           NUMBERS 13-18-00343-CR & 13-18-00344-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JACKIE LEE GANDEE JR.,                                                      Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                       On appeal from the County Court
                        of Matagorda County, Texas.


                          MEMORANDUM OPINION

 Before Chief Justice Contreras and Justices Longoria and Hinojosa
             Memorandum Opinion by Justice Hinojosa

      Appellant Jackie Lee Gandee Jr. appeals his convictions, following a jury trial, for

driving while intoxicated (DWI) with a breath alcohol concentration level of 0.15 or more,

see TEX. PENAL CODE ANN. § 49.04(d), and unlawful carrying of a weapon, see id. § 46.02,
each a Class A misdemeanor. 1 For both counts, the jury assessed punishment at sixty

days in the county jail and recommended that the sentences be probated for twelve

months. The trial court sentenced Gandee accordingly and ordered the sentences to

run concurrently.      In four issues, Gandee argues that:             (1 and 2) there is legally

insufficient evidence that he committed either of the charged offenses; (3) the jury charge

was erroneous; and (4) his trial counsel was ineffective. We affirm.

                                        I.      BACKGROUND

         The State charged Gandee by information with operating a motor vehicle in a

public place while intoxicated by reason of the introduction of alcohol, a controlled

substance, a drug, or a dangerous drug into the body, and having an alcohol

concentration level of 0.15 2 or more when a breath analysis was performed. See id. §

49.04.       By separate information, the State alleged that Gandee intentionally and

knowingly carried on or about his person a handgun while Gandee was engaged in

criminal activity. See id. § 46.02.

         The State’s sole witness at trial was Brian Robbins, a Texas Department of Public

Safety State Trooper. Officer Robbins testified that he was dispatched to the site of a

one-vehicle accident on FM 1862 in Matagorda County, Texas.                        Upon arrival, he

observed a vehicle that had left the roadway before striking a culvert and a private fence.



         The DWI offense (trial court cause no. 2018-0019) and the weapon offense (trial court cause no.
         1

2018-0020) were prosecuted in a single trial. Gandee appeals his DWI conviction in appellate cause
number 13-18-00343-CR and his unlawful carrying of a weapon conviction in appellate cause number 13-
18-00344-CR. For the sake of judicial economy, we will consider both appeals in this consolidated
memorandum opinion.
         2As pertinent here, “alcohol concentration” means the number of grams of alcohol per 210 liters
of breath. TEX. PENAL CODE ANN. § 49.01(1)(A).
                                                   2
Officer Robbins approached the vehicle’s driver, whom he identified as Gandee, and

immediately noticed “a very strong smell of an alcoholic beverage on him.” Gandee told

Officer Robbins that his service dog jumped onto his lap while he was driving, which

caused him to swerve and leave the roadway.             When asked about his alcohol

consumption, Gandee admitted to having two shots of Fireball Whiskey earlier that day.

Officer Robbins then administered standardized field sobriety tests.              He first

administered the horizontal gaze nystagmus test which yielded six out of six clues for

intoxication. Officer Robbins did not conduct the walk-and-turn or one-leg-stand tests

because Gandee indicated that he was physically unable to perform the tests.             He

observed Gandee standing “very unbalanced” and “uneasy on his feet.” At that point,

Officer Robbins determined that Gandee was intoxicated.

       Officer Robbins arrested Gandee for DWI and placed him in the front seat of his

patrol car. He then conducted an inventory of Gandee’s vehicle and discovered a loaded

handgun engraved with Gandee’s name behind the front seat. The trial court admitted

the handgun into evidence, which Officer Robbins identified as a 9-millimenter pistol.

       A Matagorda County Sheriff’s deputy transported Gandee to the county jail, where

Officer Robbins twice administered a breathalyzer test showing alcohol concentration

levels of 0.164 and 0.165, which is more than twice the legal limit. See id. § 49.01(2)(B).

The trial court admitted a dash-cam video recording of Officer Robbins’s DWI

investigation at the accident site, which was published to the jury.

