                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-16-00144-CR



             ANTONIO MOORE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 102nd District Court
                Bowie County, Texas
            Trial Court No. 14F0611-102




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                            MEMORANDUM OPINION
           After being charged in two separate indictments, Antonio Moore was convicted by a jury

of felony murder and intoxication assault1 arising out of an automobile accident that killed one

person and injured another. As a result of his felony murder conviction, Moore was sentenced as

a habitual offender to ninety-nine years in prison. Moore appeals, claiming that (1) he received

ineffective assistance of counsel at trial and (2) the State failed to present sufficient evidence to

prove he was guilty of felony murder. Because we find Moore received effective assistance of

counsel at trial and the State presented sufficient evidence to prove Moore was guilty of felony

murder, we affirm the judgment of the trial court.

I.         Background

           About 4:15 p.m. on Memorial Day May 24, 2014, Texas Department of Public Safety

Trooper Michael Ferguson came upon a two-vehicle crash that had just occurred on U.S. Highway

67 in Bowie County, Texas. Upon his arrival, Ferguson learned that Janette Hale had been the

driver of one of the vehicles2 and that the other vehicle had been driven by Moore.3 At trial, Hale

testified as to what occurred just before the collision, stating that she first noticed an “out of

control” car heading toward her on the highway. Hale identified the “out of control” car as being




1
    Moore also appeals his intoxication assault conviction in our cause number 06-16-00145-CR.
2
    Hale was driving a white Hyundai Sonata and was traveling westbound on Highway 67.
3
    Moore was driving a gray Chevrolet Impala and was traveling eastbound on Highway 67.

                                                          2
a Chevrolet Impala. Hale stated that once the vehicle had gotten around the other cars, she believed

the driver had regained control of the car.4 Hale testified,

         I get back to hitting 60. All of the sudden, he just careens over into my lane like
         this. I see him starting to come toward my lane, like he was going to do a -- it
         looked like you were going to do a donut in the middle of the road. So he just
         careens over. I take both feet on the brake, and I brace for impact.

Hale stated that she did not see any other vehicle hit Moore’s car prior to the collision nor did she

see any other vehicle sideswipe his vehicle.5

         Chris Jeans, who was traveling in the same direction as Moore that day, also witnessed

Moore’s actions immediately before the collision. Jeans stated, “It come around, around past me

and then switched lanes, and it got up close to this car and then switched lanes. And then it had to

-- ran up on this car pretty fast. So it had to slow down, and that’s when he started fishtailing.”

Jeans believed that Moore had regained control of his vehicle, but “then all of a sudden, [it] just

went straight across to the other lanes of traffic.” Jeans testified that he saw the vehicles collide

and that he did not observe any other vehicle sideswipe Moore’s vehicle.6 Jeans went on to state




4
Ferguson also testified that several of the witnesses he spoke to at the scene stated that just prior to the collision,
Moore had been in the process of passing a vehicle that was pulling a trailer.
5
 According to Hale, “[M]y arm just fell in my lap.” Hale knew it was broken because she immediately felt the pain.
Believing she was going to pass out, she sat down. “I felt -- my whole body was hurting.” As a result of the collision,
Hale suffered a dislocated shoulder, fractured ribs, and multiple fractures to her arm. Hale explained that doctors had
performed surgery and implanted rods in her arm. She stated that the rods would be in her arm for the remainder of
her life and that she was unable to perform the work she had been doing due to pain and numbness in her arm.
6
 Jeans’ wife, Rebecca, described a similar version of the events leading up to the collision. In addition, Rebecca
stated, “The way I have explained it, of course, to my friends and family when it happened, was it looked like the hand
of God took [Moore’s] car and just turned it to the left straight across in front of her. I’ve never seen anything like
it.”
                                                          3
that he was traveling the speed limit but that Moore was driving his vehicle at a higher rate of

speed. “I mean, it wasn’t a whole lot faster, but, yes, it was faster.”

       Ferguson testified that immediately following the collision, he made contact with Moore,

who had bloodshot eyes, slurred speech, and smelled of alcohol. According to Ferguson, there

were several bystanders at the scene, including three nurses. One of the nurses was in the process

of rendering aid to Moore’s passenger, Karl Payne, who was still in the passenger seat of Moore’s

vehicle. Ferguson stated, “[Payne] would quit breathing, and then she would tap him on the chest

and tell him, keep breathing, keep breathing. He’d take a gargled gasp and then stop at that point.”

