                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-19-00049-CR

OTHO PRINCE HILL IV,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2015-1394-C2


                          MEMORANDUM OPINION


      In five issues, appellant, Otho Prince Hill IV, challenges his conviction for felony

driving while intoxicated (“DWI”). See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2019).

We affirm.

                                   I.     BACKGROUND

      In the instant case, Hill was charged by indictment with felony DWI with two prior

DWI convictions on December 7, 2006, and June 16, 2014. This case was tried to a jury,
and at the conclusion of the trial, the jury found Hill guilty of the charged offense and

sentenced him to ten years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice. The trial court certified Hill’s right of appeal, and this

appeal followed.

                                II.    HILL’S SURVEYOR WITNESS

         In his first two issues, Hill complains about the trial court’s purported decision to

exclude testimony from Jason Meeks, a surveyor. Specifically, Hill contends that the trial

court erred by: (1) determining that Meeks was an expert witness; and (2) excluding

Meeks’s testimony without first considering the reason why he was not timely designated

as an expert and what impact allowing the testimony would have on the State.

         During the testimony of Sergeant John Allovio of the Waco Police Department,

Hill proffered for admission into evidence a map of Valley Mills Drive and New Road

and Waco Drive done by surveyor James David Dossey, dated January 16, 2019. This

map contained the official stamp of the survey company—Surveying & Engineering, 1519

LLC.com, located in Central Texas. The State objected that the map needed to be

authenticated because it is not a government record, and because there was no testimony

concerning the scale on the map and the corresponding measurements. Hill countered

that the map was self-authenticating because the map was certified and stamped by the

surveying company. The trial court sustained the State’s objection to the admission of

the map into evidence, but allowed Hill to ask Sergeant Allovio questions about the map.


Hill v. State                                                                           Page 2
         After the State rested, Hill made another attempt to introduce the map, as well as

proffer the testimony of Meeks to authenticate the map. The State objected to Meeks’s

testimony, arguing that Meeks had not been designated as an expert witness prior to trial.

Hill argued that: (1) the exhibit was self-authenticating because of the surveying stamp;

and (2) he did not believe the surveyor was an expert for which notice was necessary.

Hill also suggested that the trial court “could take judicial notice of the map because

everybody in here has driven through that intersection.” In response, the trial court noted

the following: “I understand. I’ll sustain the State’s—sustain the State’s objection to the

exhibit as tendered.” In this exchange, the trial court did not rule on the admissibility of

Meeks’s testimony, nor did Hill request the trial court to so rule.

         An appellate issue involving the proffer of evidence, as opposed to an objection,

must still satisfy the preservation-of-error requirements. See Reyna v. State, 168 S.W.3d

173, 179 (Tex. Crim. App. 2005) (stating that the purpose of requiring an objection is to

give the trial court or opposing party an opportunity to correct error or remove the basis

for the objection and reasoning that “[a]lthough this case involves a proffer of evidence

rather than an objection, the same rationale applies.”). To preserve error for appellate

review, a party must present a timely request, motion, or objection to the trial court,

stating the specific grounds for the objection, and obtain an adverse ruling. See TEX. R.

APP. P. 33.1(a)(1); see also Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008).




Hill v. State                                                                             Page 3
         As noted above, the trial court only ruled on the State’s objection to the admission

of the map into evidence. The trial court did not rule on the admissibility of Meeks’s

testimony. Furthermore, Hill did not request that the trial court rule on the admissibility

of Meeks’s testimony, nor did he proffer Meeks’s testimony again after the trial court’s

ruling on the admissibility of the map. Moreover, in his offer of proof, Hill focused on

the map exhibit, not on the testimony of Meeks. Therefore, based on the foregoing, we

cannot say that Hill preserved error in his first two issues regarding the admissibility of

Meeks’s testimony. See Reyna, 168 S.W.3d at 179; see also TEX. R. APP. P. 33.1(a)(1); Luna,

268 S.W.3d at 604. Accordingly, we overrule Hill’s first two issues.

                                       III.    DUE PROCESS

         In his third issue, Hill contends that the trial court’s purported exclusion of

Meeks’s testimony denied him his constitutional right to present his defense. Again, the

record does not reflect that the trial court excluded Meeks from testifying. Indeed, the

trial court never ruled on the issue of Meeks’s testimony; Hill never requested the trial

court to rule on the issue of Meeks’s testimony; and Hill, in his offer of proof, focused on

the admissibility of the map exhibit, rather than the testimony of Meeks. As such, we

conclude that this issue lacks merit and overrule Hill’s third issue.

