Affirmed and Memorandum Opinion filed January 5, 2012.




                                         In The

                          Fourteenth Court of Appeals
                                 ___________________

                                  NO. 14-10-01036-CR
                                 ___________________

                     STEPHEN KYLE HELMCAMP, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                          On Appeal from the County Court
                              Colorado County, Texas
                            Trial Court Cause No. 21,179


                        MEMORANDUM OPINION

      In this appeal of his conviction for driving while intoxicated, Stephen Kyle
Helmcamp argues that he received ineffective assistance of counsel because his trial
attorney failed to request a hearing on the admissibility of expert testimony and to object
when that testimony allegedly exceeded the scope of the witness‘s expertise. We affirm.
                          I. FACTUAL AND PROCEDURAL BACKGROUND

       In the early morning of November 15, 2008, Trooper Wesley Clark of the Texas
Department of Public Safety stopped appellant for speeding.              Clark noticed that
appellant‘s car and breath smelled of alcohol, his eyes were bloodshot, and his speech was
―thick-tongued.‖ Clark asked appellant if he had been drinking that night, and appellant
responded that he had drunk two beers. Clark walked around to the passenger-side door
and found an open beer bottle, with some cold beer still inside. After performing a
―cursory check‖ for horizontal gaze nystagmus (―HGN‖), which indicates intoxication,
Clark decided to administer a more complete HGN test. On two separate administrations
of the full HGN test, appellant showed all six possible clues for intoxication. Clark also
administered the ―walk-and-turn‖ and the ―one-leg-stand‖ tests for sobriety, both of which
appellant failed. Clark asked appellant to submit to a portable breath test, but appellant
stated, ―I know I‘ll fail it. I don‘t want to ruin my life.‖ Clark arrested appellant for
driving while intoxicated because ―[a]t that point in time loss of mental and physical
faculties was guaranteed . . .‖ At the jail, Clark administered an Intoxilyzer test that
showed appellant‘s blood-alcohol concentration was more than double the legal limit.

       Before trial, appellant moved to suppress the results of the field-sobriety and
Intoxilyzer tests. At the suppression hearing, Clark testified to his qualifications and
training. In addition to his police training and certification in administering field-sobriety
tests, Clark has a doctorate in chiropractic medicine; has received training in administering
ophthalmic exams similar to that received by medical doctors; and has experience
administering ophthalmic exams as a chiropractor. The trial court denied appellant‘s
motion to suppress, and the State later designated Clark as an expert witness for trial.

        At trial, Clark again testified about his qualifications and stated that, though
performing the ―cursory check‖ for HGN was not part of his training as a peace officer,

       I utilize it in the sense that, one, it tells me if what the individual just got
       through telling me, which is two beers, is accurate or not. I can also at that

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       point in time tell, based on my previous education I guess you would say,
       whether the individual has got a false eye or has some problem that would
       preclude me from giving any further testing on him . . . plus it gives me—if I
       am looking for HGN, it gives me an automatic indication that, yeah, I need to
       take this a little further.


However, Clark testified that the second time and third time that he checked for HGN, he
followed the full protocol for the test that is part of his certification in administering
field-sobriety tests. Clark also testified that he administered the walk-and-turn test and
the one-leg stand. Appellant‘s trial counsel did not object to any of Clark‘s statements or
request a hearing on the admissibility of Clark‘s expert testimony. In addition to Clark‘s
testimony, Lee Anne Spino, the ―Breath Test Technical Supervisor‖ for the Department of
Public Safety, testified that Clark properly performed the Intoxilyzer test and that it
showed appellant‘s blood-alcohol level was more than twice the legal limit.

       The jury convicted appellant of the charged offense, and the trial court sentenced
appellant to 180 days of community supervision and fined him $500 plus $394 in court
costs. Appellant filed a motion for new trial, but he did not allege ineffective assistance of
counsel in that motion and no hearing was held on the issue. The motion for new trial was
overruled by operation of law, and this appeal ensued. In the sole issue presented for our
review, appellant argues that his trial counsel was ineffective under the United States
Constitution because he failed to request a hearing on the admissibility of Clark‘s expert
testimony and to object when Clark‘s testimony allegedly exceeded the scope of his
expertise.

