      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00121-CR



                                 Willard Glen Wood, Appellant

                                                 v.

                                  The State of Texas, Appellee


             FROM THE COUNTY COURT AT LAW NO. 3 OF BELL COUNTY
           NO. 2C08-04324, HONORABLE REBECCA DEPEW, JUDGE PRESIDING



                            MEMORANDUM OPINION


                Appellant Willard Glen Wood appeals his conviction for the offense of driving

while intoxicated. See Tex. Penal Code § 49.04. In two issues, appellant contends that the trial

court erred when it failed to grant his motion for new trial because his trial attorney rendered

ineffective assistance of counsel. We affirm the judgment of conviction.


                                        BACKGROUND

               On May 22, 2008, at around 2:00 a.m., a peace officer observed a vehicle speeding,

failing to use turn signals, and crossing over the center line. Based on these observations, the

officer pulled the vehicle over. Appellant, who was the driver of the vehicle, told the officer that

he “had a couple of beers” and was coming from the “All Bottoms Up Club.” The officer “could

detect an odor” of alcohol and asked appellant to exit the vehicle. The officer observed that, after

appellant exited the vehicle, he “was swaying,” and his eyes were “bloodshot, watery.” The officer
“could still detect the odor of alcohol” and began administering field sobriety tests. He first

administered the horizontal gaze nystagmus (HGN) test, and all six “clues” from the test indicated

that appellant “was intoxicated.” The officer then attempted to administer the walk and turn test

but appellant “was unable to get into the starting position and stay without almost falling over.”

The officer stopped the test for safety reasons. The officer read the Form DIC-24 to appellant, but

appellant refused to give a specimen of his breath.1 The officer then transported him to the

intoxilyzer room. In the intoxilyzer room, the officer again read the Form DIC-24, but appellant

did not agree to a breath test and requested his attorney.

                A complaint and information were filed, and the matter proceeded to jury trial in

September 2011. The only witness to testify at trial was the arresting officer. He testified about

his observations of appellant during the traffic stop and in the intoxilyzer room, the field sobriety

tests, and his opinion that appellant was driving while intoxicated. The exhibits admitted at trial

included the video taken from the officer’s car that recorded the traffic stop and the video from the

intoxilyzer room.

                After the jury found appellant guilty and with the agreement of the State and the trial

court, appellant changed his election from the jury to the court to determine punishment. The trial

court held the hearing on punishment in November 2011. Appellant called three witnesses to

testify. The witnesses testified about their relationship to appellant, appellant’s family life and his

mobile DJ business, and the adverse impact that jail time or a large fine would have on appellant


       1
         The “Form DIC-24 . . . is the written component of the statutory warning required in cases
where a peace officer requests a voluntary blood or breath specimen from a person.” State
v. Neesley, 239 S.W.3d 780, 782 n.1 (Tex. Crim. App. 2007) (citing Tex. Transp. Code § 724.015).

                                                  2
and his family. Following the hearing, the trial court assessed a sentence of 180 days’ confinement

and a fine of $500 plus court costs but suspended imposition of the sentence and placed appellant

on community supervision for a period of one year.

               Appellant thereafter filed a motion to substitute counsel and a motion for a new trial

on the ground that his trial attorney rendered ineffective assistance of counsel because he failed to

“properly investigate,” consult with appellant, or “prepare a proper defense.” His specific

complaints included the trial attorney’s alleged failure to meet with him “about the facts of the

case,” to discuss “any possible options that [appellant] might have had available,” or to obtain the

training materials for field sobriety tests used by the arresting officer. The trial court held an

evidentiary hearing on the motion for new trial. Appellant and his trial attorney testified at the

hearing, providing conflicting versions of their communications before and during the trial and

the defense strategy. After the hearing, the trial court denied the motion for new trial. This

appeal followed.


                                          DISCUSSION

               In two issues, appellant contends that the trial court erred by failing to grant his

motion for new trial because his trial attorney rendered ineffective assistance of counsel. He urges

that his attorney “failed to properly prepare for the trial in order to present any defense for

appellant” and that he “failed to properly prepare a defense in that he did not familiarize himself

with the pertinent law pertaining to the administration of standardized field sobriety testing.”




