                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-10-00245-CR


JAMES GANNAWAY                                                APPELLANT

                                          V.

THE STATE OF TEXAS                                                 STATE


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          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION1
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                                  I. INTRODUCTION

      Appellant James Gannaway appeals his conviction for driving while

intoxicated.   In two points, Gannaway argues that he received ineffective

assistance of counsel at trial. We will affirm.




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       See Tex. R. App. P. 47.4.
                               II. BACKGROUND

      After having worked from approximately 8:00 a.m. until 6:30 p.m. on May

27, 2009, Gannaway left work. Officer Scott Hayney of the Lewisville Police

Department pulled over Gannaway because he was driving in excess of 100

miles per hour.   According to Hayney, when Gannaway first pulled over, he

exited his vehicle. Hayney’s response was to order Gannaway back into his

vehicle. Hayney then approached the passenger side of Gannaway’s vehicle.

When Gannaway did not notice him at the window, he knocked on it. Hayney

said that when Gannaway eventually rolled down his window, Hayney could

smell the strong odor of an alcoholic beverage. Hayney asked Gannaway to exit

his vehicle. When he did so, Hayney noticed that Gannaway slurred his speech;

had a flushed face and red, glassy eyes; and smelled of alcoholic beverage.

Hayney asked Gannaway to recite the alphabet and count backwards. After

Gannaway failed these two tests, Hayney conducted the standardized tests—the

horizontal gaze nystagmus, the walk-and-turn, and the one-legged stand.

Hayney testified that Gannaway failed all three of these tests; thus, Hayney

placed Gannaway under arrest for driving while intoxicated. After later being

placed in Hayney’s vehicle, Gannaway fell asleep and continued to sleep until

the two arrived at the police station. Hayney placed Gannaway in an intoxilyzer

room and read him the required statutory warnings.      Gannaway refused to

provide a specimen.      Hayney testified that he believed Gannaway was

intoxicated from the consumption of alcohol when he pulled Gannaway over.


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      At trial, Gannaway’s trial counsel called Dr. Phillip Isbell, a family

physician. Isbell testified that after examining Gannaway, he was of the opinion

that Gannaway demonstrated signs of having previously suffered from a

concussion, he suffered from untreated hypertension, and he demonstrated a

―perversion‖ of the nystagmus reflex. Isbell also testified that Gannaway suffered

from an imbalance when walking on his heels that ―cause[s] him to sort of jolt to

the left.‖ Isbell said that he believed that Gannaway would be unable to perform

a test of standing on one leg and would most likely always demonstrate a

nystagmus condition whether he was under the influence of alcohol or not.

      Gannaway’s trial counsel also called Kevin Higginbotham—Gannaway’s

manager at work. The State objected to some of trial counsel’s questioning.

Citing hearsay and relevance, the State objected that any questions designed to

elicit what Gannaway might have said to Higginbotham regarding how tired

Gannaway might have been in the days leading up to his arrest and how he

might have lost sleep over his fiancée having recently died were improper. The

trial court partially sustained the State’s objection and instructed Gannaway’s trial

counsel to limit his questioning to events of May 27, 2009.           Higginbotham

testified that he worked with Gannaway on May 27, 2009.               He said that

Gannaway had worked from 8:00 a.m. to approximately 6:30 p.m. Higginbotham

averred that May 27, 2009, was ―warmer‖ than normal, that Gannaway had been

quiet the day of work, and that Gannaway did not drink at work the day of his

arrest.


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       A jury found Gannaway guilty and made an affirmative finding that he had

used his vehicle as a deadly weapon.         After Gannaway pleaded true to two

enhancement paragraphs, the trial court assessed punishment at sixty-nine and

one-half years’ incarceration. Afterwards, Gannaway filed a motion for new trial

alleging, among other things, that his trial counsel had been ineffective. After a

hearing, the trial court denied Gannaway’s motion.       Gannaway filed a timely

notice of appeal.

                                  III. DISCUSSION

       A.    Higginbotham’s Testimony Regarding Gannaway’s Fatigue.

       In his first point, Gannaway complains that his trial counsel was ineffective

by ―failing to present testimony from [] Higginbotham that would have tended to

explain why [Gannaway fell] asleep in the police vehicle immediately after his

arrest.‖

       To establish ineffective assistance of counsel, Gannaway must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).