                                     II. STANDARD OF REVIEW

       We review claims of ineffective assistance of counsel under the standard set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under
Strickland, an appellant must prove that his trial counsel‘s representation was deficient and
that the deficient performance was so serious that it deprived appellant of a fair trial. 466

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U.S. at 687, 104 S. Ct. at 2064. To establish the first prong, an appellant must show that
counsel‘s performance fell below an objective standard of reasonableness. 466 U.S. at
688, 104 S. Ct. at 2064. Regarding the second prong, an appellant must demonstrate that
counsel‘s deficient performance prejudiced his defense. 466 U.S. at 692, 104 S. Ct. at
2067. To demonstrate prejudice, an appellant must show a reasonable probability that,
but for counsel‘s unprofessional errors, the result of the proceeding would have been
different.   466 U.S. at 694. 104 S. Ct. at 2068. See also Lopez v. State, 343 S.W.3d 137,
142 (Tex. Crim. App. 2011) (explaining that ―reasonable probability‖ as used in the
prejudice prong is ―probability sufficient to undermine confidence in the outcome‖ of the
proceeding) (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). Failure to make the
required showing of either deficient performance or sufficient prejudice defeats the claim
of ineffectiveness. 466 U.S. at 697, 104 S. Ct. at 2069.

       Our review of defense counsel‘s performance is highly deferential, beginning with
the strong presumption that the attorney‘s actions were reasonably professional and were
motivated by sound trial strategy. Jackson v, State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994).     Rarely will the trial record contain sufficient information to permit a
reviewing court to fairly evaluate the merits of a claim of ineffective assistance of counsel.
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of cases, the
appellant is unable to meet the first prong of the Strickland test because the record on direct
appeal is undeveloped. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
When the record is silent as to trial counsel‘s strategy, we will not conclude that appellant
received ineffective assistance unless the challenged conduct was ―‗so outrageous that no
competent attorney would have engaged in it.‘‖ Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001)). A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). ―[I]solated instances in
the record reflecting errors of omission or commission do not render counsel‘s
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performance ineffective, nor can ineffective assistance of counsel be established by
isolating one portion of trial counsel‘s performance for examination.‖ McFarland v.
State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on other grounds by
Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).

       Finally, ―[i]t is not sufficient that appellant show, with the benefit of hindsight, that
his counsel‘s actions or omissions during trial were merely of questionable competence.‖
Mata, 226 S.W.3d at 430. Rather, to establish that the attorney‘s acts or omissions were
outside the range of professionally competent assistance, appellant must show that
counsel‘s errors were so serious that he was not functioning as counsel. Patrick v. State,
906 S.W.2d 481, 495 (Tex. Crim. App. 1995).

                                                  III. ANALYSIS

       Appellant complains about two alleged errors of his trial counsel: first, that his
counsel should have requested a hearing outside the presence of the jury to compel the
State to establish that Clark‘s expert testimony was admissible 1 ; and second, that his
counsel should have objected to Clark‘s testimony that Clark‘s experience and training in
administering ophthalmic exams helped Clark administer a ―cursory check‖ for HGN,
because that testimony ―grossly exceeded the scope of Clark‘s knowledge, training, and
experience.‖ According to appellant, no defense strategy could possibly have justified
these omissions.

