             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00208-CR
     ___________________________

   ROBYN DYAN SOWERS, Appellant

                     V.

          THE STATE OF TEXAS


On Appeal from County Criminal Court No. 10
           Tarrant County, Texas
          Trial Court No. 1527882


 Before Sudderth, C.J.; Kerr and Womack, JJ.
   Memorandum Opinion by Justice Kerr
                            MEMORANDUM OPINION

       A jury convicted Appellant Robyn Sowers of misdemeanor driving while

intoxicated (DWI); the trial court sentenced her to 75 days in the Tarrant County Jail.

She now appeals, arguing in a single issue that her trial counsel was ineffective. We

will affirm.

                                     Background

       In the early morning hours of November 14, 2017, Officer Arnold, a night-

shift patrol officer for the City of Hurst, Texas, saw a black truck drifting and weaving

as it went down the highway in front of him. After observing several traffic violations,

Officer Arnold pulled the truck over. At trial, the jury watched the dashcam video,

which included footage of the truck’s erratic driving, the stop itself, and the driver

Sowers’s eventual arrest.

       Officer Arnold described Sowers as having “glassy” eyes. And although she

was driving in Hurst, which is northeast of Fort Worth, she claimed to be on her way

from Burleson heading to Springtown—towns that are, respectively, to the south and

northwest of Fort Worth. As Officer Arnold put it, Sowers was “definitely off course

by a significant amount.” Sowers also told Officer Arnold that she had taken Nyquil.

       Sowers performed poorly on the standardized field-sobriety tests he then

administered to her, displaying all six intoxication clues on the horizontal-gaze

nystagmus test, seven of eight during the walk-and-turn test, and four of four

intoxication clues when taking the one-leg-stand test.

                                           2
       Based on all these things, Officer Arnold arrested Sowers for suspicion of

DWI. A resulting blood draw, to which Sowers consented, revealed the presence of

methamphetamine in her system.

       A unanimous jury found Sowers guilty of misdemeanor DWI. See Tex. Penal

Code Ann. § 49.04. In accordance with Sowers’s earlier election to let the trial court

decide any punishment, the trial court sentenced her to 75 days in the Tarrant County

Jail. Sowers did not file a motion for new trial.

                                    Issue on Appeal

       Sowers argues in her lone issue that she received ineffective assistance of

counsel resulting from the cumulative effect of five different failings—none of which,

she concedes, separately “rises to the level of ineffectiveness demanding a reversal of

the cause”:

   • not objecting to Officer Arnold’s testimony about certain of Sowers’s post-
     arrest statements because they were not electronically recorded and admitted
     into evidence, as Texas law requires;

   • not objecting to expert toxicology evidence implying that Sowers was an
     experienced methamphetamine user;

   • failing to seek a limiting instruction for (unspecified) evidence admitted under
     rules 403 and 404(b) of the Texas rules of evidence;

   • not objecting to improper closing argument by the State; and

   • introducing evidence of Sowers’s past criminal history during the punishment
     phase.




                                             3
                                     Applicable Law

       To prevail on an ineffective-assistance claim, a defendant must show two

things: (1) that counsel’s performance was deficient and (2) that the deficient

performance deprived him or her of a fair trial. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984); Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim. App.

2017). An ineffective-assistance claim must be “firmly founded” in a record that

“affirmatively demonstrate[s]” that the claim is meritorious. Gomez v. State, 552 S.W.3d

422, 432 (Tex. App.—Fort Worth 2018, no pet.) (quoting Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999)). The defendant must prove by a preponderance of

the evidence that counsel was ineffective. Thompson, 9 S.W.3d at 813.

       The first Strickland prong, deficient performance, requires a defendant to

establish that counsel’s performance fell below an objective standard of

reasonableness—that is, that counsel’s actions did not meet the objective norms for

professional conduct of trial counsel. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002). The second prong, prejudice to the defense, calls for a showing that but

for counsel’s deficient performance, the trial’s outcome was reasonably likely to have

been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2069; Thompson, 9 S.W.3d at

812.

       Because the record is usually inadequately developed and “cannot adequately

reflect the failings of trial counsel” in a way that allows us to “fairly evaluate the merits

of such a serious allegation,” it’s a “rare case”—as Sowers acknowledges—in which

                                             4
direct appeal is a satisfactory vehicle for assessing ineffectiveness. Lopez v. State,

343 S.W.3d 137, 143 (Tex. Crim. App. 2011); see also Gomez, 552 S.W.3d at 432. As the

court of criminal appeals has said repeatedly, “claims of ineffective assistance of

counsel are generally not successful on direct appeal and are more appropriately urged

in a hearing on an application for a writ of habeas corpus.” Lopez, 343 S.W.3d at 143.

