                                 NO. 12-09-00238-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

BOBBY EARL WILLIAMS,                              §          APPEAL FROM THE 420TH
APPELLANT

V.                                                §         JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                          §        NACOGDOCHES COUNTY, TEXAS


                                   MEMORANDUM OPINION
       Bobby Earl Williams appeals his conviction for felony driving while intoxicated (DWI).
In his sole issue, Appellant contends that he received ineffective assistance of counsel at his trial.
We affirm.


                                           BACKGROUND
       On December 23, 2005, shortly before 10:00 p.m., Corporal Eric Newell of the
Nacogdoches Police Department, while with another officer, was concluding a traffic stop when
he witnessed a second car drive by him with its parking lights activated, but not its headlights.
Corporal Newell followed the second vehicle with his overhead lights on for approximately two
blocks. Before pulling over in a residential driveway, the vehicle swerved into oncoming traffic
and jerked back into the proper lane when an oncoming car approached it. Corporal Newell later
determined that Appellant was driving the vehicle at the time of the stop, and the driveway at
which Appellant stopped was his own. The other officer at the first traffic stop pulled in behind
Corporal Newell to assist him.
       Upon stopping, Appellant reached below the seat. Due to the low light conditions, the
officers asked Appellant to exit the vehicle for their safety. Appellant became argumentative and
the officers physically removed him from the vehicle. During that process, Corporal Newell
observed an empty beer can in the vehicle and noted that the floorboard was wet with what smelled
like beer. Once Appellant was outside the vehicle, he fell to the ground and would not get up.
Corporal Newell called for an ambulance.          After Appellant was examined by paramedics,
Corporal Newell interviewed him and smelled beer on his breath.                 Appellant remained
argumentative by raising his voice and using foul language. Corporal Newell performed field
sobriety tests on Appellant, concluded that Appellant failed the tests, and placed him under arrest.
Appellant refused to provide a breath sample or blood specimen to test his blood alcohol
concentration.
         In 2007, Appellant was indicted on the offense of driving while intoxicated, alleged as a
felony based on an enhancement related to Appellant’s alleged convictions for two prior felonies
and a separate enhancement for two prior DWIs. Trial counsel filed a “Motion Suggesting
Incompetency and Request for Examination.” The trial court ordered a competency examination.
The examining psychiatrist concluded that Appellant was not competent to stand trial, but that he
could be restored to competency with treatment. Appellant was released on bond and participated
in an outpatient treatment program. In March 2009, the trial court ordered a second examination
to determine if Appellant had been restored to competency. The examining psychiatrist, who was
the same psychiatrist that conducted the first exam, concluded that Appellant’s competency to
stand trial had been restored.
         After being restored to competency in 2009, Appellant pleaded not guilty to the charged
offense, and also pleaded “not true” to the enhancement allegations. The trial was held on June
30, 2009.     The jury found Appellant guilty of the charged offense, which included the
enhancement for two prior DWIs. Appellant elected for the trial court to decide his punishment.
The trial court found the prior felony enhancements to be true and sentenced Appellant to
twenty-five years of imprisonment. Appellant filed a notice of appeal. His counsel initially filed
an Anders brief, along with a motion to withdraw as appellate counsel. We struck counsel’s brief
by written per curiam order on June 30, 2010. Appellant’s counsel then filed a brief on the merits.


