                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00330-CR

TOMMIE LINDLEY,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                         From the 361st District Court
                             Brazos County, Texas
                       Trial Court No. 08-00721-CRF-361


                         MEMORANDUM OPINION


      Tommie Lindley was convicted by a jury of the felony offense of driving while

intoxicated. TEX. PEN. CODE ANN. §§ 49.04 & 49.09(b)(2) (Vernon 2003). Lindley pled

not true to two felony enhancements based on prior convictions for theft and burglary

of a habitation. The jury found the enhancements true and based on the jury’s verdict

on punishment, the trial court sentenced Lindley to confinement for thirty-seven (37)

years in the Texas Department of Criminal Justice – Institutional Division. TEX. PEN.

CODE ANN. §12.42(d) (Vernon 2003). Lindley complains that the trial court erred in

admitting evidence regarding a prior DWI conviction, that he received ineffective

assistance of counsel, and that the evidence was factually insufficient to sustain his
conviction. Because we find that Lindley’s objection on appeal did not match his

objection at the trial court and error was waived regarding the admission of the prior

convictions, that the record is insufficient to establish ineffective assistance of counsel,

that the evidence was factually sufficient, and that while there was charge error, it did

not result in egregious harm to Lindley, we affirm the conviction.

Admission of Prior Convictions

        Lindley complains that the trial court erred by allowing testimony from two

witnesses in the rebuttal phase of the guilt-innocence portion of his jury trial regarding

the details surrounding his arrest for one of his prior DWI convictions. Lindley objected

to the testimony, claiming the evidence was not relevant and was more prejudicial than

probative. In his brief to this Court, however, Lindley does not allege that the evidence

was not relevant, nor that its probative value was substantially outweighed by its

prejudicial value, simply that the extraneous conduct was inadmissible, which we

construe as an objection pursuant to Texas Rule of Evidence 404(b). TEX. R. EVID. 404(b).

        Lindley's trial objection does not comport with his complaint on appeal. To

preserve an issue for appeal, a timely and specific objection at trial is required. TEX. R.

APP. P. 33.1(a); see Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); Hernandez

v. State, 171 S.W.3d 347, 358 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd.)

(explaining that objection must alert trial court to specific complaint). A trial objection

must correspond with the issue presented on appeal. See id. “An objection stating one

legal basis may not be used to support a different legal theory on appeal.” Edwards v.

State, 97 S.W.3d 279, 287 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd.).



Lindley v. State                                                                      Page 2
        We need not address Lindley's contention regarding whether the extraneous

offense was admissible because Lindley did not preserve this issue for appeal. The

record reflects Lindley only objected to the evidence on the grounds that it was

irrelevant and more prejudicial than probative, not that the evidence was inadmissible

under Rule 404(b). Accordingly, Lindley waived his Rule 404(b) complaint. See id. We

overrule Lindley’s issue number one.

Ineffective Assistance of Counsel

        Lindley complains that his counsel was ineffective because he failed to stipulate

to his prior convictions or to object to the admission of the documentary evidence

regarding his prior DWI convictions, and that counsel was ineffective because he did

not object to an instruction in the jury charge which Lindley contends constituted

impermissible comments on the weight of the evidence by the trial court regarding

Lindley’s alleged refusal to submit to a breath test and the jury’s ability to consider the

refusal as evidence.

        To prevail on an ineffective-assistance claim, Lindley must prove (1) counsel's

representation fell below the objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel's deficiency, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). In considering an ineffective-assistance claim, we indulge a strong presumption

that counsel's actions fell within the wide range of reasonable professional behavior and

were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d

at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this

Lindley v. State                                                                     Page 3
presumption, a claim of ineffective assistance must be firmly demonstrated in the

record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle

for raising such a claim because the record is generally undeveloped and cannot

adequately reflect the motives behind trial counsel's actions.      Rylander v. State, 101

S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813-14.

        When the record is silent regarding trial counsel's strategy, we will not find

deficient performance unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005); Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000).

In rare cases, however, the record can be sufficient to prove that counsel's performance

was deficient, despite the absence of affirmative evidence of counsel's reasoning or

strategy. Id. This is not such a case.

        Therefore, Lindley must first obtain the necessary record in the trial court to

rebut the Strickland presumption that counsel's conduct was strategic for purposes of

appeal. Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref'd.). This kind of record is best developed in a hearing

on a motion for new trial, or by an application for a writ of habeas corpus. See Jackson v.

