      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00096-CR



                                   Miles Lee Decker, Appellant

                                                  v.

                                   The State of Texas, Appellee




      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-01-424, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Miles Lee Decker was charged with felony driving while intoxicated

(DWI), Tex. Pen. Code Ann. § 49.04 (West 2003), § 49.09(b) (West Supp. 2004), and aggravated

assault, id. § 22.02(a)(2) (West Supp. 2004). Following a jury trial, Decker was convicted of felony

DWI and the lesser included offense of assault, id. § 22.01(a)(1) (West Supp. 2004). Decker pleaded

true to enhancement allegations, and the offenses were enhanced to habitual status by prior felony

convictions. See id. § 12.42(d) (West Supp. 2004). Accordingly, the trial court sentenced Decker

to thirty years in the Texas Department of Criminal Justice—Institutional Division on the felony

conviction and one year in the Hays County Jail for the assault conviction. Decker appeals the

convictions by three issues, claiming ineffective assistance of counsel, error in the jury charge, and
factual insufficiency of the evidence to support the DWI conviction. We will overrule his issues and

affirm his convictions.


                                        BACKGROUND

               According to the evidence presented at trial, on August 3, 2001, between 3:00 and

4:00 in the afternoon, Decker was driving northbound on the access road of I-35, took the turnaround

underneath the I-35 overpass, and as he traveled southbound on the I-35 access road, crossed several

lanes of traffic and hit another vehicle. After colliding with the vehicle, Decker initially slowed

down, but then accelerated and left the scene of the accident. Brandy Charlton, the driver of the

vehicle Decker struck, chased Decker through a residential neighborhood. Decker eventually pulled

over, and Brandy and her husband William exchanged words with Decker. Brandy called the police

from a nearby house, and an officer arrived shortly afterwards. The officer smelled alcohol on

Decker’s breath, observed that his speech was slurred, and found an empty beer can in his car. The

officer also spoke to the Charltons, who described how the accident occurred. He then attempted

to administer field sobriety tests to Decker, but Decker refused to comply. The officer thereafter

arrested Decker for DWI. At the police station, Decker again refused to perform any field sobriety

tests and refused to provide a breath specimen.

               Decker was charged with felony DWI and aggravated assault. Following a jury trial,

he was convicted of the felony DWI charge and the lesser included offense of assault. This appeal

follows.




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                                            DISCUSSION

                By his first issue, Decker argues that he received ineffective assistance of counsel at

trial because his trial counsel failed to prevent the jury from learning of his prior DWI convictions,

even though he had stipulated to those prior convictions. Before the trial began, Decker’s trial

counsel filed a motion to stipulate, by which Decker stipulated to two prior DWI convictions, the

jurisdictional predicate offenses alleged in the indictment. Nevertheless, the State (1) during voir

dire, advised the jury that the offense of felony DWI required at least two prior DWI convictions;

(2) during opening statements, advised the jury that Decker had signed a stipulation admitting that

he had committed the predicate DWI offenses; (3) read the stipulation to the jury; and (4) during

closing argument, reminded the jury that Decker had stipulated to the two prior convictions. In

addition, in the jury charge, the trial court instructed the jury that it was required to find that Decker

had been convicted of the two predicate DWI offenses before finding him guilty of felony DWI.

Decker argues that the motion to stipulate should have foreclosed the State from presenting evidence

of the convictions during its case in chief. Because Decker’s trial counsel did not object to any of

the references to the prior DWI offenses, Decker contends on appeal that his counsel provided

ineffective assistance.

                By his second issue, Decker claims that the trial court erred in allowing references

to his prior DWI convictions in the jury charge. Because Decker’s first and second issues are

governed by the court of criminal appeals’ recent decision in Hollen v. State, 117 S.W.3d 798 (Tex.

Crim. App. 2003), we will discuss the two issues together.




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Ineffective assistance of counsel

               The Sixth Amendment to the United States Constitution guarantees the right to the

reasonable effective assistance of counsel in state criminal proceedings. McMann v. Richardson,

397 U.S. 759, 771 (1970); see also Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).

We measure claims of ineffective assistance of counsel against the two-pronged test announced by

the United States Supreme Court in Strickland v. Washington. See 466 U.S. 668 (1984), and adopted

in Texas by Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). Under the Strickland

standard, a convicted defendant must (1) show that his trial counsel’s performance was deficient in

that counsel made such serious errors he was not functioning effectively as counsel, and (2) show

that the deficient performance prejudiced the defendant to such a degree that the defendant was

deprived of a fair trial. Strickland, 466 U.S. at 686-89; Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999); Parmer v. State, 38 S.W.3d 661, 665 (Tex. App.—Austin 2000, pet. ref’d). An

attorney’s performance is deficient if it falls below an objective standard of reasonableness.

