                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00553-CR


STEVEN DEWAYNE KNIGHT                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Steven Dewayne Knight appeals his conviction for felony driving

while intoxicated (DWI). We affirm the trial court’s judgment.




      1
       See Tex. R. App. P. 47.4.
                                  I. Background

      On May 8, 2011, Knight was at a restaurant when the owner of the

restaurant noticed that Knight appeared to be intoxicated. Knight was alone.

Knight began “stumbling” out of the restaurant to get in his car, and the

restaurant owner called the police. Officer Frank Carroll responded to the call

and quickly located Knight’s car.        Officer Carroll saw Knight pull into a

convenience store and stop at a gasoline pump. Officer Carroll parked his car

behind Knight’s, and Knight got out of the driver’s side of the car and began

walking toward Officer Carroll. Knight smelled of alcohol, slurred his words, kept

his hand on his car for balance, and began to urinate on himself while talking to

Officer Carroll.    Knight told Officer Carroll that his driver’s license had been

suspended, but gave him a state-issued identification card. He also told Officer

Carroll he was not driving.

      Officer Carroll checked Knight’s identification information and determined

that Knight had two prior DWI convictions. Knight refused to perform the field

sobriety tests. Officer Carroll put Knight in handcuffs and began taking him to the

patrol car.        At this point, Knight became “belligerent,” “vulgar,” and

“argumentative.” For example, Officer Carroll testified that Knight stated “he was

going to kick my a[--]” and that “he was going to f[---] my wife.” Officer Carroll

took Knight to have his blood drawn at a hospital, where it was discovered

Knight’s blood alcohol concentration was four times the legal limit. See Tex.

Penal Code Ann. § 49.01(2)(B) (West 2011).


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       Knight was indicted for felony DWI based on his two prior DWI convictions.

See id. §§ 49.04(a), 49.09(b)(2) (West Supp. 2012). Specifically, the indictment

charged that Knight “did . . . drive and operate a motor vehicle in a public place

while . . . intoxicated.”

       At trial, Knight’s defensive theory was that he was not the driver. Indeed,

the keys were not in the car when police officers inventoried the car after Knight’s

arrest, and Knight did not have the keys when he arrived at the jail. 2 The State

contended during closing arguments that Knight’s assertion that he was not

driving was not credible:

       [I]f in fact I was looking at going to prison for a DWI, and I was not
       driving, I wouldn’t have told Officer Carroll that statement one time
       when he originally made contact with me that I wasn’t driving; I
       would have been saying nothing but, “I was not driving. I was not
       driving.” That’s all he would have heard on the way to the
       Springtown Police Department, that’s all he would have heard on the
       way to the Weatherford Regional Hospital, that’s all the other officer
       would have heard when he came up to assist with the blood draw.
       That’s all the phlebotomist would have heard. “I was not driving.”
       That’s all you would have heard from me, if, in fact, that were true
       and that wasn’t a lie.

The jury found Knight guilty.

       At punishment, Knight pleaded true to the enhancement paragraphs, which

alleged that Knight previously was convicted of DWI and aggravated assault with




       2
        This is the only evidence in the record that suggests Knight was not alone
in the car. As noted above, Officer Carroll saw Knight get out of the driver’s side
of his car. Further, Knight was alone before he got in his car.


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a deadly weapon. The jury assessed Knight’s punishment at confinement for life.

See id. § 12.42(d). This appeal followed.

                       II. Admission of Knight’s Statement

        In his first point, Knight argues that the trial court abused its discretion by

admitting his statement regarding Officer Carroll’s wife because it was

inadmissible character evidence and was overly prejudicial. Before eliciting the

disputed testimony from Officer Carroll, Knight objected that such evidence was

not relevant and was too prejudicial. See Tex. R. Evid. 403, 404(b). The trial

court    overruled   the   objection,   concluding    that   the   statements    were

“contemporaneous with the arrest” and “go to the probative value of whether or

not his mental faculties are there.” We review the trial court’s admission of the

statement under an abuse-of-discretion standard. See Lum v. State, 903 S.W.2d

365, 371 (Tex. App.—Texarkana 1995, pet. ref’d).

        The trial court did not abuse its discretion by admitting the statement over

Knight’s objection under rule 403. Knight’s demeanor—including his threatening

statements to Officer Carroll, his slurred speech, and his lack of motor control—

was directly relevant to the issue of intoxication. See Jones v. State, 795 S.W.2d

171, 175 (Tex. Crim. App. 1990); Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex.

