

Opinion filed October 18,
2012
 
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00244-CR 
                                                    __________
 
 STANLEY PRICE PARSON A/K/A
STANLEY PRICE PERRIN, Appellant
 
                                                             V.
 
                                      STATE
OF TEXAS, Appellee

 
                                   On
Appeal from the 350th District Court
 
                                                            Taylor
County, Texas
 
                                                    Trial
Court Cause No. 9235-D 
 

 
                                                                  O
P I N I O N
            The
opinion and judgment issued August 23, 2012, are withdrawn, and this court’s
opinion and judgment dated October 18, 2012, are substituted therefor.  The
State’s motion for rehearing is granted.   
            The
jury convicted Stanley Price Parson a/k/a Stanley Price Perrin of driving while
intoxicated, enhanced by two prior convictions for driving while intoxicated.  See
Tex. Penal Code Ann. §
49.09(b)(2) (West Supp. 2012).  During the punishment phase, appellant pleaded
not true to two enhancement allegations.  The jury found both enhancement
allegations to be true and assessed appellant’s punishment at confinement for
thirty years.  The trial court sentenced appellant accordingly.  We affirm.  
Issues
Presented
            Appellant
presents three issues for review.  In his first issue, appellant contends that
the trial court erred by denying his motion to suppress that was based on the
contention that the police lacked reasonable suspicion to stop him.  In his
second issue, appellant contends that the trial court erred by overruling his
objection to the prosecutor’s comment during closing argument on his postarrest
silence.  In his third issue, appellant contends that the trial court erred by
denying his motion for new trial that was based on allegations of ineffective
assistance of counsel.
Factual
and Procedural Background
            Appellant
filed a pretrial motion to suppress the evidence, asserting that the arresting
officer lacked reasonable suspicion to justify the stop.  The trial court held
a hearing on the motion.  Abilene Police Officer Randy Brown was the sole
witness at the suppression hearing.
            Officer
Brown testified that, on May 31, 2009, he was working as a patrol officer.  At
about 7:00 p.m. on that date, Officer Brown was dispatched to a domestic
disturbance call at 2842 South 5th Street.  During questioning by the
prosecutor, Officer Brown testified about the information that he received from
his dispatcher:
 Q.
Okay.  And did the dispatcher give you any other information about the
circumstances surrounding this disturbance?
 
 A.
Yes.  They informed me that the female calling in to report the disturbance was
not at her residence.  However, her two juvenile children were at the
residence.  She stated that information was relayed to her through her children
that someone that she had had a relationship with in the past -- 
 
At this point,
appellant’s counsel lodged a hearsay objection to Officer Brown’s testimony.  The
trial court overruled the objection, and Officer Brown’s testimony continued:
Q. 
So you would -- you were saying that there was enough information in the
dispatch?
 
A. 
That’s correct.
 
Q. 
And what was that?
 
A. That
a male by the name of Stanley was parked across from the residence backed into
a driveway facing the residence, and the female calling party stated that she,
because of her relationship with Stanley in the past, was afraid for her
children’s safety.
 
