                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-15-00398-CR

ALEXANDER HARRISON KING,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                       From the County Court at Law No. 2
                            McLennan County, Texas
                          Trial Court No. 20144334 CR2


                           MEMORANDUM OPINION


       A jury convicted Appellant Alexander Harrison King of driving while intoxicated.

The trial court sentenced him to 365 days’ confinement in the McLennan County Jail and

a $4,000 fine. The trial court suspended imposition of the sentence, placed King on

community supervision for twenty-four months, and ordered him to pay $1,500 of the

fine. King filed a motion for new trial, which was denied by the trial court after a hearing.
                                    Sufficiency of the Evidence

        A person commits the offense of driving while intoxicated if the person is

intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. §

49.04(a) (West Supp. 2016).       In his first issue, King claims that the evidence was

insufficient to prove that he was operating a vehicle on the evening he was arrested. King

does not dispute that he was intoxicated at the time of his arrest.

        The Court of Criminal Appeals has expressed our constitutional standard of

review of a sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);
        Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
        standard gives full play to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
        319, 99 S.Ct. 2781. “Each fact need not point directly and independently to
        the guilt of the appellant, as long as the cumulative force of all the
        incriminating circumstances is sufficient to support the conviction.”
        Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v. State,

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the
King v. State                                                                              Page 2
prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct. at

2793. Further, 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.” Hooper, 214 S.W.3d at

13. Finally, it is well established that the factfinder “is entitled to judge the credibility of

witnesses, and can choose to believe all, some, or none of the testimony presented by the

parties.” Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        The following evidence was presented at trial: DPS Trooper Jarrod Hubbard

testified that on April 26, 2014, he was dispatched to investigate a traffic accident in rural

McLennan County. In conjunction with Hubbard’s testimony, the prosecution played

the dash-cam video from Hubbard’s patrol car that recorded the events that followed.

Hubbard came upon King speaking with a McLennan County Deputy Sheriff in the area

of the reported accident. King was highly intoxicated and incoherent. A subsequent

blood test revealed that he had a blood-alcohol concentration of 0.224, almost three times

the legal limit of 0.08. King could not remember if he had been in a traffic accident and

could not remember where his vehicle was located, although he pointed generally in a

northerly direction. When asked where he was walking, King indicated that he was

going home. Hubbard knew, from his training and experience, that DWI suspects often

leave the scene of an accident in order to evade arrest and to avoid jail. Hubbard left

King in the custody of the deputy and drove northward to look for King’s vehicle.


King v. State                                                                            Page 3
        A short distance away, Hubbard found Marianne Holland sitting on the side of

the road close to where a truck had left the roadway and crashed in some nearby trees.

A records check on the truck revealed that it was registered to King’s mother. On the

video, Hubbard asks Holland if she is okay, and she says, yes. She further states,

“[Unintelligible] had an accident.1 I don’t know where my boyfriend went. We had an

accident, and we can’t get the truck out. I don’t know where he went at all.”

        Hubbard testified that Holland told him on more than one occasion that she was

the passenger in the truck. Holland admitted this on cross-examination at King’s trial,

and it was also supported by the video. During her encounter with Hubbard, which

lasted approximately thirty minutes, Holland never indicated in any manner that she had

been driving the truck. At one point on the video, when Hubbard said to her that King

should not have been driving and could have hurt someone, she responds, “I know.”

        When the deputy brought King to the scene of the accident, Hubbard administered

one field sobriety test, which indicated King was intoxicated.                 Another test was

attempted, but King was unable to complete it. Hubbard noticed that King had an injury

in the area of his left eye that was consistent with someone who was restrained by a seat

belt hitting the steering wheel. The air bags did not deploy in the truck after the wreck.




1
 King contends that the video clearly recorded Holland stating “I had a wreck.” [Emphasis added.] But
the video is not as clear as King asserts.

