AFFIRM; and Opinion Filed August 7, 2013.




                                         S In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                      No. 05-12-00940-CR

                              COURTNEY PIERCE, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 6
                                   Collin County, Texas
                           Trial Court Cause No. 006-85905-2011

                                          OPINION
                         Before Justices FitzGerald, Francis, and Lewis
                                   Opinion by Justice Lewis
       Appellant Courtney Pierce was charged by information with driving while intoxicated, a

Class B misdemeanor. Appellant pleaded not guilty, and a jury convicted her as charged. The

trial court assessed punishment at ninety days in jail, probated for fifteen months and an $800

fine. In four issues, appellant challenges her conviction and alleges the trial court erred by

sustaining the State’s objection to appellant’s evidence, and by overruling appellant’s objection

to the State’s improper closing argument.       Appellant also asserts she received ineffective

assistance of counsel. For the reasons below, we affirm the trial court’s judgment.

                                       BACKGROUND

       Around 2:30 a.m. on August 7, 2011, Plano police officer Ben Waite saw appellant pull

out of a gas station and drive the wrong way on the service road of Central Expressway. He

immediately pulled her car over. Officer Waite testified that when he approached appellant, he
noticed she had heavy, watery eyes, and there was a strong odor of an alcoholic beverage coming

from appellant. When he asked appellant if she had been drinking, she told him she had

consumed one drink. Backup police officer Christopher Sanders also noted a strong odor of

alcohol. Appellant told him she had come from the Londoner Pub in Allen, Texas. She believed

she was in Dallas, rather than Plano. Appellant told Sanders that she had two drinks, a half-pint

and a full pint of whisky and ginger ale.

       Officer Sanders administered the Standardized Field Sobriety Tests and appellant

performed poorly. She showed all six possible clues on the horizontal gaze nystagmus test, well

over the decision point of four clues that indicates intoxication. She could not complete either of

her attempts in the walk-and-turn test. Sanders ultimately stopped the test because he was afraid

she would injure herself. Finally, on the one-leg-stand test, appellant showed two clues, the

decision point for intoxication. Officer Sanders then arrested appellant and placed her in the

back seat of his police vehicle. While being transported to the Plano City jail, appellant slumped

down across the back seat and fell asleep.

       Upon arrival at the Plano City jail, Officer Mica Lunt had to assist appellant out of

Sander’s car. Officer Lunt testified the entire car smelled of alcohol. Appellant almost fell

getting out of the car, and Lunt had to place his hands on her shoulders to guide her into the

building. Once he got her into the Intoxilyzer room, Officer Lunt noted that appellant had

glassy, bloodshot eyes, her speech was slurred, and she had to lean against the wall or table to

steady herself. Appellant agreed to take a breath test and eventually, was able to provide two

sufficient breath samples. The results of the Intoxilyzer test were not introduced during the

State’s case-in-chief.

       Appellant reserved opening argument until after the State rested its case. During opening

statement, appellant’s counsel told the jury that appellant had gone to the Londoner Pub to play

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pool with a friend. He said two men purchased a drink for appellant and something must have

been placed in that drink that caused her to not be in a normal state of mind. He explained that

appellant had no memory of anything that happened from the time she sipped that drink until she

woke the next morning in the Plano jail. During presentation of her case, Appellant recalled all

three police officers and solicited testimony that some of her behavior had been unusual. She

also took the stand in her own defense.

       Appellant testified she was a helicopter pilot and flew approximately six days a week.

She testified that FAA guidelines do not permit a pilot to fly while under the influence of

alcohol; a pilot cannot have consumed alcohol within eight hours before a flight; and a pilot’s

blood-alcohol content must be less than .08. She also testified that a DWI conviction is a serious

offense to the FAA that results in the pilot’s license being taken away. Appellant said she had

personal “rules” when she goes out drinking, including not drinking twelve hours before a flight

and always having cab fare or sharing a ride. Appellant admitted that around 10:30 p.m. on

August 6, 2011, she met a friend, Cindy Bliss, at the Londoner Pub in Allen, Texas. She testified

she had one drink when she first arrived and another drink around midnight. While they were

playing pool, two men started talking to her and her friend and bought them each a beer.

Appellant took a few sips of beer and started feeling “hot and sweaty.” She asserted she did not

remember anything from that point forward until she awoke the next morning in jail. She

testified she had no memory of leaving the bar, getting into her car, driving, being arrested, or

taking the Intoxilyzer test. When she got out of jail, she tried to go to an emergency clinic for a

drug test but the clinic was closed. She testified she called other clinics the next day but none

could do a “date rape drug test.” She maintained she did not voluntarily drink more than the two

drinks she ordered and a few sips of beer. She also asserted if she believed she was impaired,

she would not have driven her car away from the Londoner Pub.

