                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-140-CR


BEATE ELIZABETH EGERTON                                            APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Beate Elizabeth Egerton appeals her conviction for misdemeanor

driving while intoxicated (“DWI”). We affirm.

                                  Background

      Grapevine Police Officer Wes Spillers saw Appellant run a stop sign and

initiated a traffic stop. He smelled alcohol on Appellant’s breath, and her eyes

were bloodshot. After Appellant failed the horizontal-gaze nystagmus test, the



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          … See Tex. R. App. P. 47.4.
walk-and-turn test, and the one-leg stand test, Officer Spillers arrested her for

DWI.

       Officer Jimmy Pollozani, a certified Intoxilyzer operator, administered an

Intoxilyzer test to Appellant. Michele O’Neal, a senior forensic chemist with the

Tarrant County Medical Examiner’s Office and the person responsible for

overseeing Intoxilyzer instruments and operators, testified extensively and

without objection about the theory and operation of the Intoxilyzer 5000. Upon

review of Appellant’s Intoxilyzer test strip, she testified that the test was valid.

She said that Appellant’s two breath samples, taken two minutes apart,

indicated a blood alcohol concentration of 0.145 and 0.153.

       A jury convicted Appellant of DWI, and the trial court—in accordance

with an agreement between Appellant and the State—assessed punishment of

a $550 fine and thirty days in jail.

                     Admission of Testimony Concerning
                 Horizontal-Gaze Nystagmus and Breath Tests

       In her first two issues, Appellant argues that the trial court erred (1) by

admitting Officer Spiller’s testimony about Appellant’s performance on the

horizontal-gaze nystagmus test because the State failed to establish that Officer

Spiller had properly conducted the test and (2) by admitting the results of

Appellant’s breath test because O’Neal could not demonstrate sufficient




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expertise regarding the scientific theory underlying the operation of the

Intoxilyzer 5000.

         To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999).        An objection must be made as soon as the basis for the

objection becomes apparent. Tex. R. Evid. 103(a)(1); Lagrone v. State, 942

S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk

v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987).

         Appellant did not present either of her evidentiary complaints to the trial

court.     She therefore failed to preserve her complaints for review, and we

overrule her first two issues.

                               Ineffective Assistance

         In her third issue, Appellant agues that her trial counsel rendered

ineffective assistance by failing to object to the evidence made the basis of her

first two issues.

         To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that her counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable


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probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      Under the first Strickland prong, review of counsel’s representation is

highly deferential, and the reviewing court indulges a strong presumption that

counsel’s conduct fell within a wide range of reasonable representation.

Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will

rarely be in a position on direct appeal to fairly evaluate the merits of an

ineffective assistance claim. Thompson, 9 S.W.3d at 813–14. “In the majority

of cases, the record on direct appeal is undeveloped and cannot adequately

reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W.3d at 740

(quoting Mallett, 65 S.W.3d at 63).         To overcome the presumption of

reasonable professional assistance, “any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432

(Tex. Crim. App. 2007). As the court of criminal appeals stated in a recent

opinion,


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            We have consistently observed that usually “the record on
      direct appeal will not be sufficient to show that counsel’s
      representation was so deficient and so lacking tactical or strategic
      decision-making as to overcome the strong presumption that
      counsel’s conduct was reasonable and professional.” Here, we can
      only speculate why counsel acted or failed to act; thus, we
      presume that counsel’s actions were within the wide range of
      reasonable and professional assistance. We overrule appellant’s
      ineffective assistance of counsel points of error.

Beatty v. State, No. AP-75010, 2009 WL 619191, at *10 (Tex. Crim. App.

Mar. 11, 2009) (per curiam) (not designated for publication) (citations omitted).

      In this case, Appellant did not file a motion for new trial or otherwise

develop a record concerning the motives behind trial counsel’s decision not to

object to the testimony in question. As in Beatty, we can only speculate why

counsel acted or failed to act; thus, we presume counsel’s actions were within

the wide range of reasonable and professional assistance. See id. We overrule

Appellant’s ineffective assistance issue.

                                  Conclusion

      Having overruled all of Appellant’s issues, we affirm the trial court’s

judgment.

                                            PER CURIAM

PANEL: GARDNER, J.; CAYCE, C.J.; and MCCOY, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 25, 2009



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