King v. State                                                                                 Page 4
        After King was evaluated by emergency medical technicians, Hubbard placed

King under arrest for driving while intoxicated. Hubbard then drove King to the hospital

to have the injury to his eye further evaluated and treated. They remained there for a

number of hours. Hubbard testified that during that time, King never denied being the

driver of the wrecked truck.

        Contrary to her statements on the video, in her direct testimony at King’s trial,

Holland testified that she was driving the night of the wreck. She testified that earlier on

the day of King’s arrest, she and King had been drinking at King’s apartment with a

friend, Kyle Pratka. She testified that when they left to take Pratka home, she was driving.

She stopped for gas and then drove toward a nearby lake with King in the passenger seat.

She lost control on a gravel road and wrecked the truck. She and King discussed who

would take the blame for the wreck. King agreed to accept responsibility because her

driver’s license was suspended and she had children to care for. Holland testified that

she did not tell Hubbard that she was driving the truck because she assumed that King

had already taken the blame for the accident.

        Holland testified that after the accident, she went with King to his attorney’s office

“and we told him that I was driving, we sure did.” Holland also provided an affidavit to

King’s attorney, in which she swore that she was the driver of the vehicle and that no one

had ever asked her who the driver was. She did not go to the police with that information

upon the advice of King’s attorney.


King v. State                                                                           Page 5
        King argues that his conviction should be overturned because the only evidence

showing that he was driving the vehicle was Holland’s prior inconsistent statement that

she was the passenger in the vehicle. Assuming without deciding, however, that a prior

inconsistent statement alone is insufficient to support a conviction, we conclude that

Holland’s statements are not the only evidence establishing that King was operating the

vehicle on the night that he was arrested. In addition to Holland’s statements to Hubbard

that she was a passenger, the evidence establishing that King was the driver of the

wrecked truck includes: (1) King fled from the site of the wreck. “Flight from the scene

of a crime is circumstantial evidence of guilt.” Nunez v. State, 215 S.W.3d 537, 541 (Tex.

App.—Waco 2007, pet. ref’d). (2) The truck was registered to King’s mother. (3) King

had a set of keys to the truck in his pocket. (4) Hubbard testified that King never denied

being the driver. (5) Hubbard testified that King was injured in a manner consistent with

hitting the steering wheel while Holland was not.

        King asserts that Hubbard’s conclusion regarding the injury to his eye is mere

speculation rather than evidence that he was the driver of the truck. Hubbard admitted

on cross-examination that the injury could have been suffered by someone sitting in the

passenger seat who was not wearing a seat belt. He further testified, however, that both

Holland and King told him that they were wearing seat belts when the wreck occurred.

Hubbard’s testimony that the injury to King’s eye is consistent with hitting the steering




King v. State                                                                       Page 6
wheel is therefore evidence in addition to Holland’s prior inconsistent statements that

established King was the driver of the wrecked truck.

        King further argues that the evidence clearly shows that Holland was the driver.

King points to her recantation, her “admission” on the video that she was the driver, her

affidavit, her lack of motive to lie, and her acknowledgement that she could be prosecuted

for giving false testimony. But the jury is the exclusive judge of the facts, the credibility

of the witnesses, and the weight to be given to the witnesses’ testimony. Jaggers v. State,

125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). A jury may believe

all, some, or none of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.

Crim. App. 1986). By finding King guilty, the jury obviously disbelieved portions of

Holland’s testimony and believed the evidence discussed above that establishes that King

was the driver of the vehicle. As the reviewing court, we “should not substantially

intrude upon the jury’s role as the sole judge of the weight and credibility of witness

testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

        We conclude that the evidence was sufficient for a rational fact finder to find

beyond a reasonable doubt that King was operating the truck on the evening of his arrest.

King’s first issue is overruled.

                                   Motion for New Trial

        In his second issue, King contends that the trial court erred in overruling his

motion for new trial. We review a trial judge’s denial of a motion for new trial under an


King v. State                                                                          Page 7
abuse of discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014);

Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). “We do not substitute our

judgment for that of the trial court; rather, we decide whether the trial court’s decision

was arbitrary or unreasonable.” Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.