Without a developed record, counsel should be found ineffective “only if his conduct

was ‘so outrageous that no competent attorney would have engaged in it.’” Prine,

537 S.W.3d at 117 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005)).

                                           Analysis

      Failing to object to Officer Arnold’s testimony about certain post-arrest statements. Sowers’s

first instance of ineffective assistance involves Officer Arnold’s trial testimony about

voluntary statements Sowers made while in custody and after receiving the Miranda

warnings. See Miranda v. Arizona, 384 U.S. 436, 444–45, 86 S. Ct. 1602, 1612 (1966).

Sowers claims that her counsel should have objected because article 38.22 of the code

of criminal procedure was not complied with. See Tex. Code Crim. Proc. Ann.

art. 38.22, § 3 (forbidding the use, in a criminal proceeding, of an accused’s oral

statement “made as a result of custodial interrogation” unless (among other things)

the statement was electronically recorded and admitted into evidence). Sowers asserts

that “[n]o such recording was made and no such electronic recording was admitted

into evidence.”

                                                5
       The State points out that Sowers is factually mistaken: her post-arrest

statements were in fact recorded, admitted into evidence as part of State’s Exhibit 3,

and published to the jury before Officer Arnold started to recount their conversation.

We have reviewed the relevant portions of the electronic recording and agree with the

State. Sowers’s counsel had no reason to object to Officer Arnold’s testimony under

article 38.22.

       Failing to object to expert toxicology evidence implying that Sowers was an experienced

methamphetamine user. Sowers argues that her counsel was ineffective for not objecting

to allegedly prejudicial testimony of the chief toxicologist for the Tarrant County

Medical Examiner’s office. Conceding that Dr. Johnson’s testimony about the results

of Sowers’s blood testing was “perfectly proper,” Sowers takes issue with his

additional testimony about nanogram levels of methamphetamine in the bloodstream

and how they might affect “novice” and “tolerant” users differently, claiming that this

testimony clearly implied that she was not a novice.

       But the context of the complained-of exchange shows that Dr. Johnson was

discussing nanogram levels and their possible effects in a generalized way without

necessarily implying anything about Sowers’s experience one way or another:

             Q. Are you able to say by looking at [Sowers’s test result of
       614 nanograms per milliliter] whether that’s a high or low amount of
       methamphetamine?

             A. Well, it could certainly be fatal in a—in a novice user so the
       number, again, doesn’t mean a lot for any given person. But we start to
       worry about—in a postmortem case, we start to worry about overdose

                                              6
      with numbers above 500 nanograms per milliliter, but in a tolerant user,
      they could easily have three times as much in them and—and would not
      be concerned about dying.

             ...

              Q. Well, like amphetamine, with methamphetamine there’s no—
      there’s no .08, there’s no, like, per se standard similar—like the State
      legislature hasn’t said there’s a .08 similar to alcohol.

             A. There is not, no. Again, any legal—you can’t assign any specific
      side effect to any person based only on the number.

             Q. Okay.

             A. So there is no legal limit for any drug other than ethanol.

            Q. Do you have an opinion as to the amount of which a person
      should have in their system if they choose to operate a vehicle?

             A. You shouldn’t have any.

             Q. So zero?

              A. Yes. Any—any amount above zero makes it dangerous to
      drive. . . .

The crux of Dr. Johnson’s testimony was that any amount of methamphetamine

impaired a person’s ability to drive safely. The amount that he found in Sowers was

potentially dangerous for a novice but comparatively low for a tolerant user. His point

was not that Sowers was one or the other but that methamphetamine was present.

The actual amount did not correlate to specific side effects or necessarily to a

particular drug-use history.

      Whatever Sowers’s drug history was, her driving suggested that she did not

tolerate this particular amount well. Expert opinion even about a particular


                                           7
defendant’s individual drug or alcohol tolerance can be admissible. See Brazda v. State,

No. 14-97-01278-CR, 1999 WL 717725, at *3 (Tex. App.—Houston [14th Dist.] Sept.

16, 1999, no pet.) (not designated for publication) (concluding that trial court did not

abuse its discretion in allowing expert’s testimony about defendant’s alcohol tolerance

because that opinion reflected on defendant’s loss of mental or physical faculties). On

this undeveloped record, we cannot say that counsel’s failure to object to Dr.

