                                     NO. 12-18-00102-CR

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

 KELLY LYNN BROYLES,                                  §       APPEAL FROM THE 294TH
 APPELLANT

 V.                                                   §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                             §       VAN ZANDT COUNTY, TEXAS

                                     MEMORANDUM OPINION
       Kelly Lynn Broyles appeals her conviction for intoxication assault.         In two issues,
Appellant argues that she received ineffective assistance of counsel. We affirm.


                                             BACKGROUND
       Appellant was charged by indictment with intoxication assault. She pleaded “not guilty,”
and the matter proceeded to a jury trial.
       At trial, the evidence showed that Appellant was driving her car on State Highway 19 in
Canton during First Monday Trade Days while intoxicated on diazepam 1 and hydrocodone. As
she approached a slower vehicle in front of her, she veered right, glancingly hit the vehicle, and
ricocheted into a pedestrian who suffered severe injuries as a result.
       Ultimately, the jury found Appellant “guilty” and assessed her punishment at imprisonment
for ten years and a $10,000.00 fine. This appeal followed.


                                INEFFECTIVE ASSISTANCE OF COUNSEL
       In Appellant’s first issue, she contends that defense counsel was ineffective because he
called a witness whose testimony undermined the defense theory of the case. In her second issue,

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           Diazepam in commonly known by its brand name, Valium.
she contends that defense counsel was ineffective because he failed to object to inadmissible
portions of a police officer’s body cam footage.
Standard of Review and Applicable Law
       In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
Under the first prong of the Strickland test, an appellant must show that counsel’s performance
was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must “show that
counsel’s representation fell below an objective standard of reasonableness.” Id., 466 U.S. at 688,
104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
       Under the second prong, an appellant must show that the “deficient performance prejudiced
the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. The
appropriate standard for judging prejudice requires an appellant to “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. An appellant claiming
ineffective assistance of counsel must affirmatively prove prejudice from counsel’s deficient
performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999).
       Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712. We
indulge in a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is Appellant’s burden
to overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, any 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). Rarely is the record on direct appeal sufficiently developed to fairly evaluate the merits of
a claim of ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).



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       Failure to make the required showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant must prove both prongs
of the Strickland test by a preponderance of the evidence in order to prevail. Tong, 25 S.W.3d at
712.
Analysis
       Appellant first complains that defense counsel was ineffective because he called her friend
Amy Warford as a witness when he knew about a damaging letter Warford wrote and the State
possessed. She contends that we should reverse her conviction and remand the case for a new trial
because there is no conceivable trial strategy to justify calling Warford as a witness. We disagree.
       Defense counsel’s theory at trial was that Appellant was not intoxicated at the time of the
offense. To support his theory, he called Warford and Appellant’s husband to testify that Appellant
appears normal in the videos recorded at the scene.
       Warford testified that she was friends with Appellant for fifteen years and saw her on a
regular basis. She stated that Appellant appeared the same in the videos taken at the scene as she
normally does. On cross-examination, the State questioned Warford about her statements in a
letter that she previously wrote at Appellant’s request. Defense counsel objected to the letter’s
admission, asserting that it was inappropriate because the letter was written when Appellant was
involved in plea negotiations with the State. The trial court overruled the objection.
       In the letter, Warford states that she is a therapist and opines that rehabilitation rather than
punishment is appropriate for Appellant. She says that Appellant is a “semi-functional addict and
not a criminal personality.” Warford further states that she “became concerned a while back when
[Appellant] had to change doctors because the doctor she had would not prescribe [hydrocodone]
for her anymore.” She says that she thinks “treatment is needed for [Appellant] to stay sober long
term, as she has an extensive dysfunctional family and personal history and has many issues related
to her addiction to work through.”
       Although the letter might have somewhat undermined the defense theory, the remainder of
Warford’s testimony supported it. Under these circumstances, we cannot say that Appellant has
overcome the presumption that defense’s counsel’s actions might be considered sound trial
strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712; Thompson,
9 S.W.3d at 813. Because Appellant failed to meet her burden under the first prong of Strickland,




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we cannot conclude that counsel rendered ineffective assistance. See id. Accordingly, we overrule
Appellant’s first issue.
        Next, Appellant complains that defense counsel was ineffective because he failed to object
to portions of a police officer’s body cam footage referencing Appellant’s criminal history.
Officers mention in the recording that members of the Canton Police Department previously
arrested Appellant for prescription drug use and public intoxication and issued her citations for
expired motor vehicle registration and speeding. Appellant contends that we should reverse her
conviction and remand the case for a new trial because there is no conceivable trial strategy to
justify counsel’s failure to object to the admission of these statements. We again disagree.
        Hearsay is not admissible unless otherwise provided by a statute, the rules of evidence, or
other rules prescribed under statutory authority. TEX. R. EVID. 802. Extraneous offense evidence
is not admissible to prove a defendant’s character to show that she acted in accordance with her
character at the time of the instant offense. Id. 404(b)(1). However, extraneous offense evidence
may be admissible for another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident. Id. 404(b)(2).
        Defense counsel could have objected to the extraneous offense evidence on Rule 404(b)
grounds. However, counsel developed a theory through testimony that despite having more than
twice the highest therapeutic level of diazepam in her system at the time of the incident,
Appellant’s physical and mental faculties were not impaired because she had a tolerance for the
drug.   Therefore, although the evidence that Appellant was previously arrested for public
intoxication on prescription drugs was not admissible to show that she acted in accordance with
her character on this occasion, it was admissible to rebut the theory that she has a tolerance for
prescription drugs such that high levels do not impair her physical and mental faculties. See id.
Consequently, counsel was not ineffective for failing to object to the evidence’s admission on Rule
404(b) grounds.
        Furthermore, the record is silent as to why defense counsel did not object on either Rule
404(b) or hearsay grounds. In his closing argument, he argued that law enforcement officers
hastily concluded that Appellant was intoxicated and were subsequently unable to be convinced
otherwise. The evidence that law enforcement knew about Appellant’s criminal history tends to
support this argument. Therefore, counsel might have strategically failed to object to the evidence
to support his theory that law enforcement made a hasty conclusion that Appellant was intoxicated.



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         The record here does not affirmatively show why defense counsel failed to object to the
extraneous offense evidence, and thus Appellant cannot overcome the presumption that, under the
circumstances, such failure might be considered sound trial strategy. See Strickland, 466 U.S. at
689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712; Thompson, 9 S.W.3d at 813. Because Appellant
failed to meet her burden under the first prong of Strickland, we cannot conclude that counsel
rendered ineffective assistance. See id. Accordingly, we overrule Appellant’s second issue.


                                                  DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.

                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered April 17, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 17, 2019


                                         NO. 12-18-00102-CR


                                     KELLY LYNN BROYLES,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 294th District Court
                      of Van Zandt County, Texas (Tr.Ct.No. CR14-00273)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