       Because appellant did not move for a new trial based on the alleged ineffective
assistance of his defense counsel, the record is silent as to trial counsel‘s strategy. See


1
       See TEX. R. EVID. 702 (setting forth conditions for the admission of expert testimony); Vela v.
       State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006) (a party seeking to admit expert testimony
       under Rule 702 must show that the witness qualifies as an expert by reason of his knowledge,
       training, or education; that the subject matter of the testimony is appropriate for expert testimony;
       and that admitting the expert testimony will assist the fact finder in deciding the case); Jackson, 17
       S.W.3d at 670 (a party opposing expert testimony is entitled to a hearing outside the presence of the
       jury to determine whether the proponent of the testimony can satisfy Rule 702‘s requirements for
       admission).
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Downs v. State, 244 S.W.3d 511, 515 (Tex. App.—San Antonio 2007, pet. ref‘d) (where
counsel did not request hearing on expert witness‘s qualifications, but appellant did not
move for a new trial based on ineffective assistance of counsel, record was insufficiently
developed to permit review of trial counsel‘s strategy). Where, as here, the record is silent
as to defense counsel‘s trial strategy, we will not speculate on the counsel‘s motivation.
See Jackson, 877 S.W.2d at 771; Downs, 244 S.W.3d at 515. Counsel did request and
obtain a pretrial hearing on his Motion to Suppress, and Clark testified to his qualifications
and expertise at that time. Counsel had enough information to object to the qualifications
of Clark without another hearing. And while the ―cursory check‖ may have been based on
Clark‘s chiropractic expertise, the full check for HGN was done in accordance with his
training and certification in field-sobriety testing.

       Moreover, appellant has not demonstrated a reasonable probability that, but for
counsel‘s alleged errors, the result of the proceeding would have been different. The
non-medical evidence of appellant‘s intoxication was overwhelming. Clark was not
relying on his medical training when he testified that he smelled alcohol on appellant‘s
breath and emanating from appellant‘s car, that appellant was driving with an open bottle
of beer that was still cold, or that appellant‘s eyes were bloodshot and his speech ―thick-
tongued.‖    See Vaughn v. State, 493 S.W.2d 524, 525–26 (Tex. Crim. App. 1972)
(upholding DWI conviction where officer testified that he saw appellant‘s car weaving
down the road, that appellant was speeding, that appellant‘s eyes were bloodshot, and that
appellant told officer he had drunk several beers); Silva v. State, No. 14-03-00403-CR,
2004 WL 253548, at *1 (Tex. App.—Houston [14th Dist.] Feb. 12, 2004, pet. ref‘d) (mem.
op.) (holding that lay witness was qualified to express opinion that appellant was
intoxicated when witness testified that appellant smelled strongly of alcohol, that appellant
was unable to maintain his balance, and that witness observed appellant could not perform
field-sobriety tests administered by officer).          Nor was Clark relying on special
qualifications, other than his uncontested qualifications as a trained peace officer and
certified administrator of field-sobriety tests, when he testified that appellant failed the
                                              6
―walk-and-turn‖ and the ―one-leg-stand‖ tests for sobriety. See Plouff v. State, 192
S.W.3d 213, 223 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (officer was qualified to
testify as lay witness that appellant failed one-leg-stand and walk-and-turn tests because
these tests are ―grounded in the common knowledge that excessive alcohol consumption
can cause problems with coordination, balance, and mental agility.‖). Even with respect
to the HGN exam itself, Clark testified only that his medical training helped him decide
after a ―cursory check‖ that further testing was needed. Regardless of Clark‘s special
training and experience in administering ophthalmic exams, his qualifications as a peace
officer and his certification to administer HGN tests qualified him to testify concerning
appellant‘s performance on the test itself. See Emerson v. State, 880 S.W.2d 759, 763
(Tex. Crim. App. 1994) (a peace officer who has received practitioner certification to
administer test for HGN is qualified to testify about a defendant‘s performance on the test).
Finally, Spino, whose expertise as a Breath Test Technical Supervisor is uncontested,
independently testified that the Intoxilyzer test was properly performed and showed that
appellant‘s blood alcohol level was more than twice the legal limit.

       Because appellant has not demonstrated a reasonable probability that the outcome
of the proceedings would have been different absent counsel‘s alleged errors, we overrule
his sole issue on appeal.

                                      IV. CONCLUSION

       We affirm the trial court‘s judgment.




                                                   /s/   Tracy Christopher
                                                         Justice


Panel consists of Chief Justice Hedges and Justices McCally and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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