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       In rebuttal, the State called Lori Fuller, a technical supervisor with the Southwest

Institute of Forensic Science. She explained how the Intoxilyzer 5000 instrument works and

verified it was functioning properly on the night of appellant’s breath test. Fuller also explained

the Intoxilyzer tests only for ethanol, the type of alcohol that is most widely consumed.

Appellant’s blood alcohol concentration tested at 0.148 and 0.150. Fuller testified that a 130-

pound female would have had to consume the amount of alcohol equivalent to six to nine

standard alcoholic drinks between 10:30 p.m. and 12:00 a.m., or 10:30 p.m. and 2:00 a.m., to

have an alcohol concentration of 0.148 at 3:30 a.m., the time of the sample. She also testified the

Intoxilyzer does not test for drugs of any sort and does not show the presence or absence of a

“date rape drug” such as Rohypnol.

       The jury found appellant guilty of driving while intoxicated. Appellant filed a motion for

new trial and motion in arrest of judgment, arguing the verdict was contrary to the law and the

evidence. After the trial court denied appellant’s motion, she timely filed this appeal.

                                          DISCUSSION

       Appellant raises four issues on appeal. First, appellant argues the trial court erred when it

sustained the State’s objection to appellant’s testimony regarding her drinking habits. Appellant

contends such testimony was evidence of a pertinent character trait, was relevant to the offense

on trial, and qualified as evidence of her habits to prove that her conduct on a particular occasion

would have been in conformity with her habit or routine practice. Second, appellant argues the

trial court erred when it overruled her objection that the State made an improper closing

argument by arguing outside the evidence. In her third and fourth issues, appellant contends she

received ineffective assistance at trial. Appellant complains that although her trial attorney

purported to present a defense that appellant was drugged with Rohypnol or a similar drug, her

trial counsel failed to present evidence regarding the presence of such a drug in appellant’s

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system, and the effects of such a drug.        Appellant also complains that her trial counsel

improperly withdrew his objection to the State’s presentation of Fuller as a rebuttal witness.

A. Evidence of Habit

       Appellant argues the trial court erred in not allowing her to present testimony regarding

her drinking habits to the jury. We review a trial court’s decision regarding the admissibility of

evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011); Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990). A trial court abuses its discretion only if its decision

is “so clearly wrong as to lie outside the zone within which reasonable people might disagree.”

Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). If the trial court’s decision is

reasonably supported by the record and correct on any theory of law applicable to the case, we

will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

       Appellant contends that testimony regarding her drinking habits was pertinent character

trait evidence to support her defensive theory that had she not been drugged by Rohypnol or

some similar drug, she would not have knowingly entered her vehicle and driven while

intoxicated. Generally, character evidence is not admissible to show that a person acted in

conformity with a character trait on a particular occasion. TEX. R. EVID. 404(a); Turner v. State,

2012 WL 3207291, at *7 (Tex. App.—Fort Worth Aug. 9, 2012, no pet.). However, an accused

is allowed to introduce evidence of a specific good character trait to show that it is improbable

that she committed the offense charged where that character trait is relevant to the offense. TEX.

R. EVID. 404(a)(1)(A); Melgar v. State, 236 S.W.3d 302, 306–07 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d). Evidence of a person’s habit is relevant to prove that the conduct of the

person on a particular occasion was in conformity with the habit. TEX. R. EVID. 406; Guerrero v.

State, No. 14-10-00840-CR, 2011 WL 6808314, at *6 (Tex. App.—Houston [14th Dist.] Dec.

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22, 2011, no pet.) (mem. op., not designated for publication). “Evidence of habit and character

sometimes appear similar; but while character is a generalized description of a person’s

disposition, habit describes a person’s regular response to a repeated specific situation.”

Guerrero, 2011 WL 6808314, at *6.

           During appellant’s testimony, her attorney asked her to tell the jury what her habits were

regarding alcohol. The State objected based on relevance and the trial court sustained the

objection. Appellant’s counsel did not explain why such evidence was admissible, or make an

offer of proof of the actual evidence sought to be admitted.           Instead, appellant’s counsel

continued questioning appellant, asking her whether she had any rules that she followed when

she went out for a drink. Appellant answered, without objection, that she does not drink within

twelve hours of a scheduled flight and always shares a ride or carries cash for a taxi whenever

she goes out drinking. She testified that she had the number for a taxi cab company programmed

into her phone. Appellant also testified that if she thought she was impaired, she did not drive

her car.

