

Opinion issued September 8, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00047-CR
———————————
Donald Wayne Warren,
Appellant
V.
The State of Texas, Appellee

 

 
On
Appeal from County Criminal Court at Law No. 6 
Harris
County, Texas

Trial Court Case No. 1578847
 

 
O P I
N I O N
Appellant, Donald Wayne Warren, was
charged by information with driving while intoxicated with an enhancement
paragraph alleging that appellant had an open container of an alcoholic
beverage in his immediate possession at the time of the offense.[1]  Appellant pleaded not guilty to the charged
offense and not true to the enhancement. 
A jury found appellant guilty as charged.  The trial court found the enhancement
paragraph true and assessed punishment at 180 days in county jail and a fine of
$2,000.  The trial court also suspended
appellant’s sentence of confinement and placed him on community supervision for
18 months.  In four issues, appellant
argues: (1) the evidence was legally and factually insufficient to establish there
was a temporal link between his intoxication and his driving; (2) the trial
court abused its discretion by denying his motion to suppress certain
statements made to a police officer; and (3) he received ineffective assistance
of counsel.
We affirm.
                                                                                                                                                                
Background
Lee Nolen was working at a Denny’s restaurant in Spring,
Texas from 6:00 p.m. on February 7, 2009 until 6:00 a.m. the next morning.  According to Nolan, appellant entered around
12:30 a.m. and sat down at the counter. 
At some point, appellant asked Nolen for a phone book so he could call a
wrecker service to get his truck out of the ditch outside the restaurant.
Deputy D. Drake from the Harris County Sherriff’s
Department testified that he was dispatched to the Denny’s for a minor accident
investigation.  He testified that he
arrived at five minutes after midnight.  When
he arrived at the scene, an officer identified as Deputy Terranova was present
at the scene.[2]  Appellant was also there, standing by the driver’s
side door to his truck.  
Deputy Drake spoke to Deputy Terranova first and then
spoke to appellant.  When he approached
appellant, Deputy Drake asked how the accident had occurred.  At the time, appellant had bloodshot eyes, he
was slurring his speech, and Deputy Drake could smell alcohol on his
breath.  
Deputy Drake asked appellant “how he had come to know
about the crash,” and appellant responded that he drove his truck into the
ditch.  Deputy Drake asked appellant
where he was coming from, and appellant responded that he was coming from his
home on Cypresswood.  Deputy Drake then
asked appellant what his intended destination was, and appellant responded that
his destination was his home.  When
Deputy Drake asked appellant for his driver’s license, appellant “started
fumbling through his wallet,” dropping business cards out of it.  Appellant then looked back up and asked
Deputy Drake what he had just asked him for. 
After he obtained the license from appellant, Deputy Drake asked
appellant if he had been drinking. 
Appellant responded that he had “drunk some.”  When asked how many, appellant “referred to
it as a few.”
While Deputy Drake was talking to appellant, appellant
demanded that Deputy Drake call a person identified as J.R.  Appellant asserted J.R. was a deputy with the
sheriff’s office, and Deputy Drake testified that he knew a J.R. that worked
for the sheriff’s office.
In his investigation, Deputy Drake determined that the
truck had not sustained any damage other than some minor scraping to the
underside of the truck.  The hood of
appellant’s truck was still warm, indicating to Deputy Drake that the truck had
been driven recently.  He also testified
that the inside of the cab was warmer than the outside temperature of 60
degrees Fahrenheit.  Inside appellant’s
truck, he discovered a plastic cup containing an unidentified alcoholic drink,
some of which had spilled onto the passenger’s seat of the truck.
When he got out of Deputy Drake’s patrol car for the field
sobriety test, appellant was unsteady on his feet and asked repeatedly what he
was being charged with.  Prior to
administering the field sobriety test, Deputy Drake asked appellant about any
medications he was taking or physical problems he might have.  Appellant said he was not taking any type of
medications and indicated that he did not have any physical problems or
difficulties.  At the time appellant was
asking what he was being charged with, appellant told Deputy Drake that Deputy
Drake could not prove that he was driving the truck and that he had “beat one
of these already.”
Deputy Drake performed the field sobriety test on
appellant and observed all six clues on the horizontal gaze nystagmus test, all
eight clues on the walk-and-turn test, and three of the four clues on the
one-leg stand test.  Deputy Drake
subsequently arrested appellant.  At the
police station, appellant refused to provide a breath sample for testing and
also refused to participate in a second field sobriety test.
                                                                                     
