                                  NO. 07-06-0493-CR
                                      07-06-0494-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 AUGUST 13, 2008
                         ______________________________

                          ROLAND RAY BATES, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

        FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

          NO. 115441, 117573; HONORABLE PAMELA C. SIRMON, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Roland Ray Bates, appeals his convictions for driving while intoxicated

and deadly conduct and concurrent sentences of one year confinement in the county jail

and fine of $2,000. We affirm.


                                      Background


      On May 14, 2006, appellant was hauling pipes in his truck and arrived in Amarillo

in the early morning. According to appellant, he missed his turn and attempted to get back
on his correct route by turning around in a store parking lot. As appellant was turning the

truck in the parking lot, appellant claimed that he was attacked by two males who jumped

onto the exterior of his truck. In an effort to protect himself, appellant sped out of the

parking lot and entered a one-way street, eventually ending up on U.S. 287. However,

appellant was driving north on the southbound portion of U.S. 287. Sometime after

appellant began driving on the wrong side of the highway, the Amarillo Police Department

received a 911 call from an unidentified female driver. A second caller to 911 also reported

a semi-truck headed the wrong way on southbound U.S. 287. The caller traveled in the

northbound lane and was able to keep up with the semi-truck who was, at times, traveling

at 70 mph until police arrived.


       When Deputy Eric Smith received the dispatch of a semi-truck traveling the wrong

way, Smith went to the location and observed appellant traveling at approximately 65-70

mph before appellant pulled into the median. Texas Department of Public Safety Trooper

John Alonzo arrived shortly after Smith in order to assist Smith. After Smith ordered

appellant out of the vehicle, both Smith and Alonzo observed appellant’s behavior and

balance as he got out. Smith then had appellant perform a series of sobriety tests before

Smith decided to arrest appellant for the offenses of driving while intoxicated and deadly

conduct.


       At trial, a jury found appellant guilty of the two offenses and sentenced appellant to

one year in jail and a $2,000 fine for each offense. Appellant contends that (1) the

evidence was legally and factually insufficient to support the conviction for the offense of

deadly conduct; (2) the trial court erred in admitting the 911 audio recordings because,

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without the callers being subject to cross examination, the recordings were hearsay and

denied him the right to confront those witnesses; and (3) he was denied effective

assistance of counsel because his attorney failed to object to the introduction of evidence

of his breath test refusal or to the introduction of photographs of the street signs. We

affirm.


                  Sufficiency of the evidence of the deadly conduct offense


          In assessing the legal sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an

appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict

unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).


          When an appellant challenges the factual sufficiency of the evidence supporting his

conviction, the reviewing court must determine whether, considering all the evidence in a

neutral light, the jury was rationally justified in finding the appellant guilty beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In

performing a factual sufficiency review, we must give deference to the fact finder’s

determinations if supported by evidence and may not order a new trial simply because we

may disagree with the verdict. See id. at 414. As an appellate court, we are not justified


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in ordering a new trial unless there is some objective basis in the record demonstrating that

the great weight and preponderance of the evidence contradicts the jury’s verdict. See id.

at 417. Additionally, an appellate opinion addressing factual sufficiency must include a

discussion of the most important evidence that appellant claims undermines the jury’s

verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).


       By charging appellant with the offense of deadly conduct, the State was required to

prove that appellant recklessly engaged in conduct that placed another in imminent danger

of serious bodily injury. TEX . PENAL CODE ANN . § 22.05 (Vernon 2003). Appellant contends

that the State presented no evidence to support his conviction. However, in the second

911 call audiotape, the jury heard the caller contend that cars were being forced to avoid

appellant’s semi-truck. Furthermore, when Smith was asked whether appellant’s actions

were capable of causing serious bodily injury, Smith testified that, in his opinion, a semi-

truck weighing approximately 96,000 pounds traveling 60 to 75 mph on the wrong side of

the road could cause death. Further, Smith’s testimony and video showed that, as Smith

traveled along U.S. 287 trying to catch up to appellant, several vehicles were traveling in

the opposite direction on southbound U.S. 287. Taking into consideration the testimonial

evidence, Smith’s videotape of the stop, and audio recordings of the 911 calls, we

conclude that the evidence, considered in the light most favorable to the verdict, was

sufficient to allow a reasonable jury to have found the essential elements of the offense

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620.


       As for factual sufficiency, appellant contends that the most important evidence that

undermines the jury’s verdict is that the State failed to introduce testimony from anyone

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that actually had to swerve away from appellant’s vehicle or was placed in imminent

danger. Furthermore, appellant contends that recklessness is conduct that must be

gauged “under all the circumstances as viewed from the actor’s standpoint.” Hence,

appellant contends that the evidence is factually insufficient to support his conviction for

deadly conduct. However, appellant is incorrect in his assessment of the necessity of the

introduction of evidence of appellant’s state of mind in order to establish recklessness.

According to the Texas Penal Code, a person acts recklessly when the risk is “of such a

nature and degree that its disregard constitutes a gross deviation from the standard of care

that an ordinary person would exercise under all the circumstances as viewed from the

actor’s standpoint.” TEX . PENAL CODE ANN . § 6.03(c) (Vernon 2003) (emphasis added).

Thus, contrary to appellant’s contention, we do not view the circumstances as appellant

viewed them. Instead, we view the circumstances as an ordinary person would have

perceived them if placed in appellant’s position. In addition to the testimony already

discussed, Trooper Alonzo further testified that he had received training in accident

reconstruction and, based on his training, he concluded that even a semi-truck driver who

was not intoxicated would have traveled twice the distance of a normal-sized vehicle before

the driver could have started to brake. The jury also heard testimony from Alonzo that,

depending on the degree of intoxication, a driver could take up to three additional seconds

before they could process the thought of a threat and engage the brakes. Therefore,

viewing all the evidence in a neutral light, the jury was rationally justified in finding appellant

guilty beyond a reasonable doubt. See Watson, 204 S.W.3d at 415. Having concluded

that the evidence was both legally and factually sufficient to support the deadly conduct

charge, we overrule appellant’s first issue.