The dispatcher
gave Officer Brown a physical description of “Stanley” and informed Officer
Brown that “Stanley” was in a dark-colored Chevrolet pickup, which was located “[d]irectly
south of the residence.”  Officer Brown initially believed that the calling
party’s name was “Veronica,” but he later learned that Monica Ramirez was the
calling party.
            Officer
Brown drove to the scene.  He arrived there about five minutes after he
received the dispatch.  As he turned onto South 5th Street from Mockingbird
Street, Officer Brown immediately saw a dark Chevrolet pickup that had been
backed into and parked in a driveway that was across the street from Ramirez’s
house.  Officer Brown testified that he was about one hundred fifty feet away
from the pickup when he first saw it.  He said that the pickup was facing Ramirez’s
residence.  Officer Brown saw a white male in the driver’s seat of the pickup. Officer
Brown testified that the man in the driver’s seat was appellant.  The fact that
the pickup was facing Ramirez’s house caused Officer Brown concern because he
thought that appellant might be trying to “case the house” or to make a “speedy
getaway” possible.  Officer Brown testified that “[he] suspected that
[appellant], in fact, was across the street from the residence, and because of [Ramirez’s]
information she had given over the telephone, that she did actually fear for
her children’s safety and that [appellant] was there to commit some sort of
crime.”
            Officer
Brown said that appellant looked at him and then drove his pickup out of the
driveway.  Appellant turned left onto South 5th Street and then immediately
turned left onto Miller Street.  Officer Brown followed appellant and activated
his emergency lights on Miller Street.  Appellant stopped his pickup.  Officer
Brown exited his patrol car and contacted appellant.  Officer Brown testified
that, before stopping appellant, he did not see appellant commit any kind of
traffic violation or see appellant do anything that gave him a suspicion that
appellant might be driving while intoxicated.  Officer Brown testified that he stopped
appellant based on the suspicion “that [appellant] was there to commit some
sort of crime.”
            When
he contacted appellant, Officer Brown observed that appellant had bloodshot
eyes.  Officer Brown testified that he smelled the odor of alcohol on
appellant’s breath.  Officer Brown administered field sobriety tests to
appellant and ultimately arrested appellant for driving while intoxicated.
            After
the suppression hearing, the trial court entered an order denying appellant’s
motion to suppress.  The case proceeded to trial.
            Ramirez
was the State’s first witness.  She testified that she had previously been in a
romantic relationship with appellant for about two years.  Ramirez said that
she ended the relationship in March 2009 against appellant’s wishes.  She also said
that, in May 2009, appellant wanted to get back together with her.  At that
time, appellant lived in Eastland.  Ramirez testified that, on May 31, 2009, appellant
called her.  During the call, appellant told Ramirez that he wanted her to go
to Eastland.  Ramirez told appellant that she did not want to go to Eastland. 
At about 3:00 p.m. that day, Ramirez was with a friend at the mall in Abilene. 
Ramirez’s seventeen-year-old son and fifteen-year-old son were at her house. 
Ramirez testified that her sons called her and told her that appellant was
outside her house.  Ramirez said that she was nervous about appellant being
there and that she wanted him to leave.  She said that she called the police because
appellant was sitting outside her house.                  
             After
Ramirez concluded her testimony, appellant re-urged his motion to suppress.  Appellant’s
counsel argued that, based upon Ramirez’s testimony, “[there was] no criminal
activity afoot” and that, therefore, Officer Brown did not have reasonable
suspicion to stop appellant.  The trial court denied the re-urged motion to
suppress.
            Officer
Brown also testified at trial.  His trial testimony about the stop of appellant
was consistent with the testimony he gave at the suppression hearing.  The
State offered the police video of the stop into evidence during Officer Brown’s
testimony.  Appellant objected to the admission of the video and again re-urged
