                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00223-CR



         JESSICA NICOLE NANCE, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



      On Appeal from the County Court at Law No. 1
                   Hunt County, Texas
              Trial Court No. CR1101695




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                        MEMORANDUM OPINION
            Jessica Nicole Nance appeals from her conviction, on an open plea of guilty, of driving

while intoxicated (DWI), second offense. Following a hearing on punishment, the trial court

sentenced Nance to 250 days in jail. Nance’s appointed appellate counsel filed an Anders 1 brief

in this matter detailing the procedural history of the case, summarizing and analyzing the trial

evidence, and stating that he found no meritorious issues to raise on appeal. Nance availed

herself of the opportunity to file a pro se response. Additionally, she filed several pleadings,

labeled motions, raising issues that should have been included in her pro se response. In the

interests of justice, we considered the arguments raised in Nance’s motions as though they were

included in her pro se response.

I.          Claims of Ineffective Assistance of Counsel

            After carefully reviewing Nance’s pro se response and the other pleadings she filed with

this Court, it is clear that Nance’s complaint, on appeal, is that she received ineffective assistance

from her appointed trial counsel. Specifically, Nance claims that her trial counsel’s assistance

was ineffective with respect to each of the following issues: (1) the admissibility and utilization

of a prior DWI conviction, (2) Nance’s competence to stand trial, and (3) the admissibility,

utilization, and refutation of the State’s evidence concerning field-sobriety testing.

            A.      Standard of Review

            In reviewing a claim of ineffective assistance of counsel, we apply the two-prong test

handed down by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668

1
    Anders v. California, 386 U.S. 738 (1967).

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(1984); Hill v. Lockhart, 474 U.S. 52, 57 (1985). The first prong of the Strickland test requires a

showing that (1) counsel’s performance “fell below an objective standard of reasonableness

under prevailing professional norms.” Riley v. State, 378 S.W.3d 453, 456 n.5 (Tex. Crim. App.

2012) (citing Strickland, 466 U.S. 668). This requirement can be difficult to meet since there is

“a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689. In fact, “‘strategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable.’” Wiggins v. Smith, 539 U.S. 510, 521–22 (2003) (quoting Strickland, 466 U.S.

at 690–91).

       The second prong of the Strickland test, sometimes referred to as the prejudice prong,

requires a showing that, but for counsel’s unprofessional error, there is a reasonable probability

that the result of the proceeding would have been different. Strickland, 466 U.S. at 687–88.

“Reasonable probability” means a “probability sufficient to undermine confidence in the

outcome.” Id. at 694. Strickland’s second prong carries a lower burden of proof than the

preponderance of the evidence standard of the first prong. See id.; Bouchillon v. Collins, 907

F.2d 589, 595 (5th Cir. 1990). An appellant need not show that counsel’s deficient performance

more likely than not altered the outcome of the case. Milburn v. State, 15 S.W.3d 267, 269 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d). Instead, a defendant challenging a guilty or nolo

contendere plea satisfies the prejudice requirement of Strickland by showing a reasonable

probability that absent counsel’s deficient performance, she would not have pled guilty and

would have insisted on going to trial. Hill, 474 U.S. at 59.

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        B.      Analysis

                1.      Admissibility and Utilization of Prior DWI Conviction

        Nance first claims that her attorney’s failure to object to the introduction of evidence of a

prior DWI conviction constituted ineffective assistance of counsel.          However, evidence of

Nance’s prior conviction was admissible; the State was required to prove the conviction in order

to obtain an enhanced sentence. Accordingly, objections to the introduction of such evidence

would have been unavailing. Further, the prior conviction evidence was offered by the State

during the punishment phase of trial, after Nance had pled guilty to the court. Pursuant to the

Texas Code of Criminal Procedure, during the punishment phase of a trial,

        evidence may be offered by the [S]tate and the defendant as to any matter the
        court deems relevant to sentencing, including but not limited to the prior criminal
        record of the defendant, his general reputation, his character, an opinion regarding
        his character, the circumstances of the offense for which he is being tried, and . . .
        any other evidence of an extraneous crime or bad act . . . .

