


LEBLANC V. STATE



















COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH





NO. 2-03-508-CR





DAVID LLOYD LEBLANC	APPELLANT

A/K/A DAVID LOYD LEBLANC



V.



THE STATE OF TEXAS	STATE



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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY



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MEMORANDUM OPINION
(footnote: 1)


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Introduction

A jury convicted Appellant David Lloyd LeBlanc of felony driving while intoxicated.  The trial court sentenced him to twenty years in prison.  In two points, Appellant argues that the evidence was factually insufficient to support the verdict and that he received ineffective assistance from counsel at trial.  We affirm.

Discussion

I.

In his first point, Appellant argues that the evidence was factually insufficient to support the verdict.  We disagree.

When reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party.  
See Zuniga v. State
, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004).  The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt.  
Id
. at 484.  There are two ways evidence may be factually insufficient:  (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt.  
Id
. at 484-85.  “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.”  
Id
. at 485.  In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt.  
Id
.  	In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses.  
Id.
 at 481; 
Cain v. State
, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  We may not substitute our judgment for that of the fact finder’s.  
Zuniga, 
144 S.W.3d at 482.  

A proper factual sufficiency review requires an examination of all the evidence.  
Id
. at 484, 486-87.  An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal.  
Sims v. State
, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A person commits the offense of driving while intoxicated if he operates a vehicle while intoxicated in a public place.  
Tex. Penal Code Ann
. § 49.04 (Vernon 2003).  “Intoxicated” is defined as 

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or 


(B) having an alcohol concentration of 0.08 or more. 



Id. 
§ 49.01(2)(A)-(B).  A witness does not have to be an expert to testify that a person he observes is intoxicated by alcohol; therefore, lay opinion testimony by a police officer that a person is intoxicated is probative evidence that a person was “drunk.”  
Henderson v. State
, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).

The following evidence was presented at trial.  Officer Alan Hicks observed a vehicle traveling at sixty-one miles per hour in a forty-five miles-per-hour zone of a public highway in Hood County.  He initiated a traffic stop.   Appellant was the sole occupant of the vehicle.  Officer Hicks testified that Appellant’s eyes were red and glassy, his speech was slowed and slurred, and his breath smelled of alcohol.  Officer Hicks asked Appellant to perform the usual field sobriety tests.  Appellant exhibited six out of six possible “clues” of intoxication on the horizontal gaze nystagmus test, failed the walk-and-turn test, and did not lift his foot six inches off the ground as instructed on the one-legged-stand test.  Officer Hicks arrested Appellant for driving while intoxicated and transported Appellant to the county jail.  At the jail, Appellant refused to provide a breath sample for analysis.  

Sergeant Jesse Davis, who assisted with Appellant’s arrest, testified that Appellant’s speech was slurred and a strong odor of alcohol emanated from the vehicle.  Sergeant Davis, who had seventeen years’ experience in law enforcement, testified that, in his opinion, Appellant was intoxicated.   

The State showed the jury videotape recordings of Appellant’s field sobriety test, arrest, booking, and refusal to provide a breath sample.  The State also introduced a stipulation signed by Appellant in which he admitted to two prior convictions for driving while intoxicated.
(footnote: 2) 

Appellant cross-examined the police officers but offered no evidence and did not testify.

We hold that the evidence was factually sufficient for a jury to be rationally justified in finding beyond a reasonable doubt that Appellant operated a motor vehicle in a public place when he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol to his body.  We overrule Appellant’s first point.

II.

In his second point, Appellant contends that his trial counsel rendered ineffective assistance.

We apply a two-pronged test to ineffective assistance of counsel claims.  
Strickland v. Washington
, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); 
Thompson v. State
, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  First, appellant must show that counsel’s performance was deficient, which requires showing that counsel made such serious errors that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment.  
Strickland
, 466 U.S. at 687, 104 S. Ct. at 2064.  Counsel’s performance is only deficient if it fell below an objective standard of reasonableness measured by prevailing professional norms.  
Id
. at 688-89, 104 S. Ct. at 2065.  The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance.  
Bone v. State
, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002); 
Thompson
, 9 S.W.3d at 813-14.  Our scrutiny of counsel’s performance must be highly deferential, making every effort to eliminate the distorting effects of hindsight.  
Strickland
, 466 U.S. at 689, 104 S. Ct. at 2065.

