Opinion filed May 27, 2016




                                          In The


          Eleventh Court of Appeals
                                       __________

                                 No. 11-14-00125-CR
                                     __________

          CLAYBORNE LEVESTER BAITY, JR., Appellant
                           V.
               THE STATE OF TEXAS, Appellee

                      On Appeal from the 42nd District Court
                              Taylor County, Texas
                          Trial Court Cause No. 24927A


                       MEMORANDUM OPINION
      After Clayborne Levester Baity, Jr. pleaded guilty to the offense of driving
while intoxicated, felony repetition, the trial court adjudged him guilty of that
offense.1 The trial court assessed punishment at confinement for ten years, ordered
the sentence in this case to run consecutively to a sentence from another conviction,
and sentenced Appellant accordingly. Appellant alleges in a single issue that his
trial counsel was ineffective. We affirm.




      1
       See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2015).
                  I. Evidence at Plea Hearing and Motion for New Trial
        Officer Joshua Ward initiated a traffic stop of the vehicle being driven by
Appellant. Officer Ward observed that Appellant had slightly glazed eyes and
slightly slurred speech. He smelled alcohol coming from Appellant. Appellant’s
“performance” on standard field sobriety tests was “poor.” Given his observations,
Officer Ward arrested Appellant for driving while intoxicated. According to the
subsequent criminal complaint, “[a] mandatory blood test was administered,” and
the results showed a blood alcohol content of 0.10. There is no evidence in the
record to indicate whether Appellant did or did not consent to the warrantless
mandatory blood test.
        Appellant judicially confessed and pleaded guilty as charged. After the trial
court accepted the guilty plea, assessed punishment, and sentenced Appellant,
Appellant moved for a new trial based upon his claim that he had received ineffective
assistance of counsel at trial. Appellant alleged that his trial counsel was deficient
because he promised Appellant a more favorable sentence than the one Appellant
actually received. Appellant’s trial counsel testified at the hearing on the motion for
new trial.2 The majority of the questions at the hearing revolved around trial
counsel’s alleged promise to obtain a more favorable sentence for Appellant than
what Appellant had received. Toward the end of the hearing, however, appellate
counsel asked about the legality of the warrantless blood draw. Appellant’s trial
counsel testified that he never considered filing any pretrial motions and that he and
Appellant jointly decided that Appellant should plead guilty and hope for leniency
from the trial court. Appellant’s trial counsel admitted that he was not aware of the
United States Supreme Court’s decision in Missouri v. McNeely,3 a case that, at the