       Paramedic, Shon Matthews, testified that upon arriving at the scene, he immediately began

to render aid to Payne. Matthews stated that Payne was leaning over toward the driver’s side of

the vehicle and that Payne’s neck was in a position that he referred to as “incompatible with life.”

According to Matthews, when he attempted to reposition Payne’s airway, “his neck had no form.

It was like his spinal cord was not intact.” Following standard procedure, Matthews checked for

Payne’s pulse, but was unable to find one. Payne was then taken from the scene by ambulance to

the funeral home. It was later determined that Payne had died as a result of blunt force trauma.

       Kevin Plunk, also a paramedic, testified that when he arrived at the scene, he began to

render aid to Moore, who was complaining of flank and side pain. According to Plunk, Moore did

not appear to have any cuts, bruises, or scrapes, and was able to speak. While loading Moore in

the ambulance, Plunk smelled the “obvious” odor of alcohol. Plunk testified that when he asked

Moore if he had been drinking alcohol, Moore responded that he had consumed six to seven beers.

In Plunk’s opinion, Moore had consumed more than the “average amount” of alcohol.

                                                  4
         After Moore had been transported to the hospital, Ferguson went to speak to him about the

incident. According to Ferguson, Moore informed him that he had consumed six or seven beers

at his mother’s home in Maud and that he was in the process of returning to his home in Hooks.

While at the hospital, Ferguson performed a horizontal gaze nystagmus7 test (HGN test) on Moore,

and based on the results, Ferguson believed that Moore was intoxicated.8 At that point, Ferguson

obtained a search warrant for the purpose of retrieving a blood sample from Moore in order to

determine his blood alcohol content. Around 7:25 p.m., Moore’s blood was drawn, and it was

later determined that his blood alcohol content was 0.196. Ferguson testified that after concluding

his investigation, he believed that the contributing factors to the collision were: (1) the vehicle

driven by Moore, (2) was traveling at an unsafe speed, and (3) the driver was under the influence

of alcohol.9

         In addition, Karen Ream, a forensic scientist for the Texas Department of Public Safety,

explained to the jury that she had performed an analysis on Moore’s blood sample and that the

result of the analysis showed that Moore’s blood alcohol content was 0.196. Ream testified that a

blood alcohol content of 0.196 was over two times the legal limit and that an individual having a

blood alcohol content of 0.196 would not have normal use of his mental and physical faculties.

Moreover, Ream explained that a person who consumes alcohol on a regular basis “would still not


7
 Ferguson explained to the jury that “horizontal gaze nystagmus is the involuntary jerking of the eye as it looks toward
the side.”
8
 Ferguson stated that he performed the HGN test at approximately seven o’clock p.m., which was almost three hours
after the collision had occurred.
9
 In reaching his conclusion, Ferguson noted that on the day of the collision, it had not rained, the roads were not wet,
there were no lighting problems, and there were no obstructions in the road.
                                                           5
have the normal use of their mental or physical faculties. They would just have a learned

tolerance.”

II.    Discussion

       A.      Moore Received Effective Assistance of Counsel

       Moore contends he received ineffective assistance of counsel at trial because his counsel

(1) failed to investigate and (2) failed to object to inadmissible evidence. The State responds that

Moore has not shown that trial counsel’s performance was deficient and that even if Moore could

do so, he cannot show that his counsel’s alleged errors prejudiced him at trial.

               1.      Applicable Law

       The right to counsel does not mean the right to errorless counsel. Robertson v. State, 187

S.W.3d 475, 483 (Tex. Crim. App. 2006). In order to prevail on a claim of ineffective assistance

of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington.

466 U.S. 668, 687–88 (1984); see also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App.

2009). The first prong requires a showing that counsel’s performance fell below an objective

standard of reasonableness. Strickland, 466 U.S. at 688. This requirement can be difficult to meet

since there is “a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689.

       The second Strickland prong (to which reference is sometimes made as “the prejudice

prong”) requires a showing that, but for counsel’s unprofessional error, there is a reasonable

probability that the result of the proceeding would have been different. Id. at 694. “A reasonable



                                                   6
probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Id.

Thus, in order to establish prejudice,

         an applicant must show “that counsel’s errors were so serious as to deprive
         defendant of a fair trial, a trial whose result was reliable.” [Id.] at 687, 104 S.Ct.
         2052. It is not sufficient for Applicant to show “that the errors had some
         conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. 2052.
         Rather, [he] must show that “there is a reasonable probability that, absent the errors,
         the fact-finder would have had a reasonable doubt respecting guilt.” Id. at 695, 104
         S.Ct. 2052.

                  ....

