Opinion issued July 11, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00417-CR
                            ———————————
                 PASCAL DEWAYNE GARRIOTT, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 253rd District Court
                          Chambers County, Texas
                         Trial Court Case No. 18876


                          MEMORANDUM OPINION

      Pascal Dewayne Garriott was convicted of driving while intoxicated with

two or more previous convictions for DWI and as a habitual felony offender.1 He


1
      See TEX. PENAL CODE §§ 49.04 (setting forth offense of driving while
      intoxicated), 49.09 (setting forth enhanced offenses and penalties for DWI), 12.42
      (setting forth penalties for repeat and habitual felony offenders).
was sentenced to 60 years’ confinement. In a single issue, Garriott contends that

his trial counsel rendered ineffective assistance by eliciting adverse testimony from

two witnesses during the guilt-innocence stage of trial.

      We affirm.

                                     Background

      This is an ineffective-assistance-of-counsel case. The underlying offense is

DWI. For purposes of this appeal, the evidence and facts are undisputed.

      On January 12, 2016, a motorist travelling west on Interstate 10 through

Chambers County, Texas observed a truck swerving in and out of its lane, causing

other vehicles to veer off the road. Concerned that the truck might cause an

accident, the motorist called 911, reported the truck’s erratic driving, and stayed on

the phone with the dispatcher until the truck was pulled over by a State Trooper

with the Texas Department of Public Safety.

      The trooper had followed the truck for two-to-three miles and decided to

pull it over to check on the driver’s condition after observing the truck drift in and

out of its lane several times. The trooper later testified that the truck did not “react

immediately” to the sirens of the trooper’s vehicle and was “a little slow to stop.”

      Once on the shoulder, the trooper identified the driver as Garriott, informed

him that the police had received a call regarding his driving, and asked whether he

was okay. As Garriott responded that he was fine, the trooper “began to notice


                                           2
signs of impairment,” such as “slow awkward movements” and “slow” answers to

the trooper’s questions.

      The trooper instructed Garriott to step out of his truck and then administered

three standardized field sobriety tests (“FSTs”). First, the trooper administered the

horizontal gaze nystagmus test, which checks for “involuntary jerking of the eyes,”

which is a symptom caused by alcohol and some—but not all—drugs. Garriott

passed the test. Then, the trooper administered the “walk and turn,” which requires

the driver “to take nine heel-to-toe steps down an imaginary line” and then “turn

around and take nine heel-to-toe steps back.” Garriott’s “performance was poor.”

Garriott “could not balance during the instructions, he started too soon, stopped

while walking, took the wrong number of steps, missed heel-to-toe, and made an

improper turn.” Finally, the trooper administered the “one-leg stand,” which

requires the driver to stand on one leg, with the other foot lifted six inches parallel

to the ground, for 30 seconds. Again, Garriott’s “performance was poor.”

      The trooper then administered two non-standardized FSTs, which, the

trooper later explained, do not require balance and are intended for drivers who

have injuries and other conditions that impair their balance. First, the trooper

administered the “ABCs,” instructing Garriott to recite his ABCs, starting with the

letter D and ending with the letter X. “Again, his performance was poor. He

completed most of the test, started over, said three more letters, started over again,


                                          3
and then went past X, where [the trooper had] told him to stop, all the way to Z.”

Second, the trooper administered the “finger count,” instructing Garriott “to start

with [his] small finger and work [his] way up to the index finger touching each

finger with [his] thumb, count[ing] one, two, three, four,” and then to “go

backwards,” counting down, “four, three, two, one.” The trooper instructed

Garriott to do it three times. “Again his performance was poor. . . . The order that

he touched his fingers was incorrect. The more times that he went through, he was

counting wrong, saying the same numbers twice. And he did it five times instead

of three.”

      At the end of the finger count, the trooper determined that Garriott had lost

the normal use of his mental and physical faculties and advised him that he was

under arrest for DWI.

      Garriott was taken to a clinic, where he consented to a blood draw. The

blood sample was sent for analysis to the Texas Department of Public Safety’s

Austin Crime Lab.