2006). “A trial judge abuses his discretion in denying a motion for new trial when no

reasonable view of the record could support his ruling.” Colyer, 428 S.W.3d at 122; Holden,

201 S.W.3d at 763. “We view the evidence in the light most favorable to the trial judge’s

ruling and presume that all reasonable factual findings that could have been made

against the losing party were made against that losing party.” Colyer, 428 S.W.3d at 122;

Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997).

        At a motion for new trial hearing, the judge alone determines the credibility of the

witnesses. Colyer, 428 S.W.3d at 122; Salazar, 38 S.W.3d at 148. Even if the testimony is

not controverted or subject to cross-examination, the trial judge has discretion to

disbelieve that testimony. Colyer, 428 S.W.3d at 122; Masterson v. State, 155 S.W.3d 167,

171 (Tex. Crim. App. 2005).

        King first argues that the trial court should have granted a new trial because he

established that his conviction was the result of ineffective assistance of counsel. To

prevail on an ineffective assistance of counsel claim, the familiar Strickland v. Washington

test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471

(2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d


King v. State                                                                         Page 8
674 (1984)); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (same). Under

Strickland, a defendant must prove by a preponderance of the evidence that (1) counsel’s

performance was deficient, and (2) the defense was prejudiced by counsel’s deficient

performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104

S.Ct. at 2064; Andrews, 159 S.W.3d at 101. To satisfy the first prong, the appellant must

prove by a preponderance of the evidence “that trial counsel’s performance fell below an

objective standard of reasonableness under the prevailing professional norms.” Lopez v.

State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). To satisfy the second prong, the

appellant must then show that “there is a reasonable probability, or a probability

sufficient to undermine confidence in the outcome, that the result of the proceeding

would have been different.” Id. Absent both showings, an appellate court cannot

conclude that the conviction resulted from a breakdown in the adversarial process that

renders the result unreliable. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App.

1999).

         The standard for evaluating a trial court’s denial of a motion for new trial does not

change merely because a defendant raises ineffective assistance of counsel. The appellate

court does not review such a claim de novo, but determines whether the trial court abused

its discretion in denying the claim. Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—

Corpus Christi 2011, pet. ref’d); State v. Gill, 967 S.W.2d 540, 542 (Tex. App.—Austin 1998,

pet. ref’d); see also Schoenbauer v. State, 85 S.W.3d 400, 402 (Tex. App.—Tyler 2002, no pet.)


King v. State                                                                           Page 9
(“When the appellant has presented evidence on his counsel’s alleged ineffectiveness at

a hearing on a motion for new trial, we review the application of the test pronounced in

Strickland . . . through the prism of an abuse of discretion standard.”). “We must

determine whether the trial court’s application of Strickland and its subsequent decision

to deny the motion for new trial were so outside the zone of reasonable disagreement that

they are subject to reversal.” Schoenbauer, 85 S.W.3d at 402.

         King argues that his trial counsel was ineffective for failing to call Andrea and

Gabriel McGrew (King’s mother and stepfather) to testify.2 During the hearing on the

motion for new trial, the McGrews both testified that they had talked with Holland after

King’s arrest and that she had told them that she had been driving the truck when it

wrecked.         Holland was “inconsolable” and “sobbing” during their telephone

conversations, and she told the McGrews that King had “taken the fall” for her, which

she repeated numerous times. The McGrews also testified that King was unfamiliar with

the area where the wreck occurred because he was originally from Cedar Park, but

Holland knew exactly how to take them to the scene of the wreck.