       Gandee testified in his defense.     He explained that he was visiting family in

Houston on the date in question for a Christmas gift exchange. It was during this event


                                             3
that he received the pistol found in his vehicle. While Gandee was travelling, he stated

that there was a “blow-out or something broke under the truck” which scared his service

dog, causing her to jump on Gandee. As a result, Gandee lost control of his vehicle,

which left the roadway into a ditch. Gandee attempted to drive his truck back onto the

road, but he was unsuccessful. He then called his father and requested that he bring a

flatbed truck. While he was waiting, “big oil field equipment, three or four trucks went

by,” which scared him. Gandee testified that he had post-traumatic stress disorder from

an incident that occurred when he was in the Navy. He called his wife who advised him

to drink the Fireball Whiskey that he had in his back seat. Gandee said he “gulped it in

two drinks.” He denied drinking any alcohol prior to driving. Gandee claimed he was

confused when talking to Officer Robbins because he had stopped taking his Cymbalta

medication.

        The jury returned a guilty verdict. This appeal followed.

                                     II.     LEGAL SUFFICIENCY

        By his first two issues, Gandee argues that the evidence is legally insufficient to

support both of his convictions. 3

A.      Standard of Review

        The Due Process Clause of the Fifth and Fourteenth Amendments to the United

States Constitution requires that a criminal conviction be supported by a rational trier of



        3  Gandee also argues that the evidence was factually insufficient to support his convictions. We
note that the Texas Court of Criminal Appeals has abolished factual-sufficiency review for criminal cases.
See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will
only address appellant’s challenges to the legal sufficiency of the evidence. See id.; Ervin v. State, 331
S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d).
                                                    4
fact’s findings that the accused is guilty of every essential element of a crime beyond a

reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (citing

Jackson v. Virginia, 443 U.S. 307, 316 (1979)).          This due process guarantee is

safeguarded when a court reviews the legal sufficiency of the evidence.            Id.   To

determine whether the evidence is legally sufficient, we consider all of the evidence in the

light most favorable to the verdict and determine whether a rational fact finder could have

found the essential elements of the crime beyond a reasonable doubt based on the

evidence and reasonable inferences from that evidence. Jackson, 443 U.S. at 319;

Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014). Because the jury is the

sole judge of the credibility of the witnesses and of the weight to be given to their

testimony, we resolve any conflicts or inconsistencies in the evidence in favor of the

verdict. Ramsey v. State, 473 S.W.3d 805, 808 (Tex. Crim. App. 2015); Wesbrook v.

State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc).

       We measure the legal sufficiency of the evidence against the elements of the

offense as defined by a hypothetically correct jury charge for the case. Byrd v. State,

336 S.W.3d 242, 246 (Tex. Crim. App. 2011). Such a charge is one that accurately sets

out the law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or unnecessarily restrict the State’s theories of liability, and adequately

describes the offense for which the defendant was tried. Id.

B.     DWI – Alcohol Concentration of 0.15 or More

       By his first issue, Gandee challenges the legal sufficiency of the evidence

supporting his conviction for DWI with an alcohol concentration level of 0.15 or more.


                                             5
       1.     Applicable Law

       A person commits a Class B misdemeanor DWI if the person is intoxicated while

operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a), (b). As

pertinent here, “intoxicated” means either “not having the normal use of mental or physical

faculties” by reason of “the introduction of alcohol” or “any other substance” into the body,

or “having an alcohol concentration of 0.08 or more.” Id. § 49.01(2)(A), (B). A Class A

misdemeanor DWI offense requires additional proof that the defendant had an alcohol

concentration level of at least 0.15 at the time the analysis was performed. Id. § 49.04(d).

The State, however, is not required to prove an alcohol concentration level of 0.15 at the

time of the commission of the offense. Ramjattansingh v. State, 548 S.W.3d 540, 548

(Tex. Crim. App. 2018). Accordingly, the hypothetically correct jury charge for a Class A

misdemeanor DWI offense requires proof of: (1) Class B misdemeanor DWI; and (2) an

alcohol concentration level of 0.15 or more at the time the analysis was performed. Id.

       2.     Analysis

       Gandee first argues that there is no evidence establishing his alcohol

concentration level at the time the accident occurred.        This argument rests on the

premise that the State was required to prove that his alcohol concentration level was 0.15

or more at the time of the accident, an argument expressly rejected by the Texas Court

of Criminal Appeals in Ramjattansingh. See id. Here, the State presented evidence of

Gandee’s alcohol concentration level at the time the test was administered at the jail.

This evidence was sufficient to establish the aggravating element for a Class A

misdemeanor DWI. See id.


