                             NUMBER 13-09-329-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


STEPHEN O’DONOGHUE,                                                         Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 28th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

              Before Justices Rodriguez, Benavides, and Vela
                  Memorandum Opinion by Justice Vela

      A jury convicted appellant, Stephen O’Donoghue, of felony driving while intoxicated.

See TEX . PENAL CODE ANN . §§ 49.04, 49.09(b)(2) (Vernon 2003). After finding that he had

two prior felony convictions, the jury assessed punishment at twenty-five years’

imprisonment. By three issues, appellant contends the evidence is legally and factually
insufficient to establish that he was operating the car involved in the collision, that trial

counsel rendered ineffective assistance, and that the trial court abused its discretion in

admitting lay opinion testimony. We affirm.

                                  I. FACTUAL BACKGROUND

A. State’s Evidence

       About 10:45 p.m. on March 28, 2008, three witnesses saw a one car accident occur

on the Oso Bay turnaround in Corpus Christi. The first witness, Susan Dobie, saw a car

traveling at a high rate of speed on the turnaround.          Dobie testified that she was

approximately 75-100 yards away when the accident occurred. The car jumped a concrete

barrier, went into the water, and burst into flames. Dobie testified that she never saw

anyone exit the driver’s side of the car. However, she saw a man coming up from the

rocks five minutes after the car burst into flames. She stated that from her line of sight, it

was not possible that someone else could have exited the car and swam away. Dobie was

not able to identify the appellant in court.

       The second witness, Lonnie Ribeschlaeger, testified that the lighting around the

accident scene was “pretty good.” Ribeschlaeger stated that he was approximately 100

yards away from the scene of the accident. Ribeschlaeger saw a man crawling from the

burning car. Ribeschlaeger had a view of the driver’s side of the car, but did not see

anyone else leave the car or run from the area. He testified that it was not possible for

anyone else to leave the car while it was engulfed in flames. Ribeschlaeger was not able

to identify the appellant in court.

       A third witness, Jerry Erwin, testified that he saw the accident from 75 -100 yards

away and that the car caught fire almost immediately on the driver’s front side. He

approached the car from the driver’s side and did not see anyone emerge from the driver’s
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side of the car. He testified that “before the cops got there, we seen [sic] somebody roll

out of the vehicle on the passenger’s side right near the water.” Erwin was not able to

identify the appellant in court.

         When Corpus Christi police officer Manuel Dominguez arrived at the scene, he saw

the burning car, which he identified as a Nissan Sentra, on some rocks near the water. An

injured man, whom he identified as appellant in court, was on the ground near the burning

car. While at the scene, Officer Dominguez noticed that appellant had an “odor of alcohol

coming from his breath.” Appellant told Officer Dominguez that his girlfriend and child were

in the car with him. Later, however, appellant told Officer Dominguez that his friend had

been with him in the car and fled the scene after the collision. When the flames were

extinguished, Officer Dominguez looked inside the Nissan, but did not see anyone inside

of it.

         Officer Anthony Sanders testified that he contacted appellant’s girlfriend who told

him that neither she nor her daughter were in the Nissan with appellant that night. On

cross-examination, defense counsel asked Officer Sanders, “But is it safe to say that this

man [appellant] was in excruciating pain from what you could see?” To this he answered,

“He had some pretty good injuries on his--I believe, his wrists.” After Officer Sanders said

this, defense counsel said, “Legs?” Officer Sanders stated, “I think on his legs also. And

I was maybe thinking the wrists because, you know, when you’re driving the vehicle and

you have an accident, it will break your wrists.”

         After the collision, appellant was taken to Spohn Memorial Hospital. When the

prosecutor asked Albert Soliz, a technician who worked at this hospital on the date of the

accident, “Do you remember drawing blood on this particular night on March 28, 2008?”,

he said, “No.” Soliz testified he was “relying on the lab trail,” which indicated he was the
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person who drew the blood. Mark Guerra, the manager of lab services at Spohn Memorial

Hospital, testified that State’s exhibit 21 was the lab report that included an ethyl alcohol

report as well as a urinalysis result. He testified that appellant’s blood-alcohol level was

“.227 grams per 100 milliliters.” When the prosecutor asked Guerra, “And do you know

what time these results were done?”, he said, “11:55 at night.”

