AFFIRM; and Opinion Filed March 11, 2014.




                                          Court of Appeals
                                                          S      In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-12-01383-CR

                                            VARINA G. HARDIN, Appellant
                                                        V.
                                           THE STATE OF TEXAS, Appellee

                                 On Appeal from the County Court at Law No. 4
                                             Collin County, Texas
                                     Trial Court Cause No. 004-80250-2012

                                         MEMORANDUM OPINION
                    Before Chief Justice Wright and Justices Lang-Miers and Campbell 1
                                       Opinion by Justice Campbell
           Varina G. Hardin was convicted in a bench trial of driving while intoxicated. The trial

court assessed her punishment at ninety days’ confinement in the county jail and a fine of $100.

Imposition of the jail time was suspended and appellant was placed on community supervision

for two years. In a sole issue, appellant contends trial counsel was ineffective for failing to

secure an expert witness to rebut testimony given by the State’s expert witness. We affirm.

                                                                 FACTS

          Only a brief rendition of the facts is necessary to a resolution of appellant’s sole issue.

On May 27, 2011, a concerned citizen notified police of appellant’s erratic and dangerous

driving. Appellant was driving too slowly and weaving on and off a road in Collin County. She

   1
       The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.
appeared to be intoxicated. Deputy Blaylock, a Collin County Deputy Sheriff, was dispatched

to the scene and followed appellant for about three miles. Blaylock observed similar erratic

driving as was reported by the private citizen. After Blaylock stopped her, appellant failed

several field sobriety tests and Blaylock arrested her for DWI. During an inventory search of

appellant’s car, six bottles of medication were found, including alprazolam (generic Xanax),

tramadol, methocarbamol, and citalopram, all of which are controlled substances. A blood

sample was drawn from appellant about an hour after she was stopped. Testing revealed her

blood contained 0.023 milligrams of alprazolam per liter of blood.

       After a finding of guilt, appellant filed a motion for new trial alleging her trial counsel

had been ineffective for failing to call an expert witness to counter the testimony of the State’s

expert regarding the significance of the amount of alprazolam found in her bloodstream. The

trial court conducted a hearing on the motion. Trial counsel (Vitz) testified his defensive

strategy was to argue that the low level of alprazolam coupled with appellant’s bipolar condition

resulted in insufficient evidence to support appellant’s conviction. Vitz also testified he had

spoken to the State’s expert witness, Dr. Rohr, and Rohr believed appellant’s bloodstream

contained a therapeutic amount of alprazolam, but that even such a small amount of the drug

could cause intoxication.

       Vitz conceded on cross-examination that he had full discovery of all of the State’s

evidence, including police reports and the video of the arrest, and he had subpoenaed appellant’s

personal physician. The physician never appeared and no writ of attachment to compel her to

appear was sought. Vitz never was able to talk to the doctor personally, but he did speak to an

employee in the doctor’s office who advised him that appellant would not want the doctor as a

witness. Vitz evidently decided to abandon that strategy in favor of a direct attack on the

sufficiency of the evidence as presented by the State. In hindsight, Vitz conceded he had failed

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to compel the doctor’s attendance, and he should have sought a continuance to gain time to

secure an expert witness. However, Vitz also conceded it was he who had subpoenaed Rohr.

Though Rohr’s testimony was favorable to the State, Vitz opined that Rohr’s testimony was not

sufficient to satisfy the trial court of appellant’s guilt. Germane to the motion for new trial,

appellant did not identify an expert witness who was available and would testify favorably to her

at the hearing on said motion.

                                   APPELLANT’S ARGUMENT

       In her sole issue, appellant contends Vitz was ineffective because he failed to secure the

attendance and testimony of an expert witness to rebut the State’s expert and present appellant’s

best defense when said failure was solely because of a “lack of funds.” During the hearing on

the motion for new trial, appellant testified she would have secured funding for an expert if Vitz

had recommended it. Vitz apparently did not broach the subject of funding for an expert with

appellant; rather he assumed without asking that appellant lacked funds to secure an expert

witness. Additionally, it is evident from reading the record that Vitz was convinced the trial

court would not find the quantity of alprazolam in appellant’s system at the time of her arrest to

be sufficient to meet the Jackson standard of proof beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

                                      STATE’S ARGUMENTS

       The State replies appellant has failed to show Vitz was ineffective for failing to hire an

expert to rebut the State’s expert. The State contends Vitz’s strategy to attack directly the

sufficiency of the evidence was a reasonable strategy. Further, the State contends appellant has

not shown another expert witness was available to testify and that appellant would benefit from

that testimony. We agree with the State.