                                             6
       Next, Gandee argues that “[t]here was legally . . . insufficient evidence in this case

to prove, beyond a reasonable doubt, that Gandee was driving while he was intoxicated”

(emphasis in Gandee’s brief). Gandee’s argument in this regard emphasizes his own

testimony that he did not drink alcohol until after the accident. However, our standard of

review requires that we resolve any conflicts or inconsistencies in the evidence in favor

of the verdict. See Ramsey, 473 S.W.3d at 808; Wesbrook, 29 S.W.3d at 111. In that

regard, we presume that the jury, as the sole judge of the credibility of the witnesses,

determined that Gandee’s trial testimony was not credible and relied on Gandee’s

admission to Officer Robbins that he consumed alcohol prior to the accident in reaching

its verdict. We further conclude that a rational fact finder could have found beyond a

reasonable doubt that Gandee was intoxicated at the time of the accident based on the

following factors: Gandee’s vehicle left the roadway; he smelled strongly of alcohol; his

balance was unsteady, he failed the field sobriety tests, and he admitted to drinking

alcohol prior to driving. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010)

(recognizing that evidence raising an inference of intoxication includes erratic driving as

well as post-driving behavior such as stumbling, swaying, slurring or mumbling words,

and bloodshot eyes); Cotton v. State, 686 S.W.2d 140, 142–43 & 142 n. 3 (Tex. Crim.

App. 1985) (identifying characteristics that may constitute evidence of intoxication to

include slurred speech, bloodshot eyes, unsteady balance, staggering gait, and the odor

of alcohol on the person or his breath).

       We conclude that Gandee’s DWI conviction is supported by legally sufficient

evidence. See Jackson, 443 U.S. at 319 (1979); Whatley, 445 S.W.3d at 166. We


                                             7
overrule Gandee’s first issue.

C.     Unlawful Carrying of a Weapon

       By his second issue, Gandee challenges the legal sufficiency of the evidence

supporting his conviction for unlawful carrying of a weapon.

       1.     Applicable Law

       As charged in the information, a hypothetically correct jury charge would require

the State to prove: (1) appellant; (2) intentionally and knowingly; (3) carried on or about

his person; (4) a handgun; (5) in a motor vehicle; (6) appellant owned or controlled; (7)

while engaged in the criminal activity of DWI. See TEX. PENAL CODE ANN. § 46.02(a-

1)(2)(A).

       2.     Analysis

       Gandee first argues that he was not engaged in criminal activity as that phrase is

contemplated by § 46.02 of the penal code. He maintains that the statute requires a

violation of a law or ordinance regulating traffic, and that driving while intoxicated is not

such an offense. We disagree.

       Section 46.02 provides that a person commits an offense if he intentionally,

knowingly, or recklessly carries a handgun on or about his person in a motor vehicle while

that person is “engaged in criminal activity, other than a Class C misdemeanor that is a

violation of a law or ordinance regulating traffic or boating.”     Id. § 46.02(a-1)(2)(A).

Gandee’s reading of the statute omits pertinent language. Reading the statute in its

entirety, its plain language provides that an offense occurs if a person is engaged in

criminal activity, excepting only Class C misdemeanor violations of a traffic or boating law


                                             8
or ordinance. See Getts v. State, 155 S.W.3d 153, 155 (Tex. Crim. App. 2005) (“When

discerning the meaning of a statute, we begin with its plain language.”). Gandee’s DWI

offense does not fall within the exception—instead, it is a Class A misdemeanor which is

classified as an offense against public health, safety, and morals. See TEX. PENAL CODE

ANN. tit. 10 (“Offenses Against Public Health, Safety, and Morals”). Gandee provides us

with no authority, and we find none, indicating that the term “criminal activity” as used in

this statute is otherwise limited to violations of laws or ordinances regulating traffic.

