                            NUMBER 13-09-00473-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ALBERT FOLEY, JR.,                                                        Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 329th District Court
                        of Wharton County, Texas.


                        MEMORANDUM OPINION
               Before Justices Yañez, Garza, and Benavides
                 Memorandum Opinion by Justice Garza
      A jury convicted appellant Albert Foley Jr. of his third driving while intoxicated

offense.   See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003), § 49.09 (Vernon Supp.

2010). The jury also determined that the vehicle Foley was driving at the time of the

offense was used as a deadly weapon. See id. § 1.07(a)(17) (Vernon Supp. 2010).

After finding two enhancement allegations to be true, the trial court sentenced Foley to
twenty-five years= imprisonment in the Institutional Division of the Texas Department of

Criminal Justice. By four issues, Foley asserts that: (1) there was no probable cause to

support the search warrant for blood evidence; (2) he was given ineffective assistance of

counsel; (3) the evidence was insufficient to support the driving while intoxicated

conviction; and (4) the evidence was insufficient to support the deadly weapon finding.

         We modify the trial court’s judgment and affirm it as modified.

                                        I. BACKGROUND
         On May 21, 2008, seventy-year-old Foley crashed his pickup truck into an

aluminum barrier on the Highway 59 service road in Wharton County, Texas. Don

Mallett, an employee from a nearby agricultural business named Wilbur-Ellis, testified

that he was working in his office approximately sixty feet from the road when he heard the

crash.    Mallett stated that, from his office window, he saw that Foley=s truck had

careened off the road into some tall grass after crashing and that the truck=s tires were

Athrowing dirt and rocks@ as Foley attempted to get back onto the road. Mallett called

local law enforcement to investigate.

         Another Wilbur-Ellis employee, Guy Hill, testified that he was working outside

when he saw Foley=s pickup truck driving approximately sixty miles per hour towards the

aluminum barrier. Hill was 225 feet away from the crash site. Hill testified that he

believed Foley was intoxicated at the time of the accident because after Foley exited his

pickup truck, he could not stand up without hanging onto the door or the side of his truck.

         Officer Clint Savino, a patrol officer from the El Campo Police Department,

responded to the accident scene. Officer Savino testified that he found Foley attempting

to change a tire on his pickup which had blown out during the crash. He testified that


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Foley=s eyes were red and glassy, his speech was unintelligible and slurred, his breath

smelled strongly of alcohol, and that he was grasping onto the door of the pickup truck to

stand up straight while speaking to the officer. Officer Savino also testified that he saw

an open sixteen-ounce can of Busch beer in the pickup truck. Later, while conducting an

inventory of the vehicle, he found a quarter-full bottle of Boone=s Wild Cherry wine, and an

unopened sixteen-ounce can of Busch beer. Officer Savino stated that Foley admitted

that he had been driving and thought that he was Aon the north side of Houston,@ when he

was, in fact, approximately seventy miles south of the city. Foley refused to take a

breathalyzer test or provide a blood sample.

       While at the accident scene, Officer Savino performed four field sobriety tests on

Foley—the horizontal gaze nystagmus test, the walk-and-turn test, alphabet recitation

without singing, and the one-leg stand test. Foley failed to complete the first two tests.

During trial, Officer Savino admitted that field sobriety tests are not reliable for persons

over the age of sixty-five, as advanced age and health issues can factor into whether one

passes a field sobriety test. Officer Savino Agave consideration that [Foley was] seventy

years old and that he might have arthritis or [a condition] that would hinder his being able

to perform the tests.@ Officer Savino also admitted that he did not ask Foley whether he

had sustained any head injuries during the crash.

       Officer Savino arrested Foley for driving while intoxicated and transported him to

the El Campo Police Department. While there, Officer Savino drafted an affidavit to

request a blood search warrant. The affidavit included Officer Savino=s observations of

Foley=s appearance and demeanor during his arrest, and also his observations from the

field sobriety tests. Judge Tim Drapela signed the warrant upon review. The blood test

                                             3
revealed that Foley=s blood alcohol level was .26, over three times the legal limit.

       A jury convicted Foley of his third driving while intoxicated offense and also of

using or exhibiting a deadly weapon, specifically, a vehicle. The court sentenced Foley

to twenty-five years= incarceration. This appeal followed.

                       II. PROBABLE CAUSE FOR SEARCH WARRANT

A.     Standard of Review and Applicable Law

       In general, obtaining a blood sample is a search and seizure within the meaning of

the Fourth Amendment of the United States Constitution. U.S. CONST. amend. IV; see

Schmerber v. California, 384 U.S. 757, 767 (1966). Consequently, Article 1, Section 9 of

the Texas Constitution requires that a search warrant be used to take blood evidence.

