                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00470-CR


ARTHUR B. BOONE                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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      FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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      A jury convicted Appellant Arthur B. Boone of driving while intoxicated

(DWI), and the trial court sentenced him to 120 days’ incarceration, probated for

eighteen months, and a fine of $550. On appeal, Appellant brings three points,

arguing that the evidence is insufficient to sustain his conviction and that trial

counsel rendered ineffective assistance. Because we hold that the evidence is




      1
       See Tex. R. App. P. 47.4.
sufficient to support the jury’s verdict and that Appellant did not meet his burden

of proving ineffective assistance at trial, we affirm the trial court’s judgment.

Sufficiency of the Evidence

      In his first point, Appellant challenges the sufficiency of the evidence. In

our due-process review of the sufficiency of the evidence to support a conviction,

we view all of 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

crime beyond a reasonable doubt.2              This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. 3

The trier of fact is the sole judge of the weight and credibility of the evidence.4

      A person commits DWI if he ―is intoxicated while operating a motor vehicle

in a public place.‖5 A person is intoxicated when he does not have ―the normal

use of mental or physical faculties by reason of the introduction of alcohol . . .

into the body.‖6



      2
        Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
      3
       Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
      4
      Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270
S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009).
      5
       Tex. Penal Code Ann. § 49.04(a) (West 2011).
      6
       Id. § 49.01(2)(A).

                                           2
      Corporal Stephen Myers testified that on the date in question, he was

working off-duty in his Fort Worth Police Department uniform at the Main Street

Arts Festival in downtown Fort Worth.        He saw a minor traffic collision and

approached it to investigate. He saw Appellant, whom he identified as one of the

drivers, pour out a beer. Myers testified that Appellant’s ―speech was kind of

slurred and slightly incoherent.‖   Myers also said that Appellant’s eyes were

―bloodshot and watery.‖      Myers attempted to perform the Horizontal Gaze

Nystagmus test on Appellant, but, in Myers’s opinion, Appellant would not follow

the stimulus. Myers also testified that Appellant failed the walk-and-turn and the

one-leg-stand tests.    Myers concluded that Appellant was intoxicated but

conceded that Appellant was not at fault for the wreck.

      Appellant’s car contained three passengers. The police released his car to

one of the passengers after determining that he was not intoxicated.

      Officer James Shiderly, an on-duty police officer, arrived at the scene

approximately forty minutes after the wreck. He testified that when he arrived, he

observed that Appellant had a little bit of a sway, bloodshot, watery eyes, and a

moderate amount of alcohol odor. Shiderly transported Appellant to the Fort

Worth jail, which took only ―a minute or two.‖

      At the jail, Appellant refused a breath test and refused to perform the field

sobriety tests again. Myers testified that on the video taken at the police station,

which the jury watched, Appellant’s ―speech is slurred a lot,‖ and he sways in

relation to the black line. Myers testified that he did not know what Appellant was


                                         3
normally like. On the video, Appellant can be seen standing and saying that he

has physical disabilities. Shiderly testified that if Appellant had taken and passed

the breath test, he would have released Appellant.            Shiderly also testified,

however, that if Appellant had passed the breath test, then Shiderly would have

obtained a warrant to draw blood.

      Myers concluded that Appellant was intoxicated. The record reflects that

Appellant was operating the vehicle on a public street in downtown Fort Worth.

Shiderly concluded that Appellant had lost the normal use of his mental or

physical faculties as a result of the consumption of alcohol. Finally, the jury was

able to observe Appellant on the videotape from the intoxilyzer room.

      Applying the appropriate standard of review, we hold that the evidence is

sufficient to support the jury’s verdict. We overrule Appellant’s first point.

Ineffective Assistance of Counsel

      In his remaining two points, Appellant argues that trial counsel rendered

ineffective assistance by failing to object to the State’s comment on his failure to

testify and by failing to call his passenger, Jimel Teal, as a witness.

      In Strickland v. Washington, the Supreme Court of the United States

established a two-pronged test for determining whether an accused received

ineffective assistance of counsel at trial.7     In order to prevail on a claim of

ineffective assistance of trial counsel under this test, an appellant must show that

(1) counsel’s performance was deficient and (2) the deficiency prejudiced the

      7
       466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

                                          4
defense.8 The failure to make a showing under either prong of the Strickland test

defeats a claim of ineffective assistance of counsel.9

      Appellant argues that the prosecutor commented on his failure to testify

during closing argument and that trial counsel failed to object. The prosecutor

argued,

      [O]nce [Appellant] was arrested, he got back to the—to the station.
      He had another opportunity in controlled conditions in a room that he
      could do these field sobriety tests. Now, it’s kind of questionable
      that at the scene he’s willing to do it, but then when we get back to
      the station, all of a sudden, he has an injury that prevents him from
      doing these field sobriety tests. Okay. It doesn’t make logical
      sense. I think he kind of already knew, hey, I didn’t do so good the
      first time around and I’m probably not going to do good the second
      time around, and I know this place probably has a camera. Okay.
      So, he had another opportunity to do that. He refused to do that.
      [Emphasis added.]