       Next, Gandee argues that the State did not prove by legally sufficient evidence

that he was carrying the handgun on or about his person. See id. § 46.02(a)(1). The

phrase “on or about the person” has been construed to mean “nearby, close at hand” and

within such distance of the accused that he can reach it without materially changing his

position. Courtney v. State, 424 S.W.2d 440 (Tex. Crim. App. 1968); Wagner v. State,

80 Tex. Crim. 66, 188 S.W. 1001, 1002 (1916); Burks v. State, 693 S.W.2d 747, 751 (Tex.

App.—Houston [14th Dist.] 1985, pet. ref'd). The Texas Court of Criminal Appeals has

long recognized that “on or about” a person includes the interior of the vehicle occupied

by the person. See Christian v. State, 686 S.W.2d 930, 933 (Tex. Crim. App. 1985)

(under the driver’s seat); Hazel v. State, 534 S.W.2d 698, 700 (Tex. Crim. App. 1976) (on

the floorboard); O’Leary v. State, 494 S.W.2d 841, 842 (Tex. Crim. App. 1973) (on a

“shelf” behind the driver’s seat); Courtney, 424 S.W.2d at 441 (in the glove compartment);

see also Hendricks v. State, 05-01-00323-CR, 2002 WL 1981361, at *1 (Tex. App.—

Dallas Aug. 29, 2002, pet. ref’d) (mem. op., not designated for publication) (handgun

located “beneath a flap of carpet behind the passenger seat” was on or about appellant’s


                                              9
person); Contreras v. State, 853 S.W.2d 694, 696 (Tex. App.—Houston [1st Dist.] 1993,

no pet.) (“[C]arrying on or about the person include[s] weapons present on or within one’s

personal means of transportation.”); Freeman v. State, 864 S.W.2d 757, 759 (Tex. App.—

Houston [1st Dist.] 1993, pet. ref’d) (holding that there was legally sufficient evidence that

handgun was on or about appellant’s person where it was located in a briefcase behind

the driver’s seat); Turner v. State, 744 S.W.2d 318, 319 (Tex. App.—Dallas 1988, pet.

ref'd) (explaining that “[a] weapon in a vehicle where the defendant is the only person in

the vehicle at the time, has repeatedly been held sufficient to prove an appellant was

carrying a gun ‘on or about his body’”); Demetriou v. State, B14-87-00035-CR, 1988 WL

81738, at *4 (Tex. App.—Houston [14th Dist.] Aug. 4, 1988, pet. ref'd) (op., not designated

for publication) (gun found under the passenger seat was on or about appellant’s person).

        Here, Officer Robbins testified that the handgun was found behind the front seat

of Gandee’s vehicle.          Gandee described his vehicle as a truck with a bench seat.

Considering this evidence in the light most favorable to the verdict, we conclude that a

rational fact finder could have found beyond a reasonable doubt that Gandee was

carrying the weapon on or about his person. See Jackson, 443 U.S. at 319; Whatley,

445 S.W.3d at 166.           Having rejected Gandee’s arguments, we overrule his second

issue. 4


        4  Gandee also complains that the information contains a reference to the penal code which does
not identify any illegal activity. The reference Gandee complains of is a citation to the subsection of the
statute identifying the offense charged as a Class A misdemeanor. To the extent that this argument can
be construed as a challenge to the adequacy of the information, we note that Gandee did not preserve error
by raising the issue in the trial court. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b); Jacobsen v. State, 325
S.W.3d 733, 740 (Tex. App.—Austin 2010, no pet.) (“A defendant may not complain on appeal of any
defect, error, or irregularity of form or substance in an indictment or information if he did not object to the
defect, error, or irregularity before trial.”). Even if Gandee had preserved the issue, we would conclude
that the language in the information was “clear enough that one can identify the offense alleged.” Teal v.
                                                     10
                                       III.    JURY CHARGE

        By his third issue, Gandee argues that the jury charge “did not properly inform the

jury of its available options” related to the lesser-included offense of Class B

Misdemeanor DWI. 5

A.      Standard of Review and Applicable Law

        The purpose of the trial court’s jury charge is to instruct the jurors on the law

applicable to the case. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015);

Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012); see TEX. CODE CRIM.

PROC. ANN. art. 36.14. The application paragraph is the portion of the jury charge that

applies the pertinent penal law, abstract definitions, and general legal principles to the

particular facts and the indictment or information allegations. Vasquez, 389 S.W.3d at

366. Therefore, a jury charge with an application paragraph that incorrectly applies the

pertinent penal law to the facts of a given case is erroneous. Cortez, 469 S.W.3d at 598;

see Gray v. State, 152 S.W.3d 125, 127–28 (Tex. Crim. App. 2004).

        Appellant did not object to the jury charge in this case. Therefore, we may only

reverse appellant’s convictions if the charge error resulted in “egregious harm.” Neal v.