Temporal Link between Driving and Intoxication
In his first and second issues, appellant argues that,
despite the evidence establishing his intoxication when Deputy Drake arrived,
the evidence is legally and factually insufficient to establish that appellant
was intoxicated while he was driving.
A.              
Standard of Review
This Court reviews sufficiency-of-the-evidence challenges applying
the same standard of review, regardless of whether an appellant presents the
challenge as a legal or a factual sufficiency challenge.  See Ervin
v. State, 331 S.W.3d 49, 52–55 (Tex. App.—Houston [1st Dist.] 2010, pet.
filed) (construing majority holding of Brooks
v. State, 323 S.W.3d 893 (Tex.
Crim. App. 2010)).  This standard
of review is the standard enunciated in Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).  See id.
at 912, 926.  Pursuant to this standard,
evidence is insufficient to support a conviction if, considering all the record
evidence in the light most favorable to the verdict, no rational fact finder
could have found that each essential element of the charged offense was proven
beyond a reasonable doubt.  See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; In re Winship, 397 U.S. 358,
361, 90 S. Ct. 1068, 1071 (1970); Laster
v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  We can hold evidence to be insufficient under
the Jackson standard in two
circumstances: (1) the record contains no evidence, or merely a “modicum” of
evidence, probative of an element of the offense, or (2) the evidence
conclusively establishes a reasonable doubt.  See
Jackson, 443 U .S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11,
2789; see also Laster, 275 S.W.3d at
518; Williams, 235 S.W.3d at 750. 
The sufficiency-of-the-evidence
standard gives full play to the responsibility of the fact finder to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.  See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  An appellate court presumes that the fact
finder resolved any conflicts in the evidence in favor of the verdict and
defers to that resolution, provided that the resolution is rational.  See
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.  In viewing the record, direct and
circumstantial evidence are treated equally; circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.  Clayton,
235 S.W.3d at 778.  Finally, the
“cumulative force” of all the circumstantial evidence can be sufficient for a
jury to find the accused guilty beyond a reasonable doubt.  See
Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
B.              
Analysis
“A person commits an offense if the person is intoxicated
while operating a motor vehicle in a public place.”  Tex.
Penal Code Ann. § 49.04(a) (Vernon 2011).  The definition of intoxicated, as it applies
to this case, is “not having the normal use of mental or physical faculties by
reason of the introduction of alcohol . . . into the body.”  Tex.
Penal Code Ann. § 49.01(2)(A) (Vernon 2011).  Based on the statutory requirements, the
State was required to prove that appellant was intoxicated at the time he was operating the motor vehicle in a public place.  See id.
§ 49.04(a).
Appellant does not challenge the evidence that he was
driving the truck at the time of the accident. 
Nor does he challenge the evidence that he was driving in a public
place.  We are left to determine, then,
whether the evidence is sufficient to show that appellant was intoxicated at
the time he was driving.  Appellant
argues there is no evidence establishing how much time had elapsed from when
the accident occurred to when Deputy Drake arrived, suggesting his intoxication
could have occurred after the accident happened.
In order to support a finding that the defendant was
intoxicated while operating a motor vehicle, “there must be a temporal link
between the a [sic] defendant’s
intoxication and his driving.”  Kuciemba v. State, 310 S.W.3d 460, 462
(Tex. Crim. App. 2010).  Such a finding
can be supported by direct or circumstantial evidence.  See id.
(holding conviction can be supported solely by circumstantial evidence).  “Being intoxicated at the scene of a traffic
accident in which the actor was a driver is some circumstantial evidence that
the actor’s intoxication caused the accident, and the inference of causation is
even stronger when the accident is a one-car collision with an inanimate
object.”  Id.  
Similar to the defendant in Kuciemba, appellant drove his car into a ditch and was found
intoxicated at the scene of the accident. 
Deputy Drake testified that the hood of appellant’s truck was still
warm, indicating to him that the truck had been recently driven.  He also testified that the inside of the cab
was warmer than the outside temperature of 60 degrees Fahrenheit.  Inside appellant’s truck, he discovered a
plastic cup containing an unidentified alcoholic drink, some of which had
spilled onto the passenger’s seat of the truck.
Even without knowing the time span between when the
accident occurred and when Deputy Drake arrived, this evidence, viewed in the
light most favorable to the verdict, is sufficient to support a finding by the
jury that appellant was intoxicated while he was driving.  The warmth of the hood and cab of the truck
is some evidence that the accident occurred a relatively short time before
Deputy Drake arrived.  See Rawls v. State, 318 S.W.2d 662, 663
(Tex. Crim. App. 1958) (considering warmth of motor as proof that vehicle had
recently been driven by defendant); see
also Kuciemba, 310 S.W.3d at 464 n.1 (Meyers, J., dissenting) (indicating
testimony of officer that engine was warm would allow jury to determine
defendant recently drove vehicle). 
Similarly, Deputy Drake testified that the cab of the truck was warmer
than the outside air.
Additionally, Deputy Drake found an open container of
alcohol in the cab of appellant’s truck and saw that some of the drink had
spilled onto the passenger’s seat of the truck. 
The jury could have reasonably determined that the spill occurred at the
time of the accident, meaning that appellant had the alcoholic drink with him
as he was driving.  The presence of an
open container of alcohol in the vehicle driven by appellant is some evidence
that he was drinking while driving.  See Kimball v. State, 24 S.W.3d 555,
559–60 (Tex. App.—Waco 2000, no pet.) (considering presence of open container
of beer in determining whether defendant was intoxicated while driving); Sneed v. State, 964 S.W.2d 764, 766
(Tex. App.—Texarkana 1998, no pet.) (considering presence of empty containers
of alcohol in determining whether defendant was intoxicated while
driving).  From this, the jury could have
reasonably inferred that appellant was intoxicated while driving.
Appellant discusses how there was some explanation—other
than intoxication—as to why appellant may have performed poorly on the field
sobriety test.  He also asserts that the
video of him at the sheriff’s station “does not show an intoxicated
person.”  Assuming without deciding that these
arguments are correct, they are unavailing. 
It is the responsibility of the jury
as fact finder to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.  See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. 
All of these assertions that appellant relies on were conflicts in the
testimony for the jury to resolve, and our standard of review requires us to
review the evidence in the light most favorable to the jury’s verdict.  See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Based on the foregoing, we hold that the evidence was
sufficient to establish that appellant was intoxicated at the time he was
driving in a public place.  We overrule
appellant’s first and second issues.
                                                                                                                                                  