                 The applicant has the burden to prove ineffective assistance of counsel by a
         preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
         App. 1999). Allegations of ineffectiveness must be based on the record, and the
         presumption of a sound trial strategy cannot be overcome absent evidence in the
         record of the attorney’s reasons for his conduct. Busby v. State, 990 S.W.2d 263,
         269 (Tex. Crim. App. 1999). The reviewing court must look to the totality of the
         representation, and its decision must be based on the facts of the particular case,
         viewed at the time of counsel’s conduct so as to eliminate hindsight bias.
         Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In all cases, the “ultimate focus of
         inquiry must be on the fundamental fairness of the proceeding.” Id. at 696, 104
         S.Ct. 2052.

Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

         A failure to make a showing under either prong defeats a claim for ineffective assistance.

Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). When a claim of ineffective

assistance of counsel is raised for the first time on direct appeal, the record “is in almost all cases

inadequate to show that counsel’s conduct fell below an objectively reasonable standard of

performance.”10 Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Essentially, a


10
  The standard of review is considerably more deferential to trial counsel’s actions when a defendant asserts his claim
for the first time on appeal because “[t]he reasonableness of counsel’s choices often involves facts that do not appear
in the appellate record[,]” Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (quoting Mitchell v. State,
                                                          7
defendant must show that under prevailing professional standards, no competent attorney would

do what trial counsel did or no competent attorney would fail to do what trial counsel failed to do.

Id.

                 2.       Discussion

                          a.       Failure to Investigate

        Moore states that his defensive theory at trial rested on two issues: (1) that he was not

intoxicated at the time the alleged offense took place and (2) that another vehicle side swiped his

vehicle, forcing him to cross the road and strike Hale’s vehicle. Moore contends that his trial

counsel failed to speak to several witnesses prior to trial, resulting in counsel’s inability to properly

question the State’s witnesses and advance a persuasive defense.

        Trial counsel has a duty to make an independent investigation of the facts of a case, which

includes locating and interviewing potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 394

(Tex. Crim. App. 1990). The breach of the duty to investigate may result in a determination of

ineffective assistance of counsel “where the result is that any viable defense available to the

accused is not advanced.” Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982). In

defining a trial counsel’s duty to investigate, the United States Supreme Court stated that “counsel

has a duty to make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate

must be directly assessed for reasonableness in all circumstances, applying a heavy measure of




68 S.W.3d 640, 642 (Tex. Crim. App. 2002)) (alteration in original), and because “trial counsel should ordinarily be
afforded an opportunity to explain his actions before being denounced as ineffective,” Id. at 111.
                                                         8
deference to counsel’s judgments.” Strickland, 466 U.S. at 691. Moreover, in order to obtain

relief on an ineffective assistance of counsel claim based on counsel’s failure to call a particular

witness, the accused must show that the witness was available to testify and that his testimony

would have been favorable to the accused and benefitted his defense. Ex parte White, 160 S.W.3d

46, 52 (Tex. Crim. App. 2004).

       Moore contends the record is replete with exchanges between trial counsel and the State’s

witnesses showing counsel’s lack of understanding of the facts and his inability to properly

question the witnesses. Citing Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007),

Moore states,

       While a claim for ineffective assistance based on trial counsel’s general failure to
       investigate the facts of the case fails absent a showing of what the investigation
       would have revealed that reasonably could have changed the result of the case[,]
       the prejudice to the Appellant in front of the jury in this case by his counsel not
       even knowing the facts of his own defense, coupled with the other factors showing
       the ineffectiveness of his representation, is apparent.

       In Cooks, Cooks was represented by retained counsel at trial and pled guilty without the

benefit of a plea agreement. After the trial court sentenced Cooks to fifteen years in prison, Cooks’

retained attorney informed him, on the record, of his right to appeal. Trial counsel advised the

trial court that Cooks did not have funds to retain him for an appeal and that although counsel did

not see grounds for an appeal, Cooks was requesting the appointment of an appellate attorney. Id.

at 908. The trial attorney filed a notice of appeal twenty days after sentencing, which also included

a request for the appointment of an appellate attorney. On that date, the trial court appointed an

appellate attorney. However, no motion for new trial was filed before the thirty-day deadline

imposed by Rule 21.1(a) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 21.1(a)
                                                 9
       About four months later, appellate counsel filed a motion to abate the appeal to allow for

an out-of-time motion for new trial. Cooks, 240 S.W.3d at 908. The motion alleged that Cooks

had no representation during the period from sentencing to the time appellate counsel was

appointed and that appellate counsel did not have time “to adequately assist appellant in deciding

whether to file a motion for new trial.” Id. at 909. Cooks also asserted that trial counsel was

ineffective at sentencing because he failed to call a material witness and did not conduct a sufficient

investigation. Id.