Strickland, 466 U.S. at 688; Thompson, 9 S.W.3d at 812. We find the deficient performance

prejudicial when, but for the attorney’s unprofessional conduct, there is a reasonable probability that

the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694; Thompson,

9 S.W.3d at 812. A reasonable probability is a probability sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. Absent both showings, we

cannot conclude that there has been a breakdown in the adversarial process that renders the result

of a trial unreliable. Thompson, 9 S.W.3d at 812-13. The defendant has the burden to prove a claim




                                                  4
of ineffective assistance of counsel by a preponderance of the evidence. McFarland v. State, 928

S.W.2d 482, 500 (Tex. Crim. App. 1996); Parmer, 38 S.W.3d at 665.

               In determining whether an attorney’s performance was deficient, we apply a strong

presumption that the attorney’s conduct was within the range of reasonable professional assistance.

Thompson, 9 S.W.3d at 813. We review the effectiveness of counsel in light of the totality of the

representation and particular circumstances of each case. Id. An ineffectiveness claim cannot be

demonstrated by isolating one portion of counsel’s representation. Parmer, 38 S.W.3d at 666;

Wilkerson, 726 S.W.2d at 548; Duvall v. State, 59 S.W.3d 773, 779 (Tex. App.—Austin 2001, pet.

ref’d). Furthermore, we do not speculate about an attorney’s strategy. Blevins v. State, 18 S.W.3d

266, 271 (Tex. App.—Austin 2000, no pet.). The fact that another attorney might have pursued a

different course of action at trial will not support a finding of ineffectiveness. Nethery v. State, 29

S.W.3d 178, 188 (Tex. App.—Dallas 2000, pet. ref’d); see also Moore v. Johnson, 194 F.3d 586,

604 (5th Cir. 1999) (courts not “required to condone unreasonable decisions parading under the

umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the

face of the record that counsel made no strategic decision at all”).


Prior DWI convictions

               When a defendant agrees to stipulate to prior convictions that constitute jurisdictional

elements of the charged offense, the State may not present evidence of those convictions during its

case in chief. Hernandez v. State, 109 S.W.3d 491, 495 (Tex. Crim. App. 2003); Robles v. State, 85

S.W.3d 211, 212-14 (Tex. Crim. App. 2002); Tamez v. State, 11 S.W.3d 198, 202-03 (Tex. Crim.

App. 2000). The State is permitted, however, to read the indictment at the beginning of trial,

                                                  5
including the prior convictions that are jurisdictional only; to introduce the stipulation into evidence;

and to refer to the prior convictions in a legitimate manner during voir dire, opening statements, and

closing arguments. Hollen, 117 S.W.3d at 802; Tamez, 11 S.W.3d at 202.

                In Hollen, as in this case, the appellant’s indictment for felony DWI included

allegations of two prior DWI convictions, and appellant provided a stipulation. Hollen, 117 S.W.3d

at 799. Over appellant’s objections, the indictment, including the two prior DWI conviction

allegations, was read to the jury; the State referenced the prior convictions in voir dire, opening

statements, and closing argument; the stipulation was admitted into evidence; and the jury charge

mentioned the prior convictions along with a limiting instruction. Id. The court of criminal appeals

held that because the two prior convictions are jurisdictional elements of the offense that must be

proven to the fact finder to establish the offense of felony DWI, the jury could be informed of the

stipulation and the stipulation could be admitted into evidence. Id. at 802. The court further held

that because the two prior offenses were validly mentioned in the indictment and introduced into

evidence via the stipulation, “there was likewise no error in the jury instructions, and the prior

convictions were the legitimate subject of voir dire, opening statements, and closing arguments.”

Id.

                In this case, as in Hollen, the State did not present evidence of Decker’s prior

convictions in its case in chief. Rather, because the prior convictions are jurisdictional elements of

felony DWI and the stipulation is evidence of those convictions, the State properly read into

evidence Decker’s stipulation and referred to the prior convictions in its voir dire, opening statement,

and closing argument. Thus, even if Decker’s trial counsel had objected to the State’s reference to



                                                   6
the prior DWI convictions or the stipulation, the trial court would not have erred in overruling the

objections. We therefore hold that the performance of Decker’s trial counsel did not fall below an

objective standard of reasonableness. Decker’s first issue is overruled.

