Opinion issued June 21, 2012




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                            NO. 01-11-00401-CR
                          ———————————
                         DONNY MILES, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



         On Appeal from the County Criminal Court at Law No. 12
                          Harris County, Texas
                      Trial Court Case No. 1696082



                        MEMORANDUM OPINION

      A jury convicted Appellant Donny Miles of driving while intoxicated. TEX.

PENAL CODE ANN. § 49.04 (West 2011) (establishing offense). He pleaded “true”

to a prior DWI conviction, and the court sentenced him to 280 days in jail with
credit for 11 days already served. Miles’s sole issue on appeal is that his trial

counsel rendered ineffective assistance by failing to object to the admission of a

toxicology report and related testimony on the ground that the sponsoring witness

did not personally perform the underlying tests or prepare the report. We affirm.

                                   Background

      Miles was arrested for driving while intoxicated after he was discovered in

the driver’s seat of a car that had been driven into a roadside ditch. After being

transported to the Jersey Village police station, Miles refused to provide a blood

sample. A Harris County Sheriff’s Department deputy obtained a judicial warrant

to take a sample of Miles’s blood. Because Miles indicated that he would resist

despite the warrant, several deputies physically held him down in a chair as a nurse

drew two vials of blood.

      At trial, Dr. A. Mozayani of the Harris County Institute of Forensic

Sciences, a toxicology laboratory, testified about tests that were performed on

Miles’s blood. Dr. Mozayani testified that she was the “administrative reviewer”

for Miles’s case and that she personally reviewed and signed off on his test results.

A separate “technical reviewer” also signed off on the results. Dr. Mozayani did

not explain the difference in responsibilities between a “technical reviewer” and an

“administrative reviewer,” nor did she explain what her review specifically

entailed or whether she personally participated in the underlying tests. She did

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explain, however, that each person working in the laboratory has a different

specialty such that each person tests for a different substance.          During her

testimony, the State offered into evidence a toxicology report signed by her which

reflected the test results. Miles’s trial counsel stated that he had no objection, and

the trial court admitted the report. Dr. Mozayani testified that tests performed

upon Miles’s samples revealed an alcohol concentration of 0.18 grams per 100

millimeters, above Texas’s “legal limit” for driving under the influence of alcohol

of 0.08 grams per 100 millimeters.            The samples also tested positive for

tetrahydrocannabinol, or T.H.C., the active agent in marijuana.

      The jury convicted Miles of driving while intoxicated, and the court

sentenced him to 280 days in jail with credit for 11 days already served. In

addition to filing a notice of appeal, Miles filed a motion for new trial arguing that

he was actually innocent because his friend, whom police interviewed at the scene

of his arrest, was driving when the car went into the ditch. The motion did not

argue that Miles’s trial counsel had rendered ineffective assistance. The appellate

record does not reflect that the trial court held a hearing or ruled upon the motion.

                                      Analysis

      In his sole issue, Miles contends that his trial counsel was ineffective for

failing to object to the admission of the toxicology report and Dr. Mozayani’s

testimony. He argues that the report and testimony were inadmissible under the

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Confrontation Clause because there was no evidence that Dr. Mozayani personally

prepared, observed, or otherwise participated in testing Miles’s blood. Miles relies

on Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009), for the

proposition that a criminal defendant has an absolute right to confront any analyst

who prepares an incriminating forensic report. He also relies on Bullcoming v.

New Mexico, 131 S. Ct. 2705 (2011), which was issued by the United States

Supreme Court shortly after his trial, for the proposition that a laboratory

supervisor is not a constitutionally adequate “surrogate” for the analyst who

actually participated in or observed the testing that led to the incriminating forensic

report.   Miles argues that the failure to object to the toxicology report and

Dr. Mozayani’s testimony could not have been a reasonable trial strategy because

it relieved the State of its burden of proving that Miles was intoxicated.

      In response, the State argues that this case is distinguishable from Melendez-

Diaz and Bullcoming because Dr. Mozayani was the administrative reviewer of the

toxicology report and provided at trial her own independent opinion based upon

that report. The State also points out that defense counsel’s performance can only

be measured by the settled law at the time of trial and that Bullcoming was issued

after Miles’s trial. Alternatively, the State argues that Miles’s defense at trial was

not that the State failed to prove that he was intoxicated, but rather that the State




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failed to prove that he was “operating” the car, and therefore the admission of the

toxicology report did not harm Miles given his defense strategy.

      The standard of review for ineffective assistance of counsel is set forth in

Strickland v. Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984),

and Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To prevail, Miles

must first show that his counsel’s performance was deficient. Strickland, 466 U.S.

at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833. “Specifically, appellant must

prove, by a preponderance of the evidence, that his counsel’s representation fell

below the objective standard of professional norms.” Bone, 77 S.W.3d at 833.