his motion to suppress.  The trial court admitted the video into evidence over
appellant’s objections.
Standard
of Review
            We
review a trial court’s ruling on a motion to suppress for an abuse of
discretion.  Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App.
2011); Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011).  In
reviewing a ruling on a motion to suppress, we apply a bifurcated standard of
review.  Martinez, 348 S.W.3d at 922–23; Hubert v. State, 312
S.W.3d 554, 559 (Tex. Crim. App. 2010).  First, we afford almost total
deference to the trial court’s determination of historical facts and of mixed
questions of law and fact that turn on the weight or credibility of the
evidence.  Martinez, 348 S.W.3d at 922–23; Lujan, 331 S.W.3d at
771.  Where, as here, no findings of fact were requested or filed, we view the
evidence brought forward at the suppression hearing in the light most favorable
to the trial court’s ruling and assume that the trial court made implicit
findings of fact supported by the record.  Valtierra v. State, 310
S.W.3d 442, 447 (Tex. Crim. App, 2010); Ford v. State, 158 S.W.3d 488,
493 (Tex. Crim. App. 2005).  Second, we review de novo the trial court’s
determination of pure questions of law and mixed questions of law and fact that
do not depend on credibility determinations.  Martinez, 348 S.W.3d at
923.  Thus, we review de novo the issue of whether the totality of the
circumstances was sufficient to support an officer’s reasonable suspicion to
make a stop.  Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App.
2007).
            Ordinarily,
we consider only the evidence adduced at the suppression hearing in determining
whether the trial court’s decision on a motion to suppress is supported by the
record because the trial court’s ruling was based on it rather than evidence
presented later at trial.  Rachal v. State, 917 S.W.2d 799, 809 (Tex.
Crim. App. 1996).  However, where, as in this case, an appellant re-urges his
motion to suppress following trial testimony, we may also consider relevant
trial evidence in our review.  Id.; Weaver v. State, 265 S.W.3d
523, 533, 535 n.4 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).
Reasonable
Suspicion
Under
the Fourth Amendment, a warrantless detention of a person that amounts to less
than a full-blown custodial arrest must be justified by a reasonable
suspicion.  Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.
2011).  A police officer has reasonable suspicion to detain if he has specific,
articulable facts that, combined with rational inferences from those facts,
would lead him to reasonably conclude that the person detained is, has been, or
soon will be engaged in criminal activity.  Id.  This standard is an
objective one that disregards the actual subjective intent of the arresting officer
and looks, instead, to whether there was an objectively justifiable basis for
the detention.  Id.  It also looks to the totality of the circumstances;
those circumstances may all seem innocent enough in isolation, but if they
combine to reasonably suggest the imminence of criminal conduct, an
investigative detention is justified.  Id.  The relevant inquiry is not
whether particular conduct is innocent or criminal, but the degree of suspicion
that attaches to particular noncriminal acts.  Woods v. State, 956
S.W.2d 33, 38 (Tex. Crim. App. 1997).  Moreover, the detaining officer need not
be personally aware of every fact that objectively supports a reasonable
suspicion to detain; rather, the cumulative information known to the
cooperating officers at the time of the stop is to be considered in determining
whether reasonable suspicion exists.  Derichsweiler, 348 S.W.3d at 914. 
A police dispatcher is ordinarily regarded as a “cooperating officer” for
purposes of making this determination.  Id.  Finally, information
provided to police from a citizen-informant who identifies himself or herself
and may be held to account for the accuracy and veracity of his or her report
may be regarded as reliable.  Id. at 914–15.  In such a scenario, the
only question is whether the information that the known citizen-informant
provides, viewed through the prism of the detaining officer’s particular level
of knowledge and experience, objectively supports a reasonable suspicion to believe
that criminal activity is afoot.  Id. at 915.