               With respect to Decker’s second issue, the jury charge in this case is similar to the

one in Hollen: it mentions Decker’s two prior DWI convictions but includes a limiting instruction.

The court of criminal appeals in Hollen held that mention of the prior DWI convictions in the jury

charge, along with a limiting instruction, is not error when the charged offense is felony DWI. We

therefore overrule Decker’s second issue.


Factual sufficiency of the evidence

               By his third issue, Decker challenges the factual sufficiency of the evidence to support

his DWI conviction, arguing that the evidence is insufficient to establish that he was intoxicated.

The indictment alleged that Decker operated a motor vehicle while intoxicated, that is, while not

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

See Tex. Pen. Code Ann. § 49.01(2)(A) (West 2003). In determining the factual sufficiency of the

elements of an offense, the reviewing court views all of the evidence in a neutral light and sets aside

the verdict only if it is either so obviously weak or so greatly outweighed by contrary proof as to

undermine confidence in the jury’s determination. Johnson v. State, 23 S.W.3d 1, 6-7, 11 (Tex.

Crim. App. 2000). Due deference must be accorded the fact finder as the sole judge of weight and

credibility given to witness testimony. Id. at 7; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim.

App. 1996). We do not reweigh the evidence and set aside a verdict merely because a different result

would be more reasonable. Jones, 944 S.W.2d at 648; Clewis v. State, 922 S.W.2d 126, 135 (Tex.

                                                  7
Crim. App. 1996). A determination that a jury’s verdict is factually insufficient is only appropriate

when the evidence is so weak as to be clearly wrong or manifestly unjust or if the finding of a vital

fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 11; Cain v.

State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

               Bill Holland, a witness to the accident, testified that on August 3, 2001, between 3:00

and 4:00 p.m., he was traveling on the southbound access road of I-35 when he saw a car (later

identified as Decker’s) traveling on the northbound I-35 access road make a U-turn in the turnaround

lane underneath the I-35 overpass, cross three lanes of traffic on the southbound access road, and hit

a car that was in the far right lane. Both cars slowed down after the accident, but Decker’s car then

accelerated and left the scene. The other car followed it. Holland followed the vehicles for about

a block, but when he could not keep up with them, he stopped at a nearby gas station, where he saw

a police officer and reported what he had witnessed.

               William Charlton testified that on August 3, 2001, shortly after 3:00 p.m., he was

involved in a traffic accident in San Marcos. He and his wife and two children were traveling south

on the I-35 access road in the far right lane; his wife, Brandy, was driving. Decker’s car came from

the turnaround lane under the overpass, crossed two lanes, and sideswiped the Charltons’ car. After

the collision Brandy initially slowed down, as did Decker, but then Decker sped away, and the

Charltons “gave chase.” The Charltons followed Decker for about three miles, zigzagging through

several streets in a residential neighborhood before they caught up to Decker, and he finally pulled

over. Once stopped, William got out of the car, approached Decker’s vehicle, and asked him why



                                                  8
he did not stop after the accident. Decker answered, “Well, I was scared. I didn’t know it was going

to happen.” William observed that Decker seemed very nervous, was shaking “really badly,” and

was pleading with the Charltons not to call the police. When asked whether he observed anything

about Decker that gave him reason to believe he might have been drinking, William answered, “He

did seem nervous and his speech was somewhat slurred.”

               After calling the police from a nearby house, Brandy approached Decker and began

talking to him as well. William overheard Decker explain to Brandy that he did not stop after the

accident because he was scared. Brandy asked if he had been drinking, and Decker said no. When

Brandy got closer to Decker, she said, “Yes, you have. I can smell it.” Decker responded, “Oh, no.

Please don’t call the cops.” Brandy again asked Decker if he had been drinking, and this time, he

said, “I know I have been drinking, but I’m sorry.”

               Brandy Charlton testified that she was driving on the southbound I-35 access road,

when Decker’s car collided with hers. After the collision, Decker’s vehicle pulled in front of the

Charltons’ car and appeared as if it was going to pull over. Then, the car took off into a residential

neighborhood, traveling at a high rate of speed, running stop signs, and turning on several streets;

Brandy followed it. Brandy finally caught up with Decker, and they both pulled over. Brandy’s

husband exchanged words with Decker first, which Brandy overheard. Decker told William that he

took off after the accident because he was scared; he said his mother was going to get mad at him.