       The Texas Court of Criminal Appeals observed that Cooks “was unrepresented by counsel

during the initial twenty days of the 30-day period.” Id. at 911 (citation omitted). This, along with

       appellate counsel’s assertion in the Motion To Abate that there was not enough time
       after her appointment for her to adequately assist appellant in deciding whether to
       file a motion for new trial, [we]re sufficient to rebut the presumption that appellant
       was adequately represented by counsel during this entire 30-day period.

Id. The court held, however, that a harm analysis was necessary and that Cook’s deprivation of

counsel was harmless beyond a reasonable doubt, finding that the motion to abate had presented

no “facially plausible claims” that Cooks could have presented in a motion for new trial, even

though appellate counsel had more than four months “to discover any such claims from the time

of her appointment . . . until she filed the Motion to Abate.” Id. at 912.

       The procedural and factual backgrounds of this case and those found in Cooks are entirely

different. We fail to see how the holding in Cooks assists Moore with his assertions in this case.

Here, Moore points to various portions of the record wherein he believes his trial counsel was

inadequately prepared for trial, in part, based on the State’s witnesses’ answers to his questions.

He contends that had counsel spoken to these witnesses prior to trial, he would have been prepared
                                                  10
for their answers and then had appropriate follow-up questions or defense witnesses to disprove

their testimony. For example, Moore points to State’s witness Ream. In his appellate brief, Moore

states,

          [C]ounsel for Appellant attempted to get the witness to acknowledge that it was
          possible to get a false reading from her testing equipment. Her response was an
          emphatic no, which counsel would have known had he done any investigation prior
          to the witness testifying. . . . It is once again painfully obvious that counsel for
          Appellant did little or no investigation prior to trial.

Moore also points to trial counsel’s introduction of himself to Hale, who was another witness for

the State. Moore first emphasizes that counsel began his cross-examination of her by saying,

“[N]ice to meet you.” Moore goes on to complain that when his counsel questioned Hale about

the potential for another vehicle to have side swiped his car, Hale stated that she did not see any

other vehicles involved in the collision. Moore contends that had counsel spoken to Hale prior to

trial, he would have known, and been prepared for, her response.

          While Moore may have disagreed with the answers the State’s witnesses gave in response

to his counsel’s questions, he has failed to show what evidence his trial counsel would have

uncovered had he conducted a more thorough investigation. Likewise, he has not shown what

undiscovered evidence or testimony he would have presented at trial in an effort to refute the

State’s evidence. Thus, Moore has not demonstrated that he was prejudiced by his counsel’s lack

of investigation so much so that the result of the trial would have been different.

                         b.     Failure to Object

          An accused may be deprived of effective assistance of counsel if his counsel allows the

admission of the State’s evidence that should not have been admitted. Lassere v. State, 458 S.W.2d

                                                  11
81 (Tex. Crim. App. 1970). In order “[t]o show ineffective assistance of counsel for the failure to

object during trial, the applicant must show that the trial judge would have committed error in

overruling the objection.” White, 160 S.W.3d at 53. Moreover, any error in trial counsel’s trial

strategy will be deemed inadequate representation only if counsel’s actions are without any

conceivable basis. Schaired v. State, 786 S.W.2d 497, 499 (Tex. App.—Houston [1st Dist.] 1990,

order).

          Moore complains that trial counsel allowed the State to introduce his prior felony

convictions before it proved the facts making up the bases of the charges upon which he was being

tried. He contends that this evidence was “inadmissible as irrelevant” and that its “prejudicial

effect far outweighed [its] relevance . . . .” In support of his argument, Moore cites to Martin v.

State and Tamez v. State, wherein the Court of Criminal Appeals held that in a case involving a

charge of felony driving while intoxicated, an accused person may stipulate to the two prior

convictions and the State may not refuse the accused’s offer to stipulate. Martin v. State, 200

S.W.3d 635, 638 (Tex. Crim. App. 2006); Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000).

Moore contends that the Texas Court of Criminal Appeals made these rulings in an effort to prevent

the type of prejudice that the State interjected into this case by offering Moore’s prior convictions

at the beginning of its case. Moore did not, however, cite to any cases that support his contention

under the facts contained in the record before us, and we are unable to find any such cases.

          Although Moore contends that the State’s introduction of his two prior judgments for

driving while intoxicated (DWI) were irrelevant and more prejudicial than probative, we disagree.