The
facts invoked to justify an investigative detention must support more than a
mere hunch or good-faith intuition that criminal activity is afoot.  Id.
at 916.  To support a finding of reasonable suspicion, the specific facts
articulated by the detaining officer must show some unusual activity, some
evidence that connects the detainee to the unusual activity, and some
indication that the unusual activity is related to a crime.  Martinez,
348 S.W.3d at 923.  However, there is no requirement that the officer suspect
that a particular offense is being committed; it is enough if the facts suggest
that something of an apparently criminal nature is brewing.  Derichsweiler,
348 S.W.3d at 916–17.
Application
of Law to Facts
Ramirez
identified herself when she called the police department; therefore, she could
be held to account for the accuracy and veracity of her report to the police.  Under
these circumstances, the information that Ramirez provided to the police may be
regarded as reliable.  Id.  The dispatcher relayed the following
information to Officer Brown: that Ramirez was not at her house; that Ramirez’s
children were at the house; that appellant had backed his dark-colored
Chevrolet pickup into, and had parked it in, a driveway across the street from Ramirez’s
house so as to be facing her house; that appellant was sitting in the pickup;
that Ramirez had been in a relationship with appellant in the past; and that,
because of that past relationship, Ramirez was afraid for her children’s
safety.  
When
Officer Brown arrived at the scene, appellant was parked in the manner that
Ramirez described to the dispatcher.  Appellant was sitting in the driver’s
seat of his dark-colored Chevrolet pickup and facing Ramirez’s house.  These facts
show that appellant was engaging in unusual and suspicious behavior.  Officer
Brown believed that appellant may have been casing Ramirez’s house.  Appellant had
parked his pickup in a manner that would allow him to make a speedy getaway
from the scene.  Officer Brown also believed that Ramirez feared for her
children’s safety.  Appellant engaged in further unusual and suspicious behavior
after Officer Brown arrived at the scene in that, as soon as he saw Officer
Brown, he drove his pickup out of the driveway and away from the area.  Officer
Brown stopped appellant because he suspected that appellant was going to commit
a domestic disturbance crime.
Based
on our review of the evidence, we conclude that the totality of the circumstances,
including the information that Ramirez provided the police and Officer Brown’s
observation of appellant’s suspicious behavior, gave rise to a reasonable
suspicion that appellant was about to engage in criminal activity.  The facts
known to Officer Brown were sufficient to suggest that something of an
apparently criminal nature was brewing.  Id. at 917.  Therefore, Officer
Brown had reasonable suspicion to stop appellant and to detain him for
investigative purposes.  Id. at 914.  We note that appellant does not
contend that Officer Brown was mistaken about any of the facts that Ramirez
told the dispatcher.  Even if Officer Brown were mistaken about the facts, a
reasonable mistake about the facts may legitimately justify an officer’s
conclusion that reasonable suspicion to detain exists.  Robinson v. State,
No. PD-0238-11, 2012 WL 4092941, at *5 (Tex. Crim. App. Sept. 19, 2012).  A
mistake about the facts, if reasonable, will not vitiate an officer’s actions
in hindsight so long as his actions were lawful under the facts as he
reasonably, albeit mistakenly, perceived them to be.  Id.  The trial
court did not err by denying appellant’s motion to suppress.  Appellant’s first
issue is overruled.
Jury
Argument
            In
his second issue, appellant contends that the trial court erred by overruling
his objection to the prosecutor’s comments on his postarrest silence.  When the
State comments on a defendant’s postarrest silence, it violates the Fifth
Amendment prohibition against self-incrimination.  Doyle v. Ohio, 426
U.S. 610, 617–18 (1976); Dinkins v. State, 894 S.W.2d 330, 356 (Tex.
Crim. App. 1995).  Commenting on a defendant’s postarrest silence is akin to a
comment on his failure to testify at trial because it attempts to raise an
inference of guilt arising from the invocation of a constitutional right.  Dinkins,