Motion to Suppress
In his third issue, appellant argues the trial court
abused its discretion by denying his motion to suppress certain statements made
to a police officer.
A.              
Standard of review
We review a trial court’s ruling on a motion to suppress
evidence under a bifurcated standard of review. 
Amador v. State, 221 S.W.3d
666, 673 (Tex. Crim. App. 2007).  In
reviewing the trial court’s decision, we do not engage in our own factual
review.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).  The trial judge is the sole trier of fact and
judge of the credibility of the witnesses and the weight to be given their
testimony.  Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007).  Therefore, we give almost total deference to
the trial court’s rulings on (1) questions of historical fact, even if the
trial court’s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that
turn on an evaluation of credibility and demeanor.  Amador,
221 S.W.3d at 673.  But when
application-of-law-to-fact questions do not turn on the credibility and
demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo.  Id.
Stated another way, when reviewing the trial court’s
ruling on a motion to suppress, we must view the evidence in the light most
favorable to the trial court’s ruling.  Wiede, 214 S.W.3d at 24.  We must uphold the trial court’s ruling if it
is supported by the record and correct under any theory of law applicable to
the case.  State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).
B.              
Analysis
Appellant argues there were nine instances that violated his
Miranda rights, the Fifth Amendment
of the United States Constitution, section 3 of article 38.22 of the Texas Code
of Criminal Procedure, and section 10 of article 1 of the Texas Constitution.[3]  See
U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.22,
§ 3 (Vernon 2005); Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).  Because appellant draws no distinction
between these legal authorities and because the majority of appellant’s other
legal authority focuses on a defendant’s Miranda
rights, we treat this issue as a complaint of violation of his Miranda rights.[4]  See  Resendez v. State, 306 S.W.3d 308, 315
(Tex. Crim. App. 2009) (treating argument concerning Miranda rights, United States Constitution, Texas Constitution, and
Article 28.22 of Texas Code of Criminal Procedure all as argument that police
officer failed to Mirandize
defendant).  The nine instances he
complains about are as follows:
1.       Deputy
Drake asked appellant “how he had come to know about the crash,” and appellant responded
that he drove his truck into the ditch.
2.       Deputy
Drake asked appellant where he was coming from, and appellant responded that he
was coming from his home on Cypresswood. 
Deputy Drake then asked appellant what his intended destination was, and
appellant responded that his destination was his home.
3.       Deputy
Drake asked appellant for his driver’s license. 
Appellant “started fumbling through his wallet,” dropping business cards
out of it.  Appellant then looked back up
and asked Deputy Drake what he had just asked him for.
4.       Deputy
Drake asked appellant if he had been drinking. 
Appellant responded that he had “drunk some.”  When asked how many, appellant “referred to
it as a few.”
5.       While
Deputy Drake was talking to appellant, appellant demanded that Deputy Drake
call a person identified as J.R. 
Appellant asserted J.R. was a deputy with the sheriff’s department.
6.       Prior
to administering the field sobriety test, Deputy Drake asked appellant about
any medications he was taking or physical problems he might have.  Appellant said he was not taking any type of
medications and indicated that he did not have any physical problems or
difficulties.
7.       When
he got out of Deputy Drake’s patrol car for the field sobriety test, appellant
was unsteady on his feet and asked repeatedly what he was being charged with.
8.       At
the time appellant was asking what he was being charged with, appellant told
Deputy Drake that Deputy Drake couldn’t prove that he was driving the truck.
9.       Appellant
then told Deputy Drake, “I beat one of these already.”
The Miranda
safeguards come into play when a person is (1) in custody and (2) subject to
interrogation—that is, subject to express questioning or its functional
equivalent “that the police should know are reasonably likely to elicit an
incriminating response from the subject.” 
Rhode Island v. Innis, 446
U.S. 291, 300–01, 100 S. Ct. 1682, 1689–90 (1980); see also Jones v. State, 795 S.W.2d 171, 174–75 (Tex. Crim. App.
1990) (citing Innis).  Before determining whether appellant was in
custody, however, it is relevant to our inquiry to determine first whether any
of the complained of statements were obtained as a result of interrogation as
it has been defined by the United States Supreme Court and the Texas Court of
Criminal Appeals.
Not all questioning by police can be classified as
“interrogation.”  Jones, 795 S.W.2d at 174. 
Examples of when a defendant is not considered subject to interrogation include:
·                   
routine inquiries;
·                   
questions incident to booking;
·                   
broad general questions such as “what happened”
upon arrival at the scene of a crime;
·                   
questions
mandated by public safety concerns, such as “where did you hide the weapon”
when the weapon has just been hidden in the immediate vicinity;
·                   
asking
whether the defendant will take a blood alcohol test or repeatedly asking the
defendant to give a breath sample;
·                   
police
practices seeking only physical evidence, not testimonial confessions of guilt,
such as instructions and questions incident to a field sobriety test; and
·                   
statements
volunteered by the defendant without any compelling influence.
Id. at 174–76
& n.3 (citing Ringel, Searches and