         King’s trial counsel testified that he did not call the McGrews because he believed

their testimony was inadmissible hearsay and was merely cumulative and corroborative

of Holland’s. He believed Holland’s affidavit was sufficient to rebut the prosecution’s



2
 To the extent King also contends that his trial counsel was ineffective for failing to call Kyle Pratka, who had been
drinking with King and Holland before Holland’s arrest, to testify, the complaint is inadequately briefed and presents
nothing for review. TEX. R. APP. P. 38.1(h), (i).

King v. State                                                                                                Page 10
accusation that she had made up her story shortly before trial. Introduction of the

affidavit also eliminated the opportunity for the prosecutor to cross-examine a live

witness. King’s trial counsel further believed that the jury would not credit the McGrews’

testimony because of their relationship to King.

        King argues that his trial counsel’s performance was deficient because there was

no reason for him not to call the McGrews to testify. King contends that, contrary to his

trial counsel’s belief, the statements given to the McGrews by Holland would not have

been excludable as hearsay. King further claims that trial counsel’s belief that the jury

would not have believed the McGrews because they were his parents was not reasonable

under the circumstances. King also argues that he was prejudiced by his trial counsel’s

failure to call the McGrews to testify. King asserts that the identity of the driver was the

only issue in the case, that Holland was the only witness who had personal knowledge

of who had driven,3 and that she had been impeached by the prosecution. King contends

that the McGrews’ testimony would therefore have significantly influenced the jury

because it undisputedly corroborated Holland’s testimony.

        “Counsel’s failure to call witnesses at the guilt/innocence stage of a trial is

irrelevant absent a showing that the witnesses were available and that [a]ppellant would

have benefitted from their testimony.” Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.—




3King states in his brief that he “did not testify, and in fact was so drunk at the time he did not remember
what had happened.”

King v. State                                                                                       Page 11
Tyler 1996, pet. ref’d) (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)). Here,

even if King established that the McGrews’ testimony would have been admissible, he

did not show that he would have benefitted from the testimony to such an extent that his

trial counsel was ineffective for not calling the McGrews to testify. Andrea McGrew’s

demeanor on cross-examination during the hearing on the motion for new trial was

argumentative. See Sanders v. State, 346 S.W.3d 26, 34 (Tex. App.—Fort Worth 2011, pet.

ref’d) (stating that it may be reasonable trial strategy for counsel to choose not to call

witnesses he believes are unreliable and unbelievable). The McGrews’ testimony would

also have been cumulative of Holland’s affidavit. See Holland v. State, 761 S.W.2d 307, 319

(Tex. Crim. App. 1988) (explaining that appellant would not have benefitted from

cumulative testimony); Tutt, 940 S.W.2d at 121. The admission of Holland’s affidavit into

evidence had shown that shortly after the accident and long before the trial, she claimed

she was the driver.

        King argues that the McGrews’ testimony was not cumulative in at least one

respect—they would have testified about King’s unfamiliarity with the area where the

wreck occurred and Holland’s knowledge of the area because she took the McGrews to

see where the wreck occurred. But the benefit of such testimony is questionable. At the

hearing on the motion for new trial, Andrea McGrew testified that, while King was

originally from Cedar Park, he had been living in the Waco area for approximately seven

months while attending Texas State Technical College. King could have become familiar


King v. State                                                                           Page 12
with the area in that amount of time. Also, the McGrews’ testimony would not have

negated the fact that King could have been directed by Holland to the location where the

accident occurred.

        King further claims that his trial counsel was ineffective for not objecting to

Holland’s statements to Hubbard on the video as hearsay. This issue was not raised in

King’s motion for new trial or during the hearing on the motion for new trial. Therefore,

the trial court could not have erred in overruling the motion for new trial on this issue.

Furthermore, because the issue was not raised in King’s motion for new trial or during

the hearing on the motion for new trial, the record is silent as to trial counsel’s reasons

for his decision not to object.

        To overcome the strong presumption that counsel’s actions and decisions were

reasonably professional and motivated by sound trial strategy, any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. See Salinas v. State, 163 S.W.3d 734, 740 (Tex.