           Appellant contends she should have been allowed to present evidence that as a

responsible helicopter pilot who would lose her license if she were convicted of driving while

intoxicated, she always carries cash for a taxi, has a taxi cab company programmed into her

telephone, or shares a ride with another person. She also contends she should have been allowed

to testify further regarding her drinking habits to show that she would not have knowingly

entered her vehicle and driven while intoxicated. However, our review of the record reflects that

appellant testified, without objection, to all of these things. It is well settled that an error in

admission or exclusion of evidence is cured where the same evidence comes in elsewhere

without objection. See Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); see also

Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (holding that to show harm, the

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excluded evidence must be controlling on a material issue and not cumulative of other evidence);

Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref’d) (holding there is

no harm when complained-of evidence was admitted through other testimony). Appellant’s

counsel did not make an offer of proof with respect to any additional evidence sought to be

admitted so we are unable to determine what evidence, if any, was excluded. Having nothing to

review, we overrule appellant’s first issue.

B. Improper Closing Argument

       In her second issue, appellant argues the trial court erred when it overruled her objection

that the State’s closing argument was improper. Even though appellant’s trial defense was based

on the theory that she must have been drugged, she now complains it was outside the evidence

for the State to argue she was not drugged because there was no trial evidence that she was

drugged. Permissible jury argument generally falls into one of four areas: (1) summation of the

evidence presented at trial; (2) reasonable deductions drawn from the evidence; (3) responses to

argument by defense counsel; and (4) pleas for law enforcement. Brown v. State, 270 S.W.3d

564, 570 (Tex. Crim. App. 2008); Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.

2000). The State is permitted to draw reasonable inferences from the evidence and is afforded

wide latitude in its jury argument so long as the argument is supported by the evidence and is

made in good faith. Griffin v. State, 554 S.W.2d 688, 690 (Tex. Crim. App. 1977); Jimenez v.

State, 240 S.W.3d 384, 407 (Tex. App.—Austin 2007, pet. ref’d).

       The record contains no evidence that appellant had a date rape drug in her system.

However, the record reflects that appellant’s defense was based on the theory that something

must have been placed in her drink because she never would have voluntarily driven while

intoxicated.   In his opening argument, appellant’s trial counsel told the jury they believed

something had been placed in appellant’s drink. Appellant then testified she did not remember

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what happened on the night in question. She also testified of her efforts to be drug tested once

she was released from jail.      During closing argument, appellant’s trial counsel conceded

appellant voluntarily ordered and drank two drinks, but argued that appellant’s actions during the

rest of the evening were not voluntary. He argued the State had not proved beyond a reasonable

doubt that appellant voluntarily drove her car while intoxicated.

       In its closing argument, the State first reviewed the evidence of appellant’s intoxication.

The State then responded to the closing argument of appellant’s trial counsel, stating “he wants

you to believe that the defendant was drugged.” The State asked the jury to consider all the

evidence that appellant was not drugged and use their common sense, keeping in mind that the

purpose of date rape drugs is to make the victim incapable of fighting off a rapist. Defense

counsel did not object the first time the State discussed the purpose of date rape drugs. See TEX.

R. APP. P. 33.1 (requiring a timely objection in order to preserve error); see also Davis v. State,

329 S.W.3d 798, 823 (Tex. Crim. App. 2010). The second time the State reminded the jury of

the purpose of date rape drugs, appellant’s counsel objected to the State arguing outside of the

evidence.   The trial court overruled appellant’s objection, stating the State was making a

reasonable deduction. The State then referenced the purpose of date rape drugs a third time,

without objection by defense counsel.

       To preserve a complaint about improper jury argument, a defendant must object each

time the impermissible argument is made, or the complaint is waived. See Davis, 329 S.W.3d at

823; see also Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (defendant’s failure to

object to a jury argument forfeits his right to complain about the argument on appeal). We

conclude appellant failed to preserve her complaint for appeal. Davis, 329 S.W.3d at 823. Even

if we were to reach the merits of this allegation, appellant’s claim would fail because the




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prosecutor’s argument was a reasonable deduction from the evidence and an answer to the

argument of opposing counsel. Id. Appellant’s second issue is overruled.

C. Ineffective Assistance of Counsel

       In her third and fourth issues, appellant maintains she was denied effective assistance of

counsel because her trial counsel: (1) failed to call an expert witness to develop evidence that

she had Rohypnol in her system; (2) failed to call an expert witness to testify as to the effects of

Rohypnol and similar date rape drugs; and (3) withdrew his objection to the State’s rebuttal

witness. In response, the State argues the record is inadequate to support appellant’s complaints.

       To prevail on a claim of ineffective assistance of counsel, an appellant must meet the

two-pronged test established by the United States Supreme Court in Strickland v. Washington,

466 U.S. 668 (1984), and adopted by Texas two years later in Hernandez v. State, 726 S.W.2d 53

(Tex. Crim. App. 1986).        Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

Appellant must show that (1) trial counsel’s representation fell below an objective standard of

reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability

that the result of the proceeding would have been different but for trial counsel’s deficient

performance. Strickland, 466 U.S. at 688–92; Lopez, 343 S.W.3d at 142. Appellant bears the

burden of proving her claims by a preponderance of the evidence. Lopez, 343 S.W.3d at 142. It

is not enough to merely show, through the benefit of hindsight, that trial counsel’s actions were

questionable. Id. at 142–43.