894 S.W.2d at 356.  A prosecutor’s comment amounts to an impermissible comment
on a defendant’s postarrest silence only if, when viewed from the jury’s
standpoint, the comment is manifestly intended to be, or is of such a character
that a typical jury would naturally and necessarily take it to be, a comment on
the defendant’s silence.  Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim.
App. 2004); Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App.
2001).                  
            In
this case, the prosecutor made the complained-of comments during his closing
argument.  We will briefly summarize relevant evidence here so that the prosecutor’s
comments may be put in the proper context.  Appellant called Tony Koch as a
witness.  Koch and appellant were friends.  Koch testified about events that
occurred on the date of appellant’s arrest in this case.  Koch said that, at
that time, appellant was in the process of restoring the cabinets in Koch’s kitchen. 
He said that appellant arrived at his house at about 8:00 a.m. on the day that
appellant was arrested.  Koch testified that appellant worked on the cabinets
all day.  Koch said that, at about 6:00 p.m., appellant drove him to a store so
that he could buy beer.  Koch said that he bought a six-pack of Coors. 
Appellant and Koch then went to Koch’s house.  Koch testified that he drank
three or four of the Coors beers.  He said that appellant did not drink any of
the Coors beers but that appellant did drink two O’Doul’s non-alcoholic beers. 
Koch said that, after he finished his beers, he put the empty Coors bottles in
the back of appellant’s pickup.  He said that, at about 7:00 p.m., appellant
dropped him off at a location in Abilene.  Koch said that he left the unopened
Coors beers in appellant’s pickup.
After
stopping appellant, Officer Brown approached the driver’s side of appellant’s
pickup and spoke with him.  At that time, Officer Brown saw two unopened Coors
bottles in a six-pack container in the front seat next to appellant.  Abilene Police
Officer Shad Phillips arrived as backup at the scene.  During the stop, the
officers found an open Coors bottle on the floorboard by the driver’s seat of appellant’s
pickup and five empty Coors bottles in the bed of the pickup.  The audio
portion of the police video of the stop demonstrates that, before arresting
appellant, Officer Brown asked him whether he had been drinking.  Appellant
responded that he had had “a couple of beers.”  Appellant did not tell Officer
Brown anything about O’Doul’s beers.  Nor did appellant tell Officer Brown that
the Coors beers in his pickup belonged to someone else.  Later, Officer Brown arrested
appellant and gave him his Miranda[1]
warnings.  The police video also demonstrates that, in response to further
questioning by Officer Brown, appellant again said that he had had “a couple of
beers.”  In response to a follow-up question, appellant told Officer Brown that
he had drunk “two beers.”  Appellant also said that he had drunk the last beer
about thirty minutes earlier.  Again, appellant made no mention of O’Doul’s
beers, and he did not say that the Coors beers belonged to someone else.
            The
prosecutor waived opening jury argument.  Therefore, appellant’s counsel argued
first.  During his argument, appellant’s counsel relied on the testimony from
Koch that Koch drank the Coors beers and that appellant drank only O’Doul’s
beers.  Based on this testimony, appellant’s counsel argued that appellant did
not drink any “real” beer.  The prosecutor responded to this argument in his
closing argument, during which the following exchange occurred:                                            
            [PROSECUTOR]:
When [the officers] arrived on the scene and the bottles were found in the car,
there was testimony given that two were found in the front seat, they were
cold, and they were sitting in a container.  One was found under the driver’s
seat, and bottles with suds were in the back, and I believe they were in a
container as well.  You saw the officers pour those out.  Use your common
sense.  If you were placed in that situation, what would you believe?  Oh,
somebody else must have put those there.  Well, they gave [appellant]
an opportunity now to tell them what’s going on.  They spoke a while.  That’s
where all of this other information had an opportunity to come out.
 