State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008). “Harm is egregious if it deprives the

appellant of a fair and impartial trial.” Id.; see Allen v. State, 253 S.W.3d 260, 264 (Tex.

Crim. App. 2008) (“[J]ury charge error is egregiously harmful if it affects the very basis of




State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007).

       5 Gandee also argues that the evidence did not support the submission of the unlawful carrying of

a weapon charge to the jury. We have previously concluded that Gandee’s conviction for this offense was
supported by legally sufficient evidence. Therefore, this argument necessarily fails.
                                                  11
the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.”).

Applying the egregious harm test requires considering (1) the jury charge, (2) the state of

the evidence, (3) the parties’ arguments, and (4) all other relevant information in the

record. See Allen, 253 S.W.3d at 264.

B.     Analysis

       The application portion of the charge provided the following instruction for Class A

Misdemeanor DWI:

             Now if you find from the evidence beyond a reasonable doubt that
       on or about the 28TH day of NOVEMBER, 2017 in Matagorda County,
       Texas, the defendant, JACKIE LEE GANDEE, JR., DID THEN AND THERE
       OPERATE A MOTOR VEHICLE IN A PUBLIC PLACE WHILE SAID
       DEFENDANT WAS INTOXICATED BY REASON OF THE
       INTRODUCTION OF ALCOHOL, A CONTROLLED SUBSTANCE, A
       DRUG, OR A DANGEROUS DRUG INTO THE BODY AND THAT AT THE
       TIME OF PERFORMING AN ANALYSIS OF A SPECIMEN OF THE
       DEFENDANT’S BREATH, THE ANALYSIS SHOWED AN ALCOHOL
       CONCENTRATION LEVEL OF 0.15 OR MORE, then you will find the
       defendant guilty of DRIVING WHILE INTOXICATED WITH A BREATH
       ALCOHOL CONCENTRATION OF .15 OR HIGHER as charged in the
       information.

             Unless you so find beyond a reasonable doubt, or if you have a
       reasonable doubt thereof, you will find the defendant not guilty.

The jury charge then instructed the jury as follows regarding the lesser-included offense

of a Class B Misdemeanor DWI:

       Now if you find from the evidence beyond a reasonable doubt that on or
       about the 28TH day of NOVEMBER, 2017 in Matagorda County, Texas, the
       defendant, JACKIE LEE GANDEE, JR., DID THEN AND THERE OPERATE
       A MOTOR VEHICLE IN A PUBLIC PLACE WHILE SAID DEFENDANT
       WAS INTOXICATED BY REASON OF THE INTRODUCTION OF
       ALCOHOL, A CONTROLLED SUBSTANCE, A DRUG, OR A
       DANGEROUS DRUG INTO THE BODY, but you further find, or you have a
       reasonable doubt thereof, if the breath analysis showed an alcohol
       concentration of 0.15 or more, as charged In the information, then you will

                                              12
       find the defendant guilty of the lesser-included offense of DRIVING WHILE
       INTOXICATED.

             Unless you so find beyond a reasonable doubt, or If you have a
       reasonable doubt thereof, you will find the defendant not guilty.

(Emphasis added).

       Gandee complains that the emphasized language permitted the jury to find

Gandee guilty of the lesser-included DWI offense under two scenarios: (1) if it found that

the State had proven beyond a reasonable doubt the elements of the lesser-included

offense and that Gandee’s alcohol concentration level was 0.15 or more; or (2) if it found

that the State had proven beyond a reasonable doubt the elements of the lesser-included

offense, but it had reasonable doubt that Gandee’s alcohol concentration level was 0.15

or more. We agree that the instruction is erroneous for the reasons noted by Gandee.

However, we are unable to conclude that the error egregiously harmed Gandee. As

phrased, the instruction permitted the jury to find Gandee guilty of the lesser-included

offense whether or not it believed that the State had proven beyond a reasonable that his

alcohol concentration level was 0.15 or more. In other words, the charge permitted the

jury to find Gandee guilty of the lesser-included offense even if it found that the State

proved each element of the greater offense beyond a reasonable doubt. Accordingly,

the error could only serve to benefit Gandee.

