                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-15-00193-CR

                                           George R. LUNA,
                                              Appellant

                                                 v.

                                         The STATE of Texas,
                                               Appellee

                      From the County Court at Law No. 5, Bexar County, Texas
                                      Trial Court No. 405848
                             Honorable John Longoria, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: November 4, 2015

AFFIRMED

           Appellant George Luna was convicted by a jury of driving while intoxicated. The trial

court assessed punishment at 180 days confinement in the Bexar County Jail; the sentence was

suspended and probated for a period of one year. On appeal, Luna argues the evidence is

insufficient to support intoxication and that he received ineffective assistance of counsel. We

affirm the trial court’s judgment.
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                                     FACTUAL BACKGROUND

       The State called three witnesses to testify regarding Luna’s actions immediately before and

during the officer’s involvement.

A.     Captain Joery Smittick

       San Antonio police officer Captain Joery Smittick was the State’s first witness. On October

4, 2012, at approximately 2:00 a.m., Captain Smittick heard a loud noise that he thought was a

burglar alarm. He followed the noise to a Wendy’s fast food restaurant, located on San Pedro

Avenue, in San Antonio, Texas. In the Wendy’s drive-through lane, Captain Smittick located

Luna’s vehicle, a silver Mitsubishi sports utility vehicle. Captain Smittick requested officer

assistance and then approached the vehicle. As Captain Smittick approached the vehicle, he

instructed Luna to turn off his vehicle. Luna was in the driver’s seat and the only occupant in the

vehicle.

       Captain Smittick immediately detected the smell of intoxicants on Luna’s breath and noted

Luna had bloodshot eyes. Instead of turning off the ignition, Luna attempted to drive away. At

the same time Luna was driving out of the drive-through, San Antonio Police Detective Charles

Marcus pulled into the parking lot and was able to prevent Luna from proceeding any further.

       While Detective Marcus focused his attention on Luna, Captain Smittick turned his

attention to another vehicle, owned by Beatrice Blackman, which had entered the parking lot.

Captain Smittick testified two individuals exited Blackman’s vehicle and reported Luna’s vehicle

had recently struck the passenger’s bicycle and continued driving down San Pedro Avenue.

B.     Detective Charles Marcus

       Detective Marcus, a twenty-five year veteran of the San Antonio Police Department,

arrived at the Wendy’s parking lot as Captain Smittick was “yelling at the driver, trying to get his

attention, to stop the vehicle, and the driver was taking off at the same time.” Detective Marcus
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positioned his vehicle to block Luna’s exit, forcing Luna to pull into the parking area of the

restaurant.

       When Detective Marcus approached the vehicle, he noticed Luna had bloodshot, glassy

eyes and “a strong odor of intoxicants on his breath.” Detective Marcus requested Luna’s driver’s

license and Luna handed Detective Marcus his Visa credit card. After fumbling through his wallet

again, Luna finally produced a copy of his driver’s license.

       Detective Marcus requested Luna exit the vehicle and, after walking to a flat section of the

parking lot, began conducting field sobriety tests. Detective Marcus first conducted the horizontal

gaze nystagmus test wherein Luna exhibited all six markers indicating intoxication. On the second

test, the walk-and-turn test, Luna was unable to perform the test due to his inability to follow

Detective Marcus’s instructions. After determining Luna was too unsteady to safely perform the

one-leg stand test, Detective Marcus placed Luna under arrest for driving while intoxicated.

C.     Beatrice Blackman

       The final witness called by the State was Beatrice Blackman. Blackman testified that she

was driving down San Pedro Avenue when she noticed Luna’s vehicle driving very slowly.

Without notice, the vehicle sped up and took off around the corner. At that point, Blackman saw

that Luna’s vehicle had hit a bicyclist and damaged his bicycle to the point it was not usable.

According to Blackman, Luna never pulled over after hitting the bicycle, he simply “kept going.”

       Blackman stopped and offered assistance to the cyclist, even offering to drive him home.

They loaded the bicycle in Blackman’s vehicle and, as they continued down San Pedro Avenue,

Blackman noticed Luna’s vehicle in the Wendy’s parking lot. Blackman testified that she pulled

into the parking lot and reported the previous incident to the officers.




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                                 SUFFICIENCY OF THE EVIDENCE

A.     Standard of Review

       In reviewing the sufficiency of the evidence, “we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Adames v. State, 353 S.W.3d 854,

860 (Tex. Crim. App. 2011); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Brooks v. State, 323 S.W.3d 893,

894–95 (Tex. Crim. App. 2010). “This standard recognizes the trier of fact’s role as the sole judge

of the weight and credibility of the evidence. . . .” Adames, 353 S.W.3d at 860. The reviewing

court must also give deference to the jury’s ability “‘to draw reasonable inferences from basic facts

to ultimate facts.’” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson,

443 U.S. at 319 (1979)). “Each fact need not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to

support the conviction.” Id. (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.

1985)); accord Clayton, 235 S.W.3d at 778.

B.     Elements of the Offense

       The offense of driving while intoxicated requires the State to prove beyond a reasonable

doubt: (1) a person (2) drove or operated a vehicle (3) in a public place (4) while intoxicated. TEX.

PENAL CODE ANN. § 49.04 (West 2011). Luna argues there was insufficient evidence to prove that

he was intoxicated. As relevant to this case, intoxication is defined as not having the normal use

of mental or physical faculties due to consumption of alcohol.            TEX. PENAL CODE ANN.

§ 49.01(2)(A).

