                               NO. 12-09-00309-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS
TRACEY ESCUE,
APPELLANT                                        '    APPEAL FROM THE 159TH

V.                                               '    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                              '    ANGELINA COUNTY, TEXAS
APPELLEE
                              MEMORANDUM OPINION
       Tracey Escue appeals his conviction for two counts of intoxication assault.
Appellant raises six issues on appeal. We affirm.

                                      BACKGROUND
       Appellant was charged by indictment with two counts of intoxication assault.
Appellant pleaded not guilty to both counts. After a bench trial on guilt, the trial court
found Appellant guilty of the charged offenses. The trial court subsequently assessed
Appellant‘s punishment at six years of imprisonment for each count. Appellant filed a
motion for new trial, which was denied by operation of law. This appeal followed.

                               EVIDENTIARY SUFFICIENCY
       In his first, second, third, and fourth issues, Appellant challenges the legal and
factual sufficiency of the evidence that his victims suffered serious bodily injury.
Standard of Review
       Evidence is legally insufficient when an appellate court, viewing the evidence in
the light most favorable to the judgment, determines that a rational trier of fact could not
have found the essential elements of the offense beyond a reasonable doubt. Johnson v.
State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We must bear in mind that the
factfinder is the exclusive judge of the credibility of witnesses and of the weight to be
given their testimony. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App.
1994). The factfinder is entitled to draw reasonable inferences from the evidence. See
Dudley v. State, 205 S.W.3d 82, 86-87 (Tex. App.—Tyler 2006, no pet.). Likewise, the
reconciliation of conflicts in the evidence is within the exclusive province of the
factfinder. See Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).
       Evidence is factually insufficient ―only if the evidence supporting guilt is so
obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting
evidence, as to render the conviction clearly wrong and manifestly unjust.‖ Ortiz v.
State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust
verdict occurs where the finding of guilt ―shocks the conscience‖ or ―clearly
demonstrates bias.‖ Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). In
conducting a factual sufficiency review of the evidence, we consider all of the evidence
weighed by the factfinder that tends to prove the existence of the fact in dispute and
compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939
S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with
the factfinder‘s determination, even if probative evidence exists that supports the
determination, see Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996), our
evaluation should not substantially intrude upon the factfinder‘s role as the sole judge of
the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164.
Where there is conflicting evidence, the factfinder‘s determination on such matters is
generally regarded as conclusive. See Dudley, 205 S.W.3d at 89.
Discussion
       The two counts against Appellant respectively involved two victims, Jennifer
Morgan and Laurie Sayre.       It is uncontested that Appellant drove his car into an
ambulance, causing injuries to Morgan and Sayre, employees of the ambulance service.
However, Appellant challenges the sufficiency of the evidence that Morgan and Sayre
suffered serious bodily injury, as required under the intoxication assault statute. See TEX.
PENAL CODE ANN. § 49.07(b) (Vernon Supp. 2009). According to the statute, ―serious
bodily injury‖ means ―injury that creates a substantial risk of death or that causes serious
permanent disfigurement or protracted loss or impairment of the function of any bodily
member or organ.‖ Id.
       Morgan
       At trial, Morgan testified as to her injuries. The State also introduced medical
records from her initial treatment following the wreck. Morgan testified that she was first
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diagnosed with a cut finger and a sprained shoulder. As a result, she missed fourteen
days of work. She was subsequently diagnosed with six bulging discs in her neck and
back. She was eventually forced to cease work as an emergency medical technician
because she was no longer able to endure the lifting requirements. At the time of trial,
almost three years after the wreck, she still had trouble sleeping and laying down and was
unable to sit for more than thirty-five to forty-five minutes at a time. And, while
standing, her arms and feet still tended to lose feeling. Appellant points out that the
medical records from Morgan‘s initial treatment contradict her testimony regarding the
extent of her injuries. However, we note that Morgan‘s injuries appear from the evidence
to have progressively worsened after the wreck.
       Sayre
       Sayre also testified as to her injuries, and the State introduced medical records
from her initial treatment. Sayre testified that she suffered a broken finger, a separated
shoulder, and a pinched nerve in her back. As a result of the shoulder injury, she required
two months of physical therapy. She testified that she still suffered from shoulder
problems despite the therapy. The broken finger healed after two weeks. But as a result
of the pinched nerve, she continues, almost three years later, to have numbness in three
fingers in one hand. Sayre also suffers from continuing back and shoulder pain, requiring
medication. As a result of her injuries, she was unable to maintain employment as a
paramedic because she could not perform the lifting requirements. As with Morgan,
Appellant points out that the medical records from Sayre‘s initial treatment contradict her
testimony regarding the extent of her injuries. However, we note that Sayre‘s injuries
appear from the evidence to have progressively worsened after the wreck.
Conclusion
       Viewing the evidence in the light most favorable to the judgment, and giving due
deference to the factfinder, we hold that a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Johnson, 871 S.W.2d
at 186.   Further, after considering all of the evidence, we hold that the evidence
supporting guilt was not so obviously weak, or the contrary evidence so strong, as to
render the conviction clearly wrong or manifestly unjust. See Ortiz, 93 S.W.3d at 87. In
short, the evidence was legally and factually sufficient for the trial court to find that
Morgan and Sayre suffered an ―injury that creates a substantial risk of death or that
causes serious permanent disfigurement or protracted loss or impairment of the function
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of any bodily member or organ.‖ See TEX. PENAL CODE ANN. § 49.07(b). Therefore, we
overrule Appellant‘s first, second, third, and fourth issues.