Seizures, Arrests and Confessions § 27.4 (1987); Chadwick v. State, 766 S.W.2d 819, 821
(Tex. App.—Dallas 1988), aff’d, 795 S.W.2d
177 (Tex. Crim. App. 1990); Innis,
466 U.S. at 300, 100 S. Ct. at 1689).
We hold that the question in the first instance—asking
appellant how he had come to know about the crash—was a broad general question
and, hence, did not constitute interrogation. 
See id. at 174 n.3.  
The questions in the next two instances—asking where
appellant was coming from and going to and asking for appellant’s driver’s
license—are routine questions asked at a traffic accident.  Massie
v. State, 744 S.W.2d 314, 316–17 (Tex. App.—Dallas 1988, writ ref’d)
(holding asking defendant where he was going was not interrogation); see also Jones, 795 S.W.2d at 174 n.3
(citing Massie for same).  They are not questions “reasonably likely to
elicit an incriminating response from the suspect.”  Innis,
466 U.S. at 301, 100 S. Ct. at 1689–90. 
Moreover, appellant’s response to the question in the third instance—asking
Deputy Drake what he had just asked for—was not a response to the
question.  Instead, it was a question
volunteered by appellant, which is not subject to Miranda warnings.  See Jones, 795 S.W.2d at 176.
We hold that part of the question in the sixth instance—asking
appellant about any physical problems he might have—is incident to
administering a field sobriety test.  Id. at 175–76.  In order to assess a field sobriety test’s
efficacy in determining intoxication, it is beneficial for the officer to know
if there are factors other than intoxication that would inhibit the suspect’s
ability to perform the required tasks.  See Ellis v. State, 86 S.W.3d 759, 761
(Tex. App.—Waco 2002, pet. ref’d) (indicating that vision problems or medical
conditions could create “false positive” in field sobriety test).  Because it is incident to administering a
field sobriety test, it does not constitute interrogation.  See Jones,
795 S.W.2d at 175–76.
We hold the statements in the fifth, seventh, eighth, and
ninth instances—appellant telling Deputy Drake to call J.R., asking repeatedly
what he was being charged with, asserting Deputy Drake could not prove he was
driving the truck, and asserting that he had “beat one of these already”—were statements
volunteered by appellant without any compelling influence and did not
constitute interrogation.  See id. at 176.
Moreover, part of what appellant complains about in the
third and seventh instances were descriptions of his demeanor—fumbling through
his wallet, dropping business cards out of the wallet, and being unsteady on
his feet.  An officer’s description of a
person’s demeanor does not implicate the person’s Miranda rights or other protections against
self-incrimination.  Id. at 175–76.
The closest call concerns the question in the fourth
instance and part of the sixth instance—Deputy Drake’s asking appellant how
many drinks appellant had consumed and whether he was taking any medications.  Nevertheless, even if these did constitute
interrogation, we hold appellant was not in custody at the time these question
were asked. 
In Berkemer, a
police officer pulled over a driver that was driving erratically.  Berkemer
v. McCarty, 468 U.S. 420, 423, 104 S. Ct. 3138, 3141 (1984).  The officer asked the driver to get out of
the car, noticed that the driver was having difficulty standing, and decided
immediately that the driver would be charged with a traffic offense.  Id.  The officer conducted a field sobriety test,
which the driver failed.  Id. 
The officer asked the driver whether he had been using intoxicants, and
the driver responded he had consumed two beers and had smoked several joints of
marijuana “a short time before.”  Id. 
The Supreme Court held that asking the driver whether he had been using
intoxicants after the driver had failed a field sobriety test did not
constitute custodial interrogation.  Id. at 442, 104 S. Ct. at 3151–52.
Similarly, in Shpikula,
the officer pulled over a driver that had been driving in excess of 90 miles an
hour and weaving between several lanes of traffic.  Shpikula
v. State, 68 S.W.3d 212, 215 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d).  Upon observation, the officer
determined that the driver appeared intoxicated, and a strong odor of alcohol
was coming from the car.  Id. 
When the officer asked the driver for identification, the driver handed
him his entire wallet.  Id. at 216.  The driver could not maintain his balance
without holding onto a fixed object.  Id. 
The officer then asked the driver whether he had been drinking, and the
driver responded he had had a few drinks with friends earlier in the
evening.  Id.  The officer then
conducted a field sobriety test, which the driver failed, and placed him under
arrest.  Id.  Relying on Berkemer, we held that the driver’s Miranda rights had not been violated
prior to his arrest.  Id. at 218–19.
The situation in this case is comparable to those in Berkemer and Shpikula.  When he approached
appellant, Deputy Drake asked how the accident had occurred.  At the time, appellant had bloodshot eyes, he
was slurring his speech, and Deputy Drake could smell alcohol on his
breath.  Deputy Drake asked appellant to
recount the events of the crash, and subsequently asked where appellant was
coming from and going.  Deputy Drake then
asked for appellant’s driver’s license. 
After he obtained the license from appellant, Deputy Drake asked
appellant if he had been drinking and how many drinks he had had.  Prior to administering the field sobriety
test, Deputy Drake asked appellant if he was taking any medication.
We hold that this chain of events did not convert the
investigation into an arrest.  Appellant
was not subject to a custodial interrogation because he was not in custody at
the time Deputy Drake asked appellant how many drinks he had consumed and
whether he was taking any medication.
We overrule appellant’s third issue.
                                                                                                                        