      The blood sample tested positive for four drugs: (1) the benzodiazepine

alprazolam, commonly known by the brand name Xanax, detected at 0.062

milligrams per liter; (2) the cocaine metabolite benzoylecgonine, detected at less

than 0.05 milligrams per liter; (3) the muscle relaxer carisoprodol, commonly




                                         4
known by the brand name Soma, detected at 2.8 milligrams per liter; and (4) the

carisoprodol byproduct meprobamate, detected at 10 milligrams per liter.

      The toxicologist who analyzed the blood later testified that the levels of

alprazolam and carisoprodol present in Garriott’s blood were within the therapeutic

range, i.e., the range in which the drugs are effective for their intended purpose.

The toxicologist further testified that the alprazolam, carisoprodol, and

meprobamate are central nervous system (“CNS”) depressants and that

benzoylecgonine, depending on when the cocaine is ingested, can act as a CNS

depressant as well. Finally, the toxicologist testified that the amount and

combination of drugs in Garriott’s blood can cause dizziness, slurred speech, slow

movement, mental confusion, and impaired driving.

      Garriott was indicted for DWI with two or more previous convictions for

DWI and as a habitual felony offender.2 He was tried, convicted, and sentenced to

60 years’ confinement. Garriott appeals.

                            Ineffective Assistance of Counsel

      In his sole issue, Garriott contends that his trial counsel rendered ineffective

assistance by eliciting adverse testimony from two witnesses during the guilt-

innocence stage of trial.

2
      Garriott had two prior convictions for DWI, three prior convictions for delivery of
      marijuana, as well as prior convictions for burglary of a habitation, escape,
      involuntary manslaughter, and kidnapping.

                                           5
A.    Applicable law and standard of review

      To prevail on a claim for ineffective assistance of counsel, a defendant must

satisfy the two-prong test set forth by the United States Supreme Court

in Strickland v. Washington, 466 U.S. 668 (1984). Macias v. State, 539 S.W.3d

410, 415 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

      Under the first prong, “the defendant must show that counsel’s performance

was deficient.” Strickland, 466 U.S. at 687. This requires the defendant to prove

“that counsel’s performance fell below an objective standard of reasonableness,

considering the facts of the particular case and judged at the time of counsel’s

conduct.” Ex parte Gonzales, 204 S.W.3d 391, 393 (Tex. Crim. App. 2006).

      Under the second prong, “the defendant must show that the deficient

performance prejudiced the defense.” Strickland, 466 U.S. at 687. This requires the

defendant to prove “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Mitchell v. State, 68 S.W.3d 640, 642

(Tex. Crim. App. 2002); Macias, 539 S.W.3d at 415.

      In reviewing a claim for ineffective assistance of counsel, we are “highly

deferential” to trial counsel. Macias, 539 S.W.3d at 415–16. We indulge a “strong

presumption” that trial counsel’s performance “fell within the wide range of


                                        6
reasonable professional assistance.” Ex parte LaHood, 401 S.W.3d 45, 50 (Tex.

Crim. App. 2013).

      To prove that counsel’s performance was deficient, “the defendant must

overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Blackwell v. State, 193 S.W.3d 1, 21

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (quoting Strickland, 466 U.S. at

689). “Any allegation of ineffectiveness must be firmly founded in the record,

which must demonstrate affirmatively the alleged ineffectiveness.” Blackwell, 193

S.W.3d at 21. And “trial counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective.” Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003).

      Thus, if the record does not contain affirmative evidence of counsel’s

reasoning or strategy, we normally presume that counsel’s performance was not

deficient. Blackwell, 193 S.W.3d at 21. “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.

B.    Analysis

      Here, Garriott complains of adverse testimony elicited by his trial counsel

from two witnesses during the guilt-innocence stage of trial.




                                         7
      First, Garriott complains of adverse testimony elicited from the State’s

expert toxicologist, Dana Baxter. Specifically, Garriott complains that, in response

to questioning from Garriott’s trial counsel, Baxter testified that:

   • scientific studies have demonstrated that a combination alprazolam,
     carisoprodol, and meprobamate (the drugs found in Garriott’s blood) can
     cause impaired driving;

   • the amount of alprazolam, carisoprodol, and meprobamate found in
     Garriott’s blood exceeded the level shown to cause impairment in such
     studies; and

   • because such drugs can cause impaired driving, the Food and Drug
     Administration requires warnings of such side effects to be included on the
     drugs’ warning labels.