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92.

Without evidence of the strategy and methods involved concerning counsel's actions at

trial, we will presume sound trial strategy. See Thompson, 9 S.W.3d at 814. The record is

silent as to any trial strategy by counsel. When, as here, the record is silent as to

counsel's reason for failing to act in some manner, the appellant fails to rebut the

presumption that counsel acted reasonably. See Thompson, 9 S.W.3d at 814.

Lindley v. State                                                                     Page 4
        Lindley contends that he received ineffective assistance of counsel because there

was no objection to the charge regarding the trial court’s instruction that “[y]ou are

instructed that you may consider the Defendant’s refusal to submit to a breath test, if he

did refuse, as evidence in this case.”     Subsequent to Lindley’s trial, the Court of

Criminal Appeals held that an instruction regarding the failure to take a breath test

constitutes an impermissible comment on the weight of the evidence. See Bartlett v.

State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008). We will not find ineffective assistance

of counsel solely based on an opinion that did not exist at the time of the trial. We

overrule issues two and three.

Factual Insufficiency

        Lindley complains that the evidence was factually insufficient to sustain the

jury’s finding that he was intoxicated.

        In a factual sufficiency review, we view the evidence in a neutral light and ask

whether the evidence supporting the verdict is so weak or so against the great weight

and preponderance of the evidence as to render the verdict manifestly unjust. Steadman

v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Grotti v. State, 273 S.W.3d 273, 283

(Tex. Crim. App. 2008). Although a factual sufficiency review authorizes us, to a very

limited degree, to act as a “thirteenth juror,” we must nevertheless give the jury’s

verdict a great degree of deference. Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim.

App. 2006).

        The fact-finder alone determines what weight to place on contradictory

testimonial evidence because that determination depends on the fact-finder’s evaluation

of credibility and demeanor. See TEX. CODE CRIM. PROC. ANN. art. 36.13 and 38.04

Lindley v. State                                                                    Page 5
(Vernon 2007) (stating that the jury is the exclusive judge of the facts and of the weight

given to testimony); Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We

afford almost complete deference to a jury's decision when that decision is based upon

an evaluation of credibility as the jury is in the best position to judge the credibility of a

witness because it is present to hear the testimony, as opposed to an appellate court

which relies on the cold record. Lancon, 253 S.W.3d at 705. See also Marshall v. State, 210

S.W.3d 618, 625 (Tex. Crim. App. 2006).

        A “high level of skepticism about the jury’s verdict” is required before we may

reverse due to factual insufficiency. Watson, 204 S.W.3d at 417. We may not find the

evidence to be factually insufficient merely because there are “reasonably equal

competing theories of causation.” Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App.

2001). Further, a factual sufficiency reversal certainly may not occur when the evidence

actually preponderates in favor of conviction.        Watson, 204 S.W.3d at 417.       Before

reversing a conviction on the basis of factual insufficiency, we must detail all the

relevant evidence and must explain in exactly what manner the evidence is factually

insufficient. Watson, 204 S.W.3d at 414.

        Lindley contends that in our factual sufficiency analysis we should not consider

his prior DWI convictions, the facts surrounding one of the prior convictions, or the

testimony regarding Lindley’s refusal to take the breath test, but should consider only

the other evidence offered, which renders the evidence factually insufficient. However,

when conducting a factual sufficiency review, we consider all of the evidence, both

direct and circumstantial, whether properly or improperly admitted. See Berry v. State,

233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.

Lindley v. State                                                                        Page 6
Crim. App. 2006), cert. denied, 128 S. Ct. 87, 169 L. Ed. 2d 66 (2007); see also King v. State,

29 S.W.3d 556, 565 (Tex. Crim. App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex.

Crim. App. 1999).

The Facts

        A witness observed Lindley driving for a significant distance with his right turn

signal on.         Lindley then began to swerve on and off the road, varied speeds

significantly, and was driving so erratically that the witness signaled other drivers to

warn them away and called the police. Lindley almost caused more than one accident

and almost ran several cars off the road. When the officer pulled Lindley over, Lindley

stopped in the middle of the highway.

        Lindley exited the highway. Upon approach by the officer, Lindley appeared

disoriented and confused. The officer smelled the odor of alcohol inside the vehicle and

on Lindley’s breath. Lindley was confused about his whereabouts and when asked to

show his license and insurance, he attempted to read his insurance card upside down.

Lindley stated he suffered from sleep apnea.            Lindley had red bloodshot eyes.