       Furthermore, we note that any confusion the jury may have had about the

instruction was mitigated when the trial court provided the following response to the jury’s

request to define the lesser-included DWI offense: “An offense is a lesser included

offense if all the elements of the charged offense (BAC > .15) are proven except the


                                            13
breath alcohol content level is less than .15.” The trial court’s response properly limited

the jury’s consideration of the lesser-included offense to instances in which it had

reasonable doubt regarding only the aggravating element.

       We also note that Gandee did not dispute the accuracy of the breathalyzer test at

trial. Rather, Gandee’s defense was that he became intoxicated after the accident. Had

the jury found this defense credible, it would have acquitted him of all charges regardless

of what his alcohol concentration level was following the accident.

       Having reviewed the jury charge, the state of the evidence, the parties’ arguments,

and all other relevant information in the record, we conclude that Gandee was not

egregiously harmed by the jury charge error.       See Allen, 253 S.W.3d at 264.        We

overrule Gandee’s third issue.

                       IV.    INEFFECTIVE ASSISTANCE OF COUNSEL

       By his fourth issue, Gandee argues that his trial counsel was ineffective.

A.     Standard of Review and Applicable Law

       The right to counsel afforded by the United States and Texas Constitutions

requires more than the presence of a lawyer; “it necessarily requires the right to effective

assistance.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); see U.S.

CONST. amend. VI; TEX. CONST. art. 1, § 10. To prevail on an ineffective assistance

claim, appellant must show (1) counsel’s representation fell below an objective standard

of reasonableness, and (2) the deficient performance prejudiced the defense. Strickland

v. Washington, 466 U.S. 668, 689 (1984); Lopez, 343 S.W.3d at 142. “Unless appellant

can prove both prongs, an appellate court must not find counsel’s representation to be


                                            14
ineffective.” Lopez, 343 S.W.3d at 142. To satisfy the first prong, appellant must prove

by a preponderance of the evidence that his counsel’s performance fell below an objective

standard of reasonableness under the prevailing professional norms. Id. To prove

prejudice, appellant must show that there is a reasonable probability, or a probability

sufficient to undermine confidence in the outcome, that the result of the proceeding would

have been different. Id.

       “In order for an appellate court to find that counsel was ineffective, counsel’s

deficiency must be affirmatively demonstrated in the trial record; the court must not

engage in retrospective speculation.” Id.; see Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999) (“Any allegation of ineffectiveness must be firmly rooted in the

record[.]”). “It 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 v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). When direct evidence is

unavailable, we will assume counsel had a strategy “if any reasonably sound strategic

motivation can be imagined.” Lopez, 343 S.W.3d at 143.

       Although an appellant may claim ineffective assistance of counsel for the first time

on direct appeal, the record will often be insufficient to overcome the presumption that

counsel’s conduct was reasonable and professional. Cannon v. State, 252 S.W.3d 342,

349 (Tex. Crim. App. 2008); Washington v. State, 417 S.W.3d 713, 724 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref’d).     Where there is no proper evidentiary record

developed at a hearing on a motion for new trial, it is extremely difficult to show trial

counsel’s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex.


                                              15
Crim. App. 2002). Under this procedural posture, we will not find deficient performance

unless counsel’s conduct is so outrageous that no competent attorney would have

engaged in it.    Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);

Washington, 417 S.W.3d at 724.

B.     Analysis

       Gandee alleges that his trial counsel was ineffective for failing to: (1) call an

expert on post-traumatic stress disorder; (2) call defense witnesses who could

corroborate Gandee’s testimony; (3) voir dire the venire panel on the issue of credibility;

(4) effectively question Officer Robbins, including failing to inquire further about the

vehicle inventory; (5) object to the information; (6) object to the jury charge; and (7) object

to leading questions.

       Complaints 1 and 2 both concern trial counsel’s failure to call certain witnesses.

A claim of ineffective assistance of counsel based on the failure to call witnesses lacks

merit in the absence of a showing that the witnesses were available and that the

defendant would have benefitted from their testimony. Wilkerson v. State, 726 S.W.2d

542, 551 (Tex. Crim. App. 1986); Wade v. State, 164 S.W.3d 788, 796 (Tex. App.—

Houston [14th Dist.] 2005, no pet.). Without evidence to the contrary, we must presume

appellant’s counsel made the decision not to call these potential witnesses in the exercise

of her reasonable professional judgment. See Wade, 164 S.W.3d at 796. The record

is silent as to whether the identified witnesses were available to testify and what the

content of their testimony would have been.                  Therefore, counsel’s alleged

ineffectiveness is not firmly established in the record. See Thompson, 9 S.W.3d at 813.


