                                    NO. 07-07-0434-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                   DECEMBER 29, 2008

                            ______________________________


                              JOHN STEPHENS, APPELLANT

                                             v.

                            THE STATE OF TEXAS, APPELLEE

                          _________________________________

               FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 2005-411,195; HON. JIM BOB DARNELL, PRESIDING

                           _______________________________

Before CAMPBELL, HANCOCK and PIRTLE, JJ.


                                         OPINION


          Appellant, John Stephens, appeals his conviction for intoxication assault with a

motor vehicle, enhanced by two prior felony convictions, and sentence of 45 years

incarceration in the Institutional Division of the Texas Department of Criminal Justice. We

affirm.
                                        Background


       On September 25, 2005, appellant and his girlfriend, Cassandra Payne, visited a

bar at which appellant consumed alcohol. After a couple of hours, the couple left the bar

on appellant’s motorcycle. While driving on the access road to Interstate 27, appellant lost

control of the motorcycle causing Payne to be thrown from the vehicle and into oncoming

traffic. As a result of being thrown from the motorcycle, Payne suffered a large wound on

her head and was knocked unconscious. A witness to the accident called 911 and both

appellant and Payne were transported to the hospital by ambulance. Based on blood

testing, appellant’s blood-alcohol concentration was 0.11 soon after the accident.


       Appellant was indicted for committing the offense of intoxication assault. See TEX .

PENAL CODE ANN . § 49.07 (Vernon Supp. 2008). The indictment alleged that appellant

drove or operated a motor vehicle in a public place while intoxicated and, by reason of

such intoxication, caused serious bodily injury to Payne through accident or mistake. The

indictment specifically alleged that appellant failed to control the motor vehicle and

operated it at an unsafe speed. Following trial, an 11 person jury returned a verdict finding

appellant guilty of intoxication assault. The trial court then found two enhancement

paragraphs true and sentenced appellant to 45 years incarceration in the Texas

Department of Criminal Justice, Institutional Division.


       By three issues, appellant appeals the conviction and sentence. By his first issue,

appellant contends that the trial court abused its discretion by finding a juror disabled and

proceeding with only 11 jurors. By his second issue, appellant contends that the trial court


                                             2
erred by admitting expert opinion testimony without a proper predicate, pursuant to Texas

Rule of Evidence 702, being shown. By his third issue, appellant contends he was denied

effective assistance of counsel.


                                       Juror Disability


       By his first issue, appellant contends that the trial court abused its discretion in

dismissing a juror as disabled after the jury had been empaneled. Appellant contends that

the juror simply indicated a bias or prejudice in cases involving motorcycles and that such

a bias or prejudice is an insufficient basis to find a juror disabled.


       After the jury was empaneled and sworn and after one witness testified, the trial

court recessed for the evening. After the recess, a member of the jury, Mendez, informed

the court that she did not believe that she could continue to serve on the jury in the case.

According to the court, Mendez was “freaking out,” “extremely upset,” and crying. The

court informed the parties that the court did not think that the juror could continue as a juror

because she was “extremely distraught” and she had already stated that there was no way

that she could listen to the evidence in this case. However, because appellant had already

left the courtroom, the trial court informed the parties and the juror that they would take up

the issue in the morning.


       The following morning, Mendez indicated that she continued to feel that she would

be unable to reach a verdict in the case because of what had happened to her. She

explained that, about a year earlier, she was in a similar motorcycle accident and that her

knowledge of motorcycles would preclude her from ascribing blame to anyone. When

                                               3
asked if her experience and knowledge would prevent her from being a fair and impartial

juror, Mendez stated that she believed that it would. Following examination of Mendez by

both parties, the court opined that Mendez was disabled and would not be able to continue

to serve as a juror. Appellant objected on the grounds that Mendez simply held a bias or

prejudice and was not disabled to serve on the jury. The court overruled appellant’s

objection and found that Mendez was disabled to serve on the jury. The court then

overruled appellant’s motion for mistrial and granted the State’s motion to proceed with the

remaining 11 jurors.


