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                                 MEMORANDUM OPINION

                              No. 04-07-00687-CR & 04-07-00688-CR

                                    Antonio Marcelo QUESADA,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                           From the County Court, Bandera County, Texas
                                     Trial Court No. 06-00391
                            Honorable Richard A. Evans, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: March 18, 2009

AFFIRMED

           Antonio Marcelo Quesada was charged with the offenses of driving while intoxicated (DWI)

and driving while license suspended (DWLS). A jury found him guilty of both offenses, and

assessed punishment. Quesada was sentenced to 180 days confinement and $1,000 fine for the DWI

offense; both the fine and imprisonment sentence were probated. He was also sentenced to three

days confinement and a $500 fine for the DWLS offense; only the fine was probated. Quesada

appeals his conviction, raising the following arguments: (1) defense counsel failed to provide
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Quesada with reasonably effective assistance of counsel; (2) the trial court erred in failing to instruct

the jury on an affirmative defense; (3) the evidence was factually insufficient to support the DWI

conviction; and (4) the evidence was factually insufficient to support the DWLS conviction. We

affirm the judgments of the trial court.

                                            BACKGROUND

        Bandera County Sheriff’s Deputy Curtis Putz received a call reporting a vehicle, that

appeared to be running, parked partly in a public roadway with its lights on. Deputy Putz arrived

about five minutes after he received the call. As he approached the vehicle, he smelled what seemed

to be tires burning, and found the vehicle very hot to the touch. Deputy Putz approached the open

driver’s side window, and observed Quesada behind the wheel and Stephen O’Dell in the passenger

seat. When asked if he was okay, Quesada did not respond, and instead started his vehicle. At

Deputy Putz’s direction, Quesada turned the vehicle off and exited the car.

        Deputy Putz observed that when Quesada tried to exit the vehicle, he could not immediately

find the handle and was then unsteady on his feet. Deputy Putz smelled the odor of alcohol coming

from Quesada’s breath when he spoke. Quesada took a long time to answer questions, had slurred

speech, and bloodshot, watery eyes. He was unable to stand up straight, and leaned on the bumper

of the deputy’s car, even after he was asked to move. Deputy Putz performed a horizontal gaze

nystagmus (HGN) test on Quesada, observing six of a possible six clues indicating intoxication.

Quesada failed to follow the instructions for a “walk and turn” test, and refused to perform a “one-

legged stand” test.




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       Based on the above evidence, Deputy Putz arrested Quesada for DWI. Quesada was

subsequently charged with both DWI and DWLS. He was convicted by a jury on both counts. This

appeal followed.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       In his first issue, Quesada argues his defense counsel failed to provide him with reasonably

effective assistance of counsel. To establish ineffective assistance of counsel, the defendant must

prove by a preponderance of the evidence that: 1) counsel’s performance was so deficient as to fall

below an objective standard of reasonableness; and 2) there is a reasonable probability that but for

counsel’s unprofessional errors, the result of the proceeding would have been different. Rylander

v. State, 101 S.W.3d 107, 109-10 (Tex. Crim. App. 2003) (citing Strickland v. Washington, 466

U.S. 668, 691 (1984)). A reasonable probability is one sufficient to undermine confidence in the

outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The

Strickland standard applies to claims of ineffective assistance both during the guilt/innocence and

punishment phases of trial. Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999).

       As a reviewing court, we cannot speculate as to the reasons why trial counsel acted as he did;

rather, we must be highly deferential and presume trial counsel’s actions fell within the wide range

of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002). Any allegations of ineffectiveness must be firmly founded in the record, and the appellant

must prove he was denied a fair trial based on the totality of the representation, not by isolated

instances or by only a portion of the trial. Id. at 835; Harling v. State, 899 S.W.2d 9, 12

(Tex. App.—San Antonio 1995, pet. ref’d). In assessing whether a defendant has met both prongs

of Strickland, we are limited to the facts of the case and cannot speculate beyond the record


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provided. Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.

1994). Generally, the trial record will not suffice to establish an ineffective assistance of counsel

claim, because a record that is silent as to counsel’s intent cannot rebut the presumption that

counsel’s performance resulted from sound or reasonable trial strategy. See Thompson, 9 S.W.3d

at 813-814; Jackson, 877 S.W.2d at 771.