Ineffective Assistance of Counsel
In his fourth issue, appellant argues that he received
ineffective assistance of counsel.
A.              
Standard of Review
The Sixth
Amendment to the United States Constitution guarantees the right to reasonably
effective assistance of counsel in criminal prosecutions.  See U.S. Const. amend. VI.  To show ineffective assistance of counsel, a
defendant must demonstrate both (1) that his counsel’s performance fell below
an objective standard of reasonableness and (2) that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.  Strickland v. Washington, 466 U.S. 668,
687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).
An appellant bears
the burden of proving by a preponderance of the evidence that his counsel was
ineffective.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  Any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.  Id.  We presume that a counsel’s conduct falls
within the wide range of reasonable professional assistance, and we will find a
counsel’s performance deficient only if the conduct is so outrageous that no
competent attorney would have engaged in it. 
Andrews, 159 S.W.3d at 101.
In most
ineffective-assistance-of-counsel cases, the record on direct appeal is not
developed and does not adequately reflect the alleged failings of trial
counsel.  Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).  This is particularly true when the alleged
deficiencies are matters of omission and not of commission that are shown in
the record.  Id.  In such cases, the
record is best developed in a hearing on a motion for new trial or on
application for a writ of habeas corpus. 
Batiste v. State, 217 S.W.3d
74, 83 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
B.              
Analysis
Appellant argues he received ineffective assistance due to
his attorney’s failure to object to (1) Deputy Drake’s testimony regarding the
portion of the field sobriety test where he conducted horizontal gaze nystagmus
test and (2) the trial court’s admonishment that the deputy could not mention
that the appellant wanted to talk to a lawyer.
Appellant did not file a motion for new trial complaining
about ineffective assistance of counsel to develop a record establishing
counsel’s reasons for the alleged conduct. 
Because the record is silent, we cannot determine whether trial
counsel’s inaction was grounded in sound trial strategy.  See
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  In the absence of direct evidence of
counsel’s reasons for the challenged conduct, an appellate court will assume a
strategic motivation if any can be imagined. 
See Garcia v. State, 57 S.W.3d
436, 440 (Tex. Crim. App. 2001); see also
Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st
Dist.] 1996, no pet.) (presuming reasonable trial strategy supported failure to
object in face of silent record).  Accordingly,
we review each of the claims of error to determine whether a strategic
motivation can be imagined.
1.                
Testimony concerning the horizontal gaze
nystagmus test
Appellant argues his attorney should have objected to
Deputy Drake’s testimony regarding the horizontal gaze nystagmus test first
because Deputy Drake was not qualified as an expert on that test and second
because the testimony was speculative and prejudicial due to the fact that
there was not a video corroborating the testimony regarding the test.
Appellant acknowledges that Deputy Drake testified that he
was “certified as a standardized field sobriety testing instructor.”  Nevertheless, appellant complains that Deputy
Drake “did not specifically testify that he was certified to administer the
Horizontal Gaze Nystagmus test.” 
Appellant relies on Ellis as
support for the proposition that such specific testimony was required.  See
Ellis v. State, 86 S.W.3d 759, 760–61 (Tex. App.—Waco 2002, pet. ref’d).  We disagree with appellant’s interpretation
of Ellis.
In Ellis, the
testimony concerning the officer’s qualifications to conduct the field sobriety
test focused, in part, specifically on whether the officer had obtained