       The Texas Constitution requires a jury in a felony case to be composed of 12

members. TEX . CONST . art. V, § 13. However, this provision also authorizes the legislature

to change or modify this requirement if a juror dies or is disabled from sitting. Id. Article

36.29 of the Texas Code of Criminal Procedure provides that “after the trial of any felony

case begins and a juror dies or, as determined by the judge, becomes disabled from sitting

at any time before the charge of the court is read to the jury, the remainder of the jury shall

have the power to render the verdict . . . .” TEX . CODE CRIM . PROC . ANN . art. 36.29(a)

(Vernon Supp. 2007). A juror is disabled if he has a “physical illness, mental condition, or

emotional state” which hinders the juror’s ability to perform the duty of a juror. Hill v. State,

90 S.W.3d 308, 315 (Tex.Crim.App. 2002). A disability, for purposes of article 36.29(a),

includes “any condition that inhibits a juror from fully and fairly performing the functions of

a juror.” Routier v. State, 112 S.W.3d 554, 588 (Tex.Crim.App. 2003).


       The determination of whether a juror is disabled is within the discretion of the trial

court. See Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App. 1999). Absent an abuse

                                               4
of that discretion, we will not find reversible error. Id. A trial court abuses its discretion if

its decision was arbitrary or unreasonable, Brown v. State, 960 S.W.2d 772, 778

(Tex.App.–Dallas 1997, pet. ref’d), or, given the record and the applicable law, the decision

fell outside the zone of reasonable disagreement. See Benitez v. State, 5 S.W.3d 915,

918 (Tex.App.–Amarillo 1999, pet. ref’d). In other words, a trial court abuses its discretion

only if the reviewing appellate court can say with confidence that no reasonable perception

of the matter under consideration could have yielded the decision made by the trial court.

See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh’g).


       In the present case, the trial court found that Mendez was disabled due to an

emotional state which hindered her ability to perform her duties as a juror. The trial court

based its ruling on its “observation of her yesterday and her uncontrollable crying and

shaking.” The court stated that Mendez had become “emotionally distraught” after hearing

testimony relating to the 911 call in the present case and the court opined that “it would be

a major problem to have her continue to serve on the jury . . . .” Further, Mendez stated

that she did not believe that she would be able to be a fair and impartial juror in this case.

Because the trial court was able to observe Mendez’s attitude and demeanor and could

have reasonably determined that hearing the evidence in this case would have caused an

emotional state that would have prevented her from fully and fairly performing the functions

of a juror, we cannot conclude that the trial court abused its discretion in dismissing

Mendez as disabled and proceeding to trial with 11 jurors.1


       1
         Appellant correctly contends that the Texas Court of Criminal Appeals has held
that a juror’s bias or prejudice for or against a defendant does not render a juror disabled.
Ex parte Hernandez, 906 S.W.2d 931, 932 (Tex.Crim.App. 1995). However, we cannot

                                               5
       We overrule appellant’s first issue.


                                  Expert Opinion Testimony


       By his second issue, appellant contends that the trial court erred by admitting the

expert opinion testimony of Lubbock Police Corporal Jeanelle Taveau without a proper

predicate being laid pursuant to Texas Rule of Evidence 702. Specifically, appellant

contends that the trial court erred in failing to determine whether Taveau’s opinion

testimony was reliable before admitting it.


       Soon after the motorcycle accident, Taveau, the lead accident investigator in this

case, arrived at the scene. Taveau photographed the accident scene and made markings

in the pavement to preserve evidence relevant to determining how the accident occurred.

From her observations of and evidence collected at the scene of the accident, Taveau was

able to calculate that appellant was traveling at a speed of between 52 and 56 miles per

hour when he first lost control of the motorcycle.2 Taking into account road conditions at

the time of the accident, Taveau concluded that appellant was traveling at an unsafe speed

and failed to control his vehicle, which caused the accident that caused Payne’s injuries.




conclude from the record that the trial court abused its discretion in finding that the
emotional distress that the evidence caused Mendez was more than a mere bias or
prejudice. Further, a bias or prejudice that puts the juror in such an emotional state that
it prevents the juror from fully and fairly performing the duties of a juror may render the
juror disabled. See Reyes v. State, 30 S.W.3d 409, 412 (Tex.Crim.App. 2000).
       2
           The posted speed limit at the location of the accident was 40 miles per hour.