Crim. App. 1985). Thus, even though Knight’s statement about Officer Carroll’s

wife arguably was prejudicial, such prejudice was not outweighed by its probative

value to an issue to be submitted to the fact-finder. See State v. Mechler, 153

S.W.3d 435, 440 (Tex. Crim. App. 2005).


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      Likewise, the trial court did not abuse its discretion by admitting Knight’s

statement over Knight’s rule 404(b) objection.       Knight argues that the only

probative value of the statement lies in its support of an inference of character

conformity; thus, it is inadmissible under rule 404(b). See, e.g., Montgomery v.

State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh’g).

      Indeed, an accused cannot be tried for some collateral crime or for being a

criminal generally. See Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App.

1983). To introduce evidence of other crimes, wrongs, or acts, the proponent of

the evidence must satisfy the trial court that the other crime, wrong, or act has

relevance apart from its tendency to prove character conformity; that it tends to

establish some elemental fact, such as identity or intent; that it tends to establish

some evidentiary fact (such as motive, opportunity, or preparation) leading

inferentially to an elemental fact; or that it rebuts a defensive theory by showing,

for example, absence of mistake or accident. See Montgomery, 810 S.W.2d at

387–88; see also Tex. R. Evid. 404(b).       Evidence of an extraneous offense,

wrong, or act that logically serves the purpose of proving motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident

is relevant beyond its tendency to prove the character of a person to show that

he acted in conformity therewith. See Montgomery, 810 S.W.2d at 387. Here,

as noted by the trial court, the evidence was relevant to show Knight’s loss of

mental faculties due to intoxication at the time of the traffic stop. Tex. Penal

Code Ann. § 49.01(2)(A); see Lopez v. State, No. 10-11-00115-CR, 2013 WL


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765711, at *7 (Tex. App.—Waco Feb. 28, 2013, no pet.) (mem. op., not

designated for publication); Saxer v. State, 115 S.W.3d 765, 778–80 (Tex.

App.—Beaumont 2003, pet. ref’d); Smith v. State, No. 09-97-00175-CR, 1999

WL 64262, at *2 (Tex. App.—Beaumont Feb. 10, 1999, no pet.) (not designated

for publication). Thus, the evidence was admissible under rule 404(b), and the

trial court did not abuse its discretion in its admission. We overrule point one.

                     III. Ineffective Assistance of Counsel

      In his second point, Knight argues that his trial counsel was constitutionally

ineffective because he failed to object to the State’s closing jury argument, which

commented on his post-arrest silence.        To establish ineffective assistance of

counsel, the appellant must show by a preponderance of the evidence that his

counsel’s representation fell below the standard of prevailing professional norms

and that there is a reasonable 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); Davis v. State, 278 S.W.3d 346, 352

(Tex. Crim. App. 2009). In other words, for a claim of ineffective assistance of

counsel to succeed, the record must demonstrate both deficient performance by

counsel and prejudice suffered by the defendant. Menefield v. State, 363 S.W.3d

591, 592 (Tex. Crim. App. 2012). 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 v. State,




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163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001).

      Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.

Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813. This statement

is true with regard to the deficient-performance prong of the inquiry when

counsel’s reasons for failing to do something do not appear in the record.

Menefield, 363 S.W.3d at 593; 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). Trial counsel “should ordinarily be afforded an opportunity to explain his

actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 593

(quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial

counsel is not given that 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. (quoting Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003)).

      Here, it is clear that counsel’s failure to object fell within the wide range of

reasonable representation our standard of review presumes because the State’s

arguments were in direct response to Knight’s defensive theory—that he was not

the driver—and were not a comment on Knight’s post-arrest silence.               See

Hernandez v. State, 939 S.W.2d 692, 695 (Tex. App.—Fort Worth 1997, pet.


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ref’d) (holding State’s argument, which referred to defendant’s failure to explain

his theory that someone else committed the crime, was not a comment on

defendant’s failure to testify); Mowbray v. State, 788 S.W.2d 658, 665 (Tex.

App.—Corpus Christi 1990, pet. ref’d) (holding State’s argument referencing

defendant’s election not to testify was either a restatement of the charge or

answer to defense argument), cert. denied, 498 U.S. 1101 (1991). See generally

Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992) (listing permissible

areas of jury argument, including answering opposing counsel’s argument), cert.

denied, 510 U.S. 829 (1993). Therefore, the record presented on direct appeal

does not show deficient performance by counsel, which is fatal to Knight’s

ineffective-assistance-of-counsel claim. We overrule point two.

                                 IV. Conclusion

      Having overruled Knight’s two points, we affirm the trial court’s judgment.




                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

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

DELIVERED: May 23, 2012




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