                              INEFFECTIVE ASSISTANCE OF COUNSEL
         In his sole issue, Appellant argues that his trial counsel rendered ineffective assistance at
his trial.
Standard of Review and Applicable Law
         To establish ineffective assistance of counsel, a defendant must show both that trial
counsel’s performance was deficient and that the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984);
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The defendant bears the burden of
proving ineffective assistance by a preponderance of the evidence. Ex parte Chandler, 182
S.W.3d 350, 354 (Tex. Crim. App. 2005); Bone, 77 S.W.3d at 833.
         To show deficient performance, a defendant must show that counsel’s performance fell
below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999). We presume trial counsel acted within the proper range of reasonable and
professional assistance and that his trial decisions were based on sound strategy. Salinas v. State,
163 S.W.3d 734, 740 (Tex. Crim. App. 2005). To overcome this presumption, any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. We will not speculate as
to the basis for counsel’s actions; thus a record that is silent on the reasoning behind counsel’s
actions is sufficient to deny relief. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref'd); see Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App.
2003).
         To show he was prejudiced by counsel’s deficient performance, a defendant must
demonstrate there is a reasonable probability that, but for his counsel's unprofessional errors, the
result of the proceeding would have been different. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.
Crim. App. 2002). “Reasonable probability” is a “probability sufficient to undermine confidence
in the outcome,” meaning “counsel's errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App.
2009). Failure to prove either deficient performance or prejudice is fatal to any complaint of
ineffective assistance.    Strickland, 466 U.S. at 700, 104 S. Ct. 2052.
         The reviewing court will not find ineffectiveness by isolating any portion of trial counsel’s
representation with the benefit of hindsight, but will judge the claim based on the totality of the
representation as it existed at the time of trial. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069;
see also Thompson, 9 S.W.3d at 813. The standard for reviewing trial counsel’s performance
“has never been interpreted to mean that the accused is entitled to errorless or perfect counsel.”
Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Finally, we note that because
the reasonableness of counsel’s choices often involves facts that do not appear in the appellate
record, the record will generally not be sufficient to show that counsel’s representation was so
deficient as to meet the first part of the Strickland standard. Smith, 286 S.W.3d at 341. Rather, an
ineffective assistance claim is better raised through an application for a writ of habeas corpus.
See Rylander, 101 S.W.3d at 110.
Discussion
         Appellant alleges that his trial counsel was ineffective on four grounds, namely that his
counsel failed to (1) object to Corporal Newell’s testimony concerning the horizontal gaze
nystagmus (HGN) test for failure to lay the proper predicate for admission of the testimony, (2)
cross examine Corporal Newell on his qualifications to administer the HGN test and the manner in
which the test was conducted, (3) object to the introduction of the jail records for failure to lay the
predicate that records were “regularly conducted” activities, and (4) revisit the competency of
Appellant to stand trial and to request a current competency examination before proceeding to
trial.
         In this case, whether trial counsel’s alleged failures show a deficiency that prejudiced
Appellant’s trial is not determinable from the record. See Smith, 286 S.W.3d at 341. Appellant
did not file a motion for new trial and call his trial counsel as a witness to explain his reasoning.
See Bone, 77 S.W.3d at 836 (stating that defense counsel should be given opportunity to explain
actions before being condemned as unprofessional and incompetent); see also Anderson v. State,
193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding that because
appellant did not call his trial counsel during motion for new trial hearing to give reasons for
failure to investigate or present mitigating evidence, record does not support ineffective assistance
claim). Thus, the record is silent as to any reasons explaining trial counsel’s actions as to the
alleged deficiencies. See Thompson, 9 S.W.3d at 814. Moreover, Appellant does not argue that
his trial counsel’s alleged shortcomings constitute a complete abdication of trial counsel’s
obligation and that there can be no reasonable basis to adopt such a position. See Smith v. State,
286 S.W.3d at 342 (“[W]e have recognized that deficiency can be the result of commission or
omission of an act . . . that no other reasonable attorney would regard as sound trial strategy.”).
         We will not speculate about the reasons for counsel’s actions. Stults, 23 S.W.3d at 208.
Because the record does not affirmatively demonstrate the alleged ineffectiveness, Appellant has
not overcome the strong presumption that counsel’s conduct fell within the wide range of
professional assistance. See Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065; Thompson, 9
S.W.3d at 814. Consequently, we conclude that Appellant has failed to meet the first prong of the
Strickland test. See Thompson, 9 S.W .3d at 813.
         Appellant’s sole issue is overruled.


                                                    DISPOSITION
         We affirm the judgment of the trial court. Without a separate order, we overrule appellate
counsel’s motion to withdraw as moot.


                                                                  SAM GRIFFITH
                                                                      Justice




Opinion delivered April 20, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)
