                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00284-CR

ANDREW CURTNER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                      From the County Court at Law No. 1
                           McLennan County, Texas
                         Trial Court No. 2009-2667-CR1


                          MEMORANDUM OPINION

      Andrew Curtner appeals his conviction for the offense of driving while

intoxicated. TEX. PEN. CODE ANN. § 49.04 (West 2011). Curtner complains that he

received ineffective assistance of counsel because his counsel failed to view the video of

the scene which contained inadmissible evidence regarding a portable breath report.

Because we find that Curtner has not established the second prong of Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), relating to prejudice,

we affirm the judgment of the trial court.
Ineffective Assistance of Counsel

        Curtner complains that his trial counsel failed to view the video prior to his trial

that showed the traffic stop, field sobriety testing, and the drive to the jail and this

constituted ineffective assistance of counsel. The video was offered into evidence and

Curtner’s trial counsel affirmatively did not object to it. However, during the playing of

the video, Curtner’s trial counsel objected to a portion of the exhibit which contained an

exchange between Curtner and the arresting officer during which Curtner requested to

take a portable breath test and asked the officer if he was below the legal limit if he

would be released, to which the officer answered affirmatively. After this exchange

was shown to the jury, Curtner’s trial counsel objected and the trial court overruled his

objection but offered to give the jury a limiting instruction, which was declined. Later

during the replay, Curtner told the officer while they were traveling to the jail that he

had gotten a false reading on the breath test because he had just consumed a glass of

wine. Curtner’s trial counsel did not object to this statement. The trial court then called

the attorneys to the bench and reoffered his suggestion of a limiting instruction

regarding any results of the portable breath test, to which Curtner’s trial counsel

agreed. The trial court gave the following instruction:

        Ladies and gentlemen of the jury, I’m going to give you an instruction
        regarding some things you’ve heard on this tape.

        The use of a PBR test can be referred to by the State. But—I mean, the
        taking of a PBR test can be referred to. And that’s called a “public breath
        report.” But the results are inadmissible. They’re not reliable enough for
        them to be admitted into court.
        Therefore, I am instructing you that you will give no weight whatsoever
        to any results of any portable breath test.

Curtner v. State                                                                      Page 2
        Everybody understand?

        (Jury Affirmative Responses)

Standard of Review

        To prevail on an ineffective assistance claim, Curtner must establish that (1) his

trial counsel’s performance was deficient by falling below an objective standard of

reasonableness and (2) his trial counsel’s deficiency caused him prejudice, which means

that there is a probability sufficient to undermine confidence in the outcome that but for

his trial counsel’s errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);

Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010). Curtner is required to

satisfy both prongs by a preponderance of the evidence; failure to demonstrate either

deficient performance or prejudice will defeat a claim of ineffectiveness. Perez, 310

S.W.3d at 893. It is not necessary to conduct the Strickland analysis in any particular

order; if an appellant cannot demonstrate sufficient prejudice, a court may dispose of

the claim on that ground. Strickland, 466 U.S. at 697. When making this determination,

any constitutionally deficient acts or omissions will be considered in light of the totality

of the evidence before the jury. Ex parte Ellis, 233 S.W.3d 324, 31 (Tex. Crim. App. 2007).

        Curtner did not file a motion for new trial alleging ineffective assistance, but

contends that the record is sufficient to establish that his trial counsel’s conduct was

deficient.     However, this is not necessary when determining whether Curtner




Curtner v. State                                                                        Page 3
established the prejudice ground of Strickland because counsel’s trial strategy is not

relevant to whether the result would have been different.

        Curtner was charged with driving while intoxicated as defined in Penal Code

Section 49.01(2)(A), which is that he did not have the normal use of his mental or

physical faculties because of his drinking alcohol. Presumably because Curtner refused

to provide a specimen of breath at the jail, he was not charged pursuant to section

49.01(2)(B) which relates to alcohol concentration in the blood, and the jury was not

given that means of committing the offense in the jury charge and could not convict on

that basis.

