report raises the
suggestion that the blood draw was ordered by the hospital for the sole purpose of
medical treatment, rather than by the State for the purpose of criminal
investigation. If that suggestion were true, appellant would not have a reasonable
expectation of privacy in the blood-draw evidence, and she would lack standing to
challenge its admission under the Fourth Amendment. See State v. Hardy, 963
S.W.2d 516, 527 (Tex. Crim. App. 1997); Tapp v. State, 108 S.W.3d 459, 461–62
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Thus, counsel would not have
been ineffective for failing to file a motion to suppress.

         The record in this case is underdeveloped. There is no evidence that the
blood draw was obtained without a court-issued warrant. Even if there were such
evidence affirmatively showing the blood draw was warrantless, the record is still
silent on counsel’s reasons for not challenging the admission of that evidence.
Appellant has not overcome the strong presumption that counsel acted reasonably.
Therefore, we overrule her sole issue on appeal and affirm the judgment of the trial
court.




                                        /s/       Tracy Christopher
                                                  Justice


Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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