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      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel’s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel’s conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63.   A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at

740; Thompson, 9 S.W.3d at 813–14. ―In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.‖ Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d

at 63). To overcome the presumption of reasonable professional assistance,

―any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.‖ Id. (quoting

Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to

simply infer ineffective assistance based upon unclear portions of the record.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,


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appellant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

      We review the Strickland standards ―through the prism of an abuse of

discretion standard‖ when analyzing a trial court’s ruling on a motion for new trial

based on ineffective assistance of counsel. State v. Gill, 967 S.W.2d 540, 542

(Tex. App.—Austin 1998, pet. ref’d); see also Rodriguez v. State, 329 S.W.3d 74,

81 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing Charles v. State, 146

S.W.3d 204, 207–08 (Tex. Crim. App. 2004), superseded by rule on other

grounds by Tex. R. App. P. 21.8(b).          We view evidence in the light most

favorable to the trial court’s ruling, and we will reverse only if no reasonable view

of the record could support the trial court’s finding. Charles, 146 S.W.3d at 208.

      Gannaway’s trial counsel stated at the hearing on the motion for new trial

that his tactic in calling Higginbotham was to demonstrate that Gannaway was

tired the day he was arrested: ―[T]he intention was to prove that [] Gannaway

was fatigued . . . [T]he intention was to show he was tired and had a reason to be

tired. That was the intention.‖

      During his opening statement, trial counsel told the jury that approximately

one week prior to Gannaway’s arrest, his fiancée had died and, as a result,


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Gannaway had suffered several sleepless nights. And trial counsel did in fact

ask Higginbotham about the length of day Gannaway had worked, the type of

work he performed, and the limited number of employees working the day he

was arrested; and he elicited testimony that the day was warmer than normal.

This testimony was elicited despite the trial court’s having put strict constraints on

the timeframe about which trial counsel was allowed to question Higginbotham

regarding Gannaway’s conduct.

      During closing argument, trial counsel attempted to defend Gannaway’s

having fallen asleep in the police vehicle by echoing Higginbotham’s testimony:

―You heard testimony about how long [] Gannaway was working that day. You

heard about the conditions he was working under. . . . It’s up to you to decide

was that a person passed out from drinking too much, or is that a person that’s

just exhausted and fell asleep?‖

      Gannaway argues that his trial counsel was ineffective ―in failing to present

testimony from [] Higginbotham that would have tended to explain why

[Gannaway fell] asleep in the police vehicle immediately after his arrest.‖ We

disagree with Gannaway’s assertion and conclude that trial counsel did question

Higginbotham about Gannaway’s alleged fatigue. Furthermore, our review of

trial counsel’s conduct is not restricted to one isolated portion of the trial. Our

review of the record reveals that in addition to calling Higginbotham to the stand

to testify regarding Gannaway being fatigued, trial counsel also introduced

evidence that Gannaway had medical reasons for failing the field-sobriety tests.


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Specifically, trial counsel called a medical expert to explain that Gannaway had

previously suffered a concussion and suffered from multiple medical conditions

that would affect his nystagmus reaction and his ability to perform tests that

involved standing on one foot or walking.

       Viewing the evidence in the light most favorable to the trial court’s ruling

and looking at the totality of the representation and particular circumstances of

this case, we conclude that Gannaway failed to establish that his trial counsel’s

performance fell below an objective standard of reasonableness; therefore, the

first prong of Strickland is not satisfied. See Thompson, 9 S.W.3d at 812. Thus,

the trial court acted within its discretion by denying Gannaway’s motion for new

trial predicated on ineffective assistance of counsel. We overrule Gannaway’s

first point.

       B.      The Prosecutor’s Comment on Gannaway’s Post-arrest Silence.

       In his second point, Gannaway contends that he also received ineffective

assistance of counsel at trial because his defense attorney did not object when

the State elicited testimony from Hayney, during the State’s case-in-chief,

regarding Gannaway’s post-arrest silence. Specifically, Gannaway argues that

the following colloquy between the prosecutor and Hayney constituted an

inadmissible comment on Gannaway’s right to remain silent:

               [Prosecutor]:       At any point before we see you again on the
               second tape in the other room, does [Gannaway] say, I’m sorry; I’m
               just so sleepy; I haven’t slept in days?

               [Hayney]:         No.


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               [Prosecutor]:      Does he make any excuse for the fact he slept
               throughout the entire transport to jail?