A person may be convicted of felony DWI only if he has two previous convictions for the offense

                                                 12
of DWI. TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2016). Thus, two prior DWI

convictions are necessary elements of felony DWI. As opposed to mere enhancement paragraph

allegations, the two prior convictions are a jurisdictional necessity. Martin, 200 S.W.3d at 640–

41.

        Put another way, in order to obtain a conviction for felony DWI, the State was required to

prove that Moore had been convicted of the prior DWI offenses at the guilt/innocence phase of the

trial. State’s Exhibit 2 contained two final judgments of conviction. In the first judgment, dated

October 10, 1996, a Bowie County court found Moore guilty of felony DWI. In the second

judgment of conviction, also dated October 10, 1996, a Bowie County court again found Moore

guilty of felony DWI. Moore did not stipulate to these prior convictions. Therefore, the probative

value of the prior convictions was extremely high. Accordingly, trial counsel may have surmised

that drawing attention to Moore’s prior convictions, by objecting to their introduction, would have

harmed Moore’s defense far more than it would have helped it. We cannot find that Moore’s

counsel was ineffective for failing to object to the introduction of Moore’s prior convictions prior

to the State presenting the remainder of its case.

        Moore also claims that trial counsel was ineffective for failing to object to the admission

of several photographs of the interior of Moore’s vehicle as it was found at the scene. Specifically,

Moore complains of the introduction of a photograph of a relatively small blood stain on the

passenger seat11 and a photograph of a radar detector on the dash of his vehicle. Moore contends



11
 Moore contends that there was no reason to offer the photograph of the blood stain because his passenger’s death
was never a contested issue.
                                                       13
that neither of these photographs was relevant and that they “were clearly only offered to attempt

to inflame the jury.”

       Rule 403 of the Texas Rules of Appellate Procedure requires that a photograph have some

probative value which is not substantially outweighed by its prejudicial nature. TEX. R. EVID. 403.

A court may consider many factors in determining whether the probative value of a photograph is

substantially outweighed by its tendency to inflame, including (1) the number of exhibits offered,

(2) their repugnance, (3) their detail, (4) their size, (5) whether they are in black and white or in

color, (3) whether they are taken at close range, (6) whether the body is clothed or naked, (8) the

availability of other means of proof, and (9) other circumstances relating to an individual case.

Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). A photograph is neither cumulative

nor lacking in significance simply because it corroborates other kinds of evidence. Chamberline

v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999).

       The record does not reflect the reasoning behind counsel’s choice to refrain from objecting

to the complained-of photographs. However, in reviewing the photographs, and considering the

aforementioned factors, a photograph of a relatively small blood stain on the passenger seat of the

vehicle and a photograph of a radar detector do not seem highly inflammatory or prejudicial.

Payne’s body had been removed from the vehicle, the photographs were not overly gruesome or

excessively repugnant, they were not taken at a particularly close range, and they were admitted

with about forty additional exhibits, twenty-five of which were also photographs. Conceivably,

trial counsel could have believed that an objection to the introduction of either of the photographs

would have drawn unnecessary attention to them by the jury. We will therefore presume that when

                                                 14
counsel refrained from lodging objections to the photographs, his decision was based on

reasonable trial strategy.

         Moore also claims that his trial counsel was ineffective for failing to object to various

questions the State asked Ferguson. First, Moore contends that Ferguson was required to make a

legal finding when the State asked him if Hale’s injuries met “the legal definition of serious bodily

injury.”12 He goes on to complain of counsel’s failure to object when the State asked Ferguson if,

in his opinion, Moore “commit[ted] intox[ication] manslaughter, now felony murder, and

intoxication assault.” Moore contends that this question “touched on an ultimate issue.” The State

responds that as a commissioned officer with the Texas Department of Public Safety, Ferguson

possessed adequate experience to opine as to whether Hale suffered serious bodily injury and

whether Moore committed the alleged offenses.

         Whether a defendant is guilty is a conclusion the jury is tasked with reaching based upon

the trial court’s instructions as found in its charge to the jury, coupled with the evidence admitted

at trial. Williams v. State, 417 S.W.3d 162, 182 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).