        2
          We note that appointed counsel initially represented Appellant but that that lawyer’s performance
is not the subject of Appellant’s ineffective-assistance-of-counsel claim.
        3
         Missouri v. McNeely, 133 S. Ct. 1552 (2013).
                                                   2
time, cast doubt on the legality of the warrantless blood draw in Appellant’s case.
The trial court denied the motion for new trial, and Appellant filed this appeal.
                               II. Standard of Review
      The standard of review for a claim of ineffective assistance of counsel is well
established. See Strickland v. Washington, 466 U.S. 668, 686 (1984). Under that
standard, we look to see whether trial counsel’s conduct “so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Id.; see Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim.
App. 2009). The Strickland test has two prongs: (1) a performance standard and
(2) a prejudice standard. 466 U.S. at 687. For the performance standard, the
complainant must show that his trial counsel’s performance was deficient. Id. Put
another way, the complainant must show that trial counsel’s performance fell below
an objective standard of reasonableness. Id. at 688. For the prejudice standard, the
complainant must show that there is a reasonable probability that the outcome would
have differed but for trial counsel’s errors. Wiggins v. Smith, 539 U.S. 510, 534
(2003); Strickland, 466 U.S. at 694.       Reasonable probability is defined as a
“probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. A failure to make a showing under either prong of the Strickland test
defeats a claim of ineffective assistance of counsel. Perez v. State, 310 S.W.3d 890,
893 (Tex. Crim. App. 2010).
      When, as here, the complainant has moved for new trial on grounds of
ineffective assistance of counsel, we review the trial court’s denial of that motion
for an abuse of discretion. Riley v. State, 378 S.W.3d 453, 457–58 (Tex. Crim. App.
2012). Accordingly, in this case, we do not apply the aforementioned Strickland test
de novo. See id. Rather, we review the trial court’s application of the Strickland
test under the abuse of discretion standard. See id. Under the abuse of discretion
standard, we reverse only if the decision was so clearly wrong as to lie outside the
                                          3
zone of reasonable disagreement. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim.
App. 2009). We view the evidence in the light most favorable to the trial court’s
ruling and presume that the trial court made all reasonable findings of fact against
the losing party. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
Thus, a trial court abuses its discretion only when no reasonable view of the record
could support its ruling. Id.
                                            III. Analysis
        Appellant first asserts that his trial counsel failed to investigate the law and
facts and to inform him of his rights and options under the law. Second, Appellant
asserts that his trial counsel failed to file a pretrial motion to suppress blood evidence
obtained in violation of the Fourth Amendment. Although presented as two distinct
arguments, we see Appellant’s arguments as a single issue: Was trial counsel
ineffective because his failure to investigate the law and facts of the case led to his
failure to file a motion to suppress?4
        The assessment of whether a defendant received effective assistance of
counsel must be made according to the facts of each case. Ex parte Scott, 581
S.W.2d 181, 182 (Tex. Crim. App. 1979). An appellate court looks to the totality of
the representation and the particular circumstances of each case in evaluating the
effectiveness of counsel. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App.
1991) (citing Ex parte Raborn, 658 S.W.2d 602, 605 (Tex. Crim. App. 1983)).
Absent specific explanations for counsel’s decisions, a record on direct appeal will
rarely contain sufficient information to evaluate an ineffective assistance claim.
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
        In this case, trial counsel testified at the hearing on the motion for new trial
and, thus, developed some evidence in the record. Appellant argues that trial


        4
         Appellant seems to acknowledge this reasoning. In his brief, he left discussion of the prejudice
prong of Strickland to his argument related to trial counsel’s failure to file a motion to suppress.
                                                      4
counsel’s testimony at the hearing demonstrated deficient performance. Appellant
directs us to the following exchange between his appellate counsel and his trial
counsel to support Appellant’s allegation of ineffective assistance:
             Q: Okay. What about -- was there any other plan discussed of
      trying the case, anything like that?

              A: No. When -- when [Appellant] hired me, he -- he had told me
      that . . . he was waiting on the breath test to come back. And we looked
      at the breath test and it was a ten. He said, “I just want to work out a
      plea.” And he -- we never discussed trying the case because of the --
      well, I say breath test. It was a blood test, I believe.

             Q: Right. Blood test.

             A: And it was -- it was a matter of getting ready and doing a PSI
      [presentence investigation] and going to the judge and trying to impress
      the judge with -- with our PSI.

             Q: Did you ever discuss filing any pretrial motions with him?

             A: No.

             Q: Okay.

             A: No. We -- we never discussed anything but a plea all the way.

           Q: Okay. Are you aware of the -- the McNeely decision by the
      Supreme Court, United States?

             A: No.

            Q: Where there -- they suppressed, you know, the blood draws
      without a warrant are viewed, in some instances, at least,
      unconstitutional and in violation of the Fourth Amendment?

             A: I’m not familiar with that.

           Q: Okay. So did you -- in this case, you’re aware they did a
      mandatory blood draw, right, because of the third DWI?
                                          5
             A: Doesn’t surprise me. I was not aware of it. I was just aware
      that they took blood.

             Q: Okay.

            A: I don’t think he ever informed me that it was without his
      consent.

             Q: Okay. And then in terms of the -- the complaint -- you’ve
      seen the complaint, right –

             A: Uh-huh.

