
NO. 07-05-0086-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 8, 2005
______________________________

GREGORY JAMES ROMERO, 

									Appellant

v.

THE STATE OF TEXAS, 

									Appellee
_________________________________

FROM THE  COUNTY COURT OF COCHRAN COUNTY;

NO. 5790; HON. JAMES ST. CLAIR, PRESIDING
_______________________________

Memorandum Opinion
_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
	Gregory James Romero appeals from his conviction for driving while intoxicated. 
His four issues concern 1) the legal and factual insufficiency of the evidence supporting the
verdict, and 2) his receipt of ineffective assistance of counsel at trial.  We affirm the
judgment of the trial court.
Background
	On March 10, 2000, at around 4:30 a.m., Deputy Inoe Valdez observed a vehicle 
weave several times across the fog line onto the shoulder of the road and back into the
lane of traffic on Highway 114 in Cochran County.  Valdez stopped the vehicle and had
appellant, who was the driver, roll down the window.  At that time, the deputy smelled a
strong odor of alcohol coming from inside the vehicle and asked appellant to step out. 
Valdez observed that appellant had slurred speech, bloodshot eyes, and a strong odor of
alcohol on his breath and person.  Appellant told the officer that he had not been drinking
but that his friends had been drinking.  
	Valdez performed the horizontal gaze nystagmus (HGN) test on appellant and
observed six clues.  Appellant refused to undergo any other field sobriety tests and refused
to give a blood sample.  Nonetheless, Valdez concluded that appellant was intoxicated and
arrested him.
	Appellant's girlfriend (and mother of his children) testified that she and appellant had
been at a party and left to go home.  She stated that appellant had not been drinking at the
party (even though she had allegedly been asleep part of that time) and that someone had
spilled beer on him as they were leaving.  She denied that appellant's vehicle had been
weaving in and out of his lane of traffic and did not remember Valdez performing the
horizontal gaze nystagmus test.  	
 Issues 1 and 2 - Sufficiency of the Evidence
 Appellant initially contends that the evidence that he was intoxicated and
experienced impaired mental and physical function due to imbibing alcohol is legally and
factually insufficient.  We overrule the issues.
	The standards by which we review claims of legal and factual sufficiency are well
established.  We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979), Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), Zuliani v.
State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim.
App. 2000) for an explanation of them. 
	 The only two witnesses at trial were Valdez and Sara Rios, appellant's girlfriend. 
Furthermore, the deputy testified that appellant wove outside his lane of traffic and across
the white fog line several times, had slurred speech, had bloodshot eyes, had the smell of
alcohol on his breath and in his clothes, exhibited six HGN clues indicating intoxication, and
refused to take a blood test to assess the level of alcohol, if any, in his system.  So too did
the record contain evidence illustrating that appellant was returning (at 4:30 in the morning)
from a party whereat alcoholic beverages were present.  Collectively, that is some evidence
upon which a rational factfinder could conclude beyond reasonable doubt that appellant's
mental and physical faculties were impaired due to the ingestion of alcohol, i.e. that he was
intoxicated.
	That appellant's girlfriend may have contradicted much of what the deputy said and
denied that her boyfriend had been drinking simply raised an issue of credibility for the
factfinders to resolve.  It was within their power to believe either the officer or Ms. Rios. 
Similarly, the jury was entitled to credit the deputy's testimony regarding  his administration
of the HGN test and its results, especially since no one objected to its admission nor
illustrated that the officer was unqualified to administer the test. (1) Singleton v. State, 91
S.W.3d 342, 350 (Tex. App.-Texarkana 2000, no pet.) (holding that the failure to object at
trial that the witness was not an expert on the standardized field sobriety tests and did not
testify as to the proper administration of the tests did not preserve the complaint for
appeal).  And, we cannot say (upon reviewing the entire record) that 1) the evidence
supporting the verdict was too weak to justify a finding of guilt beyond reasonable doubt or
2) the contradictory evidence was so strong as to negate the factfinder's ability to find guilt
beyond reasonable doubt.  
	In short, the verdict enjoys the support of legally and factually sufficient evidence.
 	Issues 3 and 4 - Ineffective Assistance 
	  In his next two issues, appellant contends he received ineffective assistance of
counsel at trial since his attorney failed to challenge 1)  the legality of the initial traffic stop
and 2) the qualifications of the deputy to undertake HGN testing.  We overrule the issues.
	One claiming ineffective assistance of counsel must establish not only that his
counsel was deficient but also that the deficiency was prejudicial.  Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002).  If either or both prongs of the test are unsatisfied, then
the claim must be rejected.  Garcia v. State, 887 S.W.2d 862, 880 (Tex. Crim. App. 1994),
overruled on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001). 
Moreover, claims of ineffective assistance must be firmly founded and demonstrated in the
record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).  
	At bar, no motion for new trial was filed.  Nor is there evidence of record illustrating
why defense counsel did not do that mentioned by appellant.  It could be that he thought
evidence of one's weaving across fog lines while driving at night was sufficient to justify a
stop, and authority would support that belief.  See State v. McDougal, No. 07-02-0294-CR
2003 WL 21135572 at *2 (Tex. App.-Amarillo May 16, 2003, no pet.) (not designated for
publication) (holding that an officer was justified in stopping a vehicle when he saw it weave
across the fog line at night).  And, as to the qualifications of the deputy, it may well be that
defense counsel knew of the officer's credentials and thought them sufficient.  Indeed,
Valdez did testify that he trained to administer the HGN test through programs certified by
the State of Texas. Moreover, appellant cites us to no evidence of record nor have we
found any indicating that the deputy lacked the requisite certification to administer the HGN
test.  Rather, appellant simply assumes that he may not have been certified since no one
specifically asked that question.  In short, we are left to speculate upon the reasons why
counsel selected the course he did, and that we cannot do.  Perez v. State, 56 S.W.3d 727,
731 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd).  And, these circumstances prevent
us from concluding that appellant established that his trial attorney was ineffective.  See
Fulgium v. State, 4 S.W.3d 107 116-17 (Tex. App.-Waco 1999, pet. ref'd) (holding that
without a record showing why defense counsel did not properly object to the trooper's
testimony regarding administration of the HGN test and that the trooper was not certified
to administer the test, the claim of ineffective assistance could not be meaningfully
addressed).
	Accordingly, the judgment of the trial court is affirmed.

							Brian Quinn
						          Chief Justice
Do not publish.	
1. Valdez testified that he was trained in "standardized field sobriety tests certified by the State of
Texas" and that it included training in the administration of the HGN test.