                           IV.    INEFFECTIVE ASSISTANCE OF COUNSEL

         In his fourth and fifth issues, Hill contends that his trial counsel was ineffective by

failing to designate Meeks as an expert witness and by failing to allege that an ordinance


Hill v. State                                                                             Page 4
purportedly identical to the one used as a basis for the traffic stop had been found to be

unconstitutional. See, e.g., Meisner v. State, 907 S.W.2d 664, 668-69 (Tex. App.—Waco 1995,

no pet.). In making these arguments, Hill cites to no legal authority governing the

analysis for ineffective assistance of counsel. Moreover, in his fourth issue, which

pertained to trial counsel’s failure to designate Meeks as an expert witness, Hill cites to

no legal authority at all. We therefore hold that these issues were inadequately briefed

and, therefore, present nothing for review. See TEX. R. APP. P. 38.1(i) (“The brief must

contain a clear and concise argument for the contentions made, with appropriate citations

to authorities and to the record.”); see also Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim.

App. 2008) (“This Court has no obligation to construct and compose appellant’s issues,

facts, and arguments ‘with appropriate citations to authorities and to the record.’”

(quoting TEX. R. APP. P. 38.1(i))).

         Nevertheless, even if Hill had adequately briefed these issues, we cannot say that

Hill satisfied both prongs of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984) (stating that, to prevail on a claim of ineffective assistance of counsel,

appellant must satisfy the two-prong test by a preponderance of evidence showing that:

(1) his attorney’s performance was deficient; and (2) his attorney’s deficient performance

deprived him of a fair trial). First, we note that the record is silent as to trial counsel’s

trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (noting

that trial counsel should be afforded an opportunity to explain his actions before being


Hill v. State                                                                            Page 5
denounced as ineffective); see also Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston

[1st Dist.] 1996, no pet.) (stating that, when the record is silent regarding the reasons for

counsel’s conduct, a finding that counsel was ineffective would require impermissible

speculation by the appellate court).

         Next, we note that the record does not establish the second prong of Strickland by

a preponderance of the evidence—that there is a reasonable probability, or a probability

sufficient to undermine confidence in the outcome, that the result of the proceeding

would have been different. Strickland, 466 U.S. at 687. Looking at the totality of the

representation, trial counsel made numerous objections to the evidence and vigorously

cross-examined the witnesses, as well as called witnesses on Hall’s behalf. See Thompson

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (noting that we look to the totality of

the representation and the particular circumstances of each case in evaluating the

effectiveness of counsel); see also Ex parte Welborn, 785 S.W.2d 391, 392 (Tex. Crim. App.

1990) (“Isolated instances in the record reflecting errors of commission or omission do

not cause counsel to become ineffective, nor can ineffective assistance of counsel be

established by isolating or separating our one portion of the trial counsel’s performance

for examination.”).

         Additionally, the evidence of guilt of the charged offense is overwhelming. A

blood test revealed that Hill’s blood-alcohol level was 0.162—more than double the legal

limit—shortly after being stopped. Moreover, Sergeant Allovio testified that Hill had


Hill v. State                                                                          Page 6
glassy eyes and slurred speech, smelled of alcohol, and fumbled for his driver’s license

during his initial encounter with police.

         Furthermore, regarding the basis of the stop, Sergeant Allovio and Detective Eric

Trojanowski of the Waco Police Department stated that they observed Hill’s vehicle

spinning its tires and entering the intersection at a high rate of speed. Sergeant Allovio

noted that these actions violated a city ordinance and the racing statute—section 545.420

of the Texas Transportation Code. See TEX. TRANS. CODE ANN. § 545.420 (West 2011).

Sergeant Allovio further testified that, based on his training and experience in estimating

vehicle speeds, Hill was traveling approximately fifty miles per hour in a forty-mile-per-

hour zone and that Hill appeared to be racing another vehicle. This evidence supports

the trial court’s finding that officers had a good-faith belief that Hill committed multiple

traffic offenses, including speeding, racing, and violation of the city ordinance for

“digging out”—all of which justified the traffic stop. As such, we cannot say that the

record establishes a reasonable probability that, but for counsel’s purported errors, the

result of the proceeding would have been different. See Thompson, 9 S.W.3d at 812.

Accordingly, we overrule Hill’s fourth and fifth issues.

                                      V.     CONCLUSION

         Having overruled all of Hill’s issues on appeal, we affirm the judgment of the trial

court.




Hill v. State                                                                          Page 7
                                             JOHN E. NEILL
                                             Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed March 18, 2020
Do not publish
[CR25]




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