Johnson’s general testimony was “so outrageous that no competent attorney” would

have similarly kept quiet, Prine, 537 S.W.3d at 117, and Sowers has not cited us to any

authority so holding.

      Failing to seek a limiting instruction for extraneous-offense evidence admitted under Texas

Rules of Evidence 403 and 404(b). Here, Sowers argues in a single short paragraph that

her counsel forfeited error by failing to request a limiting instruction to evidence

admitted under rules of evidence 403 and 404(b). See Tex. R. Evid. 403, 404(b).

According to Sowers, this failure “further exacerbate[ed] [counsel’s] deficient

performance.” Although she cites to the court’s charge and to that part of the

reporter’s record in which her counsel said “[n]o objections” to the charge, Sowers

has not pointed us to where in the record any evidence supposedly subject to a

limiting instruction was admitted, nor does she explain what that evidence was. 1



      1
       In context, we assume that Sowers is continuing to refer to the toxicologist’s
testimony that, according to Sowers, implied that she was an experienced user. But as
we have explained in the preceding section, Dr. Johnson’s remarks about nanogram

                                              8
       Not only do we not have a developed record from which we might evaluate on

direct appeal whether counsel was ineffective for not seeking a limiting instruction,

Sowers has not adequately briefed this part of her ineffective-assistance issue. See Belle

v. State, 543 S.W.3d 871, 875 (Tex. App.—Houston [14th Dist.] 2018, no pet.)

(“Appellant complains of comments made by the trial court when appellant requested

self-representation at trial. Appellant’s brief contains no references to the record

where such comments were made. See Tex. R. App. P. 38.1(i). Accordingly the issue is

waived.”); Briscoe v. State, 542 S.W.3d 100, 106 n.6 (Tex. App.—Texarkana 2018, pet.

ref’d) (referencing appellate-procedure rule 38.1(i) and noting “[t]he failure to

adequately brief an issue, either by failing to specifically argue and analyze one’s

position or provide authorities and record citations, waives any error on appeal”); see

also Tex. R. App. P. 38.1(i).

       Failing to object to improper closing argument by the State. Sowers identifies six

comments during the State’s closing argument that she contends were improper and

thus should have been objected to. The only authority Sowers cites here is a case that

simply recites the four proper areas of the State’s closing argument: summation of the

evidence, reasonable deduction from the evidence, answer to argument of opposing

counsel, and plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex.

Crim. App. 1973). As was the situation in another case from our court, “Appellant did

levels were generalized and did not necessarily imply that Sowers had developed a
usage-based tolerance.


                                            9
not cite to any legal authority to support his assertion that the [State’s unobjected-to

closing] arguments were erroneous.” Escamilla v. State, No. 02-13-00317-CR,

2014 WL 4463121, at *4 (Tex. App.—Fort Worth Sept. 11, 2014, no pet.) (mem. op.,

not designated for publication). In contrast, the State asserts that the prosecutor’s

arguments were proper—and has cited supporting authorities. But even if we

overlook a rule 38.1(i) briefing deficiency and assume Sowers is right that the State

strayed outside the bounds of proper argument one or more times, Sowers has given

us no basis on which to conclude that her counsel’s failure to object constituted

outrageously poor legal work that no competent lawyer would engage in. See Prine,

537 S.W.3d at 117.

      Moreover, we do not have a developed record from which to conclude here

that failing to object during closing argument represented ineffective assistance as

opposed to trial strategy. In a direct appeal from a similar situation, one of our sister

courts observed, after declining to label the failure to object as outrageously bad, that

“it is possible appellant’s trial counsel chose not to object based on a reasonable trial

strategy.” Orellana v. State, 489 S.W.3d 537, 550 (Tex. App.—Houston [14th Dist.]

2016, pet. ref’d); see also Kuhn v. State, 393 S.W.3d 519, 539 (Tex. App.—Austin 2013,

pet. ref’d) (“One such reasonably sound strategic motivation could have been the

desire to avoid drawing additional attention to the prosecutor’s opinion.”). Sowers has

not met her burden to persuade us otherwise.



                                           10
      Introducing evidence of Sowers’s past criminal history during the punishment phase. Finally,

but without citing any authority, Sowers argues that her counsel’s introducing her

criminal history during punishment was “inexcusable.” The record before us does not

permit us to conclude that trial counsel rendered ineffective assistance by doing so.