      In reviewing a claim that the State’s jury argument violated a defendant’s

right against self-incrimination, it is not sufficient that the language used by the

prosecutor might be construed as an implied or indirect allusion to the failure to

testify.10 Here, during both cross-examination and jury argument, Appellant’s trial

counsel questioned Myers’s failure to videotape Appellant at the scene while he

performed the field sobriety tests. In the jail’s intoxilyzer room, Appellant was

given the opportunity to perform field sobriety tests yet again and declined to do

so. The State’s theory was that Appellant elected not to perform field sobriety


      8
       Id.
      9
       Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
      10
          Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007).

                                         5
tests in the jail because he knew he would be on camera. The State is entitled to

respond to a defendant’s argument.11         The prosecutor’s statements do not

necessarily constitute a comment on Appellant’s decision not to take the stand

and testify. Consequently, we hold that trial counsel’s decision not to object to

this argument was not necessarily a failure to object to the State’s comment on

Appellant’s invocation of his right to remain silent.     We overrule Appellant’s

second point.

      In his third point, Appellant argues that trial counsel rendered ineffective

assistance by failing to call Jimel Teal as a witness.         At the hearing on

Appellant’s motion for new trial, Teal testified that the four people in the car had

purchased a single six-pack of beer and had been drinking it at Cobb Park

earlier. Teal testified that Appellant was not intoxicated and that he was not at

fault in the accident that occurred. Teal testified that he would have testified at

Appellant’s trial had counsel asked him to do so. Teal said that he had contacted

the law firm that represented Appellant at trial and had left his phone number on

the law firm’s voicemail. No one contacted him, and he did not try again to

contact an attorney at the firm.

      Lynda Tarwater, Appellant’s trial counsel, testified by affidavit that she and

Appellant had several in-person meetings to prepare for trial. Natasha Hughes,

one of Appellant’s passengers the night he was arrested, said that she was the

person whom the officer had seen pour out a drink. Tarwater and Appellant

      11
        Brown, 270 S.W.3d at 570–71.

                                         6
agreed that the better tactic was to offer the testimony of Hughes to present their

theory that Appellant was not intoxicated and to ―[bring] to light errors in the

officers’ version of events and [present] a video certainly capable of creating

doubt as to [Appellant’s] intoxication.‖ Tarwater subpoenaed Hughes and had

her sworn as a witness in advance of trial in order to ensure her availability. At

trial, however, ―new facts emerged,‖ and the officer at the scene testified that

Hughes had been loud, belligerent, and uncooperative—in a word, intoxicated.

To make matters worse, Hughes ―surprisingly came to court inappropriately

dressed to take the stand.‖ As trial progressed, Hughes became more agitated

and was out of control. Her recollection of the events also continued to change

and to become less credible.       Both Tarwater and Appellant were concerned

about how the jury would perceive Hughes. Neither wanted to take the risk of

having her testify, and, according to Tarwater, Appellant alone made the decision

not to call Hughes to the stand.

      During trial preparation, Appellant and Tarwater had discussed whether

the other two passengers would add valuable or factual testimony that would

benefit Appellant. They also discussed whether either would be willing to testify

for Appellant. Together they decided not to call the other two passengers as

witnesses. Tarwater stated that it was not until the day of trial that Appellant

mentioned that Teal might be a possible witness. Tarwater doubted that Teal

ever called the law firm because there is no voicemail system during business

hours.   Tarwater reviewed the firm’s electronic telephone records, her own


                                        7
personal electronic telephone records, and Appellant’s electronic file where all

telephone messages pertaining to this case would have been logged.              She

stated, ―There is no record of a phone call ever having been received or a

message ever having been left by Mr. Teal.‖ She also stated that the law firm

had no address or phone number for Teal.

      Matt Peacock, the lawyer who was second chair at Appellant’s trial, also

testified by affidavit. He testified similarly to Tarwater. C. Mark Nelon, the senior

litigator and supervising attorney at the law firm, testified by affidavit. He stated

that Tarwater was an excellent attorney who was always prepared and who

always prepared methodically for trial.

      Applying the appropriate standard of review, we hold that Appellant has

not sustained his burden to show that trial counsel rendered ineffective

assistance. We overrule Appellant’s third point.

Conclusion

      Having overruled Appellant’s three points, we affirm the trial court’s

judgment.



                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 23, 2012

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