According to the officer, Lindley’s balance was “a little bit” unsteady walking around

the car.

        During the roadside encounter with the officer, Lindley gave different stories

regarding where he was going and admitted that he had two beers earlier in the day.

The officer conducted the Horizontal Gaze Nystagmus (HGN) test and observed four of

six clues indicating intoxication. Lindley was unable to perform the walk and turn test,

but the officer did not count that against Lindley due to his size and alleged physical

condition.

Lindley v. State                                                                         Page 7
        Lindley was unable to perform the one leg stand because of previous back

surgery. The officer then arrested Lindley and took him to the police station to take a

breath sample from him. Lindley agreed, but then did not blow into the intoxilyzer

machine correctly. Lindley was argumentative and belligerent at the station.

        The officer who administered the breath test believed that Lindley held his

breath and merely pretended to blow into the machine.           The officers considered

Lindley’s failure to provide an adequate specimen after multiple attempts as a refusal.

        The State called an expert witness to explain the HGN test and to give an opinion

regarding the effects of alcohol on a person and observations regarding the videotape of

Lindley. When four of six clues are shown on the HGN test, there is an 88 percent

chance of accuracy that the individual is intoxicated. The witness pointed to several

signs of intoxication in the video, which included Lindley’s driving prior to the stop.

Lindley straddled both lanes of the road. He stopped in the center of both lanes of the

highway. Additionally, Lindley stopped two other times on the highway after driving

forward a short distance. Lindley was slow to respond to the officer’s command while

traveling a long distance before coming to a complete stop. Other signs of intoxication

included the fact that Lindley did not follow commands when stopped, had slurred

speech, performed poorly on the walk and turn test, and leaned on his vehicle for

balance.

        The expert also opined that the HGN test was administered properly. He also

noted that Lindley was uncooperative at the station in providing a breath sample.

While he was not familiar with Lindley’s physical limitations, he still believed that



Lindley v. State                                                                   Page 8
Lindley was intoxicated as shown on the video. Further, he had found no research that

narcolepsy would simulate intoxication in the HGN test.

        Lindley’s brother and sister testified that they had each seen Lindley fall asleep

suddenly, including while driving.       His brother was unaware that Lindley had

narcolepsy until Lindley told him about it and his sister did not know about it at all.

When Lindley would wake up, he did not seem confused or disoriented. A local

defense attorney observed Lindley fall over in court and stated that he looked like he

was “falling asleep walking” at a pretrial hearing, but might have just tripped.

        Lindley went to a doctor five days after his arrest regarding a sleep problem. He

was diagnosed with hypertension, sleep apnea, a disc injury in his spine, and possible

narcolepsy. Narcolepsy is a daytime sleep disorder which causes individuals to fall

asleep without notice. However, Lindley’s diagnosis regarding narcolepsy was based

solely on Lindley’s self-report and no testing was conducted on Lindley to confirm

whether or not he had narcolepsy. It is rare for narcolepsy to begin at Lindley’s age,

after age forty. He contended that the clues for the HGN test can also be caused by

narcolepsy. He did not know the DSM criterion for diagnosing narcolepsy, which is an

incident once daily for three months.

        During the State’s rebuttal case, the bailiff who was in the courtroom when

Lindley fell described that incident. He stated that Lindley lost his balance and fell

backwards while stepping down two steps in the jury box, but that he did not see

Lindley fall asleep or pass out.

        The officer who arrested Lindley for DWI in 2004 testified to the events

surrounding that arrest. In that case, a call was received from a driver regarding highly

Lindley v. State                                                                    Page 9
erratic driving. Lindley was the driver. At the scene, the officer smelled the odor of

alcohol on Lindley and Lindley had slurred speech. Lindley was able to and did

perform the field sobriety testing at the scene, including the HGN, walk and turn test,

and the one leg stand. He also consented to give a breath specimen, but did not blow

into the tube properly. The officer believed that Lindley was holding his breath.

        The individual who observed Lindley driving erratically prior to his arrest for

the 2004 DWI testified that Lindley was swerving all over the highway and nearly

caused several accidents, sped up and slowed down, and ran off the road at one point.

The individual and other drivers attempted to warn other vehicles and he called the

police because Lindley’s driving was so dangerous.

        Documentary evidence was introduced at the beginning of the trial regarding

two prior convictions where Lindley had pled guilty and been convicted of driving

while intoxicated. A fingerprint expert compared the fingerprints on the judgments

with fingerprints she had taken of Lindley the morning of her testimony and found

them to be from the same individual. There was no objection either to the introduction

of the exhibits or to the substance of the expert’s testimony.