“Second, appellant must show that this deficient performance prejudiced his

defense,” meaning that Miles “must show a reasonable probability that, but for his

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.

2002)). “A ‘reasonable probability’ is one sufficient to undermine confidence in

the outcome.” Id. Thus, the “benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064. “Any allegation of

ineffectiveness must be firmly founded in the record, and the record must




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affirmatively demonstrate the alleged ineffectiveness.”      Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999).

      In briefing to this court, Miles analogized his case to Menefield v. State, 343

S.W.3d 553 (Tex. App.—Amarillo 2011), which had a petition for discretionary

review pending at the time his brief was filed, and has since been reversed, 363

S.W.3d 591 (Tex. Crim. App. 2012). In that case, Menefield was charged with

possession of less than one gram of cocaine. Menefield, 363 S.W.3d at 592. At

trial, the State introduced as a “business record” a laboratory report showing that

the substance found in Menefield’s pipe was cocaine. Id.; see also Menefield, 343

S.W.3d at 554. A laboratory manager sponsored the report, but the person who

actually tested the substance and prepared the report did not testify at trial.

Menefield, 363 S.W.3d at 592. Defense counsel questioned the laboratory manager

about who conducted the test and what procedure was used, but he stated at the end

of questioning that he had no objection to admitting the report. Id. The report was

the only evidence that Menefield had possessed a controlled substance. Id. He

was convicted of the offense. Menefield, 343 S.W.3d at 554.

      Menefield argued on appeal that he had received ineffective assistance of

counsel because his lawyer had failed to object to the admission of the laboratory’s

drug report. Id. The court of appeals agreed, observing that had defense counsel

objected to the report, the trial court would have erred in admitting it because the

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witness sponsoring the report did not prepare it or perform his own analysis of the

material. Id. at 555. It reasoned that “if the report were excluded, and given the

absence from the record of all other evidence establishing the presence of a

controlled substance, no rational jury could have convicted appellant for

possessing cocaine.” Id. Unable to imagine any reasonable trial strategy for

remaining silent under those circumstances, the court of appeals reversed the

judgment.    Id. at 556.    Based upon the decision by the court of appeals in

Menefield, Miles argued that this court should likewise reverse the judgment

against him because “the admission of the forensic report relieved the State of its

burden to prove the element of ‘intoxication’ and deprived Miles of his ability to

contest the central issue in his case.”

      The Court of Criminal Appeals subsequently announced its opinion in

Menefield. See Menefield, 363 S.W.3d at 591–93. The Court reiterated that

ineffective assistance must be firmly founded in the record. Id. at 592. It further

stated that defense counsel should ordinarily be given the opportunity to explain

his actions, and if he is not given such an opportunity, “then the appellate court

should not find deficient performance unless the challenged conduct was ‘so

outrageous that no competent attorney would have engaged in it.’” Id. at 593

(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). The

Court explained:

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      The reason that the laboratory report in this case was inadmissible is
      that Murphy, its author, had not been called to testify. We do not
      know why counsel failed to raise a Confrontation Clause objection
      because the record is silent on the matter. Perhaps there was no good
      reason, and counsel’s conduct was deficient. Or perhaps the State
      could (and with an objection would) have brought Murphy to the
      courtroom to testify, and counsel realized that cross-examining
      Murphy would not benefit his client. Neither trial counsel nor the
      State have been given an opportunity [to] respond to appellant’s
      allegation. Consequently, we conclude that the record fails to show
      deficient performance.

Id. (footnote omitted). The Court reversed the judgment of the court of appeals

and remanded the case to consider Menefield’s remaining issues on appeal. Id.

      As in Menefield, in this case there is no indication in the record why Miles’s

counsel did not object to the admission of the toxicology report and Dr.

Mozayani’s testimony. It is therefore possible that his trial counsel realized that

had he objected, the State could and would have called the laboratory personnel

who tested the blood samples—if Dr. Mozayani, as the administrative reviewer,

did not test them herself—or his counsel realized that cross-examining witnesses

about the report would not have benefited Miles’s defense. See id. In the absence

of a record reflecting why Miles’s counsel did not object, we hold that the record

does not firmly establish deficient performance. See id.; Thompson, 9 S.W.3d at

813. We further hold that the professional error, if any, was not so outrageous that




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no competent attorney would have engaged in it. See Menefield, 363 S.W.3d at

593.

       We overrule Miles’s sole issue.

                                    Conclusion

       We affirm the judgment of the trial court.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Bland, Massengale, and Brown.

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




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