       Quesada contends the record provides ample evidence of ineffective assistance of counsel.

His primary argument is that defense counsel argued throughout the trial proceedings that Quesada

was under the influence of prescription drugs, not alcohol, and should only be convicted of Driving

Under the Influence (DUI)—a crime with which Quesada was never charged. Quesada contends that

by making this argument, defense counsel essentially proved the State’s claim of intoxication by

insisting his client was affected by a drug. However, review of the Charge of the Court shows the

State limited the jury’s consideration to whether Quesada was under the influence of alcohol; the

State did not attempt to prove that additionally or alternatively, Quesada was under the influence of

a prescription drug. Consequently, because the record is silent as to defense counsel’s motivation

in introducing his prescription drug theory, we cannot say he was not employing reasonable trial

strategy in trying to provide an alternative to the State’s charge of intoxication by alcohol.

       Quesada also argues defense counsel failed to investigate a primary witness, pointing to part

of defense counsel’s opening statement when he noted, “I’m hoping that Mr. O’Dell saw my client

take the medication and can testify to that fact, but if not, then I must [put Quesada on the stand].”

Quesada contends this statement revealed defense counsel had not interviewed O’Dell, or he would

have known what O’Dell saw that night. However, nothing in the record confirms whether or not

defense counsel interviewed O’Dell.


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        Finally, Quesada argues defense counsel’s failure to object to testimony regarding a previous

arrest was further evidence his performance was below an objective standard of reasonableness.

Sergeant Gerald Johnson testified about Quesada’s previous arrest for DWI and evading arrest in

April of the same year. Quesada argues his April arrest was irrelevant in determining whether he

committed DWI and DWLS in June, and the detailed testimony was more prejudicial than probative.

See TEX . R. EVID . 401 (relevancy of evidence); 403 (allowing exclusion of evidence if the probative

value is substantially outweighed by the danger of unfair prejudice); 404(b) (barring evidence of

other crimes or acts in order to show defendant’s propensity to commit such acts). However, “[a]n

isolated failure to object to certain procedural mistakes or improper evidence does not constitute

ineffective assistance of counsel.” Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).

Again, the record is silent as to defense counsel’s motives in failing to object to the testimony.

        Based on the record and the arguments above, Quesada has failed to establish by a

preponderance of the evidence that defense counsel’s performance fell below an objective standard

of reasonableness, or that there is a reasonable probability that but for his errors, the trial court’s

verdict would have been different. See Rylander, 101 S.W.3d at 109-10. Quesada’s first issue is

overruled.

                               AFFIRMATIVE DEFENSE INSTRUCTION

        In his second issue, Quesada argues the trial court erred in failing to instruct the jury on an

affirmative defense, resulting in egregious harm. Article 36.14 of the Code of Criminal Procedure

provides that “the judge shall, before the argument begins, deliver to the jury, . . . a written charge

distinctly setting forth the law applicable to the case . . . .” TEX . CODE CRIM . PROC. ANN . art. 36.14

(Vernon 2007). A jury charge error is reviewed under the standard set forth in Almanza v. State, 686


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S.W.2d 157 (Tex. Crim. App. 1985). Under Almanza, we must first determine whether error exists

in the jury charge. See id. at 171. Second, we must determine whether sufficient harm was caused

by the error to require reversal. Id. The degree of harm necessary for reversal depends upon whether

the error was preserved. Id. If the error is properly preserved by an objection to the charge, then a

showing of only some harm is sufficient to require reversal; on the other hand, if the error is not

properly preserved by an objection to the charge, then a showing of egregious harm is necessary to

require reversal. Id. An error which results in egregious harm is an error that affects “the very basis

of the case,” deprives the defendant of a “valuable right,” or “virtually affect[s] a defensive theory.”

Id. at 172; see also Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

       Quesada did not request an instruction on an affirmative defense, nor did he object to the

absence of the instruction in the jury charge. Nevertheless, he argues the trial court erred in failing

to instruct the jury on this defensive issue, resulting in egregious harm. However, Article 36.14

imposes no duty on trial courts to sua sponte instruct the jury on unrequested defensive issues. Posey

v. State, 966 S.W.2d 57, 60-61 (Tex. Crim. App. 1998). Therefore, there was no error in the jury

charge as the trial court did not err by not instructing the jury on Quesada’s affirmative defense. Id.