        Viewing all of the evidence neutrally, we cannot say that the evidence

supporting the verdict is so weak or so against the great weight and preponderance of

the evidence as to render the verdict manifestly unjust.         See Steadman v. State, 280

S.W.3d 242, 246 (Tex. Crim. App. 2009).

Jury Charge Error

        Although it was not raised in a separate issue but as a basis for an allegation of

ineffective assistance of counsel, we will directly address the charge error based on the

Lindley v. State                                                                    Page 10
Bartlett decision by the Court of Criminal Appeals. In Bartlett, the Court of Criminal

Appeals stated that “an instruction to the jury with respect to the admissibility of a

defendant’s refusal to take a breath test constitutes an improper comment on the weight

of the evidence.” Bartlett, 270 S.W.3d at 152. The charge to the jury contained the

following instruction:   “You are instructed that you may consider the Defendant’s

refusal to submit to a breath test, if he did refuse, as evidence in this case.” This

instruction constitutes an impermissible comment on the weight of the evidence by the

trial court, and was therefore, erroneous. Lindley did not object to this instruction to

the trial court.

        In the absence of an objection, the record must show that Lindley has suffered

not only actual harm, but egregious harm resulting from the incorrect charge. Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (establishing the proper standard of

review for jury charge error in the absence of an objection to jury charge error).

Egregious harm arises if the error is so severe that it deprived Lindley of a fair and

impartial trial, affected the very basis of the case, vitally affected a defensive theory, or

otherwise deprived him of a valuable right. Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996); Warner v. State, 245 S.W.3d 458, 461-62 (Tex. Crim. App. 2008). In

making this determination, we consider (1) the entire jury charge, (2) the state of the

evidence, (3) the arguments of counsel, and (4) any other relevant information in the

record as a whole. Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993);

Almanza, 686 S.W.2d at 171. Because Lindley’s trial counsel failed to object, reversal is

only required if Lindley suffered egregious harm from the trial court's error. Almanza,

686 S.W.2d at 171.

Lindley v. State                                                                      Page 11
        In his argument regarding harm pursuant to the ineffective assistance of counsel

issue, Lindley asserts that he was harmed by the State arguing that he intentionally

failed to submit to the breath test and that he was again playing games with the

intoxilyzer during its closing argument. However, the evidence regarding his efforts at

taking the breath test was properly admitted before the jury. See TEX. TRANSP. CODE

ANN. § 724.061 (Vernon 1999) (“a person’s refusal . . . to submit to the taking of a

specimen of breath or blood . . . may be introduced into evidence at the person’s trial.”)

        Proper jury argument includes summation of the evidence presented at trial,

reasonable deduction drawn from that evidence, answer to the opposing counsel’s

argument, and a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.

Crim. App. 2000). Thus, the comments by the State regarding their perception of

Lindley’s failure to submit a valid breath specimen were not improper jury argument.

Certainly, Lindley was able to argue the opposite in his closing argument, although he

chose not to do so.

        The State did make reference to the instruction in their closing argument one

time when they stated that “the refusal, the judge told you in his instructions that you

are allowed to consider that as evidence.” The charge as written, however, did give the

jury the option of determining whether they believed there was a refusal or not.

However, when we consider the record as a whole, we do not find that this comment

deprived Lindley of a fair trial or was calculated to injure his rights.

        The charge as given to the jury was otherwise unremarkable. As discussed in

detail above, we have determined that the evidence was factually sufficient to establish

Lindley’s guilt. Viewed in its entirety, the record lacks any evidence that the error was

Lindley v. State                                                                    Page 12
either calculated to injure Lindley’s rights or deprived him of a fair trial. See Hess, 224

S.W.3d at 515; Almanza, 686 S.W.2d at 171. Thus, we do not find that Lindley suffered

egregious harm.

Conclusion

        We find that any error regarding the admission of the testimony surrounding

Lindley’s prior arrests was not properly preserved.         We find that the record is

insufficient to establish that Lindley received ineffective assistance of counsel. We find

that the evidence is factually sufficient to sustain the conviction. We find that the trial

court did err in submitting an instruction to the jury regarding the breath test; however,

the error was not egregiously harmful. We affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed February 3, 2010
Do not publish
[CRPM]




Lindley v. State                                                                    Page 13
