             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00503-CR
     ___________________________

CLIFFORD LEVIENE POWELL, Appellant

                     V.

         THE STATE OF TEXAS


On Appeal from County Criminal Court No. 9
           Tarrant County, Texas
         Trial Court No. 1495687


    Before Kerr, Birdwell, and Bassel, JJ.
   Memorandum Opinion by Justice Kerr
                            MEMORANDUM OPINION

       Appellant Clifford Leviene Powell appeals from his conviction for driving

while intoxicated. After his arrest, police drew his blood under a blood-draw warrant.

In his sole point, Powell contends that he was denied effective assistance of trial

counsel because his trial counsel did not “challenge the unconstitutional

unreasonableness of the blood draw despite the absence of any predicate that it was

performed in a sanitary place by a competently trained nurse or technician.” We

affirm.

                                   I. The Blood Draw

       On the night of March 28, 2017, Powell, driving a white Nissan, straddled

traffic lanes, slowed to nearly a stop, and then turned into oncoming traffic. A

Mansfield police officer witnessed this driving and initiated a traffic stop. Powell

initially complied with the stop but then fled. The police officer began pursuing

Powell, as did other Mansfield officers. While fleeing, Powell weaved in and out of

traffic with his lights off, nearly hitting other cars; the officers eventually succeeded in

stopping him. Powell had bloodshot eyes, and his breath smelled of alcohol. One of

the officers testified at trial that based on Powell’s driving behavior, his eyes, his

demeanor, the smell of alcohol, and the fact that officers found alcohol in a cooler in

the Nissan’s trunk, he believed that Powell “had lost the normal use of his mental and

physical faculties due to the introduction of an alcoholic beverage.”



                                             2
         Officers arrested Powell and took him to the city jail, where he declined to

consent to a blood draw, and so officers applied for and received a blood-draw

warrant. Powell was taken to the nurse’s station at the jail for the blood draw, which

was done by Nurse Kim Barnes. Asked at trial about the nurse’s title or position, a

Mansfield police officer testified, “I want to say she’s an LVN, a licensed vocational

nurse.” Testing of Powell’s blood showed a blood-alcohol concentration of 0.096.

         The State charged Powell with operating a motor vehicle in a public place while

he was intoxicated. See Tex. Penal Code Ann. § 49.04(a), (b). At trial, Powell’s attorney

did not object to admission of the blood-test evidence. The jury found Powell guilty,

and the trial court sentenced him to serve forty days in jail and to pay a $500 fine.

Powell did not file a motion for new trial. He now appeals.

   II.      Standard of Review for Claims of Ineffective Assistance of Counsel

         The Sixth Amendment guarantees a criminal defendant the effective assistance

of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.

amend. VI. To establish ineffective assistance, an appellant must prove by a

preponderance of the evidence that his counsel’s representation was deficient and that

the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.

2013). The record must affirmatively show that the claim has merit. Thompson v. State,

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



                                            3
      In evaluating counsel’s effectiveness under the deficient-performance prong,

we review the totality of the representation and the particular circumstances of the

case to determine whether counsel provided reasonable assistance under all the

circumstances and prevailing professional norms at the time of the alleged error. See

Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson,

9 S.W.3d at 813–14. Our review of counsel’s representation is highly deferential, and

we indulge a strong presumption that counsel’s conduct was not deficient. Nava,

415 S.W.3d at 307–08.

      Direct appeal is usually inadequate for raising an ineffective-assistance-of-

counsel claim because the record generally does not show counsel’s reasons for any

alleged deficient performance. See Menefield v. State, 363 S.W.3d 591, 592–93 (Tex.

Crim. App. 2012); Thompson, 9 S.W.3d at 813–14. An appellate court may not infer

ineffective assistance simply from an unclear record or from a record that does not

show why counsel failed to do something. Menefield, 363 S.W.3d at 593; Mata v. State,

226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Moreover, trial counsel “should

ordinarily be afforded an opportunity to explain his actions before being denounced

as ineffective.” Menefield, 363 S.W.3d at 593. Without trial counsel’s having that

opportunity, we should not conclude that counsel performed deficiently unless the

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

engaged in it.” Nava, 415 S.W.3d at 308.



                                           4
      Ineffective-assistance claims are usually best addressed by a postconviction writ

of habeas corpus because the record generally is more developed, particularly

regarding counsel’s strategic decisions. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.

App. 2011); see Thompson, 9 S.W.3d at 814 & n.6; Ex parte Torres, 943 S.W.2d 469, 475–

76 (Tex. Crim. App. 1997).

                              III. Law on Blood Draws

      Traditional Fourth Amendment principles determine whether a blood draw

was performed in a reasonable manner. State v. Johnston, 336 S.W.3d 649, 661 (Tex.

Crim. App. 2011). “Accordingly, the reasonableness of the manner in which a DWI

suspect’s blood is drawn should be assayed on an objective, case-by-case basis in light

of the totality of the circumstances surrounding the draw.” Id. To be reasonable, a

blood draw should be conducted in a safe place in which to draw blood, but it need

not be conducted in a hospital or clinic. Id. at 662. Compliance with transportation

code section 724.017 is one way, but not the only way, to establish reasonableness

under the Fourth Amendment. Id. at 661; see Tex. Transp. Code Ann. § 724.017.

                                   IV. Discussion

      An LVN drew Powell’s blood at a nurse’s station at the jail. See Walters v. State,

No. 02-11-00474-CR, 2013 WL 1149306, at *4–5 (Tex. App.—Fort Worth Mar. 21,

2013, no pet.) (mem. op., not designated for publication) (overruling appellant’s

contention that an LVN lacked the qualifications to perform a blood draw). The trial

testimony, the Mansfield Police Department Blood Specimen Procedure Form

                                           5
completed in this case, and the body-camera recording of the blood draw all show

that the nurse disinfected Powell’s arm before drawing his blood. In addition, nothing

in the record suggests that the nurse’s station was an unsafe place to draw blood. And

although the record does not affirmatively show compliance with transportation code

section 724.017, the State was not required to prove such compliance. See Johnston,

336 S.W.3d at 661.

         No record evidence exists indicating that Powell’s blood was drawn in an

unsafe place or that the blood draw was unreasonable. The record is silent about why

Powell’s attorney did not object to the blood-test evidence, and from the record we

cannot conclude that his attorney’s failure to object was conduct “so outrageous that

no competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308; see

Johnston, 336 S.W.3d at 662; see also Donnelly v. State, No. 02-14-00303-CR,

2015 WL 3422140, at *3 (Tex. App.—Fort Worth May 28, 2015, no pet.) (mem. op.,

not designated for publication) (holding that the record’s silence as to counsel’s

reasons for failing to object to the admission of blood-test results precluded a

conclusion that counsel was deficient). We therefore hold that Powell did not satisfy

his burden to prove ineffective assistance of trial counsel, and we overrule his only

point.

                                      V. Conclusion

         Having overruled Powell’s sole point, we affirm the trial court’s judgment.



                                             6
                                 /s/ Elizabeth Kerr
                                 Elizabeth Kerr
                                 Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 28, 2019




                             7