             Q: -- in the case? And if I represented to you that the complaint
      says that there was a mandatory blood test administered, you believe
      that to be true?

             A: Yes, sir.

            Q: Okay. And so there was no warrant issued for the taking of
      blood in this case, correct, that you know of?

             A: Not that I know of.

Appellant also points to trial counsel’s admission that he “didn’t get any discovery”
but, instead, merely “discussed [the case] with [the district attorney] in their office.”
We assume, without deciding, that trial counsel’s admissions that he was unaware
of the facts and law surrounding the case and his failure to file a motion to suppress
constituted deficient performance. But, in order to prevail on his ineffective-
assistance-of-counsel claim, Appellant must still show that the deficient
performance by trial counsel prejudiced his defense. See Bone, 77 S.W.3d at 833
(citing Strickland, 466 U.S. at 687).
      Any allegation of ineffectiveness must be firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v.

                                           6
State, 9 S.W.3d 808, 814 (Tex. Crim App. 1999). Appellant bears the burden to
provide a sufficient record that affirmatively demonstrates the alleged
ineffectiveness. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Thompson, 9 S.W.3d at 813. To prevail on a claim of ineffective assistance of
counsel based on trial counsel’s failure to file a motion to suppress, Appellant is
required to show that the trial court would have granted the motion. Jackson v. State,
973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (citing Roberson v. State, 852 S.W.2d
508, 510–12 (Tex. Crim. App. 1993)). To meet this burden, Appellant must have
produced evidence that defeated the presumption of proper police conduct. Id.
Appellant must “develop facts and details of the search sufficient to conclude that
the search was invalid.” Id. Mere “questions about the validity of the search” are
not enough. Id.
      Appellant argues that, “[i]f a motion to suppress had been filed in this cause,
the trial court would have granted the motion.” We disagree. Appellant’s argument
relied on the facts that indicated “[a] mandatory blood test was administered.”
Appellant assumes that a warrantless mandatory blood draw is per se illegal and
excludable. We have, however, previously noted that the mandatory blood draw
statute does not direct law enforcement to illegally obtain a blood sample; rather, the
statute simply dictates that a blood sample must be taken. See Forsyth v. State, 438
S.W.3d 216, 224–25 (Tex. App.—Eastland 2014, pet. ref’d). Any breath or blood
sample must still be acquired by a valid warrant or under a recognized exception to
the warrant requirement. Id. at 224 (declining to hold that an officer is not required
to obtain a warrant for the blood draw or show that the blood draw was conducted
under a recognized exception to the warrant requirement). Accordingly, there are
instances in which a warrantless mandatory blood sample can be taken legally, such
as when a suspect consents to provide a blood sample. Id.


                                          7
      In this case, after examining the record, we cannot determine whether
Appellant did or did not consent to have a specimen of blood drawn. Therefore, we
cannot agree with Appellant’s assertion that the trial court would have granted a
motion to suppress the blood draw evidence because, if Appellant did consent to the
blood draw, then a motion to suppress would not have been granted. See Reasor v.
State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000) (consent is a valid, recognized
exception to the warrant requirement). Appellant argued at the hearing on the
motion for new trial that, had trial counsel “filed a motion to suppress on the basis
of a warrantless blood draw, it’s very likely that the blood evidence would have been
suppressed” (emphasis added). But because Appellant failed to develop the record
sufficiently enough for us to conclude that Appellant did not consent to the blood
draw, if in fact he did not, we cannot conclude that he was prejudiced by trial
counsel’s failure to file a motion to suppress. See Jackson, 973 S.W.2d at 957. Such
failure to develop the record precludes us from holding that, on the record before us,
“the search was invalid.” Id. Accordingly, we cannot say that the trial court abused
its discretion when it denied Appellant’s motion for new trial.         We overrule
Appellant’s sole issue on appeal.
                              IV. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE
May 27, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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