A witness is allowed to testify to his opinion if it is “(a) rationally based on the witness’s

perception; and (b) helpful to clearly understanding the witness’s testimony or to determining a

fact in issue.” TEX. R. EVID. 701. Moreover, the Texas Rules of Evidence do not specifically

forbid a witness from testifying to a legal conclusion. “An opinion is not objectionable just


12
  “Serious bodily injury” is bodily injury that “creates a substantial risk of death or that causes death, serious
permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” TEX.
PENAL CODE ANN. § 1.07(a)(46) (West Supp. 2016). “‘Serious bodily injury’ may be established without a physician’s
testimony when the injury and its effects are obvious.” Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo
2012, pet. ref’d). The person who sustained the injury is qualified to express an opinion about the seriousness of that
injury. Hart v. State, 581 S.W.2d 675, 677 (Tex. Crim. App. [Panel Op.] 1979).
                                                         15
because it embraces an ultimate issue.” TEX. R. EVID. 704. For example, a police officer may

testify regarding his inspection of the evidence. See Williams, 417 S.W.3d at 182 (holding

admissible officer’s testimony in murder trial that the crime scene suggested “something sexual”

and that it did not appear to be a “normal sexual assault”); Ex parte Nailor, 149 S.W.3d 125, 134–

35 (Tex. Crim. App. 2004) (holding counsel not ineffective for failing to object to officer’s opinion

testimony in assault trial that defendant had not been attacked); Solomon v. State, 49 S.W.3d 356,

364 (Tex. Crim. App. 2001) (holding admissible witness’s testimony that defendant was

responsible for robbery).

        Assuming, without finding, that trial counsel was ineffective for failing to object to the

complained-of testimony, the admission of Ferguson’s testimony was harmless. In its charge, the

trial court instructed the jury,

        As jurors you are the exclusive judges of the facts proved, the credibility of the
        witnesses, and the weight given their testimony. That is, you may believe all, any
        part, or none of the testimony of any witness you have heard in this case. However,
        in matters of law, you are governed by any instructions previously given by the
        Court and the instructions contained in this charge.

The trial court’s instructions to the jury set out the definitions for the offenses of murder,

intoxication manslaughter, intoxication assault, felony DWI, and DWI. The trial court also

instructed the jury that “[s]erious bodily injury’ is meant [sic] bodily injury that creates a

substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ.” There was substantial testimony

from other witnesses regarding the extent of Hale’s injuries, including the testimony of Hale.



                                                 16
Considering that evidence, in conjunction with the trial court’s instructions, we do not find that

had counsel not made this alleged error, the result of the proceedings would have been different.

         Finally, Moore contends that his counsel was ineffective because he failed to object to the

testimony of the State’s chemistry expert, Ream, with regard to the retrograde extrapolation of

Moore’s blood alcohol content. In support of his position, Moore cites to Mata v. State, 46 S.W.3d

902 (Tex. Crim. App. 2001), and Bagheri v. State, 119 S.W.3d 755 (Tex. Crim. App. 2003), neither

of which addresses an ineffective assistance of counsel claim. In Mata, the Texas Court of

Criminal Appeals addressed the sole issue of whether an expert witness “‘reliably applied the

science of retrograde extrapolation’ in Mata’s trial.” Mata, 46 S.W.3d at 910. In Bagheri, the

court held that the retrograde extrapolation evidence offered at trial in that specific case was

unreliable. Bagheri, 119 S.W.3d at 756–57.

         In this case, prior to Ream’s testimony, trial counsel was allowed to take Ream on voir dire

examination for the purpose of challenging her credentials to be qualified to testify as an expert

regarding an individual’s blood alcohol content.13 During this portion of the trial, Moore objected

to Ream testifying as an expert on the retrograde extrapolation of Moore’s blood. “Your Honor,

it’s not, but the argument, simply put, is that based on the facts of this case, she hasn’t been put in

a position to be able to do it in a manner that would qualitatively tell us anything that would be

reliable.” The trial court noted counsel’s objection and stated that it would carry the objection

until “[it got] to the point if and when they ask[ed] that question.” The jury returned to the


13
  “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702.
                                                          17
courtroom whereupon the State resumed its questioning of Ream. Ream testified as to the

procedure she used in order to determine the blood alcohol concentration of a specific sample of

blood. Ream continued by informing the jury that she had tested Moore’s blood for its blood

alcohol content, and the result was 0.196. After additional testimony from Ream, the State asked,

         Okay. So hypothetically, if there was an event that occurred at four o’clock, and
         an individual was taken to the hospital, continuously monitored, did not have
         anything else to drink for three and a half hours, and then a blood draw was taken
         three and a half hours after the event, and their blood alcohol content was -- is it
         possible -- their blood alcohol content at the time of the blood draw was a .196, is
         it possible that they were at the legal limit of .08 at the time of the event three and
         a half hours prior?