certification to administer the horizontal gaze nystagmus test.  Id.
at 761.  The officer testified that he
had taken the course but had not received the certification because he had not
yet completed other requirements for certification.  Id.  The Waco court of appeals held that certification
was required in order to be qualified as an expert and held that the trial
court erred by allowing the officer to testify in this regard.  Id.  
The Ellis case,
then, concerns the situation where the evidence disproves that the officer is
qualified to testify as an expert on a certain matter.  Id.  Those are not the facts of this case.  Deputy Drake testified that he was certified
as a standardized field sobriety testing instructor.  Nothing in the evidence disproved this
testimony or in any other way called into doubt his qualifications to testify
as an expert.  Without any proof that
Deputy Drake was not qualified to testify as an expert, appellant has failed to
meet his burden of showing that he received ineffective assistance of counsel for
the failure to object to Deputy Drake’s expert testimony.  See Thompson, 9 S.W.3d at 808 (holding any allegation of
ineffectiveness must be firmly founded in record).
Appellant also argues that his attorney should have
objected because Deputy Drake’s testimony was speculative and prejudicial due
to the fact that there was not a video corroborating the testimony regarding
the test.  Corroborating video evidence
is not required.  See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979)
(holding arresting officer’s opinion testimony of intoxication, alone, is
sufficient to support conviction).
2.                
Exclusion of evidence regarding talking to a
lawyer
Appellant also argues that his attorney should have
objected to the trial court’s requirement that the State could not mention that
appellant asked to speak to a lawyer.
The record reflects that, after he was arrested, appellant
was taken to the Cypresswood sheriff’s station, was placed under video
surveillance, and was read the statutorily-required warning concerning giving a
breath test.  Appellant refused to
provide a breath test and refused to participate in another field sobriety test
at the station.  During the suppression
hearing, it was represented that, at some point while he was at the station, appellant
either asked to speak with a lawyer or stated that he was not going to perform
the field sobriety test without a lawyer. 
The trial court ruled that appellant’s statements concerning a lawyer
could not be presented to the jury.
Appellant complains that a request for counsel was
“admissible and relevant to show that [appellant] was not intoxicated, i.e.,
that he was coherent and had the ‘normal use of mental or physical faculties.’”  Appellant fails to explain or provide any
support for how requesting an attorney could constitute proof that he was not
intoxicated.
Moreover, it is well established that it is generally improper
to introduce evidence of an accused invoking his or her right to counsel
because it could be construed adversely to a defendant and may improperly be
considered as an inference of guilt.  See Hardie v. State, 807 S.W.2d 319, 322
(Tex. Crim. App. 1991) (citing Miranda,
384 U.S. at 468 n.37, 86 S. Ct. at 1625 n.37). 
Accordingly, it would have been entirely reasonable for appellant’s
trial counsel to believe that whatever benefit might have been derived by
establishing that appellant invoked his right to counsel would have been
outweighed by the substantial risk that the jury would have used such a
statement as some acknowledgment of appellant’s guilt.  See Garcia,
57 S.W.3d at 440 (holding that, in absence of direct evidence of counsel’s
reasons for challenged conduct, appellate court will assume strategic
motivation if any can be imagined).
We overrule appellant’s fourth issue.
                                                                                                                                                                   