TEX. CONST. art. 1, § 9; State v. Dugas, 296 S.W.3d 112, 115 (Tex. App.–Houston [14th

Dist.] 2009, pet. ref=d). Under Texas law, a search warrant may be issued to obtain

Aproperty or items . . . constituting evidence of an offense or constituting evidence tending

to show that a particular person committed an offense.@ TEX. CODE CRIM. PROC. ANN. art.

18.02(10) (Vernon 2005). Blood is an item of evidence within the meaning of article

18.02(10). Id.; see Dugas, 296 S.W.3d at 115; Muniz v. State, 264 S.W.3d 392, 396

(Tex. App.–Houston [1st Dist.] 2008, no pet.).

       A magistrate may not issue a search warrant unless he or she receives a sworn

affidavit which sets forth sufficient facts to establish probable cause. TEX. CODE CRIM.

PROC. ANN. art. 18.01(c) (Vernon Supp. 2010). The sworn affidavit must show: (1) that

a specific offense has been committed; (2) the specifically described property or items to

be searched for or seized which would constitute evidence of the offense or evidence that

a particular person committed that offense; and (3) that the property or items constituting

                                             4
such evidence are located at or on the particular person, place, or thing to be searched.

Id. Whether the facts mentioned in the affidavit are adequate to establish probable

cause depend on the totality of the circumstances. Ramos v. State, 934 S.W.2d 358,

362-63 (Tex. Crim. App. 1996). AProbable cause exists when, under the totality of the

circumstances, there is a >fair probability= that contraband or evidence of a crime will be

found . . . .@ Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). The

standard for review in challenging whether probable cause existed for an affidavit is

whether the magistrate had a substantial basis for concluding that it existed. Illinois v.

Gates, 462 U.S. 213, 236 (1983).

B.     Analysis

       By his first issue, Foley argues that the search warrant was improper because it

was not supported by probable cause. Specifically, he contends that the field sobriety

tests mentioned in Officer Savino=s warrant were not a credible source of information

regarding Foley=s alleged intoxication due to Foley=s age. In support of this argument,

Foley cites testimony from Officer Savino wherein he admits that field sobriety tests are

not reliable indicators of intoxication for persons over the age of sixty-five.

       Assuming, without deciding, that the field tests were inapplicable to Foley, we

conclude that the remaining facts in Officer Savino=s affidavit were still sufficient to

establish probable cause. Officer Savino=s affidavit reported that Foley smelled strongly

of alcohol, had red and glassy eyes, slurred speech, poor balance, and that he refused to

provide a breath or blood sample.          The affidavit further showed that Foley was

geographically disoriented because he thought that he was on the Anorth side of

Houston,@ when indeed he was seventy miles south in Wharton County. The affidavit

                                              5
also provided that Foley admitted to driving. Finally, Officer Savino stated in the affidavit

that, AI have seen intoxicated persons on many occasions in the past. Based on all of the

above and my experience and training, I determined that the suspect was intoxicated.…@

       Significantly, we note that during trial, Judge Drapela stated that even without the

information from the field tests, he still would have found probable cause because of

Foley=s Aeye glaze@ and Athe remarks about the odor on [Foley=s] breath, remarks about

his balance, the fact that he had been involved in a collision, and the fact that he thought

he was about [seventy] miles from where he actually was.@ In light of the foregoing, we

hold that the facts stated in Officer Savino=s affidavit established probable cause to obtain

a blood sample, even if we disregard the field test information in the affidavit. Under the

totality of the circumstances, there was sufficient reason to believe that obtaining a blood

sample would elicit evidence to prove that Foley committed the offense of driving while

intoxicated. See Rodriguez, 232 S.W.3d at 60. We overrule this issue.

                         III. INEFFECTIVE ASSISTANCE OF COUNSEL

A.     Standard of Review and Applicable Law

       The United States Supreme Court set forth a two-part test in Strickland v.

Washington to determine whether a criminal defendant was provided ineffective

assistance of counsel. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The Strickland test

first requires the appellant to demonstrate that counsel=s performance was so deficient

that it fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d

808, 812 (Tex. Crim. App. 1999); see Strickland, 466 U.S. at 687.             Assuming the

appellant has demonstrated deficient assistance, he or she must then show that there is a

                                             6
reasonable probability that the final result would have been different but for counsel=s

errors. Thompson, 9 S.W.3d at 812-13.

