                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00150-CR


JON JASON COBLE                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE

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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12509

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                         MEMORANDUM OPINION 1

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      Appellant Jon Jason Coble appeals from his conviction for driving while

intoxicated (DWI). In one issue, he asserts that the trial court erred by failing to

suppress the blood-alcohol evidence, which was seized without a warrant. In a

second issue raised in the alternative, Coble argues that if error in admitting the

evidence was forfeited as a result of an objection that was not sufficiently

specific, trial counsel was constitutionally ineffective.    Concluding that trial

      1
       See Tex. R. App. P. 47.4.
counsel forfeited any error but that there is no record evidence of deficient

performance, we affirm the trial court’s judgment.

                                I. BACKGROUND

      On May 4, 2013, around 8:00 p.m., Sergeant Richard Odom with the Hood

County Sheriff’s Department was patrolling an area around a local highway.

While stopped at an intersection, Odom heard “tires squealing” from a blue Volvo

as it left the intersection. Odom followed the Volvo, which “rapidly accelerate[d]”

up to the car in front of it and weaved within its lane, causing Odom to turn on his

dashboard camera. 2 The driver of the Volvo changed lanes without signaling

and changed lanes again without signaling in order to get in front of the other car.

      Odom turned on his patrol lights to pull the Volvo over. The driver of the

Volvo continued at the same speed, causing Odom to turn on his siren. The

driver of the Volvo pulled over. Odom approached the driver of the Volvo, Coble,

and asked for Coble’s driver’s license. Coble stated he did not have his license

and gave Odom his passport.        Odom could smell alcohol and noticed that

Coble’s speech was slurred.       Coble also had problems opening the glove

compartment to get his insurance information. Odom asked Coble to get out of

the car to perform field-sobriety tests. Although Coble refused to perform all of

the tests, Coble exhibited six out of a possible six clues of intoxication on the



      2
       Although weaving within a lane is not a traffic violation, Odom stated it is
an indicator that the driver is intoxicated.


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horizontal-gaze-nystagmus test. Coble admitted he had a “little bit” to drink and

that he had taken a Xanax.

      Odom arrested Coble for DWI. Odom read Coble the required statutory

warnings before Odom requested a blood specimen to determine Coble’s blood-

alcohol concentration.   See Tex. Transp. Code Ann. § 724.015 (West Supp.

2014). Coble refused to provide a blood specimen. Odom then checked Coble’s

name in the criminal database and discovered that Coble had previously been

convicted of DWI at least two times. Based on a statute requiring a police officer

to take a breath or blood specimen if an arrestee refuses the officer’s request to

supply a specimen and if the officer has credible information that the arrestee

has twice previously been convicted of DWI, Odom drove Coble to a hospital for

a mandatory blood draw. See id. § 724.012(b)(3)(B) (West 2011). The blood

test revealed that Coble had a blood-alcohol content of .223, which was almost

three times the legal limit. See Tex. Penal Code Ann. § 49.01(2)(B) (West 2011).

      A grand jury indicted Coble for DWI and included four offense-

enhancement paragraphs, which alleged that Coble has previously been

convicted of DWI in January 1988, February 2000, May 2000, and February

2012. See id. §§ 49.04(a), 49.09(b) (West Supp. 2014). At trial, Coble’s main

defensive argument was that he was not the person who was arrested that night

and had his blood drawn, i.e., he contested identity. He also objected to the

testimony of the officer, contending that Odom did not have probable cause to

arrest him, which the trial court overruled. When the State sought admission of


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the blood-alcohol evidence, Coble’s trial counsel objected that the sample had

been taken “illegally,” without his consent, and in violation of his Fifth

Amendment rights. The trial court admitted the results of the blood test. The jury

found Coble guilty of DWI with four prior DWI convictions and assessed his

punishment at ten years’ confinement and a $10,000 fine. Coble did not file a

motion for new trial but did file a notice of appeal.

                                  II. FORFEITURE

       In his first issue, Coble argues that the trial court erred by admitting the

blood-alcohol evidence over trial counsel’s objection.       He asserts that the

evidence should have been suppressed because the warrantless seizure, in the

absence of facts establishing an exception to the warrant requirement, violated

the Fourth Amendment.

       To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d

252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.