Crim. App. 2005); Thompson, 9 S.W.3d at 813. When the record is silent regarding the

reasons for counsel’s conduct, a finding that counsel was ineffective would require

impermissible speculation by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex.

App.—Houston [1st Dist.] 1996, no pet.) (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994).




King v. State                                                                       Page 13
        In light of the foregoing, we conclude that King did not establish by a

preponderance of the evidence that his trial counsel provided ineffective assistance.

        We now turn to King’s argument that the trial court erred in overruling his motion

for new trial because he is actually innocent of driving while intoxicated. To the extent

an “innocence” claim is cognizable outside of a successive habeas petition,4 the trial court

did not err in determining that King was not actually innocent.

        The courts have recognized two types of innocence claims. “The first—a Herrera

claim—is a substantive claim in which the person asserts a ‘bare claim of innocence’ based

solely on newly discovered evidence.” Ex parte Brown, 205 S.W.3d 538, 544 (Tex. Crim.

App. 2006) (citing Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)).

Establishing such a claim “is a Herculean task,” requiring a defendant to show “by clear

and convincing evidence that, despite the evidence of guilt that supports the conviction,

no reasonable juror could have found the applicant guilty in light of the new evidence.”

Id. at 545 (quoting Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002)). “The term

‘newly discovered evidence’ refers to evidence that was not known to the applicant at the

time of trial and could not be known to him even with the exercise of due diligence.” Id.

        King argues that Holland’s statements to the McGrews after the accident

constitute “newly produced” evidence that he is innocent. However, an actual innocence



4
 See State v. Young, 265 S.W.3d 697, 705 (Tex. App.—Austin 2008, pet. denied.) (“’Actual innocence’ is a
term of art that has consistently been used by Texas courts to describe a basis for collaterally attacking,
through habeas corpus, a final criminal conviction on constitutional grounds.”).

King v. State                                                                                        Page 14
claim requires “newly discovered” or “newly available” evidence, not evidence that is

“newly produced.” As noted, the evidence must have been unknown to the defendant

at the time of trial and must have been evidence that could not have been known by him

even with the exercise of due diligence. Id. The substance of the McGrews’ testimony

was known to King before trial. Therefore, King did not identify any newly discovered

evidence in this case.

        “The other type of innocence claim—a Schlup claim—is one that ‘does not by itself

provide a basis for relief,’ but is intertwined with constitutional error that renders a

person’s conviction constitutionally invalid.” Id. at 544-545 (quoting Schlup v. Delo, 513

U.S. 298, 315, 115 S.Ct. 851, 861, 130 L.Ed.2d 808 (1995)). It is “a procedural claim in which

applicant’s claim of innocence does not provide a basis for relief, but is tied to a showing

of constitutional error. . . .” Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002).

A Schlup claim of innocence is “not itself a constitutional claim, but instead a gateway

through which a habeas petitioner must pass to have his otherwise barred constitutional

claim considered on the merits.” Id. at 676 (quoting Herrera, 506 U.S. at 404, 133 S.Ct. at

862). A defendant raising such a claim must show “that it is more likely than not that no

reasonable juror would have convicted him. . . .” Ex parte Elizondo, 947 S.W.2d 202, 209

(Tex. Crim. App. 1996); see also Franklin, 72 S.W.3d at 676.

        The only constitutional error alleged by King that could arguably provide relief

under Schlup is that his conviction was the result of ineffective assistance of counsel. But


King v. State                                                                          Page 15
because we have concluded that King did not establish that his trial counsel provided

ineffective assistance, we conclude that King also had no basis for an innocence claim

under Schlup.

        Because we conclude that King failed to establish either ineffective assistance of

counsel or actual innocence, we hold that the trial court did not abuse its discretion in

denying King’s motion for new trial. King’s second issue is overruled.

        Having overruled both of King’s issues, we affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 26, 2017
Do not publish
[CR25]




King v. State                                                                      Page 16