                                    CHAIN OF CUSTODY
       In his fifth issue, Appellant asserts that ―the trial court abused its discretion in
overruling the chain of custody objection and admitting State‘s Exhibit Number 6 into
evidence.‖    Exhibit 6 is a blood sample analysis report, showing that the sample
contained .11 grams of alcohol per 100 milliliters. At trial, the officer who witnessed the
blood being drawn testified that he did not remember what the test subject from whom
the blood was drawn looked like. Consequently, the officer was unable to identify
Appellant as the person from whom the blood was drawn.                 Therefore, Appellant
complains that, ―[i]n the present case, the State did not meet the threshold requirement of
proving the beginning of the chain of custody.‖
Standard of Review
       An appellate court reviewing a trial court‘s ruling on the admissibility of evidence
must utilize an abuse of discretion standard of review. Weatherred v. State, 15 S.W.3d
540, 542 (Tex. Crim. App. 2000). ―In other words, the appellate court must uphold the
trial court‘s ruling if it was within the zone of reasonable disagreement.‖ Id. In addition,
the appellate court must review the trial court‘s ruling in light of what was before the trial
court at the time the ruling was made. Id.
Discussion
       The State offered Exhibit 6 after the testimony of Trooper Robert Johnson of the
Texas Department of Public Safety (―DPS‖). Trooper Johnson testified that he was
instructed by DPS Communications to travel to East Texas Medical Center (―ETMC‖) in
Tyler, Texas in order for a blood sample to be collected from Appellant. He stated that
he arrived at ETMC and asked the staff to identify ―Tracey Escue.‖ A staff member
pointed him to an individual. While Trooper Johnson watched, blood was drawn from
that individual.    Trooper Johnson took possession of the blood sample, did the
appropriate ―paperwork,‖ and delivered the sample to the crime lab. Trooper Johnson
testified that he could not remember what the individual from whom the blood was drawn
looked like. And the evidence before the trial court reflected that the initial investigating
officer, Trooper Randall Noe, had understood that Appellant had been transported to
Mother Frances Hospital in Tyler, not ETMC. Trooper Noe‘s report indicated that the
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sample had been received by Trooper Johnson at Mother Frances. But Trooper Johnson
explained this confusion in his testimony. He stated that Trooper Noe‘s report was
simply incorrect.      Likewise, he stated that he had been instructed by DPS
Communications to go to ETMC and that it was not uncommon for medical helicopters to
transport an injured person to a different hospital than initially planned. Therefore, it was
possible to conclude from the evidence before the trial court that Trooper Noe had
thought the helicopter was going to Mother Frances, but that a change of plans had
occurred. It was also possible to conclude that Trooper Noe then prepared his report
without realizing that the report reflected the wrong hospital.
       In light of the evidence before us, we cannot say that there was insufficient
evidence that the blood was drawn from Appellant so as to require exclusion. See
Dansby v. State, No. 12-93-00061-CR, 1995 WL 498725, at *4-5 (Tex. App.—Tyler
Aug. 23, 1995) (not designated for publication), rev’d on other grounds, 931 S.W.2d 297
(Tex. Crim. App. 1996) (reaching a similar conclusion).            Therefore, we overrule
Appellant‘s fifth issue.