       The State must show a “temporal link” between the defendant’s intoxication and his

operation of the vehicle. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010); accord
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McCann v. State, 433 S.W.3d 642, 649 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Driving

while intoxicated may be supported solely by circumstantial evidence. Kuciemba, 310 S.W.3d at

462; McCann, 433 S.W.3d at 649.

C.     Analysis

       In this case, the jury’s finding of intoxication is supported by (1) Captain Smittick’s and

Detective Marcus’s testimony that Luna’s breath smelled like alcohol, and his eyes appeared

bloodshot and glassy, (2) Luna’s actions at the Wendy’s drive-thru lane, (3) Luna’s performance

on field sobriety tests indicating that he was intoxicated, (4) Detective Marcus’s opinion testimony

that Luna had lost the use of his mental and physical faculties, and (5) evidence that Luna was

traveling at a very low rate of speed, and (6) evidence thatLuna sped up after he struck a bicyclist

and continued down the road. See Garcia v. State, 314 S.W.3d 654, 658–59 (Tex. App.—Amarillo

2010, pet. ref’d) (holding on similar evidence, “[t]his is some evidence upon which a rational jury

could deduce, beyond a reasonable doubt, that appellant was driving while intoxicated.”).

       The testimony of an officer regarding his opinion that the defendant was intoxicated is

sufficient to establish intoxication. See Brister v. State, 414 S.W.3d 336, 341 (Tex. App.—

Beaumont 2013), aff’d, 449 S.W.3d 490 (Tex. Crim. App. 2014) (citing Annis v. State, 578 S.W.2d

406, 407 (Tex. Crim. App. 1979)); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d) (same). Captain Smittick testified Luna’s incessant honking was what

initially caught his attention. When he approached Luna’s vehicle, Captain Smittick smelled

alcohol emanating from Luna; this coupled with Luna bloodshot eyes, was sufficient evidence to

raise suspicion that Luna was driving while intoxicated. Additionally, Detective Marcus testified

that he observed clues indicative of intoxication in each of the sobriety tests: 1) in the horizontal

gaze nystagmus—six of six clues were observed; and 2) in the walk and turn, Luna could not



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follow his instructions and the test was aborted. Detective Marcus further testified he did not

conduct the one-leg stand out of fear that Luna would fall and injure himself.

        The sobriety tests, Luna’s appearance, Luna’s actions, and his erratic driving support a

finding that Luna did not have normal use of his mental or physical faculties. Accordingly, we

conclude the verdict is supported by legally sufficient evidence. See Adames, 353 S.W.3d at 860;

Clayton, 235 S.W.3d at 778; Brooks, 323 S.W.3d at 894–95.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

        Luna’s remaining issues emanate from his allegations he received ineffective assistance of

counsel. Luna contends his trial counsel failed to inform him of his right to testify during the guilt-

innocence portion of the trial and that his counsel’s performance was so deficient that he was

deprived of a fair trial.

A.      Standard of Review

        In order to establish his trial counsel rendered ineffective assistance, Luna must “establish

two components by a preponderance of the evidence: deficient performance of trial counsel and

harm resulting from that deficiency that is sufficient to undermine the confidence in the outcome

of the trial.” Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)); accord Menefield v. State, 363 S.W.3d 591, 592 (Tex.

Crim. App. 2012). To prove the first prong, deficient performance, Luna must prove that his

attorney’s performance “‘fell below an objective standard of reasonableness’ under prevailing

professional norms and according to the necessity of the case.” Ex parte Moore, 395 S.W.3d at

157 (quoting Strickland, 466 U.S. at 687–88). To prove harm, Luna “must demonstrate that he

was prejudiced by his attorney’s performance or that ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. at

158 (citations omitted) (quoting Strickland, 466 U.S. at 694).
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       “An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). “There is a strong presumption that counsel’s conduct

fell within the wide range of reasonable professional assistance.” Id. Luna “‘must overcome the

presumption that, under the circumstances, the challenged action might be considered sound trial

strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466 U.S. at 689).

       “A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of

counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “In the majority of instances, the record

on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.”

Id. at 813–14. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.

2003). In the absence of a developed record, we will not “speculate as to the reasons why trial

counsel acted as he did, rather [we] must presume that the actions were taken as part of a strategic

plan for representing the client.” Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San

Antonio 2010, pet. ref’d). Moreover, an “appellate court should not find deficient performance

unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged

in it.’” Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005)).

B.     Analysis

       Luna contends his counsel failed to inform him of his right to testify during the guilt-

innocence portion of the trial. Luna further alleges that he informed his trial counsel he wished to

testify, but that his attorney did not call him or any other witnesses to testify in Luna’s defense.

The record is silent as to what conversations transpired between Luna and his trial counsel or trial

counsel’s reasons for not calling any witnesses to testify and we will not speculate as to trial
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counsel’s reasons. See Rodriguez, 336 S.W.3d at 302. We do note, however, Luna’s trial counsel

performed extensive cross-examination on each of the state’s witnesses, including showing

inconsistencies between trial testimony and witness testimony during other proceedings on this

matter.

          Based on the state of the record before us, silent as it is on trial counsel’s actions and

reasons therefore, Luna has failed to rebut the strong presumption that counsel’s representation

was within a wide range of reasonable, professional assistance and was motivated by sound

strategy. See Thompson, 9 S.W.3d at 813–14. Accordingly, Luna failed to prove the first prong

of the Strickland test, and thus, cannot prove his claim of ineffective assistance of counsel. Ex

parte Moore, 395 S.W.3d at 157.

                                            CONCLUSION

          Having overruled all of Luna’s issues on appeal, we affirm the trial court’s judgment.


                                                   Patricia O. Alvarez, Justice

DO NOT PUBLISH




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