The Facts

        Curtner was originally stopped by the officer for not having a front license plate

on his vehicle at approximately 1:00 a.m. After the officer turned on his lights behind

Curtner to pull over, Curtner ran over a curb, and continued for some distance before

turning and pulling over. Due to the landscape, there was nowhere safe to pull over

until Curtner turned and did pull over. Curtner exited his vehicle immediately and

approached the officer. The officer smelled the odor commonly associated with alcohol

on Curtner’s breath and believed Curtner’s speech to be thick-tongued.            Curtner

admitted to consuming two glasses of wine that evening.

        The officer conducted four field sobriety tests on Curtner at the scene. First, he

conducted the horizontal gaze nystagmus test, which he testified showed six of six clues

for intoxication. Next, Curtner performed the walk and turn test, which showed five of

eight clues for intoxication. Curtner then performed the one leg stand, and showed

Curtner v. State                                                                    Page 4
three of four clues for intoxication. However, Curtner had pulled over on a hill, which

may have impeded his ability to properly perform portions of the one leg stand, so the

officer conducted a fourth test, a finger count test, which the officer admitted was not

considered to be scientifically reliable. However, on that test, Curtner was unable to

count backward from four to one three out of four times. The officer then handcuffed

Curtner and placed him under arrest for DWI.

        After this, Curtner requested a breath test and the complained-of exchange set

forth above took place. The video stops and resumes after Curtner had been returned

to the officer’s vehicle. The results of the portable breath report were never disclosed to

the jury; rather Curtner contends that since he was not released after the test, the

inference would be that the result must have been over the legal limit, which was

improper.

        Curtner and the officer had to wait for a tow truck to arrive to tow Curtner’s

vehicle. Prior to their departure for the jail, the officer asked Curtner to spit out the

gum in his mouth and Curtner refused, citing his constitutional right to chew gum.

After their departure for the jail, Curtner continued conversing with the officer. It was

during the ride to the jail when he made the statement that the result of the portable

breath test was skewed by the fact that he had consumed a glass of wine right before he

left the party he was at that evening.

        At one point, he asked the officer about the intoxilyzer he would be given at the

station and if he blew a “.799” would he be released. The officer answered negatively.

At another point, Curtner stated that he would probably blow over the legal limit.

Curtner v. State                                                                     Page 5
Curtner also asked the officer why he had arrested him, and the officer told him it was

because he smelled of alcohol and had performed poorly on the field sobriety tests. The

officer testified at trial that he also believed that Curtner’s talkativeness and behavior on

the ride to the jail were indicative of intoxication, and that no matter what the results of

the portable breath test were, he would have arrested Curtner anyway. The officer did

concede that the results of the portable breath test could have been negatively affected

by Curtner’s chewing gum.

        At trial, Curtner testified that the reason he may have smelled of alcohol was

because he’d just been in a hot tub with chlorine in it. He also had an old knee injury

and suffered from vertigo occasionally, which impacted his performance on the field

sobriety tests. He denied being intoxicated entirely. He attributed his statement about

probably blowing over to his bad luck, not that he believed he was intoxicated.

        Because the jury was instructed not to consider any results of the portable breath

test, was instructed in the jury charge only as to whether Curtner did not have the

normal use of his mental or physical faculties because of drinking alcohol, and nothing

about breath test results was contained in the jury charge, we do not believe that

Curtner has met his burden to establish the second prong of Strickland. There was other

evidence of Curtner’s loss of the normal use of his physical or mental faculties, and the

jury was able to observe the demeanor and credibility of the witnesses and chose not to

believe Curtner’s explanations. We overrule Curtner’s sole issue.1



1 Curtner’s brief to this Court sets forth three issues; however, they are three subparts of the
determination of ineffective assistance of counsel; failed to review the video, prejudice resulted, and the

Curtner v. State                                                                                    Page 6
Conclusion

        We find that Curtner has not established that but for the alleged errors of his trial

counsel, there is a substantial probability that the result of the proceeding would have

been different. We affirm the judgment of the trial court.



                                                TOM GRAY
                                                Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 28, 2011
Do not publish
[CR25]




limiting instruction did not cure the prejudice. Because of our holding that Curtner has not established
the prejudice prong of Strickland, we have addressed these issues as one.

Curtner v. State                                                                                 Page 7