       Review of counsel’s representation is highly deferential, and we indulge a strong

presumption that counsel’s conduct fell within a wide range of reasonable representation.

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Salinas v. State, 163 S.W.3d

734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001).

To overcome the presumption of reasonable professional assistance, “any allegation of

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ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.” Salinas, 163 S.W.3d at 740 (quoting Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).

           Appellant filed a motion for new trial; however, the motion did not assert any claims that

appellant received ineffective assistance of trial counsel. There is no record of a hearing at

which appellant’s trial counsel was afforded the opportunity to explain his actions or trial

strategy. When no evidentiary record is developed at a hearing on a motion for new trial, it is

extremely difficult to show that trial counsel’s performance was deficient. See Bone v. State, 77

S.W.3d 828, 833 (Tex. Crim. App. 2002) (trial counsel should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective). 1

           In her third issue, appellant argues her trial counsel’s ineffectiveness prevented

presentation of her defense that she did not engage in the voluntary act of driving while

intoxicated due to being drugged by a date rape drug. She contends her trial attorney was

ineffective because he failed to present expert testimony regarding the presence of Rohypnol in

appellant’s system and the effects that Rohypnol or a similar drug has on a person. “A criminal

defense lawyer has a duty to make an independent investigation of the facts of a case, which

includes seeking out and interviewing potential witnesses.” Brennan v. State, 334 S.W.3d 64, 71

(Tex. App.—Dallas 2009, no pet.). Here, the record is silent as to the extent of trial counsel’s

investigation of the facts of this case and the effects of Rohypnol. Although appellant opines

that an expert would not be difficult to find, there is no evidence that such an expert was

available to testify at trial or that such testimony would have been beneficial to appellant. See

Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986); Garza v. State, 298 S.W.3d 837, 842

1
  Absent a record from a hearing on a motion for new trial, a reviewing court will rarely be in a position on direct appeal to fairly evaluate the
merits of an ineffective assistance claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. For that reason, the Texas Supreme Court
has repeatedly stated that such claims are more appropriately urged in a hearing on an application for a writ of habeas corpus. See Lopez, 343
S.W.3d at 143.


                                                                     –10–
(Tex. App.—Amarillo 2009, no pet.). Ascertaining trial counsel’s reasoning concerning these

issues would require us to speculate, which we cannot do. Brennan, 334 S.W.3d at 73. In the

face of this silent record, we conclude that appellant failed to overcome the strong presumption

of reasonable assistance. See Thompson, 9 S.W.3d at 813. Appellant’s third issue is overruled.

       In her fourth issue, appellant complains that her trial counsel was ineffective because he

withdrew his objection to the State’s rebuttal witness. At the close of the defense’s case, the

State called Lori Fuller, Technical Supervisor for Southwest Institute of Forensic Sciences, as a

rebuttal witness. Appellant’s trial counsel objected, arguing that Fuller’s testimony would not

augment or rebut any of the testimony heard in the trial. The trial court questioned counsel’s

objection, noting that appellant’s testimony was that she was not intoxicated and perhaps

Rohypnol was involved.        The State argued that Fuller’s testimony would directly rebut

appellant’s testimony and show that it was alcohol in her system that caused her to be

intoxicated. At that point, appellant’s trial counsel withdrew his objection.

       The record is silent as to why trial counsel decided to withdraw his objection to the

State’s rebuttal witness. An attorney’s decision to withdraw his objection to a witness is a

strategic decision. We cannot speculate beyond the record provided, and must presume the

actions taken by trial counsel were part of a strategic plan for representing his client. Brennan,

334 S.W.3d at 74. Due to the lack of evidence in the record concerning trial counsel’s reasons

for withdrawing his objection to Fuller’s rebuttal testimony, we are unable to conclude that

appellant’s trial counsel’s performance was deficient. Appellant’s fourth issue is overruled.




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                                        CONCLUSION

       Having overruled all of appellant’s issues, we affirm the trial court’s judgment.




                                                   /David Lewis/
                                                   DAVID LEWIS
                                                   JUSTICE


Do Not Publish
Tex. R. App. P. 47

120940F.U05




                                              –12–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

COURTNEY PIERCE, Appellant                          On Appeal from the County Court at Law
                                                    No. 6, Collin County, Texas
No. 05-12-00940-CR         V.                       Trial Court Cause No. 006-85905-2011.
                                                    Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                        Justices FitzGerald and Francis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 7th day of August, 2013.




                                                 /David Lewis/
                                                 DAVID LEWIS
                                                 JUSTICE




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