      Second, Garriott complains of adverse testimony elicited from his own

witness, his sister, C. L. Garriott. Specifically, Garriott complains that, in response

to questioning from Garriott’s trial counsel, Garriott’s sister testified that, in her

opinion, she did not believe Garriott should have been driving on the night he was

stopped and arrested for DWI.

      Garriott contends that this adverse testimony was not elicited in an attempt

to raise inconsistencies or otherwise dispute evidence presented by the State. He

emphasizes that this adverse testimony was not duplicative of testimony or other

evidence presented by the State on direct examination during its case-in-chief. And

he argues that he was harmed by this adverse testimony because it “only served to

strengthen the State’s case against him.”

                                            8
      Garriott’s ineffective-assistance claim fails for at least two reasons.

      First, the record is not sufficiently developed for us to determine whether

Garriott’s trial counsel’s performance fell below an objective standard of

reasonableness. Garriott has failed to present evidence showing why trial counsel

asked the questions that elicited the adverse testimony from the State’s expert

toxicologist and Garriott’s sister. Nor has Garriott argued or otherwise

demonstrated that this is one of those “rare cases” in which “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. We therefore presume

that trial counsel pursued a sound trial strategy, such as examining the witnesses

under the reasonable (if not mistaken) belief that the responses would be different

and support the defense’s theory that Garriott’s erratic driving and poor

performance on the FSTs were the result of fatigue and not drug-induced

intoxication. Because the record is silent as to trial counsel’s strategy, we hold that

Garriott has failed to rebut the “strong presumption” that counsel’s performance

“fell within the wide range of reasonable professional assistance.” LaHood, 401

S.W.3d at 50.

      Second, assuming (without deciding) that trial counsel rendered ineffective

assistance by eliciting adverse testimony from the State’s expert toxicologist and

Garriott’s sister, Garriott has failed to show that trial counsel’s deficient


                                          9
performance prejudiced the defense. See Strickland, 466 U.S. at 687. That is,

Garriott has failed to show that there is a reasonable probability that, but for

counsel’s deficient examination of these two witnesses, Garriott would not have

been found guilty. See id. at 694.

       Setting aside the adverse testimony elicited by Garriott’s trial counsel, the

evidence presented against Garriott was overwhelming and undisputed. This

evidence included the testimony of:

    • the concerned motorist, who testified that she observed a truck swerving in
      and out of lanes, causing other vehicles to veer off the road; called 911 to
      report the erratic driving; and stayed on the phone with the dispatcher until
      the truck was stopped by a state trooper;

    • the DPS state trooper, who testified that he received a dispatch for a truck
      with a possibly intoxicated driver; observed the subject truck for two-to-
      three miles as it drifted in and out of its lane; stopped the vehicle to check on
      the condition of the driver (later identified as Garriott); immediately began
      to notice “signs of impairment,” such as “slow awkward movements” and
      delayed answers to his questions; administered five FSTs; determined, upon
      Garriott failing all but one of them, that Garriott was intoxicated; and
      arrested Garriott for DWI; and

    • the DPS toxicologist, who testified that she analyzed the sample of
      Garriott’s blood and the determined that it contained four drugs—the
      benzodiazepine alprazolam, the cocaine metabolite benzoylecgonine, the
      muscle relaxer carisoprodol, and the carisoprodol byproduct,
      meprobamate—in amounts that could cause dizziness, slurred speech, slow
      movements, mental confusion, and, ultimately, impaired driving.3


3
       Garriott is therefore incorrect when he asserts in his appellate brief that there was
       “no direct testimony that the drugs found [in his blood sample] would impair a
       person’s driving.”

                                            10
      The evidence presented by the State also include a recording of the

motorist’s 911 call, the dashcam footage of the trooper’s stop of Garriott and

administration of the FSTs, and a recording of Garriott’s subsequent conversation

with the trooper, all of which were consistent with the testimony described above.

      In light of this undisputed evidence—which Garriott himself concedes is

sufficient to support the jury’s conviction—the adverse testimony elicited by

Garriott’s trial counsel is insufficient to undermine confidence in the outcome of

this case. We hold that Garriott has failed to prove that there is a reasonable

probability that, but for counsel’s elicitation of the adverse testimony, Garriott

would not have been found guilty.

      We overrule Garriott’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           11