B. Defense Evidence

       Appellant’s girlfriend, Tammy Rosett, testified that about 6 o’clock p.m. on March

28, 2008, appellant was hosting a barbecue at his home and had a Nissan with a “For

Sale” sign on it, sitting in his driveway. Rosette and appellant’s friend, Leslie O’Donnell,

were the only attendees at the barbecue. Rosett testified that appellant was drinking beer

and eating barbeque that evening. During the barbecue, an unidentified man asked

appellant if he could test drive the Nissan. Appellant told O’Donnell that he would “be right

back.” Rosett and O’Donnell saw appellant and the unidentified man leave together in the

Nissan. According to O’Donnell’s testimony, the unidentified man was driving the Nissan.

                                               II. DISCUSSION

A. Sufficiency of the Evidence

       In issue one, appellant contends the evidence was legally and factually insufficient

to support his conviction. Specifically, he argues that the evidence to support his operation

of the Nissan at the time of the collision was speculative.

       1. Standards of Review

       “‘In assessing the legal sufficiency of the evidence to support a criminal conviction,

we consider all the evidence in the light most favorable to the verdict and determine



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           State’s exhibit 2 was introduced into evidence without objection.
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whether, based on that evidence and reasonable inferences therefrom, a rational juror

could have found the essential elements of the crime beyond a reasonable doubt.’”

Roberts v. State, 273 S.W.3d 322, 326 (Tex. Crim. App. 2008) (citing Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual-sufficiency review, the only question to

be answered is: “Considering all of the evidence in a neutral light, was a jury rationally

justified in finding guilt beyond a reasonable doubt?” Grotti v. State, 273 S.W.3d 273, 283

(Tex. Crim. App. 2008).

       Evidence can be deemed factually insufficient in two ways: (1) “the evidence

supporting the conviction is ‘too weak’ to support the fact finder’s verdict;” or (2)

“considering conflicting evidence, the fact finder’s verdict is ‘against the great weight and

preponderance of the evidence.’” Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App.

2009) (quoting Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). When

a court of appeals conducts a factual-sufficiency review, it must defer to the jury’s findings.

Id. The court of criminal appeals has “set out three ‘basic ground rules’ implementing this

standard.” Id. (quoting Watson, 204 S.W.3d at 414). First, the appellate court must

consider all of the evidence in a neutral light, as opposed to in a light most favorable to the

verdict. Id. Second, the appellate court “may only find the evidence factually insufficient

when necessary to ‘prevent manifest injustice.’” Id. (quoting Cain v. State, 958 S.W.2d

404, 407 (Tex. Crim. App. 1997)). Third, the appellate court must explain why the

evidence is too weak to support the verdict or why the conflicting evidence greatly weighs

against the verdict. Id. Although the verdict is afforded less deference during a factual-

sufficiency review, an appellate court is not free to “override the verdict simply because it

disagrees with it.” Id.


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       Our review of a legal and factual sufficiency challenge should be examined under

the principles of review for a hypothetically correct jury charge. Grotti, 273 S.W.3d at 280-

81. “‘Such 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 v. State, 286 S.W.3d 321, 327 (Tex. Crim. App.

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

       2. Applicable Law

       Under the Texas Penal Code, “[a] person commits an offense if the person is

intoxicated while operating a motor vehicle in a public place.” TEX . PENAL CODE ANN . §

49.04(a) (emphasis added); Hartman v. State, 198 S.W.3d 829, 834 (Tex. App.–Corpus

Christi 2006, pet. dism’d). The Court of Criminal Appeals has stated that when deciding

whether a defendant was the operator of a vehicle, “the totality of the circumstances must

demonstrate that the defendant took action to affect the functioning of his vehicle in a

manner that would enable the vehicle’s use.” Denton v. State, 911 S.W.2d 388, 390 (Tex.

Crim. App. 1995).

       Here, a rational jury could have determined the following from the evidence: (1)

about 10:45 p.m. on the date in question, a car traveling at a high rate of speed left the

roadway and burst into flames; (2) the lighting around the accident scene was “pretty

good”; (3) Ribeschlaeger saw a man crawling from the burning car and did not see anyone

else leave the vehicle or run from the area; (4) Officer Dominguez saw an injured man,

whom he identified as appellant, on the ground near the burning Nissan; (5) appellant

provided inconsistent statements to Officer Dominguez about who was in the car with him

at the time of the crash; (6) when the Nissan stopped burning, Officer Dominguez looked
                                            6
inside of it and saw no other occupants; and (7) no other person besides appellant was

seen at the accident scene.