      Before trial, the State had filed a notice of two extraneous offenses forming

Sowers’s criminal history that it might introduce into evidence. Once the jury returned

its guilty verdict, Sowers elected to have the trial court assess her punishment and

took the stand to ask for probation because of her mother’s health problems. The

State postulates that trial counsel could have anticipated Sowers’s being cross-

examined about her criminal history and chosen to confront it head-on during direct

examination to appear more forthright and candid in her quest for leniency. That

theory does not strike us as unreasonable, and so we disagree with Sowers that “[n]o

legitimate purpose can be contrived to excuse this decision.” More to the point, on

this record we cannot know what trial counsel was thinking, but we do know that

“[t]o conclude counsel’s performance was deficient, we would have to engage in

prohibited speculation.” Escamilla, 2014 WL 4463121, at *4.

      Moreover, Sowers admits that the record is silent regarding whether she

understood her right not to testify and whether she waived it knowingly, nor does the

record show whether Sowers testified against her counsel’s advice. If she did, this

changes the dynamics: “When a defendant [who testifies against his counsel’s advice]

refuses to follow trial counsel’s strategy, a claim of ineffective assistance of counsel is

                                              11
inappropriate.” Montoya v. State, No. 14-97-00196-CR, 1999 WL 374092, at *5 (Tex.

App.—Houston [14th Dist.] June 10, 1999, no pet.) (not designated for publication)

(citing Duncan v. State, 717 S.W.2d 345, 348 (Tex. Crim. App. 1986)). “[W]hen a

defendant preempts his attorney’s strategy by insisting that a different defense be

followed, no claim of ineffectiveness can be made.” Duncan, 717 S.W.2d at 348; see also

Thompson v. State, Nos. 02-18-00230-CR, 02-18-00231-CR, 02-18-00232-CR,

2019 WL 1065925, at *4 (Tex. App.—Fort Worth May 8, 2019, pet. ref’d) (mem. op.,

not designated for publication) (“A criminal defendant has a constitutional right to

testify in his defense, including during the punishment phase of the trial. This right

can be knowingly and voluntarily waived only by the defendant, not his counsel.”

(internal citations omitted)).

       In short, Sowers has not carried her burden to show by a preponderance of the

evidence that her trial counsel’s performance was constitutionally deficient in any of

the listed ways. 2


       And that is of course but one of the Strickland prongs: Sowers has said virtually
       2

nothing about the companion requirement that the deficient performance resulted in
prejudice, which in this context means a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988) (citing Strickland,
466 U.S. at 694, 104 S. Ct. at 2068). Here, the jury heard direct evidence on every
element of the charged offense. See Escamilla, 2014 WL 4463121, at *4 n.3 (“Even if
defense counsel’s failure to object to the prosecutor’s closing argument was deficient
conduct, the jury heard direct evidence from the complainant on every element of the
offense charged. Appellant failed to meet the second prong of Strickland—that there
was a reasonable probability that the result of the trial would have been different had
the objections to the arguments been sustained. See Washington v. State, 771 S.W.2d

                                          12
      And without some error of that type, there can be no cumulative error: non-

errors cannot cumulate to create harmful error. See Chamberlain v. State, 998 S.W.2d

230, 238 (Tex. Crim. App. 1999). Particularly in view of Sowers’s concession that “no

single act o[r] omission by counsel rises to the level of ineffectiveness demanding a

reversal of the cause,” she has not met her burden under Strickland. See Rodriguez v.

State, 336 S.W.3d 294, 303 (Tex. App.—San Antonio 2010, pet. ref’d) (holding that

because appellant “did not meet her burden of establishing individual instances of

ineffective assistance of counsel,” she “cannot show an adverse cumulative effect”

from trial counsel’s actions). We therefore overrule Sowers’s appellate issue.

                                      Conclusion

      Having overruled Sowers’s sole issue on appeal, we affirm the trial court’s

judgment.




537, 545 (Tex. Crim. App. 1989).”). And regarding punishment, despite Sowers’s
committing this offense while on probation for another offense, the trial court’s
sentence falls in the punishment range’s lower half. See Tex. Penal Code Ann.
§§ 12.22(2) (authorizing confinement in jail for a term not to exceed 180 days for a
Class B misdemeanor), 49.04(b) (providing that DWI is generally a Class B
misdemeanor).


                                           13
                                  /s/ Elizabeth Kerr
                                  Elizabeth Kerr
                                  Justice


Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 22, 2019




                             14