Trial counsel made no objection to the State’s question. After stating how she calculated her

answer, Ream responded, in part,

         So between the time of the incident and the time of the draw, they would have to
         absorb nine more standard drinks, nine beers, nine whatever, absorb. So they would
         have that much in their stomach. If they didn’t eat or drink -- I’m sorry, if they
         didn’t drink any more alcohol after the incident, then, of course, it had to have been
         taken in before the incident.

Again, trial counsel did not object to Ream’s answer; however, on cross-examination, trial counsel

asked,

         You were given a hypothetical, and you were asked some questions with respect to
         it. And you gave answers, and the answers seemed to suggest that in order to get
         to where they wanted you to get, you would have to know some things about the
         person whose blood you analyzed in order to backtrack. I think one of the things
         you suggested is you would have to know how much the person had had to drink,
         correct?

Ream responded that counsel was correct. Counsel then asked Ream if she would need to know

how much the individual had to eat, to which she responded she would. Counsel continued by

asking, “You would have to know the time period in which all of these things happen[ed]?” Ream
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responded, “That’s the most important one, but yes.” Counsel then asked Ream about a litany of

information that Ream might need in order to make an appropriate retrograde extrapolation

calculation as to Moore, which information she did not have. Finally, counsel asked, “But, again,

you had been asked hypothets [sic] that supposedly related back to the time of the accident, but

the blood draw gives you a determination of what the alcohol count was at the time of the blood

draw?” Ream answered, “Right.”

       Moore claims that trial counsel was ineffective for his failure to object to the State’s

questioning Ream regarding retrograde extrapolation evidence. We disagree. It is apparent from

the record that trial counsel cross-examined Ream extensively and effectively as to this issue. Trial

counsel made it evident to the jury, through his cross-examination of Ream, that she did not have

the ability to testify to an accurate retrograde extrapolation of Moore’s blood. Based on the record

before us, we cannot say that trial counsel’s failure to object, which resulted in his opportunity to

undermine Ream’s testimony, was not part of a sound trial strategy.

                 c.    Trial Counsel’s Closing Argument

       Moore also complains of a portion of trial counsel’s closing argument wherein he stated,

“You get to judge the credibility of everybody that came up here. That’s why I say Trooper

Ferguson told the truth. There’s something about the truth, it just rings all the way through, all the

way through.” Moore contends that trial counsel was emphasizing Ferguson’s veracity as it related

to his testimony that Hale suffered serious bodily injury and that Moore’s actions amounted to

felony murder.



                                                 19
          A review of the record reveals something entirely different.         Prior to making the

complained-of statement, trial counsel was speaking to the jury on the issue of whether Moore was

intoxicated at the time of the collision. In maintaining that Moore was not intoxicated, trial counsel

stated,

          They have to meet their burden on intoxication in order to sustain the convictions,
          ladies and gentlemen. They haven’t done it. They’re just hoping that this event is
          so tragic you won’t make them do it, but that’s not the way the law works. Simply
          not the case.
                  Nobody up there told you he was drunk. [Ferguson] said, “I had clues,” and
          he’s the expert on the scene. He didn’t make an arrest. She made a big deal, he
          was not arrested at that point. But now they want you to come back and almost a
          year to the day, just based on emotions, make the same determination that
          [Ferguson] was unwilling to make.

It is clear from the record that counsel was directing the jury’s attention to Ferguson’s testimony;

however, it also appears that counsel did so in an effort to highlight the fact that Ferguson did not

make an on-scene arrest at the time of the alleged offense, and thus, Moore was not intoxicated at

the time.

          For these reasons, we cannot conclude on the record before us that Moore’s trial counsel’s

performance was deficient. Thus, we find Moore’s claim of ineffective assistance of counsel to

be meritless. We overrule Moore’s first point of error.

          B.     Sufficient Evidence Existed to Support the Jury’s Verdict of Guilt

          Next, Moore contends that the evidence was insufficient to support the jury’s verdict of

guilt as it relates to his felony murder conviction.




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               1.      Standard of Review

       In evaluating legal sufficiency in this case, we must review all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found,

beyond a reasonable doubt, that Moore was guilty of felony murder. See Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)

(citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal

sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–

18 (Cochran, J., concurring).

       We examine legal sufficiency under the direction of the Brooks opinion, while giving

deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). Legal sufficiency

of the evidence is measured by the elements of the offense as defined by a hypothetically correct

jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically

correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily

increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.” Id.