       Controverting evidence showed that: (1) appellant and an unidentified man left

appellant’s house to test drive the Nissan prior to the accident; (2) the unidentified man

drove the Nissan from appellant’s house; (3) no one saw appellant driving the Nissan prior

to the accident; (4) no one saw appellant exit the Nissan’s driver’s side door after the

accident; (5) no one testified with respect to how many people were inside the Nissan prior

to the accident; (6) no physical evidence showed that appellant was driving the Nissan prior

to impact; and (7) appellant made no admissions that he was driving the Nissan prior to

impact.

       In this case, the totality of the circumstances demonstrate that the evidence was

sufficient to support the jury’s determination that the appellant operated the vehicle in

question. His operation of the vehicle is consistent with his injuries and the testimony from

the witnesses at the accident scene.      His contradictory statements made to the police

regarding who was with him in the vehicle at the time of the accident are a circumstance

of guilt. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (stating that

“inconsistent statements, . . . are probative of wrongful conduct and are also circumstances

of guilt.”). The jury was entitled to disbelieve Rosett’s and O’Donnell’s testimony that

appellant and the unidentified man left appellant’s house to test drive the Nissan. See

Lafoon v. State, 543 S.W.2d 617, 620 (Tex. Crim. App. 1976); see also Roy v. State, 997

S.W.2d 863, 868 (Tex. App.–Fort Worth 1999, pet. ref’d).

     Viewing the evidence in the light most favorable to the verdict, it was legally sufficient

for a rational jury to find beyond a reasonable doubt that appellant was driving the Nissan

at the time of the accident. Viewing all of the evidence in a neutral light, we also conclude
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that the evidence supporting a finding that appellant was driving the Nissan at the time of

the accident is not so weak that the jury’s determination is clearly wrong and manifestly

unjust, or that the verdict is against the great weight and preponderance of the evidence.

See Zavala v. State, 89 S.W.3d 134, 140 (Tex. App.–Corpus Christi 2002, no pet.); Green

v. State, 640 S.W.2d 645, 648 (Tex. App.–Houston [14th Dist.] 1982, no pet.). Issue one

is overruled.

B. Ineffective Assistance of Trial Counsel.

       In issue two, appellant contends that trial counsel rendered ineffective assistance

by failing to object to medical records on the ground that the State failed to prove a chain

of custody to support admission of the results of appellant’s blood test.

       1. Standard of Review

       A party complaining of ineffective assistance of counsel must meet the two-pronged

test set forth in Strickland v. Washington, 466 U.S. 668 (1984). In order to establish that

counsel’s performance was deficient, an appellant must prove, by a preponderance of the

evidence, that: (1) counsel’s representation fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel’s deficiency,

the result of the trial would have been different. Id. at 687; Hernandez v. State, 726

S.W.2d 53, 78 (Tex. Crim. App. 1986); Jaynes v. State, 216 S.W.3d 839, 851 (Tex.

App.–Corpus Christi 2006, no pet.). Whether an appellant has met the two-pronged test

is judged by the totality of representation, not by any isolated acts or omissions. Jaynes,

216 S.W.3d at 851. The appellant has the burden to prove ineffective assistance of

counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App.


                                             8
1984)). Our review of counsel's representation is highly deferential in that we will find

ineffective assistance only if the appellant overcomes the strong presumption that his

counsel's conduct fell outside the wide range of reasonable professional assistance. See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. The right to "reasonably effective

assistance of counsel" does not guarantee one’s right to errorless counsel or counsel

whose competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824

(Tex. Crim. App. 1983). Moreover, the acts or omissions that form the basis of an

appellant's claim must be supported by the record. Thompson, 9 S.W.3d at 814; Jaynes,

216 S.W.3d at 851. Without any explanation of trial counsel’s actions in the record, courts

should not find trial counsel’s performance deficient unless the challenged conduct was

“so outrageous that no competent attorney would have engaged in it.” Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001), see Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005).