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2014). Thus, a wide range of

“bad act” evidence is admissible at the punishment phase that might not have been admissible

during the guilt/innocence stage. See Sierra v. State, 266 S.W.3d 72, 79 (Tex. App.—Houston

[1st Dist.] 2008, pet. ref’d).

        Nance next argues that trial counsel’s failure to object to the utilization of her prior DWI

conviction for enhancement purposes constituted ineffective assistance of counsel.               Nance

contends that her prior DWI conviction was an inappropriate basis for enhancement because she

successfully completed her community supervision, directing us to a line of cases holding that



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only final convictions may be utilized for enhancement purposes. See Ex parte Murchison, 560

S.W.2d 654, 656 (Tex. Crim. App. 1978). Nance correctly notes the long-standing principle

        that a conviction is not final for enhancement purposes where the imposition of
        sentence has been suspended and [community supervision] granted. However, a
        conviction is final for enhancement purposes where the imposition of sentence
        has been suspended, [community supervision] granted, but a revocation of the
        [community supervision] is alleged and proved by the State.

Id. (citations omitted); see Franklin v. State, 219 S.W.3d 92, 96 (Tex. App.—Houston [1st Dist.]

2006, no pet.). However, Nance fails to recognize that these principles and the cases applying

them are inapplicable to the facts of her case. First, the principles relied upon by Nance relate to

the general felony enhancement statute, which specifically requires a final conviction. See TEX.

PENAL CODE ANN. § 12.42(a) (West Supp. 2014). By way of contrast, the statute governing

enhancement of intoxication offenses simply requires the State to prove that the individual “has

previously been convicted,” not that she has been finally convicted. TEX. PENAL CODE ANN.

§ 49.09(a) (West Supp. 2014). Second, the statute that controls the enhancement of intoxication

offenses specifically states that a conviction for an intoxication offense that “occurs on or after

September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or

probated.” 2 TEX. PENAL CODE ANN. § 49.09(d) (West Supp. 2014). Nance’s prior conviction

occurred long after September 1, 1994. Accordingly, her argument is without merit.

        In short, Nance failed to establish that trial counsel’s failure to object to the admission of

her prior DWI conviction or to the State’s use of that conviction for enhancement purposes fell


2
 For an extensive discussion of the interaction between and changes to the statutory law in this area, see Nixon v.
State, 153 S.W.3d 550 (Tex. App.—Amarillo 2004, pet. ref’d), and Gibson v. State, No. 05-99-01309-CR, 2000
Tex. App. LEXIS 6921 (Tex. App.—Dallas Oct. 13, 2000, pet. ref’d) (mem. op., not designated for publication).
                                                        5
below an objective standard of reasonableness under prevailing professional norms;

consequently, this point of error fails the first prong of Strickland and is overruled.

                 2.     Competence to Stand Trial

       There is not even a suggestion in the record before us that Nance was incompetent to

stand trial. See TEX. CODE CRIM. PROC. ANN. art. 46B.003 (West 2006). This point of error is

without merit.

                 3.     Admissibility, Utilization, and Refutation of Field-Sobriety Tests and
                        Intoxilyzer Evidence

       Finally, Nance complains that trial counsel’s acts and/or omissions relating to (1) the

testimony of a law enforcement officer concerning the horizontal-gaze nystagmus (HGN) and

other field-sobriety tests and (2) the State’s evidence concerning the Intoxilyzer—a breath

alcohol measurement instrument—amounted to ineffective assistance of counsel.

        The Texas Court of Criminal Appeals has taken judicial notice that the scientific theory

underpinning the HGN test is sound and that the HGN test, properly administered, is a reliable

indicator of intoxication.     Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994).