Quesada’s second issue is overruled.

                                     FACTUAL INSUFFICIENCY

       In his third and fourth issues, Quesada argues the evidence was factually insufficient to

support his DWI and DWLS convictions. When considering a factual sufficiency challenge, we look

at the evidence in a neutral light giving almost complete deference to the jury’s determinations of

credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We reverse only if the

evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust


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or if the evidence supporting the verdict is outweighed by the great weight and preponderance of the

available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).

       Quesada first argues the State failed to prove the elements of DWI. “A person commits

[DWI] if the person is intoxicated while operating a motor vehicle in a public place.” TEX . PENAL

CODE § 49.04(a) (Vernon 2003). Quesada contends the State failed to prove Quesada “operated” the

vehicle, as Deputy Putz testified that after he approached Quesada and asked him if he was okay,

Quesada responded by starting up his car. Quesada also argues the State failed to prove beyond a

reasonable doubt that Quesada was intoxicated before his car ended up blocking the road.

       There is no statutory definition of the term “operate;” however, the Court of Criminal Appeals

has stated, “To find operation under [the DWI] standard, the totality of the circumstances must

demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that

would enable the vehicle’s use.” Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995)

(citing Barton v. State, 882 S.W.2d 456, 459 (Tex. App.—Dallas 1994, no pet.)). The State presented

evidence that Quesada’s father allowed him to use the vehicle; Quesada made statements indicating

he was driving, including telling the deputy he had “pulled over” for him (although the officer

testified the car was already in the road when he arrived); O’Dell stated Quesada was the only person

driving the vehicle; Deputy Putz responded within five minutes to a call reporting a running vehicle,

with its lights on, obstructing a roadway; and when Deputy Putz arrived, he smelled burned rubber

and found the car hot to the touch, with Quesada behind the wheel. This evidence supports the jury’s

finding that Quesada was operating the vehicle.

       Similarly, evidence presented by the State supported the jury’s finding that Quesada was

intoxicated when he operated the vehicle. Deputy Putz testified that when he began questioning


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Quesada, there was a strong odor of alcohol coming from Quesada’s breath. In addition, Deputy Putz

stated that Quesada was unsteady on his feet; slow to respond or unresponsive to questions asked; had

bloodshot, watery eyes; and failed a field sobriety test. Whether Quesada was intoxicated during the

actual moment he operated the car was a fact-question for the jury to decide.

       Quesada also challenges the factual sufficiency of the evidence supporting his DWLS

suspension. A person commits the offense of driving with an invalid license “if the person operates

a motor vehicle on a highway . . . during a period that the person’s driver’s license or privilege is

suspended or revoked under any law of this state . . . .” TEX . TRANSP . CODE ANN . § 521.457(a)(2)

(Vernon 2007). Quesada argues that because he never received a mailed, written notice of the

suspension, his license was not suspended at the time of his arrest on June 2, 2006. However,

Sergeant Johnson testified that when he arrested Quesada for DWI and evading arrest on April 3,

2006, he issued Quesada a notice which stated, “Your license, permit or privilege to operative a motor

vehicle will be suspended or denied effective 40 days after the date you receive this notice. . . ”

(emphasis added). The notice also stated the suspension would be in effect for not less than 60 days,

and it could be contested within 15 days of the notice being received. A copy of the notice was

entered into evidence, and Quesada’s father testified they never contested the suspension.

Consequently, by the notice’s terms, the suspension went into effect May 13, 2006, and was active

until at least July 12, 2006. This evidence was factually sufficient to support the jury’s finding that

Quesada was driving with a suspended license.

       Based on the above, Quesada’s third and fourth issues are overruled.




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                                           CONCLUSION

       Quesada failed to prove trial counsel did not provide him with reasonably effective assistance

of counsel. In addition, the trial court did not err in failing to sua sponte instruct the jury on an

affirmative defense. Finally, the evidence presented was factually sufficient to support Quesada’s

convictions for DWI and DWLS. Accordingly, we affirm the judgments of the trial court.



                                                       Catherine Stone, Chief Justice



DO NOT PUBLISH.




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