            [DEFENSE
COUNSEL]: Judge, I’m going to object to that.  That’s improper argument because
he’s attacking [appellant] for post-Mirandized --
 
            [THE
COURT]: Response?
 
            [DEFENSE
COUNSEL]: That’s improper.
 
            [THE
COURT]: Response, [prosecutor]?
 
            [PROSECUTOR]:
Your Honor, I’m merely quoting from what came from the video.
 
            [DEFENSE
COUNSEL]: Judge, objection.
 
            [THE
COURT]: Overruled.  Please, continue.
 
            [PROSECUTOR]:
When you take a look at the situation and [appellant] was asked, Have you been
drinking, and he said, A couple of beers, did he say a couple of O’Doul’s?  A
couple of beers.  Is that something that should have really been pointed out at
that point?  Now, by his own statement to Officer Brown that you witnessed on
this tape, he said the two beers were 30 minutes prior (emphasis added).
 
Appellant contends
that the part of the prosecutor’s argument that is italicized above constituted
an improper comment on his postarrest silence.
            Appellant’s
contention necessarily depends on the premise that he was silent after his
arrest.  However, the record shows that appellant did not remain silent, either
before or after his arrest.  He did not invoke his right to remain silent after
receiving his Miranda warnings but, instead, answered Officer Brown’s
questions.  By answering Officer Brown’s questions, appellant waived his
postarrest right to silence.  Garcia v. State, 126 S.W.3d 921, 924 (Tex.
Crim. App. 2004).  Because appellant did not remain silent after his arrest,
the complained-of argument by the prosecutor could not constitute a comment on
postarrest silence.  Salazar v. State, 131 S.W.3d 210, 215 (Tex. App.—Fort
Worth 2004, pet. ref’d); Maxson v. State, 79 S.W.3d 74, 77 (Tex. App.—Texarkana
2002, pet. ref’d).  Therefore, the trial court did not err by overruling
appellant’s objection to the prosecutor’s comments.
            Also,
the record does not show that the complained-of statements by the prosecutor
related to appellant’s postarrest conduct.  Before his arrest, appellant told
Officer Brown that he had had “a couple of beers.”  At that time, appellant did
not tell Officer Brown anything about O’Doul’s beers or that the Coors beers in
his pickup did not belong to him.  The prosecutor’s comments—“[w]ell, they gave
[appellant] an opportunity now to tell them what’s going on” and “[t]hat’s
where all of this other information had an opportunity to come out”—may have
related to appellant’s pre-arrest conduct.  Thus, assuming that appellant
remained silent after Officer Brown arrested him, the record does not show that
the prosecutor intended to comment on appellant’s postarrest silence or that a
typical jury would naturally and necessarily take the prosecutor’s comments as
such.  For this additional reason, the trial court did not err by overruling
appellant’s objection to the prosecutor’s argument.  Appellant’s second issue
is overruled.
Ineffective
Assistance of Counsel
Appellant
raised his ineffective-assistance-of-counsel claim in a motion for new trial.  In
the motion, appellant claimed that his trial counsel rendered ineffective
assistance because he “failed to have X-rays taken of [appellant’s] back to
explain why he was not able to successfully complete the field sobriety tasks.” 
The trial court held a hearing on appellant’s motion.  At the hearing,
appellant testified that he had a back problem that affected his ability to
satisfactorily perform the walk-and-turn test and the one-leg stand test.  Appellant
said that, although he told his trial counsel about his back condition, his
trial counsel failed to arrange for him to have a medical examination. 
Appellant also said that he told his trial counsel that he wanted to present
medical evidence about his back condition to the jury but that, against his
wishes, his trial counsel failed to present such evidence.  Appellant believed
that an X-ray would have shown the jury that his medical condition, and not
intoxication, prevented him from successfully performing the field sobriety
tests.  Appellant’s trial counsel did not testify at the hearing on appellant’s
motion for new trial.
To
determine whether appellant’s trial counsel rendered ineffective assistance, we
must first determine whether appellant has shown that counsel’s representation
fell below an objective standard of reasonableness and, if so, then determine
whether there is a reasonable probability that the result would have been
different but for counsel’s errors.  Wiggins v. Smith, 539 U.S. 510
(2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v.
State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9
S.W.3d 808 (Tex. Crim. App. 1999).  We must indulge a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional
assistance, and appellant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy. 
Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712
(Tex. Crim. App. 2000).  “[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.”  Strickland, 466 U.S. at 690.  
