                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ___________________

                               NO. 09-12-00334-CR
                              ___________________

                    JAYCOB MORRIS PONDER, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 75th District Court
                        Liberty County, Texas
                      Trial Cause No. CR 29637
__________________________________________________________________

                          MEMORANDUM OPINION

      A jury convicted appellant Jaycob Morris Ponder of driving while

intoxicated as a habitual offender and assessed punishment at twelve years of

confinement. In two issues, Ponder contends trial counsel provided ineffective

assistance. We affirm the trial court’s judgment.

      To prevail on a claim of ineffective assistance of counsel, an appellant must

satisfy a two-pronged test:



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      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must show
      that the deficient performance prejudiced the defense. This requires
      showing that counsel’s errors were so serious as to deprive the
      defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); see also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.

1986). An appellant must demonstrate a reasonable probability that but for his

counsel’s errors, the outcome would have been different. Bone v. State, 77 S.W.3d

828, 833 (Tex. Crim. App. 2002). “Appellate review of defense counsel’s

representation is highly deferential and presumes that counsel’s actions fell within

the wide range of reasonable and professional assistance.” Id.

      Ponder must prove that there was no professional reason for specific acts or

omissions of his counsel. See id. at 836. Furthermore, “[a]ny allegation of

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

affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d

482, 500 (Tex. Crim. App. 1996)). The bare record on direct appeal is usually

insufficient to demonstrate that “counsel’s representation was so deficient . . . as to



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overcome the presumption that counsel’s conduct was reasonable and

professional.” Bone, 77 S.W.3d at 833 (footnote omitted).

      In his first issue, Ponder asserts that trial counsel did not attempt to

rehabilitate “potentially favorable jurors” who had indicated a bias against the

State and that trial counsel did not object to a juror who clearly indicated a bias

against Ponder and was ultimately chosen to serve on the jury. Ponder did not file a

motion for new trial or otherwise create a record elucidating counsel’s possible

reasons for not attempting to rehabilitate the three jurors Ponder argues were

favorable to him or for not striking the juror Ponder asserts was biased against him.

We must presume that counsel’s conduct falls within a wide range of reasonable

representation. See Strickland, 466 U.S. at 690; Bone, 77 S.W.3d at 833; see also

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (Counsel’s

decisions regarding use of peremptory strikes asking questions at voir dire did not

constitute ineffective assistance of counsel when record was silent as to counsel’s

trial strategy.). With a silent record, we cannot presume that counsel’s conduct

constituted ineffective assistance. See Thompson, 9 S.W.3d at 813; Bone, 77

S.W.3d at 833. Accordingly, we overrule issue one.

      We turn now to issue two, in which Ponder contends trial counsel was

ineffective for failing to object to testimony regarding retrograde extrapolation.

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Camille Stafford, a forensic scientist with the DPS crime laboratory, analyzed a

specimen of Ponder’s blood, and she testified that Ponder’s blood alcohol level

was 0.27. Stafford testified that if she were given information concerning the time

a person last drank, whether the person ate food, the time the person was stopped,

and the time the person’s blood was drawn, she could use average rates of alcohol

elimination to estimate what the person’s approximate blood alcohol level was at

the time of the stop. Stafford explained that if the stop occurred at 9:00 p.m.,

Ponder’s last drink was around 7:00 p.m., and Ponder’s blood alcohol

concentration at the hospital was 0.27, Ponder’s blood alcohol level at the time of

the stop was approximately 0.315. Stafford opined that Ponder was driving while

intoxicated.

      Ponder complains of counsel’s failure to object to Stafford’s testimony.

Assuming without deciding that counsel’s performance was deficient, Ponder has

failed to establish that, but for counsel’s alleged errors and omissions, the outcome

of his trial would have been different. See Bone, 77 S.W.3d at 833. Even if trial

counsel had objected to the retrograde extrapolation testimony and successfully

excluded that testimony from evidence, the evidence was still legally sufficient for

the jury to have found Ponder guilty. Officers and paramedics who were at the

scene testified that Ponder was alone in the vehicle when the accident occurred,

                                         4
Ponder had an abrasion from the driver’s side seat belt, and Ponder had glassy,

bloodshot eyes, slurred speech, slow coordination, an unsteady gait, and a strong

odor of alcohol on his breath. Ponder also told paramedics that he had consumed “a

couple” of alcoholic drinks. Ponder also failed the horizontal gaze nystagmus field

sobriety test, and a sample of Ponder’s blood drawn at the hospital approximately

two hours after the stop showed that Ponder’s blood alcohol level was 0.27. See

Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (citing Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (In evaluating

the legal sufficiency of the evidence, an appellate court reviews all the evidence in

the light most favorable to the verdict to determine whether any rational fact-finder

could have found the essential elements of the offense beyond a reasonable

doubt.); Letner v. State, 138 S.W.3d 539, 541 (Tex. App.—Beaumont 2004, no

pet.) (Retrograde extrapolation evidence is not required to support a verdict of

guilt.). We therefore overrule issue two and affirm the trial court’s judgment.

      AFFIRMED.

                                              ______________________________
                                                     STEVE McKEITHEN
                                                        Chief Justice

Submitted on May 1, 2013
Opinion Delivered May 15, 2013
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.
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