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                      Hearsay and the Right to Confront Witnesses


       As a prerequisite to presenting a complaint for appellate review, the record must

show that the complaint was made to the trial court by a timely request, objection, or

motion. TEX . R. APP. P. 33.1(a)(1). To be timely, an objection must be made as soon as

the basis for the objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618

(Tex.Crim.App. 1997). When a defendant does not object prior to the presentation of the

objected to testimony, the defendant has waived the complaint on appeal, unless he can

provide a legitimate reason to justify the delay. See id.


       In the instant case, the State presented two witnesses for the purpose of gaining

admission of the audio recordings of the 911 calls. First, the State called Traci Dillon, a

dispatcher with the Amarillo Police Department, to testify about receiving a phone call from

an unknown woman. Appellant objected to the admission of the recording based on

relevancy. The trial court judge overruled the objection, admitted the recording into

evidence, and allowed the State to play the recording for the jury. Next, the State called

Kristi Choate, a dispatcher with the Potter County Sheriff’s Office, to testify about receiving

a phone call from Dustin Camp reporting a semi-truck traveling the wrong way along

southbound U.S. 287. Appellant’s trial counsel objected to the second recording stating,

“Well, gee, I guess I respectfully object. It just seems redundant. The Defense stipulates

Mr. Bates [appellant] was driving down the Dumas highway on the wrong side, so I’m not

sure what the purpose is.” The trial court overruled the objection, admitted the recording

into evidence, and allowed the State to play the recording for the jury. After the audio

recording was played for the jury, appellant’s trial counsel made a third objection, “Judge

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I’m going to object to that on the grounds it’s hearsay, and Mr. Bates is denied his Texas

and Federal Constitutional Rights to confront this unknown caller and question him.” The

trial court overruled this objection. Trial counsel had opportunity to object to both audio

recordings and, in fact, did object twice on other grounds. However, appellant does not

raise the issue of relevancy on appeal and those objections do not support appellant’s

present complaint of hearsay or denial of appellant’s right to confrontation. See Broxton

v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). As to appellant’s final objection

raising hearsay and denial of the right to confront the 911 callers, appellant has not shown

a legitimate reason for the delay in raising these complaints until after the publication of the

audio recordings to the jury. Therefore, we conclude that the final objection raising

hearsay and appellant’s right to confront the witnesses was untimely and, therefore, not

preserved for appellate review. See Lagrone, 942 S.W.2d at 618. We overrule appellant’s

second issue.


                             Ineffective Assistance of Counsel


       When confronted with an ineffective assistance of counsel claim, we apply the

two-pronged analysis set forth by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 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 the Texas Constitution).


       Under the first prong of the Strickland test, an appellant must show that counsel's

performance was "deficient." Strickland, 466 U.S. at 687. "This requires showing that


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

guaranteed the defendant by the Sixth Amendment." Id. To be successful in this regard,

an appellant "must show that counsel's representation fell below an objective standard of

reasonableness." Id. at 688. Under the second prong, an appellant must show that the

deficient performance prejudiced the defense. Id. at 687. The appropriate standard for

judging prejudice requires an appellant to "show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome." Id. at 694. Appellant must prove both prongs of Strickland by a preponderance

of the evidence in order to prevail. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.

2000); McFarland v. State, 845 S.W.2d 824, 842 (Tex.Crim.App. 1992).


       Appellant contends that his trial counsel was ineffective because of his failure to

object to the introduction of appellant’s refusal to submit to a breath analysis. However,

a review of the testimonial evidence demonstrates that trial counsel questioned Smith as

to whether appellant had actually refused to submit to testing because appellant told Smith

that he would take a blood test instead of a breath test.          Appellant’s trial counsel

questioned Smith about whose decision it was not to get a blood test. Through cross

examination, Smith explained that appellant initially agreed to a breath test but later

changed his mind and would only agree to a blood test. According to Smith, because of

the time delay in taking appellant to the hospital, Smith did not believe that appellant would

have any alcohol concentration in his blood. However, Smith admitted that he had the

option of allowing appellant to submit a blood sample. Hence, the record shows that trial


                                              8
counsel was employing a trial strategy to show that Smith did not allow the blood test rather

than appellant actually refusing.


       Next, appellant contends trial counsel was ineffective because trial counsel failed

to object to the introduction of daytime photographs of the directional markers on the

streets and highway that appellant would have observed while driving. However, trial

counsel presented a theory regarding the signage that did not relate to the visibility of the

signs. Instead, trial counsel argued that the signs showing the different one-way streets

were confusing rather than not visible. Further, trial counsel related that appellant had

been attacked by two men and that appellant, in escaping, had accidentally gone the

wrong way. Therefore, trial counsel’s theory, as presented to the jury, was reasonable and

was not prejudiced by the issue of whether the signs were more visible during the day than

at night. Therefore, we do not believe that appellant’s trial counsel’s representation fell

below an objective standard of reasonableness nor that there was a reasonable probability

that, but for trial counsel’s failure to object to testimony of a breath test refusal or the

admission of photographs, the result of the trial would have been different. Strickland, 466

U.S. at 694. We overrule appellant’s final issue.


                                        Conclusion


       For the foregoing reasons, we affirm the judgment of the trial court in each cause.



                                                  Mackey K. Hancock
                                                       Justice

Do not publish.

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