                           INEFFECTIVE ASSISTANCE OF COUNSEL
       In his sixth issue, Appellant argues that trial counsel was ineffective because he
failed to seek to examine the forensic scientist who prepared the report labeled Exhibit 6.
Standard of Review
       The standard for testing claims of ineffective assistance of counsel is set out in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and
is applicable to this appeal. See Hernandez v. State, 726 S.W.2d 53, 54-57 (Tex. Crim.
App. 1986). To prevail on a claim of ineffective assistance, an appellant must show that
his attorney‘s representation fell below the standard of prevailing professional norms, and
that there is a reasonable probability that, but for the attorney‘s deficiency, the result of
the trial would have been different. Strickland, 466 U.S. at 687-88, 694, 104 S. Ct. at
2064-65, 2068.      A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id., 466 U.S. at 694, 104 S. Ct. at 2068.
       ―[A] defendant need not show that counsel‘s deficient conduct more likely than
not altered the outcome in the case.‖ Id., 466 U.S. at 693, 104 S. Ct. at 2052; see
Pennington v. State, 768 S.W.2d 740, 741 (Tex. App.—Tyler 1988, no pet.). The
Supreme Court ―found this ‗outcome determinative‘ standard . . . too heavy a burden on
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defendants, and that its use was not appropriate.‖ Nealy v. Cabana, 764 F.2d 1173, 1178
(5th Cir. 1985) (citing Strickland, [466 U.S. at 693-95], 104 S. Ct. at 2068-69). Instead,
―[t]he result of a proceeding can be rendered unreliable . . . even if the errors of counsel
cannot be shown by a preponderance of the evidence to have determined the outcome.‖1
Strickland, 466 U.S. at 693, 104 S. Ct. at 2052; see Doherty v. State, 781 S.W.2d 439,
442 (Tex. App.—Houston [1st Dist.] 1989, no pet.).
        Our review of counsel‘s representation is highly deferential; we indulge a strong
presumption that counsel‘s conduct falls within a wide range of reasonable
representation. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. This court will not
second guess through hindsight the strategy of counsel at trial, nor will the fact that
another attorney might have pursued a different course, without more, support a finding
of ineffectiveness. See id. But see Ex parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim.
App. 1980) (―Surely at some point ‗tactic‘ becomes an unsatisfactory justification for
ineptness. And where silence which results in waiver of potentially reversible error in
almost all respects cannot be explained by the practitioner, we are not warranted in
excusing his major derelictions.‖).               Further, a reviewing court will not find
ineffectiveness by isolating any portion of counsel‘s representation, but will judge the
claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 104 S.
Ct. at 2069.
Discussion
        Trial counsel did not require the State to present a forensic scientist in support of
Exhibit 6. Instead, counsel sought to exclude the exhibit based upon chain of custody
issues. Appellant asserts that trial counsel should have also required the State to present a
sponsoring scientist for the exhibit, thereby allowing for examination of that witness.
However, despite raising this matter in a motion for new trial and securing a hearing,
Appellant failed to present testimony from such a witness. And, without more, trial


        1
           Generally, an appellant bears the burden of proving, ―by a preponderance of the evidence,‖ that
counsel was ineffective. See, e.g., Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
However, no such showing may be required to prove the prejudice prong of Strickland – ―that there is a
reasonable probability that, but for the attorney‘s deficiency, the result of the trial would have been
different.‖ Strickland, 466 U.S. at 693, 104 S. Ct. at 2052 (―[A] defendant need not show that counsel‘s
deficient conduct more likely than not altered the outcome in the case.‖); see Holland v. Jackson, 542 U.S.
649, 654-55, 124 S. Ct. 2736, 2738-39, 159 L. Ed. 2d 683 (2004). Therefore, appellate courts should not
require a preponderance of the evidence in support of Strickland’s prejudice prong. However, in relation
to the first prong of Strickland, the unreasonable deficiency prong, appellate courts should require a
preponderance of the evidence.
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counsel‘s conduct shows nothing. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim.
App. 1983) (―Counsel‘s failure to call witnesses at the guilt-innocence and punishment
stages is irrelevant absent a showing that such witnesses were available and appellant
would benefit from their testimony.‖). As such, we cannot determine whether Appellant
was prejudiced by trial counsel‘s failure. We overrule Appellant‘s sixth issue.

                                               DISPOSITION
         We affirm the judgment of the trial court.



                                                                SAM GRIFFITH
                                                                   Justice
Opinion delivered August 31, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                          (DO NOT PUBLISH)




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