App.—Fort Worth 2013, pet. ref’d). A reviewing court should not address the

merits of an issue that has not been preserved for appeal. Wilson v. State, 311

S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g); Sample, 405 S.W.3d at

300.




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      Here, trial counsel objected to admission of the blood-test results because

they had been obtained “illegally” and in violation of Coble’s Fifth Amendment

rights. This objection did not specifically inform the trial court that his complaint

arose under the Fourth Amendment or that he was attacking the lack of a

warrant, which is his appellate argument. The context surrounding trial counsel’s

objection likewise did not inform the trial court of the specific grounds of his

objection. At trial, Coble challenged the State’s case on multiple grounds: he

was not the perpetrator of this crime, Odom did not have probable cause to

arrest Coble, Coble did not consent to giving a specimen, and the blood

specimen violated his Fifth Amendment rights. Coble never challenged the lack

of a warrant or otherwise raised the Fourth Amendment in the trial court.

Therefore, trial counsel’s general objections that the blood specimen was taken

“illegally,” in violation of the Fifth Amendment, without consent, and without his

established identity cannot be construed to include a Fourth Amendment

challenge. See Clark v. State, 365 S.W.3d 333, 339–40 (Tex. Crim. App. 2012);

Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988); Cotterill v. State, No.

2-02-343-CR, 2003 WL 21666626, at *4 (Tex. App.—Fort Worth July 17, 2003,

pet. ref’d) (mem. op., not designated for publication); Anderson v. State, 628

S.W.2d 513, 515 (Tex. App.—Corpus Christi 1982, no pet.); accord On Lee v.

United States, 343 U.S. 747, 749 n.3, 72 S. Ct. 967, 970 n.3 (1952) (dictum); cf.

Wiggins v. State, No. 14-01-00083-CR, 2002 WL 122163, at *2 (Tex. App.—

Houston [14th Dist.] Jan. 31, 2002, no pet.) (not designated for publication)


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(concluding Fourth Amendment appellate argument preserved based on context

of trial objection, which referenced probable cause and the exclusionary rule).

We conclude Coble’s appellate argument was forfeited; thus, we may not

address it. We overrule Coble’s first issue.

                 III. INEFFECTIVE ASSISTANCE OF COUNSEL

      Alternatively, Coble asserts that if trial counsel failed to properly object to

the admission of the blood test, he was constitutionally ineffective for failing to do

so.

                             A. STANDARD OF REVIEW

      The test to determine the effectiveness of counsel requires Coble to show

by a preponderance of the evidence that (1) counsel’s representation fell below

the standard of prevailing professional norms and (2) there is a reasonable

probability that, but for these unprofessional errors, the outcome of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687–89, 104 S. Ct. 2052, 2064–65 (1984); Menefield v. State, 363 S.W.3d 591,

592 (Tex. Crim. App. 2012).        Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct fell within a wide range of reasonable representation. Salinas v. State,

163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001).




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       Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.

Menefield, 363 S.W.3d at 592–93; Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). This statement is true with regard to the deficient-performance

prong of the inquiry when counsel’s reasons for failing to do something do not

appear in the record. Menefield, 363 S.W.3d at 593; Thompson, 9 S.W.3d at

813.   It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record.         Mata v. State, 226

S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be

afforded an opportunity to explain his actions before being denounced as

ineffective.”   Menefield, 363 S.W.3d at 593 (quoting Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial counsel is not given that

opportunity, then the appellate court should not find deficient performance unless

the challenged conduct was “so outrageous that no competent attorney would

have engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

App. 2001)).

                                 B. APPLICATION

       Coble bases his claim on the effect of Missouri v. McNeely, a United

States Supreme Court case decided eleven months before Coble’s trial that held

that the natural dissipation of alcohol in the bloodstream does not present a per

se exigent circumstance justifying a blood test without a warrant in all DWI cases.