               2.      Analysis

       The felony murder statute provides that an individual commits the offense of felony murder

when he

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        commits or attempts to commit a felony, other than manslaughter, and in the course
        of and in furtherance of the commission or attempt, or in immediate flight from the
        commission or attempt, he commits or attempts to commit an act clearly dangerous
        to human life that causes the death of an individual.

TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011).

        [T]hat Section 19.02(b)(3) dispenses with a culpable mental state is consistent with
        the historical purpose of the felony-murder rule, the very essence of which is to
        make a person guilty of an “unintentional” murder when he causes another person’s
        death during the commission of some type of a felony.

Lomax v. State, 233 S.W.3d 302, 305 (Tex. Crim. App. 2007).

        The indictment against Moore stated,

        [O]n or about May 24, 2014, [Moore] did then and there, intentionally, knowingly
        or recklessly commit or attempt to commit a felony offense, to-wit: Driving While
        Intoxicated 3rd or More, and while in the course of and in furtherance of the
        commission or attempt of said offense did then and there commit or attempt to
        commit an act clearly dangerous to human life, namely, causing a collision by
        driving or operating his vehicle into oncoming traffic, which caused the death of
        Karl Payne.

        Moore maintains that the State failed to show he committed an act clearly dangerous to

human life. In support of his contention, Moore directs us to Jeans’ testimony that Moore appeared

to “fish tail” after he slowed down due to the presence of a vehicle in front of him. Moore also

points to the testimony of Rebecca Jeans wherein she stated, “The way I have explained it, of

course, to my friends and family when it happened, was it looked like the hand of God took his

car and just turned it to the left straight across in front of her. I’ve never seen anything like it.” In

addition, Moore directs us to Ferguson’s testimony that Moore was not traveling at a reckless

speed. Finally, Moore emphasizes that Ferguson did not state that he examined Moore’s vehicle

to determine whether there had been any mechanical malfunction. Based on these witnesses’

                                                   22
testimony, Moore seems to be arguing that the State may have proved that Moore’s vehicle

committed an act clearly dangerous to human life, but it failed to prove that he did.14 We disagree.

            The jury is free to believe or disbelieve all or any part of the testimony of a witness. See

Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997). To begin with, the jury heard

testimony that Moore had been convicted of at least two prior DWI offenses. In addition, multiple

witnesses testified that Moore had been the driver of the Chevrolet Impala, which collided with

Hale’s vehicle, the Hyundai Sonata. Further, Ferguson identified for the jury that the skid marks

from Moore’s vehicle indicated that he had traveled from the eastbound outside lane, across two

lanes of traffic, and then hit Hale’s vehicle. In addition to Ferguson’s testimony, Hale testified,

among other things, that Moore first appeared to have gained control of his vehicle, but then

careened over into her lane, causing the collision of the two vehicles. Ferguson also testified that

he conducted a fatality crash investigation after the collision occurred and that he concluded that

Moore’s actions of driving at an unsafe speed and while under the influence of alcohol contributed

to the accident. Moreover, Ream testified that she examined Moore’s blood sample, which had

been taken at least two hours after the collision, and that his blood alcohol content was 0.196, more

than two times the limit in which a person is legally allowed to drive an automobile. Ream also




14
     In his brief to this Court, Moore states,

            For evidence to be sufficient to convict, the State must prove each element of the offense beyond a
            reasonable doubt. Jackson, [443 U.S.] at 319. As such the State was required [sic] that the Appellant
            caused the collision by driving or operating his vehicle into oncoming traffic. The record in this
            cause is completely void of any evidence that the Appellant did any act much less drive or operate
            his vehicle into oncoming traffic. It is readily apparent from the testimony of Mrs. Jean and from
            Trooper Ferguson that the Appellant’s vehicle turned unexpectedly and that it was not being
            operated unsafely, the [sic] State is unable to meet its burden.
                                                            23
stated that an individual with a blood alcohol content of 0.196 would not have the normal use of

his mental or physical faculties.

       Viewing the evidence in the light most favorable to the State, a rational trier of fact could

have found beyond a reasonable doubt that Moore committed the offense of felony DWI and that

in the course of and in furtherance of the commission of that felony DWI, he committed an act

clearly dangerous to human life by driving his vehicle in an unsafe manner into oncoming traffic,

causing his vehicle to collide with Hale’s vehicle and resulting in Payne’s death. Accordingly, we

hold that the evidence is sufficient to support Moore’s conviction for felony murder.

       We overrule Moore’s second point of error.

III.   Conclusion

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        January 8, 2018
Date Decided:          March 28, 2018

Do Not Publish




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