Additionally, “[t]he Legislature has determined that intoxilyzer test results are admissible when

performed in accordance with the Transportation Code and the Texas Department of Public

Safety regulations.” Scherl v. State, 7 S.W.3d 650, 652–653 (Tex. App.—Texarkana 1999, pet.

ref’d); See TEX. TRANSP. CODE ANN. § 724.064 (West 2011); 37 TEX. ADMIN. CODE §§ 19.1–.8

(Westlaw, Westlaw current through Oct. 15, 2014) (Tex. Dep’t of Pub. Safety, Breath Alcohol

Testing Regulations).


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       Ineffective assistance of counsel must be shown on the record. Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim App. 1999). Here, the testifying officer was certified to administer

standardized field-sobriety tests and to operate the Intoxilyzer, and his testimony related to the

administration of those tests to Nance and the operation of the Intoxilyzer in taking Nance’s

breath sample. Nance has failed to demonstrate how counsel rendered ineffective assistance of

counsel by failing to object to this evidence.

       With respect to her complaints concerning trial counsel’s failure to procure an

intoxication expert to counter the State’s field-sobriety tests and Intoxilyzer evidence, we first

note that the failure to call an expert witness is irrelevant without a showing that such an expert

witness was available to testify on the relevant issue. See Garza v. State, 298 S.W.3d 837, 842

(Tex. App.—Amarillo 2009, no pet.) (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App.

1983)). The record in this case is devoid of evidence demonstrating that an expert witness was

available to counter the State’s evidence regarding field-sobriety tests and/or the Intoxilyzer test.

Nance failed to rebut the strong presumption that trial counsel’s decision not to call an expert

witness fell within the wide range of reasonable representation. See Thompson, 9 S.W.3d at 813.

Ineffective assistance of counsel has not been demonstrated.

       The motions Nance filed with this Court are premised on the exact same theories and

arguments that she raised in her pro se response, and, for the reasons discussed above, the

motions are not well taken. Nance’s motions are overruled.




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II.      Anders Requirements

         Satisfying the requirements of Anders and its progeny, Nance’s appointed counsel filed a

brief in which he offered a professional evaluation of the record and demonstrated, in effect, why

there are no arguable appellate grounds to be advanced on Nance’s behalf. See Anders, 386 U.S.

at 743–44; Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); High v. State, 573

S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978). In further compliance with the

requirements of Anders, counsel also filed a motion with this Court seeking to withdraw as

counsel. As a part of his motion to withdraw, counsel affirmed (1) that he had forwarded copies

of his brief and motion to withdraw to Nance, (2) that he had informed Nance of her right to

review the record and file a pro se response, and (3) that he provided Nance a copy of the record

in this matter.

         After an independent review of the appellate record in this matter, we, like Nance’s trial

counsel, have concluded that there are no genuinely arguable appellate issues and that this appeal

is wholly frivolous. See Halbert v. Michigan, 545 U.S. 605, 623 (2005). We, therefore, agree

with counsel’s assessment of the case. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.

Crim. App. 2005). 3




3
 Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to
withdraw from further representation of Nance in this case. See Anders, 386 U.S. at 744. No substitute counsel will
be appointed. Should Nance wish to seek further review of this case by the Texas Court of Criminal Appeals, she
must either retain an attorney to file a petition for discretionary review or must file a pro se petition for discretionary
review. Any petition for discretionary review must be filed within thirty days from either the date of this opinion or
the date on which the last timely motion for rehearing or for en banc reconsideration was overruled by this Court.
See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of
Criminal Appeals, see TEX. R. APP. P. 68.3, and should comply with the requirements of Rule 68.4 of the Texas
Rules of Appellate Procedure, see TEX. R. APP. P. 68.4.
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      We affirm the judgment of the trial court.



                                           Jack Carter
                                           Justice

Date Submitted:      September 4, 2014
Date Decided:        November 10, 2014

Do Not Publish




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