133 S. Ct. 1552, 1567–68 (2013) (5-4 opinion). Since McNeely, the Texas courts


                                        7
of appeals have attempted to interpret the effect of McNeely on Texas law. The

majority of the courts that have addressed the issue have concluded that the

mandatory-blood-draw statute in conjunction with the implied-consent statute

contained in section 724.011 of the transportation code are not exceptions to the

warrant requirement; thus, any warrantless blood draw must be based on a well-

recognized exception to the warrant requirement. Tex. Transp. Code Ann. §

724.011(a) (West 2011); see, e.g., Gentry v. State, No. 12-13-00168-CR, 2014

WL 4215544, at *3–4 (Tex. App.—Tyler Aug. 27, 2014, pet. filed) (mem. op., not

designated for publication) (collecting cases from San Antonio, Amarillo,

Eastland, and Corpus Christi Courts of Appeals and concluding that mandatory-

blood-draw and implied-consent statutes are not exceptions to the warrant

requirement); Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.—Texarkana

2014, pet. granted) (relying on decisions by Amarillo and Corpus Christi Courts of

Appeals to conclude that mandatory-blood-draw statute is not an exception to the

warrant requirement). However, one court concluded that proof of compliance

with the procedural requirements of the mandatory-blood-draw statute was

sufficient to imply an arrestee’s consent to a warrantless blood draw, dispensing

with the warrant requirement. Perez v. State, No. 01-12-01001-CR, 2014 WL

943126, at *6–7 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet. h.).

      In sum, the import of McNeely on Texas’s mandatory-blood-draw and

implied-consent statutes was unsettled at the time of Coble’s trial and remains

unsettled today.    Indeed, McNeely did not address directly the effect of


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mandatory-blood-draw or implied-consent statutes on the warrant requirement.

The McNeely Court merely concluded that natural alcohol dissipation cannot be

considered a per se exigent circumstance justifying a warrantless seizure of a

blood specimen in all DWI cases. 133 S. Ct. at 1567–68.

      Absent a record in this case explaining counsel’s reasoning for failing to

move to suppress the blood-alcohol evidence on the basis of McNeely, we may

not conclude that counsel was constitutionally deficient. Indeed, Odom never

asserted that the natural dissipation of alcohol was an exigent circumstance that

he relied on to dispense with the warrant requirement; thus, trial counsel could

have concluded that McNeely did not apply to the admission of Coble’s blood

specimen. See, e.g., State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App.

2013) (“[W]e have repeatedly declined to find counsel ineffective for failing to

take a specific action on an unsettled issue.”). Further, it appears that counsel

was following Coble’s direction regarding trial strategy, which focused on Coble’s

contention that he was not the person who was arrested and compelled to give a

blood specimen:

      Mr. Coble wants me, of course, on the record to deny that he’s
      intoxicated. He tells us and he . . . believes the evidence is going to
      show that he did not commit any traffic violations . . . .

             He denies doing many of the things the officers say, and he
      wants me on his behalf to deny he’s the person that’s depicted in
      this videotape. He claims that evidence has been manufactured and
      created in a false light and it depicts someone else and not him
      present at the scene. Also contends in the case that he was not
      taken to the hospital to draw any blood, and that he has no



                                        9
      recollection of being taken to a hospital to draw blood, and has no
      recollection of refusing to provide any kind of a sample.

      Even so, we may not second-guess trial counsel’s actions in the absence

of a record. See, e.g., Kennedy v. State, 402 S.W.3d 796, 798 (Tex. App.—Fort

Worth 2013, pet. ref’d), petition for cert. filed, (U.S. June 9, 2014) (No. 13-

10784). Here, Coble did not file a motion for new trial or otherwise give trial

counsel an opportunity to explain his decisions. In the absence of any record to

explain trial counsel’s actions or inactions, Coble has not met his burden to show

that his trial counsel’s conduct was not the result of a sound trial strategy and,

therefore, was deficient. See Davis v. State, 930 S.W.2d 765, 769 (Tex. App.—

Houston [1st Dist.] 1996, pet. ref’d). Counsel’s conduct was not so outrageous

that the lack of an explanatory record is excused. See Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005). Further, Coble concedes that it is

“unknown” whether the outcome of Coble’s case would have been different if

counsel had objected on the basis of McNeely or the Fourth Amendment. It is

Coble’s burden to establish the prejudice prong of Strickland, which he has failed

to do. We overrule Coble’s second issue.




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                              IV. CONCLUSION

      Having overruled Coble’s issues, we affirm the trial court’s judgment. See

Tex. R. App. 43.2(a).




                                                 /s/ Lee Gabriel

                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 16, 2014




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