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Standards of Review

                To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered

by the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Menefield v. State,

363 S.W.3d 591, 592 (Tex. Crim. App. 2012). The appellant must demonstrate under the first

prong that counsel’s performance fell below an objective standard of reasonableness under

prevailing professional norms. Strickland, 466 U.S. at 687–88; Ex parte Lane, 303 S.W.3d 702,

707 (Tex. Crim. App. 2009). To meet the second prong, the appellant has to show the existence

of a reasonable probability—one sufficient to undermine confidence in the outcome—that but for

counsel’s deficient performance, the result of the proceeding would have been different. Strickland,

466 U.S. at 694; Ex parte Lane, 303 S.W.3d at 707. Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S.

at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

                Appellant raises his claim for ineffective assistance of counsel in the context of the

trial court’s denial of his motion for new trial. We review a trial court’s denial of a motion for new

trial “for an abuse of discretion, reversing only if the trial court’s ruling was clearly erroneous and

arbitrary.” Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013) (citing Riley v. State,

378 S.W.3d 453, 457 (Tex. Crim. App. 2012)). “A trial court abuses its discretion if no reasonable

view of the record could support its ruling.” Id. “This requires the appellate court to view the

evidence in the light most favorable to the trial court’s ruling.” Id. “In the absence of express

findings, as here, we presume that the trial court made all findings, express and implied, in favor



                                                  4
of the prevailing party.” Id. (citing Riley, 378 S.W.3d at 459). “The trial court, as factfinder, is the

sole judge of witness credibility at a hearing on a motion for new trial.” Id. “Accordingly, the

appellate court must afford almost total deference to a trial court’s findings of historical facts as

well as mixed questions of law and fact that turn on an evaluation of credibility and demeanor.”

Id. (citing Riley, 378 S.W.3d at 458). Informed by the applicable standards of review, we turn to

appellant’s issues.


Preparation for Trial

                In his first issue, appellant contends that his trial attorney “failed to properly prepare

for the trial in order to present any defense for appellant” “because he had not discussed the case

with Appellant in a meaningful manner prior to trial.” Appellant further urges that his trial attorney

“never conferred with [appellant] concerning any possible defenses or explanations for his actions

as they appeared on the video.” The in-car video shows the officer administering the HGN test and

then appellant attempting but failing to maintain the starting position for the walk and turn test.

Appellant contends that he “suffered some physical problems that affected the way he would be able

to perform the walk [and] turn field sobriety test.” Appellant asserts that his trial attorney made no

effort to explain appellant’s poor performance on the walk and turn test at trial and that he should

have obtained medical records as to appellant’s physical problems to explain the poor performance.

                At the hearing on the motion for new trial, appellant testified that his trial attorney

did not watch the videos with him and that appellant had “virtually no discussion about the case”

with his attorney prior to trial, such as the facts that appellant had physical problems with his legs

and was traveling late at night between different clubs as part of his business at the time of the

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traffic stop. Appellant testified about his business and his physical problems. He testified that

“aneurysms in both legs” affected his ability to perform the walk and turn test. Appellant urges that,

at a minimum, his trial attorney could have called one of the witnesses who testified at the

sentencing hearing to address appellant’s physical problems with his legs. That witness testified

to an incident in which appellant “couldn’t hardly move around because his leg was hurting

real bad.”

                The trial attorney’s testimony directly conflicted with appellant’s testimony. The

trial attorney testified that he met with appellant at least ten times prior to trial to discuss the case

and that he watched the videos and discussed them with appellant. His “Client Summary” record

that was admitted as an exhibit at the hearing was consistent with his testimony. The record showed

that the attorney had over five hours of “case review” prior to the trial as well as eight hours of trial

preparation. The trial attorney also testified that he had discussions with the prosecutor, researched

the law, and reviewed the police reports and videos. The trial attorney testified that his strategy was

to “contest the State’s case and show that they couldn’t meet their burden.” He testified that he

thought that the video of the traffic stop was of “poor quality” and that, after hearing the officer’s

testimony, he did not believe that there was a need to call appellant. The record shows that the trial

attorney cross-examined the officer about his experience and training to perform the field sobriety

tests, the officer’s administration of the tests on appellant, the videos, and observations about

appellant that supported a finding that appellant was not intoxicated.2


        2
           For example, the trial attorney questioned the officer about his requests for appellant’s
driver’s license and insurance information, and the officer did not recall appellant “fumbling” to get
information for the officer. As to the walk and turn test, the trial attorney questioned the officer

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               Under the applicable standard of review, we presume that the trial court found the

trial attorney’s testimony credible, and resolved the conflicts in the testimony between the trial

attorney and appellant against appellant. Okonkwo, 398 S.W.3d at 694. We also presume that the

trial court found appellant’s testimony not credible as to the effect of his alleged physical problems

on his ability to perform the walk and turn test. See id. Although appellant complains about his

trial attorney’s failure to obtain medical records, appellant did not provide medical records or other

evidence to corroborate his testimony that a physical condition affected his ability to perform the

walk and turn test.3 As to the witness who testified at the sentencing hearing, he testified about an


about the usual procedure for administering the test, which includes a demonstration of how to
perform the test. The officer did not give appellant a demonstration before stopping the test. As to
the videos, the trial attorney made the following argument:

       [W]hen you looked at [the videos], Mr. Wood is not swaying. Mr. Wood goes into
       his pocket, pulls out chapstick, uses it. He’s calm. He’s collected. He’s even much
       more calm when he goes to the police station. And that’s when you get a better
       quality of what’s going on. And he tells him, I’m not participating. Get me a lawyer.