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                STANDARD OF REVIEW, BURDEN OF PROOF, AND PRESUMPTIONS

       An appellate court reviews a trial court’s ruling on a motion for new trial under an abuse

of discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). To show

ineffective assistance of counsel, appellant bears the burden of proving by a preponderance of

the evidence that trial counsel’s performance was deficient (fell below an objective standard of

reasonableness) and that there was a reasonable probability that the deficiency prejudiced her

defense. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). An appellant must

overcome the strong presumption that trial counsel’s decisions and actions fell within a wide

range of professional and reasonable assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002). Judicial review is highly deferential to effectiveness. Id. The reviewing

court must evaluate the totality of the representation and not in piecemeal fashion. Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Counsel’s ineffectiveness must be firmly

established in the record. Id. A vague, inarticulate notion that counsel should have performed

better, i.e., put on a better defense, is not a legal basis for finding counsel ineffective. See Bone,

77 S.W.3d at 836.

                                             ANALYSIS

       Appellant relies principally on Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)

and Wright v. State, 223 S.W.3d 36 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). At first

blush, the holding in Briggs seems applicable to the case at bar because trial counsel in Briggs

knew early in the proceedings that Briggs did not have funds to hire and employ the services of

an expert. See Ex parte Briggs, 187 S.W.3d at 463. Hiring an expert was critical in Briggs

because a portion of the victim’s medical records contained evidence that led experts hired in

connection with Briggs’s habeas application to conclude the victim died of natural causes, not as

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the result of a homicidal act. See id. at 462–65. Thus, it was rather obvious the outcome of

Briggs’s trial might have been affected by the decision not to have the records reviewed by a

medical expert. Trial counsel made no effort to deal with the lack of funds, such as seek relief

from the trial court under Ake v. Oklahoma, 470 U.S. 68 (1985). See Ex parte Briggs, 187

S.W.3d at 469. In fact, trial counsel pushed Briggs to enter a guilty plea. See id. at 465. The

court of criminal appeals held counsel’s decision was not part of a reasonable trial strategy but

was based on economic considerations instead in violation of the constitutional right to the

effective assistance of counsel. See id. at 467, 469.

       In Wright, there was simply no rhyme or reason for trial counsel to neglect going over

notes prepared by the State’s witnesses that were easily impeachable both on cross-examination

and by testimony from expert witnesses called by trial counsel. But neither of those was done,

and the only explanations for the failure were that the notes were difficult to read, an expert

would not be able to interview the child victim, and counsel lacked time to consult an expert.

See Wright, 223 S.W.3d at 43–44. The Houston First Court of Appeals found Wright’s defense

was adversely affected and that Wright had been deprived of effective assistance of counsel. See

id.

       In the case at bar, Vitz’s decision to mount an attack on the sufficiency of the evidence

was based in part on his knowledge of the trial judge who sat as fact finder in the case. Vitz was

apparently so convinced the trial court would not convict his client that he waived a jury trial on

the question of guilt. Although there was impaired driving in this case, the amount of drug in

appellant’s bloodstream was minimal, and there was no alcohol present at all.           Under the

circumstances, we cannot conclude relying on an evidentiary sufficiency defense constituted

ineffective assistance.




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       As far as failure to call an expert witness, Vitz had questioned the State’s witness, Rohr,

and was told that even a small therapeutic dose was enough to cause intoxication, so a “low

dose” defense was effectively exploded by the State. Even if it could be argued the failure to call

an expert witness in this case was ineffective assistance, there has been no showing of prejudice

under the second prong of Strickland, i.e., there has been no showing by affidavit or otherwise,

in what way appellant would be assisted, or would have sustained a different outcome in the

case. See Strickland, 466 U.S. at 687.

       We conclude a challenge to the sufficiency of the evidence was a reasonable defense for

Vitz to pursue in the circumstances that existed at the time of trial because any expert testimony,

whether from the State or the defense, would have revealed that even a therapeutic dose of

alprazolam could have caused or exacerbated intoxication, ergo, other factors such as symptoms

resulting independently from appellant’s bipolar disorder which were presented by Vitz during

testimony were appropriate. Not only did the expert testimony not assist appellant, but rather it

likely was the linchpin of the trial court’s decision to convict. The Strickland standard of review

is not based on hindsight, but rather whether trial counsel’s strategic decision was reasonable at

the time of trial. See Ex parte Flores, 387 S.W.3d 626, 633–34 (Tex. Crim. App. 2012). We

conclude Vitz’s decision to waive a jury trial and proceed in a bench trial on the issue of

sufficiency of the evidence was a reasonable decision. The employment of expert testimony was

not shown to be a factor that would have been helpful to appellant, and indeed no evidence to the

contrary was presented in the motion for new trial hearing. Thus, even assuming arguendo the

first prong of Strickland was met, there is no evidence establishing an affirmative answer to the

second prong of Strickland. We overrule appellant’s sole issue.




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       The judgment of the trial court is affirmed.




                                                      /Charles F. Campbell/
                                                      CHARLES F. CAMPBELL
                                                      JUSTICE, ASSIGNED



Do Not Publish
TEX. R. APP. P. 47

121383F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

VARINA G. HARDIN, Appellant                        On Appeal from the County Court at Law
                                                   No. 4, Collin County, Texas
No. 05-12-01383-CR        V.                       Trial Court Cause No. 004-80250-2012.
                                                   Opinion delivered by Justice Campbell.
THE STATE OF TEXAS, Appellee                       Chief Justice Wright and Justice Lang-Miers
                                                   participating.

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


Judgment entered this 11th day of March, 2014.




                                                   /Charles F. Campbell/
                                                   CHARLES F. CAMPBELL
                                                   JUSTICE, ASSIGNED




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