                                              6
       Appellant concedes that he did not object to Taveau’s opinion testimony at trial.

Additionally, appellant did not request the trial court conduct a Daubert hearing pursuant

to Texas Rule of Evidence 702. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,

590-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kelly v. State, 824 S.W.2d 568, 572-73

(Tex.Crim.App. 1992). To preserve a complaint of error relating to the admission of

evidence, an appellant must have made a specific and timely objection to the evidence at

trial. See TEX . R. APP. P. 33.1(a); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.

1991). Because appellant failed to make a timely and specific objection to Taveau’s expert

opinion testimony at trial, nothing has been preserved for our review.


       We overrule appellant’s second issue.


                            Ineffective Assistance of Counsel


       Finally, by his third issue, appellant contends that he was denied the effective

assistance of counsel at trial. Specifically, appellant contends that his trial counsel

provided ineffective assistance based on his failure to object to or to request a Daubert

hearing on Taveau’s expert opinion testimony relating to the cause of the motorcycle

accident.


       Ineffective assistance of counsel claims are reviewed under the two-pronged test

articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). See Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (adopting

Strickland as applicable standard under Texas Constitution). The first prong of the

Strickland test requires a showing that counsel’s performance was deficient, which requires

                                            7
a showing that counsel made errors so serious that counsel was not functioning as the

counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The second

prong of the Strickland test requires a showing that counsel’s deficient performance

prejudiced the defense, which requires a showing that counsel’s errors were so serious as

to deprive the defendant of a fair trial. Id.


       Review of a claim of ineffective assistance of counsel must be highly deferential to

trial counsel’s trial strategies and decisions. Id. at 689. Because of the distorting effects

of hindsight, we must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance and the defendant must overcome the

presumption that the challenged action “might be considered sound trial strategy.” Id. In

order to overcome this burden, the defendant must specify the particular acts or omissions

allegedly constituting ineffectiveness, present evidence illustrating why counsel did what

he did, and establish how that strategy was unsound. Rodriguez v. State, 974 S.W.2d 364,

371 (Tex.App.–Amarillo 1998, pet. ref’d). A direct appeal is usually an inadequate vehicle

for raising claims of ineffective assistance because the record is generally undeveloped.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Trial counsel should

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

ineffective and, absent such an opportunity, an appellate court should not find deficient

performance unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Id.


       Appellant argues that, “It cannot be effective strategy to permit the admission of

expert opinion testimony on a significant element of the offense without objection or a

                                                8
Daubert hearing pursuant to Rule 705(b).” However, appellant has failed to show how

Taveau’s testimony regarding the speed at which appellant was traveling when the

accident occurred constitutes a significant element of the offense of intoxication assault.

The offense, as applicable to this case, required the State to prove that appellant, by

accident or mistake, while operating a motor vehicle in a public place while intoxicated,

caused serious bodily injury to another by reason of that intoxication. See TEX . PENAL

CODE ANN . § 49.07(a)(1) (Vernon Supp. 2008). Even if appellant’s speed constituted a

significant element of the charged offense, Payne testified that appellant told her that he

was driving at a speed around 60 miles per hour at the time of the accident. There was

no objection to this testimony at trial and there is no appellate claim that trial counsel’s

failure to object to this testimony was ineffective assistance. Thus, Taveau’s testimony

regarding the speed that appellant was traveling at when the accident occurred is merely

cumulative of other evidence that was admitted without objection and this other evidence

has not been raised by appellant’s ineffective assistance claim. Finally, we note that

appellant’s trial counsel attempted to establish, through Taveau’s expert testimony, that

the cause of the accident was another vehicle clipping or hitting appellant and causing him

to lose control of the motorcycle. Clearly, appellant had strategic reasons to avoid

discrediting the State’s accident reconstruction expert when appellant intended to establish

a defense through her expert testimony. Because the record does not establish trial

counsel’s strategy in not objecting to or otherwise challenging Taveau’s testimony and as

there are legitimate and sound trial strategies that would justify the failure to do so, we

cannot conclude that trial counsel failed to provide effective assistance.



                                             9
         We overrule appellant’s third issue.




                                         Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.




                                    Mackey K. Hancock
                                         Justice

Publish.




                                                10