The trial attorney references a portion of the video from the traffic stop in which appellant clearly
takes chapstick out of his pocket, uses it, and then puts the chapstick back in his pocket. The video
from the traffic stop also is dark, inaudible, blurry, and indecipherable at times, particularly during
the administration of the HGN test.
       3
           During cross-examination, the trial attorney elicited the following testimony from
the officer:

[Defense Attorney]:    Did he offer you a reason on why he was unstable on his feet?

[Officer]:             No. He didn’t.

[Defense Attorney]:    Did you ask?

[Officer]:             I believe I did.

[Defense Attorney]:    Where is that in your report?

                                                  7
incident that occurred a few months before the hearing on the motion for new trial. The trial court

could have disregarded this evidence because it concerned an incident occurring several years after

the day of the traffic stop. Further, the trial court also saw the videos that showed appellant’s

movements and actions during the traffic stop and in the intoxilyzer room.

                On this record, the trial court could have concluded that the trial attorney’s

consultation with appellant and preparation for trial did not fall below an objective standard of

reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 687–88; Ex parte

Lane, 303 S.W.3d at 707. Thus, we cannot say that the trial court abused its discretion by denying

appellant’s motion for new trial based on his trial attorney’s alleged failure to consult with appellant

or prepare a defense for him. On this basis, we overrule appellant’s first issue and need not address

the second prong of appellant’s ineffective assistance claim as to this issue. See Strickland,

466 U.S. at 700.


Standards for Administration of Field Sobriety Tests

                In his second issue, appellant contends that his trial attorney rendered ineffective

assistance of counsel because his trial attorney “failed to properly prepare a defense in that he did

not familiarize himself with the pertinent law pertaining to the administration of standardized field

sobriety testing.” Appellant focuses on his trial attorney’s lack of familiarity with Emerson v. State,

880 S.W.2d 759 (Tex. Crim. App. 1994),4 and the arresting officer’s apparent lack of awareness of


[Officer]:              It’s not.
        4
          In Emerson, the court of criminal appeals discusses the technique and reliability of the
HGN test. See generally Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994). In that case,
after concluding that the test was relevant and reliable, the court affirmed the admission of the

                                                   8
the standards promulgated by the National Highway Traffic Safety Administration (NHTSA).

Appellant contends that, because his trial attorney was not familiar with the pertinent law, he was

unable to properly cross-examine the officer.

               The record, however, shows that the trial attorney had the appropriate standards and

guidelines before him during his cross-examination of the officer and that the officer was

appropriately trained to perform field sobriety tests. The officer testified that his training was

approved through the Texas Commission on Law Enforcement Officer Standards and Education.

Those standards incorporate the standards promulgated by the NHTSA. See Emerson, 880 S.W.2d

at 766. At the hearing on the motion for new trial, the trial attorney testified that he familiarized

himself with the applicable standards by reviewing the Standard Field Sobriety Testing Manual and

materials he had from the Texas Criminal Defense Lawyers Association.

               We must presume that the trial court resolved the conflicts in the testimony between

the trial attorney and appellant against appellant. See Okonkwo, 398 S.W.3d at 694. Finding the

trial attorney’s testimony credible, the trial court could have concluded that the attorney’s

familiarity with the applicable standards for field sobriety testing did not fall below an objective

standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at

687–88; Ex parte Lane, 303 S.W.3d at 707. Thus, we cannot say that the trial court abused its

discretion by denying appellant’s motion for new trial based on his trial attorney’s alleged failure

“to properly familiarize himself with the pertinent law pertaining to the administration of

standardized field sobriety testing.” On this basis, we overrule appellant’s second issue and need



officer’s testimony concerning the defendant’s performance on the HGN test. Id. at 769–70.

                                                 9
not address the second prong of appellant’s ineffective assistance claim as to this issue. See

Strickland, 466 U.S. at 700.


                                       CONCLUSION

               For these reasons, we affirm the judgment of conviction.




                                     __________________________________________

                                     Melissa Goodwin, Justice



Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: April 30, 2014

Do Not Publish




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