       The appellant must prove ineffective assistance of counsel by a preponderance of

the evidence. Id. The appellant must overcome the strong presumption that counsel=s

conduct fell within the wide range of reasonable professional assistance and that

counsel=s actions could be considered a sound trial strategy.         Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). A reviewing court should not

second-guess legitimate tactical decisions made by trial counsel. State v. Morales, 253

S.W.3d 686, 696 (Tex. Crim. App. 2008).               In determining whether an attorney=s

performance was deficient, we apply a strong presumption that the attorney=s conduct

was within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d

at 813. We review the effectiveness of counsel in light of the totality of the representation

and the circumstances of each case. Id. The court of criminal appeals has made clear

that, in most cases, a silent record that does not explain counsel's actions will not

overcome the strong presumption of reasonable assistance. See Rylander v. State, 101

S.W.3d 107, 110-11 (Tex. Crim. App. 2003).

B.     Analysis

       Foley complains that his trial attorney: (1) only visited him once in the jail prior to

trial; (2) did not conduct a fact investigation; (3) did not prepare a defense; (4) failed to

interview or present witnesses during the sentencing hearing; (5) made no effort to learn

Foley=s social history; and (6) refused to provide a copy of the police report to Foley.

       In his defense, Foley=s trial counsel filed an AAffidavit of Defense Counsel@ after

trial. The affidavit, in relevant part, stated:

                                                  7
      My name is Richard L. Manske, TBC # 12956500 and I am over the age of
      eighteen years and competent to make this affidavit. I represented Mr.
      Foley for pre-trial and trial of the above-captioned cause. I met with my
      client at least once at the jail and several times in court when he made
      various appearances. With the assistance of my associate David Kiatta, I
      prepared and presented what I believe was the best possible defense given
      the facts of the case. We litigated a contentious motion to suppress and
      were prepared to cross-examine each and every witness presented at both
      the guilt and punishment phases. As for additional punishment witnesses,
      I felt that the judge was inclined to be merciful in this case. I did not believe
      it wise to give the State the opportunity to cross-examine any defense
      punishment witnesses and possibly harm my client thereby. The wisdom
      of that decision is evident in that the judge assessed the minimum lawful
      sentence given my client=s criminal history.

      Manske=s affidavit addresses Foley=s first, second, third, and fourth sub-issues.

For example, Manske states that he met with Foley more than once, both in jail and at

various court appearances. During these visits, Manske learned information about Foley

and the case which helped him prepare and present Athe best possible defense given the

facts of the case.@ Manske also had a trial strategy with respect to not presenting

witnesses during the sentencing hearing, as he felt the Ajudge was inclined to be merciful@

to Foley and that he did not want to Agive the State the opportunity to cross-examine any

defense punishment witnesses@ which could possibly harm Foley.

      Manske provided reasonable explanations of his decisions that appear to be within

the wide range of reasonable professional assistance. Jaynes, 216 S.W.3d at 851. As

a reviewing court, we do not second-guess his decisions as trial counsel. Morales, 253

S.W.3d at 696. However, even if we assumed that Manske=s actions fell below the

objective standard of reasonableness, Foley has not established that a different result

would have occurred had Manske acted differently. See Thompson, 9 S.W.3d at 812.

Thus, we cannot conclude that Manske=s actions resulted in any prejudice to Foley. Id.



                                             8
at 813.

       With respect to Foley=s fifth and sixth sub-issues, the record is silent as to whether

Manske made an effort to learn Foley=s social history1 or whether he gave Foley a copy of

the police record. Accordingly, Foley=s complaints regarding these issues are not firmly

found in the record. Id. AA silent record which provides no explanation for counsel=s

actions will not overcome the strong presumption of reasonable assistance.@                  See

Rylander, 101 S.W.3d at 110-11; Hernandez v. State, 198 S.W.3d 257, 269 (Tex.

App.–San Antonio 2006, pet. ref=d). Thus, we find that Foley has failed to rebut the

presumption that Manske made these decisions based on sound professional judgment.

See Rylander, 101 S.W.3d at 111. We overrule this issue.