               [Hayney]:         No.

       We conclude that on this record, Gannaway has not met his burden to

show    that    counsel’s   assistance   fell   below   an   objective   standard   of

reasonableness by not objecting to this colloquy.

       The United States Supreme Court held in Doyle v. Ohio that the federal

Due Process Clause prohibits the cross-examination of a defendant concerning

his silence after he has been arrested and given Miranda warnings. 426 U.S.

610, 619, 96 S. Ct. 2240, 2245 (1976). This prohibition serves to prevent a jury

from drawing inferences of guilt from a defendant’s decision to remain silent after

being told he has a right to remain silent.       See id. at 619 n.11      The same

consideration bars the prosecution from using evidence of such silence as part of

its case-in-chief against the defendant. Stroman v. State, 69 S.W.3d 325, 331

(Tex. App.—Texarkana 2002, pet. ref’d).

       A defendant’s rights with regard to post-arrest silence are broader under

our state constitution. Article I, section 10 protects a defendant from compelled

self-incrimination from the moment an arrest is effectuated. Sanchez v. State,

707 S.W.2d 575, 579–80 (Tex. Crim. App. 1986); see Tex. Const. art. I, § 10.

That provision protects a defendant’s post-arrest silence regardless of whether

he has been informed of his right to remain silent. See Sanchez, 707 S.W.2d at

582. As a result, the State may not refer to or admit in evidence the fact of a


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defendant’s silence if such silence occurs after the defendant has been arrested,

notwithstanding the fact that he might not have been advised of his rights at that

time. See id. at 579.

      This case demonstrates the inadequacies that are inherent in evaluating

ineffective assistance claims on direct appeal. Here, even though Gannaway

filed a motion for new trial based on alleged ineffective assistance of counsel and

the trial court held a hearing on that motion, Gannaway did not question trial

counsel regarding the colloquy in dispute; thus, the record does not show why

Gannaway’s trial counsel did not object to Hayney’s testimony regarding

Gannaway not explaining to Hayney why he fell asleep in the police cruiser.

Simply put, any possible trial strategy is not revealed.

      Because the record is silent, we cannot determine whether trial counsel’s

inaction was grounded in sound trial strategy. See Jackson, 877 S.W.2d at 771.

In the absence of direct evidence of counsel’s reasons for the challenged

conduct, an appellate court will assume a strategic motivation if any can be

imagined. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert.

denied, 537 U.S. 1195 (2003); see also Gamble v. State, 916 S.W.2d 92, 93

(Tex. App.—Houston [1st Dist.] 1996, no pet.) (presuming reasonable trial

strategy supported failure to object in face of silent record). Gannaway takes the

position that no possible plausible trial strategy can be imagined for counsel’s not

objecting to this testimony. We disagree.




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      We note that multiple courts have posited that counsel may choose not to

object to testimony revealing a defendant’s post-arrest silence to create the

appearance that the defense is being open and completely honest with the jury.

See, e.g., Ahmadi v. State, 864 S.W.2d 776, 783 (Tex. App.—Fort Worth 1993,

pet. ref’d) (indicating that failure to object to prosecutor’s use of post-arrest

silence was sound trial strategy); Stroman v. State, 69 S.W.3d at 332 (noting that

counsel’s failure to object to police officer’s testimony regarding defendant’s post-

arrest silence may have constituted trial strategy to appear open and honest with

jury). A plan to appear open and honest with the jury constitutes reasonable

strategy. See Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.—Houston [1st

Dist.] 1994, pet. ref’d) (―[T]rial counsel’s decision not to object to improper

testimony can be a plausible trial strategy when counsel desires to create the

appearance of being open and completely honest with regard to all questions.‖).

      Because the record is silent regarding why trial counsel did not object and

because a plausible trial strategy can be imagined, Gannaway fails to overcome

the presumption that his trial counsel exercised reasonable professional

judgment when he did not object to Hayney’s testimony.           See Thompson, 9

S.W.3d at 814. On this record, Gannaway has not met his burden to show that

trial counsel’s assistance fell below an objective standard of reasonableness.

See id. We overrule Gannaway’s second point.




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                              IV. CONCLUSION

      Having overruled both of Gannaway’s points, we affirm the trial court’s

judgment.




                                               BILL MEIER
                                               JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 28, 2011




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