       2. Analysis

       Appellant’s ineffective-assistance claim rests primarily on trial counsel’s failure to

object to the admission of his medical records during the guilt-innocence phase. He

argues that by failing to object to the medical records, when the State allegedly failed to

prove the chain of custody, trial counsel did not preserve error regarding the improper

admission of this evidence, causing prejudice. However, it can be inferred that even if trial

counsel challenged evidence or testimony at trial, when the State clearly could have

provided an expert to give further credence to the evidence in question, it would not render

counsel ineffective. See Easley v. State, 978 S.W.2d 244, 251 (Tex. App.–Texarkana

1998, pet. ref’d) (on rebuttal, the State is entitled to present any evidence that tends to

refute a defensive theory and evidence introduced to support that theory).The record

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before us is silent as to the reasons why appellant’s counsel did not object to the

admission of certain evidence. Furthermore, even if the evidence of custody and care

contained discrepancies, including gaps and minor theoretical breaches, such

discrepancies go to the weight of the evidence and not its admissibility. See Medellin v.

State, 617 S.W.2d 229, 232 (Tex. Crim. App. 1981); see also Atkins v. State, 515 S.W.2d

904, 906 (Tex. Crim. App. 1974). Here, trial counsel’s failure to object to the admission of

certain evidence cannot be considered “so outrageous” that a competent attorney would

have done otherwise. See Goodspeed, 187 S.W.3d at 392. Consequently, appellant has

not proven by a preponderance of the evidence that trial counsel’s representation fell below

an objective standard of reasonableness as outlined in the first prong of Strickland, and

therefore we need not consider prong two of the standard. See Strickland, 466 U.S. at

687. Issue two is overruled.

C. Witness Testimony

         In issue three, appellant contends that the trial court abused its discretion in

admitting lay opinion testimony concerning whether anyone else could have exited the

Nissan, other than appellant. Specifically, appellant argues that the trial court erred when

it overruled trial counsel’s objections to lay opinion testimony made on the basis of

speculation.

         1. Standard of Review & Applicable Law

         We review a trial court’s ruling on the admissibility of evidence under an abuse of

discretion standard, and we should not reverse a trial court’s ruling unless it falls outside

the zone of reasonable disagreement. See Burden v. State, 55 S.W.3d 608, 615 (Tex.

Crim. App. 2001); see also Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990).
                                             10
       Rule of evidence 701 states that a non-expert “witness'[s] testimony in the form of

opinions or inferences is limited to those opinions or inferences which are (a) rationally

based on the perception of the witness and (b) helpful to a clear understanding of the

witness' testimony or the determination of a fact in issue.” TEX . R. EVID . 701. Additionally,

Rule of evidence 602, states that witnesses “may not testify to a matter unless evidence

is introduced sufficient to support a finding that the witness has personal knowledge of the

matter.” TEX . R. EVID . 602.

       2. Analysis

       Whether a witness’s opinion meets the fundamental requirements of the rule is

within the trial court's discretion, and a decision regarding admissibility should be

overturned only if the court abuses its discretion. Fairow v. State, 943 S.W.2d 895, 901

(Tex. Crim. App. 1997).         A witness’s opinion will satisfy the personal knowledge

requirement if it is an interpretation of the witness's objective perception of events. Id. at

899 (citing Doyle v. State, 875 S.W.2d 21, 23 (Tex. App.–Tyler 1994, no pet.)). Further,

if the record supports the trial court's decision to admit or exclude an opinion under rule

701, there is no abuse, and the appellate court must defer to that decision. See Osbourn

v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002); Powell v. State, 63 S.W.3d 435 (Tex.

Crim. App. 2001).     With the foregoing in mind, we are to determine whether the trial court

erred in allowing opinions from two witnesses with respect to whether a second occupant

could have been in the Nissan and exited without being seen. Appellant argues that such

testimony was an impermissible speculative lay witness opinion. Taking into account that

the witnesses were the only people present for the accident, other than the appellant, their

rationally based perceptions would put them in the best position to judge how likely the

presence or non-presence of a second occupant would be. Furthermore, such opinions

                                              11
were based on the witness’ personal knowledge of the matter, including details of the fire

being on the driver’s side of the Nissan, and other such factors which together formed the

basis of their objective perceptions of events and lay opinion testimony. Considering that

the record also reveals other sources of evidence that indicate that appellant was the sole

occupant in the Nissan, we cannot conclude that the admission of lay opinion testimony

was comprised of the witness’s speculative opinions but goes instead to their rationally

based perceptions of the event, which provide a clear understanding of the facts in issue.

Issue three is overruled.

                                     III. Conclusion

       We affirm the judgment of the trial court.




                                                    ROSE VELA
                                                    Justice


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

Delivered and filed
the 15th day of July, 2010.




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