                                              16
       Next, Gandee complains that his counsel failed to ask prospective jurors how they

would assess the credibility of law enforcement witnesses. Counsel’s voir dire decisions

fall within the realm of trial strategy, and the record is silent as to counsel’s reasons for

conducting voir dire as she did.       We will not “reverse a conviction on ineffective

assistance of counsel grounds when counsel’s actions or omissions may have been

based upon tactical decisions, but the record contains no specific explanation for

counsel’s decisions.” Bone, 77 S.W.3d at 830. We are unable to conclude on this

record that trial counsel was ineffective for failing to question prospective jurors about

witness credibility. Cf. Goodspeed, 187 S.W.3d at 392 (“[W]e cannot conclude that the

failure to ask any questions in voir dire constitutes conduct so outrageous that no

competent attorney would have engaged in it.”).

       Next, Gandee complains of counsel’s failure to more thoroughly cross-examine

Officer Robbins. “Cross-examination is inherently risky, and a decision not to cross-

examine a witness is often the result of wisdom acquired by experience in the combat of

trial.” Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005) (citing Coble v.

State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973)). It is a sound trial strategy not to

attack a sympathetic witness without strong impeachment. Id. “Furthermore, cross-

examination is an art, not a science, and it cannot be adequately judged in hindsight.”

Id. We note that counsel’s cross-examination elicited testimony that Gandee’s accident

could have occurred long before the officer arrived at the scene and that it was possible

Gandee consumed alcohol during that time period. Counsel also questioned Officer

Robbins on the possibility that Gandee’s behavior could have been attributable to


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withdrawal from a prescribed medication and to post-traumatic stress disorder. We

cannot conclude from this record that counsel’s cross-examination was so unreasonable

that no competent attorney would have pursued such a strategy. See Goodspeed, 187

S.W.3d at 392.

       Next, Gandee contends his counsel was ineffective for failing to object to the

information, the jury charge, and to leading questions. We have already concluded that

the complained-of jury charge error could only serve to benefit Gandee. Therefore,

Gandee is unable to establish that his counsel’s failure to object to the charge prejudiced

his defense. See Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142. With respect

to the information, Gandee has not identified any way in which the information was

defective.   It is not ineffective assistance for counsel to forego making frivolous

arguments and objections. See Brennan v. State, 334 S.W.3d 64, 74 (Tex. App.—Dallas

2009, no pet.); Edmond v. State, 116 S.W.3d 110, 115 (Tex. App.—Houston [14th Dist.]

2002, pet. ref’d).

       Finally, we are unable to conclude that trial counsel was ineffective for failing to

object to leading questions by the State. Despite the general rule disfavoring the use of

leading questions on direct examination, “it is sound trial strategy for opposing counsel to

choose not to object to leading questions when the evidence will come in anyway.”

Young v. State, 10 S.W.3d 705, 713 (Tex. App.—Texarkana 1999, pet. ref’d); see

Wheeler v. State, 433 S.W.3d 650, 655 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).

When the record is silent concerning why defense counsel failed to object to the State’s

use of leading questions, the appellant fails to rebut the presumption that this conduct


                                            18
constitutes reasonable trial strategy. See Young, 10 S.W.3d at 713; see also Wert v.

State, 383 S.W.3d 747, 757 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Appellant

has not carried his burden of rebutting the presumption that counsel’s [failure to object to

leading questions] might be considered sound trial strategy. The record is silent as to

why counsel did not make these objections, and we may not speculate on this issue.”).

Gandee has failed to demonstrate that his counsel’s failure to object was not the result of

sound trial strategy.

       Gandee is unable to establish both Strickland prongs for each alleged instance of

ineffectiveness.   See Lopez, 343 S.W.3d at 142 (“Unless appellant can prove both

[Strickland] prongs, an appellate court must not find counsel's representation to be

ineffective.”). Therefore, we overrule appellant’s fourth issue.

                                   V.      CONCLUSION

       We affirm the trial court’s judgment.

                                                               LETICIA HINOJOSA
                                                               Justice

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

Delivered and filed the
31st day of October, 2019.




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