Conclusion
We affirm the judgment of the trial court.
 
 
                                                                   Laura
Carter Higley
                                                                   Justice

 
Panel consists of Justices Jennings, Higley, and Brown.
Publish.   Tex. R. App. P. 47.2(b).




[1]           See Tex. Penal Code Ann. § 49.04(a),
(c) (Vernon 2011).


[2]           Deputy Terranova did not testify at the trial.


[3]           Appellant also complains about five statements that were
only mentioned during the suppression hearing, arguing they “should have been
suppressed from the suppression hearing.” 
The purpose of a suppression hearing is for the trial court to determine
the merits of the motion to suppress.  Tex. Code Crim. Proc. Ann. art. 28.01,
§ 1(6) (Vernon 2006).  Appellant
fails to explain how the trial court was expected to determine what statements
should have been suppressed without first knowing what the statements were.  Nor does he explain how he was harmed by
these statements being introduced outside the presence of the jury.
 


[4]           Appellant does quote section 3 of article 38.22 of the
Texas Code of Criminal Procedure in his brief. 
This section prohibits the introduction in a criminal proceeding of
statements of an accused obtained as a result of custodial interrogation unless
certain requirements are met.  Tex. Code Crim. Proc. Ann. art. 38.22,
§ 3 (Vernon 2005).  This rule’s
application is premised on the determination that the defendant was subject to
custodial interrogation, which we review below.