Second, appellant must show that counsel’s deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial.  
Id. 
at 687, 104 S. Ct. at 2064.  Appellant must show that there is a reasonable probability that, if not for counsel’s unprofessional errors, the result of the proceeding would have been different.  
Id
. at 694, 104 S. Ct. at 2068.

A claim for ineffective assistance of counsel must be firmly grounded in, and affirmatively supported by, the record.  
Thompson
, 9 S.W.3d at 814; 
Jackson v. State
, 973 S.W.2d 954, 957 (Tex. Crim. App. 1988).  When the record is silent as to possible trial strategies employed by defense counsel, we will not speculate on the reasons for those strategies.  
See Jackson v. State
, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

There is a substantial risk of failure when a claim of ineffective assistance of counsel is brought on direct appeal.  
Thompson
, 9 S.W.3d at 813.  “Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable and professional.”  
Bone
, 77 S.W.3d at 833.

Appellant complains that trial counsel “failed to adequately inform his client of the evidence against him,” causing Appellant to plead not guilty without understanding the consequences of his plea.  Appellant points to the following colloquy, which occurred immediately before voir dire, as proof:

THE COURT:   . . . Mr. LeBlanc, your attorney has informed me that you have something you want to say to me?



DEFENDANT:  I’m just not ready for this.  I don’t know what’s going on, and I haven’t seen any evidence against me or heard anything in this case.  I haven’t slept for about a week.  I wasn’t notified of this happening.



THE COURT:  [Defense counsel], is the Defendant ready for trial or not ready for trial?



[DEFENSE COUNSEL]:  As his lawyer, yes, sir, I’m ready.  I’ve reviewed the State’s file, watched the video and talked to the witnesses, and I’m ready.  



This case demonstrates the “inadequacies inherent in evaluating ineffective assistance claims on direct appeal.”  
Patterson v. State
, 46 S.W.3d 294, 306 (Tex. App.—Fort Worth 2001, no pet.).  Appellant did not file a motion for new trial to afford the trial court the opportunity to hold a hearing and inquire into the reasons for trial counsel’s acts or omissions.  Consequently, we cannot determine whether counsel’s actions were grounded in sound trial strategy because the record is silent as to possible trial strategies, and we will not speculate on the reasons for those strategies.  
See
 
Jackson,
 877 S.W.2d at 771; 
Patterson
, 46 S.W.3d at 306.  The record is also silent as to what communications occurred between trial counsel and his client.  
See Strickland
, 466 U.S. at 691, 104 S. Ct. at 2066 (noting that inquiry into counsel’s conversations with defendant may be critical to proper assessment of counsel’s litigation decisions because counsel’s actions are usually based on informed strategic choices made by defendant and on information supplied by defendant).  Therefore, Appellant’s ineffective assistance claims are better raised through an application for a writ of habeas corpus.  
Tex. Code Crim. Proc. Ann.
 art. 11.07 (Vernon 2005); 
see Rylander v. State
, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (“[T]he record on direct appeal will generally ‘not be sufficient to show that counsel’s representation was so deficient as to meet the first part of the 
Strickland
 standard’ as ‘[t]he reasonableness of counsel’s choices often involves facts that do not appear in the appellate record.’”); 
see also Bone
, 77 S.W.3d at 837, n.30 (“This resolution in no way affects appellant's entitlement to re-urge this or other appropriate constitutional complaints on a writ of habeas corpus.”).  We overrule Appellant’s second point.

Conclusion

Having overruled both of Appellant’s points, we affirm the judgment of the trial court.





ANNE GARDNER

JUSTICE



PANEL F:	DAUPHINOT, HOLMAN, and GARDNER, JJ.



DO NOT PUBLISH

Tex. R. App. P.
 47.2(b)



DELIVERED:  August 31, 2005

FOOTNOTES
1:See 
Tex. R. App. P. 
47.4.


2:The indictment alleged five prior DWI convictions.  In exchange for the stipulation, the State agreed not to read the other three prior DWI convictions to the jury. 