Meanwhile, Brandy checked on her children in the car and then crossed the street to a nearby house,

where she called the police. When she returned, she asked Decker if he had been drinking. He

answered no, and Brandy accused him of lying because she had smelled the alcohol on his breath.



                                                  9
Decker then admitted he had been drinking and said he was sorry for that. Brandy further testified

that Decker appeared to be slurring his speech, but admitted that she was unaware of whether his

speech was usually slurred. She refused to opine as to whether she believed Decker was intoxicated.

               Jason Mabbitt, a paramedic with San Marcos EMS, testified that he arrived on the

scene after Decker had been placed in the back seat of a police car. He treated a cut on Decker’s

hand. He observed that Decker was “alert and oriented to person, place, time and events.”

According to Mabbit, Decker’s speech was slurred and Mabbit smelled alcohol on his breath. He

asked Decker if he had consumed any alcohol, to which Decker replied, “No comment.” Mabbit did

not, however, form an opinion as to whether Decker was intoxicated.

               Rudy Mesa, a police officer with the City of San Marcos, was at a gas station when

he was approached by Holland, who reported an accident. Mesa also received information from

dispatch regarding the location of the vehicles involved in the accident. When he arrived at the scene

where the vehicles had pulled over, he spoke to the Charltons and Decker. As Mesa was speaking

with Decker, he detected an odor of alcohol on his breath. Mesa asked Decker if he had been

drinking, and Decker said no. After obtaining Decker’s consent, Mesa searched Decker’s vehicle

and found under the passenger seat an empty, twenty-four-ounce beer can in a paper bag. At that

point, Mesa was not yet concerned that Decker might have been intoxicated. Mesa then spoke to the

Charltons again. When he returned to Decker, Mesa asked him to perform field sobriety tests, but

Decker refused. It was then that Mesa formed the opinion that Decker was intoxicated and arrested

him. Mesa’s opinion was based in part on Decker’s acts, the smell of alcohol on his breath, the

description of the accident, and the fact that Decker left the scene. Mesa had Decker sit in the back



                                                 10
seat of his vehicle. He described Decker’s demeanor as passive and not combative. After the

paramedic arrived and treated Decker, Mesa transported him to the county jail. At the jail, Mesa

asked Decker to enter the videotaping room, but Decker refused. After Mesa explained to Decker

that if he refused to enter the room Mesa would have the jailers assist him in forcing Decker into the

room, Decker voluntarily entered the room. In the room, Decker refused to perform any field

sobriety tests and declined to provide a breath sample.

               On appeal, Decker argues that the odor of alcohol on his breath does not alone

mandate a conclusion of intoxication. Similarly, the fact that a defendant has had a traffic accident,

even after consuming alcohol, does not prove that he was driving while intoxicated. Nor does the

refusal to take a breath or blood test conclusively prove intoxication.

               Under a factual sufficiency review, however, we do not view each piece of evidence

in isolation. Rather, we view all of the evidence, both for and against the finding of guilt, in a

neutral light. Under this standard, we observe that not only did several witnesses detect the smell

of alcohol on Decker’s breath and describe his speech as slurred, but Decker hit a car and then fled

the scene of the accident, see Douthitt v. State, No. 03-02-00810-CR, slip op. at 18, 2004 Tex. App.

LEXIS 794, at *29 (Tex. App.—Austin January 29, 2004, no pet. h.) (holding intoxication

manslaughter defendant’s decision to leave scene of accident was indicative of person whose

judgment was impaired); he first denied and then admitted to Brandy that he had been drinking; he

did not want the Charltons to call the police; he attempted to avoid being videotaped; and he refused

to perform field sobriety tests or provide a breath specimen, see Gaddis v. State, 753 S.W.2d 396,

399 (Tex. Crim. App. 1988) (intoxication is legitimate deduction from defendant’s refusal to take



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breath test). Evidence in Decker’s favor includes Mesa’s testimony that his demeanor was passive

and not combative; the paramedic’s description of Decker as alert and oriented; and the fact that a

search of his vehicle turned up only one beer can. We hold that the evidence of Decker’s

intoxication (not having the normal use of his mental or physical faculties by reason of introduction

of alcohol) is not so weak as to be clearly wrong or manifestly unjust, nor is the finding of

intoxication so contrary to the great weight and preponderance of the evidence as to be clearly

wrong. We overrule his third issue.


                                                 CONCLUSION

               Having overruled all of Decker’s issues on appeal, we affirm his convictions.




                                              __________________________________________

                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: March 11, 2004

Do Not Publish




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