                                    IV. INSUFFICIENCY OF EVIDENCE

A.     Standard of Review

       Foley=s third and fourth issues challenged the factual sufficiency of the evidence

used to convict him of driving while intoxicated and to establish that the vehicle he drove

was used as a deadly weapon. Given the Texas Court of Criminal Appeals=s recent

Brooks v. State opinion, however, we now construe Foley=s factual sufficiency challenges

as challenges to the legal sufficiency of the evidence. Brooks v. State, No. PD-0210-09,

2010 Tex. Crim. App. LEXIS 1240, at *26 (Tex. Crim. App. Oct. 6, 2010) (plurality op.).

Brooks held that there is Ano meaningful distinction between the Jackson v. Virginia

legal-sufficiency standard and the Clewis factual-sufficiency standard, and these two

standards have become indistinguishable.‖ Id. at **25-26; see Jackson v. Virginia, 443


       1
           In fact, we are not clear about Foley=s meaning of the phrase Asocial history.@


                                                      9
U.S. 307 (1979).     Thus, the Jackson v. Virginia standard is Athe only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt. All other cases to the contrary . . . are overruled.@ Brooks, 2010 Tex.

Crim. App. LEXIS 1240, at *57. Accordingly, we will only apply the Jackson evidentiary

sufficiency standard.

       Jackson holds that when conducting a legal sufficiency review, a court must ask

whether Aany rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt‖—not whether Ait believes that the evidence at the trial

established guilt beyond a reasonable doubt.@ Jackson, 443 U.S. at 318-19. A legal

sufficiency analysis requires the court to view all of the evidence in Aa light most favorable

to the verdict and to determine whether a rational trier of fact could have found all of the

essential elements of the crime beyond a reasonable doubt.@ Id.; see Laster v. State,

275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The trier of fact is the sole judge of the

facts, the credibility of the witnesses, and the weight given to testimony. TEX. CODE

CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Beckham v. State, 29 S.W.3d 148, 151 (Tex.

App.–Houston [14th Dist.] 2000, pet. ref=d). AAppellate courts are ill-equipped to weigh

the evidence; unlike the fact-finder—who can observe facial expressions and hear voice

inflections first-hand—an appellate court is limited to the cold record.@        Laster, 275

S.W.3d at 517 (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)).

We resolve any inconsistencies in the evidence in favor of the final judgment and

consider whether the factfinder reached a rational decision. Curry v. State, 30 S.W.3d

394, 406 (Tex. Crim. App. 2000).

                                             10
       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.

Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v.

State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref=d). ASuch 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 particular offense for which the

defendant was tried.@ Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240. Under a

hypothetically correct jury charge, Foley committed the offense of driving while

intoxicated if he: (1) was intoxicated (2) while operating a motor vehicle (3) in a public

place. TEX. PENAL CODE ANN. § 49.04(a). Foley used his vehicle as a deadly weapon if

(1) its use or intended use (2) was capable of causing (3) death or serious bodily injury.

Id. § 1.07(a)(17)(B).

B.     Analysis

       1.     Driving While Intoxicated

       Foley contends that the evidence was insufficient to sustain a conviction for driving

while intoxicated. We disagree. The evidence showed that: (1) Foley=s eyes were red

and glassy; (2) his speech was slurred; (3) his breath smelled strongly of alcohol; (4) he

had to hold on to the door of his pickup truck to stand upright; (4) he admitted that he had

been driving; (5) he was geographically disoriented, thinking he was at least seventy

miles north of his actual location; (6) there was an open can of beer in his pickup truck; (7)

there was an unopened can of beer and a partially full bottle of wine in his pickup; and that

(8) Foley=s blood had .26 grams of alcohol per 100 milliliters of blood. In his defense,

                                             11
Foley argues that Officer Savino never asked Foley if he suffered a head injury, which

could explain his disorientation at the time of his arrest. Further, Foley contends that

Officer Savino used field sobriety tests that are not reliable indicators of inebriation in

persons older than sixty-five years old, such as Foley. However, viewing all of the

evidence in a light favorable to the verdict, we find that the evidence was sufficient for a

rational jury to determine that Foley was guilty of driving while intoxicated beyond a

reasonable doubt. See Jackson, 443 U.S. at 318-19; Brooks, 2010 Tex. Crim. App.

LEXIS 1240, at **25-26. We overrule this issue.

2.      Use of Vehicle as a Deadly Weapon

        Foley also argues that the evidence was insufficient to justify a deadly weapon

finding.2 The Texas Penal Code defines a Adeadly weapon@ as Aanything that in the

manner of its use or intended use is capable of causing death or serious bodily injury.@

TEX. PENAL CODE ANN. 1.07(a)(17)(B). ―To determine whether the evidence supports a

deadly weapon finding in cases involving motor vehicles, we conduct a two-part analysis.‖

Hilburn v. State, 312 S.W.3d 169, 177 (Tex. App.—Fort Worth 2010, no pet.) (citing Sierra

v. State, 280 S.W.3d 250, 255 (Tex. Crim. App. 2009)). We first ―evaluate the manner in

which the defendant used the motor vehicle during the felony.‖ Sierra, 280 S.W.3d at

255. We then ―consider whether, during the felony, the motor vehicle was capable of

causing death or serious bodily injury.‖ Id.