An
allegation of ineffective assistance must be firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson,
9 S.W.3d at 814.  Under normal circumstances, the record on direct appeal will
not be sufficient to show that counsel’s representation was so deficient and so
lacking as to overcome the presumption that counsel’s conduct was reasonable
and professional.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002).  Rarely will the record on direct appeal contain sufficient information
to permit a reviewing court to fairly evaluate the merits of such a serious
allegation.  Id.  In light of these limitations, it is well settled that
claims of ineffective assistance of counsel should usually not be raised on
direct appeal because the record is often undeveloped.  Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Andrews, 159 S.W.3d at 103; Thompson,
9 S.W.3d at 813–14.
Where,
as here, an appellant raised his claim of ineffective assistance of counsel in
a motion for new trial, we review the trial court’s denial of the motion for an
abuse of discretion.  My Thi Tieu v. State, 299 S.W.3d 216, 223 (Tex.
App.—Houston [14th Dist.] 2009, pet. ref’d).  A trial court abuses its
discretion by denying a motion for new trial only when no reasonable view of
the record could support the trial court’s ruling.  Webb v. State, 232
S.W.3d 109, 112 (Tex. Crim. App. 2007).  At a hearing on a motion for new
trial, the trial court is the sole judge of the credibility of the witnesses
and the weight to be given their testimony.  Melton v. State, 987 S.W.2d
72, 75 (Tex. App.—Dallas 1998, no pet.).
Appellant
testified that he told his trial counsel that he wanted to present medical
evidence relating to his back condition.  However, there was no evidence
explaining why counsel chose not to present medical evidence at trial. 
Therefore, the record is silent as to why appellant’s trial counsel did not
present any medical evidence.  Because the record contains no evidence of the
reasoning behind trial counsel’s actions, we cannot conclude that counsel’s
performance was deficient.  Appellant has failed to overcome the presumption
that his trial counsel’s conduct was reasonable and professional.  Bone,
77 S.W.3d at 833; Green v. State, 191 S.W.3d 888, 894–95 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d) (Because the defendant failed to present
evidence rebutting the presumption that trial counsel had plausible reasons for
their actions, the court could not conclude that their performance was
deficient.).
Additionally,
we note that the police video shows that appellant told Officer Brown that he
had back problems before Officer Brown administered the walk-and-turn test and
the one-leg stand test.  Officer Brown testified that he took appellant’s back
problems into consideration when he evaluated appellant’s performance on those
tests.  Officer Brown also administered the horizontal gaze nystagmus (HGN)
test on appellant.  Officer Brown testified that appellant exhibited all six of
the HGN clues that indicate intoxication.  Appellant admitted during his
testimony that his back condition did not affect his ability to perform the HGN
test.
During
jury argument, appellant’s trial counsel relied on appellant’s statement to
Officer Brown that he had back problems and on Koch’s testimony that
appellant had worked all day.  Appellant’s trial counsel stated that, when
Officer Brown administered the field sobriety tests, appellant was “[a] 54-year-old
guy with a bad back who [had] been working all day.”  Appellant’s trial counsel
asserted that appellant being fatigued, coupled with appellant having a bad
back, explained why appellant did not perform perfectly on the walk-and-turn
test and the one-leg stand test.  For any number of reasons, appellant’s trial
counsel may have decided, as a matter of trial strategy, to raise the issue of
appellant’s back condition in this manner rather than to present medical
evidence relating to appellant’s back condition.
Appellant
has not shown that his trial counsel rendered ineffective assistance of
counsel.  The trial court did not abuse its discretion by denying appellant’s
motion for new trial.  Appellant’s third issue is overruled.
This
Court’s Ruling
            The judgment of the
trial court is affirmed.
 
                                    
                                                                                    TERRY
McCALL
                                                                                    JUSTICE
 
 
October 18, 2012
Publish.  See
Tex. R. App. P. 47.2(b).
Panel[2]
consists of: Wright, C.J.,
McCall, J., and Hill.[3]
 




                [1]Miranda v. Arizona, 384 U.S. 436 (1966). 


                [2]Eric Kalenak, Justice, resigned effective September 3,
2012.  The justice position is vacant pending appointment of a successor by the
governor or until the next general election.
 


[3]John G. Hill, Former Chief Justice, Court of Appeals,
2nd District of Texas at Fort Worth, sitting by assignment.