        2
          A deadly weapon finding is not part of a sentence. Ex parte Huskins, 176 S.W.3d 818, 820-21
(Tex. Crim. App. 2005); State v. Ross, 953 S.W.2d 748, 751 (Tex. Crim. App. 1997). While a deadly
weapon finding does affect a defendant=s eligibility for probation and parole, it does not alter the range of
punishment to which the defendant is subject, or affect the number of years assessed. Huskins, 176
S.W.3d at 821; see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (Vernon Supp. 2010) (providing that
community supervision is not available to a defendant Awhen it is shown that a deadly weapon as defined in
Section 1.07, Penal Code was used or exhibited during the commission of a felony offense . . . .@).


                                                    12
       To evaluate the manner in which the defendant used the motor vehicle, we must

determine whether the defendant’s driving was reckless or dangerous. Id. We consider

several factors to determine recklessness or dangerousness, such as: (1) intoxication;

(2) speeding; (3) disregarding traffic signs and signals; (4) driving erratically; and (5)

failure to control the vehicle. Id. at 255-56. The record here shows that Foley was

intoxicated.   The evidence established that Foley smelled of alcohol, had red and

glassy eyes, slurred speech, poor balance, and was geographically disoriented, among

other factors. The evidence also shows that Foley failed to control his vehicle, given that

he crashed into an aluminum barrier. See Kuciemba v. State, 310 S.W.3d 460, 462

(Tex. Crim. App. 2010) (finding that ―the inference‖ that an intoxicated driver caused an

accident ―is even stronger when the accident is a one-car collision with an inanimate

object.‖). Thus, the evidence is sufficient to support that Foley’s driving was reckless or

dangerous. Id.

       We now turn to the second part of the Sierra test—whether the motor vehicle could

cause death or serious bodily injury.     Sierra, 280 S.W.3d at 255.      To sustain this

finding, several Texas courts have held that there must be evidence that others were

actually endangered in the accident. See Cates v. State, 102 S.W.3d 735, 738 (Tex.

Crim. App. 2003); Drichas v. State, 219 S.W.3d 471, 476 (Tex. App.–Texarkana 2007, no

pet.); Williams v. State, 946 S.W.2d 432, 435 (Tex. App.–Fort Worth 1997, pet. dism=d).

A hypothetical potential for danger is not sufficient. Cates, 102 S.W.3d at 758. We

must Aexamine the record for evidence that there were other motorists at the >same time

and place= as the reckless driving occurred.@ Drichas, 219 S.W.3d at 476; see Williams,

946 S.W.2d at 436 (holding that a deadly weapon finding must be supported by evidence

                                            13
that Athere was someone present who was placed in danger of serious bodily injury or

death.@).

       The record here shows that when Foley wrecked, the closest person to his vehicle

was Mallett, who was sixty feet away from the crash, working inside an office building.

The next closest person, Hill, was 225 feet away. Although there was testimony that

several businesses are located along the Highway 59 service road where Foley wrecked,

there was no evidence that other motorists were on or near the road at the time of the

accident. In sum, there is no evidence in the record before us that there were other

persons or vehicles at the same Atime and place@ as Foley. Drichas, 219 S.W.3d at 476;

Williams, 946 S.W.2d at 436. No one other than Foley himself ―was placed in danger of

serious bodily injury or death.@ Williams, 946 S.W.2d at 436.

       Accordingly, we find that there was not sufficient evidence to support the Adeadly

weapon@ finding in this case. TEX. PENAL CODE ANN. 1.07(a)(17)(B). Although Foley’s

driving may have been reckless or dangerous, it could not cause death or serious bodily

injury to others because no other persons or vehicles were in the immediate vicinity of

Foley’s crash. The evidence is not sufficient for a rational jury to determine that Foley’s

vehicle was operated as a deadly weapon. See Jackson, 443 U.S. at 318-19; Brooks,

2010 Tex. Crim. App. LEXIS 1240, at **25-26. We sustain this issue.

                                     III. CONCLUSION

       We modify the trial court’s judgment to delete the deadly weapon finding, and we

affirm the judgment as modified. See TEX. R. APP. P. 43.2(b).


                                                 DORI CONTRERAS GARZA
                                                 Justice

                                            14
Concurring Memorandum Opinion
by Justice Linda Reyna Yañez.
Publish.
TEX. R. APP. P. 47.2(b)
Memorandum Opinion delivered and
filed this the 21st day of December, 2010.




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