Garcia v. State, 14-02-00737-CR.

• Court: Court of Appeals of Texas
• Citation: 112 S.W.3d 839
• Docket Number: No. 14-02-00737-CR.,14-02-00737-CR.
• Parties: Alfredo Jaramillo GARCIA, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 07 August 2003

112 S.W.3d 839 Alfredo Jaramillo GARCIA, Appellant,
v.
The STATE of Texas, Appellee. No. 14-02-00737-CR. Court of Appeals of Texas, Houston (14th Dist.). August 7, 2003.

[112 S.W.3d 843]

Lonnie Knowles, Houston, for appellants.

Bridget Holloway, Houston, for appellees.

Panel consists of Justices JOHN S. ANDERSON, SEYMORE, and GUZMAN.

OPINION

JOHN S. ANDERSON, Justice.

After a bench trial, appellant Alfredo Jaramillo Garcia was found guilty of intoxication manslaughter. Asserting four points of error, he now seeks a reversal of his conviction and a judgment of acquittal, or, in the alternative, a new trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 4, 2000, at approximately 8:30 p.m., Darius Johnson and complainant Lydia Onezine walked from their apartment to a nearby convenience store to get ice cream. They left the store to return home at approximately 9:30 p.m. To return to their apartment, they crossed Aldine Bender Road—a seven-lane highway—in the middle of the block.

According to Johnson's testimony at trial, complainant and Johnson crossed three lanes of traffic without incident and were standing in the center left-turn lane waiting for the remaining three lanes of traffic to clear, when Johnson heard the sound of appellant's truck approaching. Before Johnson could push complainant out of the way, appellant's vehicle—a 31,460 lb. wrecker used to haul 18-wheelers—struck complainant, propelling her into the air. Landing 172 feet away in a lane of oncoming traffic, complainant was subsequently run over by a Suburban. She died from blunt force trauma and multiple injuries.

Evidence shows that after the accident, appellant stopped his truck in the lane immediately adjacent to the highway's leftturn lane and exited his vehicle. According to Johnson, appellant emitted a strong odor of alcohol, made a comment about messing up the front of his truck, and "staggered" to the back of the wrecker. Appellant then walked towards the convenience store.

At this point, according to Johnson, Johnson "beat the hell out of" appellant, hitting him in the face, chest, and neck.¹

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Johnson then returned to the scene of the accident and, from a distance, kept an eye on appellant as appellant slowly walked away from the scene. When the police arrived, appellant was apprehended several yards from the accident site. He was still within sight of Johnson and others at the scene.

At trial, several people testified that appellant exhibited signs of being under the influence of alcohol. Four witnesses testified they detected a strong odor of alcohol coming from his person; three testified he appeared disoriented and/or wandered away from the scene; two testified he had blood-shot eyes; six testified he "stumbled" or had trouble maneuvering; and three testified his speech was slurred. There was also testimony appellant fell asleep at the scene after being placed in an officer's patrol car.

Although no testimony or evidence was proffered at trial to show appellant vomited at the scene, appellant contends the strong odor of alcohol coming from his person was due to his having vomited as a result of Johnson's beating. Appellant also contends his disorientation, red eyes, and slurred speech were the result of Johnson's beating as well.

At the scene of the accident, appellant refused to submit to a field sobriety test. He was transported to a Harris County Jail facility where, approximately two hours after the accident, he underwent an involuntary blood alcohol test administered pursuant to the Texas Transportation Code. See Tex. Transp. Code Ann. § 724.012(b) (Vernon 1999). Appellant was also interviewed by law enforcement personnel and the interview was recorded on a video. This "intox video" was lost or destroyed by the district attorney's office prior to trial.

Appellant was subsequently charged with intoxication manslaughter. After a bench trial, he was found guilty and punishment was assessed at seven years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant's sentence was suspended and he was placed on community supervision.

After a motion for new trial that was overruled by operation of law, appellant gave timely notice of appeal.

ISSUES ON APPEAL

Asserting four points of error, appellant contends (1) he was denied effective assistance of counsel; (2) the trial court erred when it denied his motion to suppress the State's evidence regarding his blood alcohol level; and (3) and (4), the evidence was legally and factually insufficient to sustain a conviction for intoxication manslaughter because it failed to establish that his intoxication caused complainant's death.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his first point of error, appellant asserts he was denied effective assistance of counsel because his attorney failed to "recognize that the State's conduct on the night in question with regard to the forced taking of [appellant's] blood specimen was pursuant to a law which had been repealed."

Because the statutory authority cited by the State in ordering hospital officials to draw appellant's blood was repealed by the Texas legislature, appellant argues, "all rights and authorities ... afforded to [the ordering peace officer] ... were extinguished." Thus, the government's actions were not authorized and trial counsel was ineffective in failing to raise this issue before the trial court. We disagree.

1. Standard of Review

When an appellant asserts his trial counsel was ineffective, he must prove (1)

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his trial counsel's representation was deficient; and (2) his trial counsel's deficient performance was so serious that it prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002).

Indeed, appellant must prove by a preponderance of the evidence that counsel's representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Id. To accomplish this, appellant must identify the specific "acts or omissions of counsel that are alleged" to constitute ineffective assistance and affirmatively prove that they fell below the professional norm for reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996) (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2065-66).

2. Pertinent Facts

Following appellant's accident, appellant was taken to the Harris County Jail where, according to the police, he was arrested for operating a motor vehicle while under the influence of an alcoholic beverage and for failure to stop and render aid. See Tex. Pen.Code Ann. §§ 49.04(a) and 49.01(2) (Vernon 2003); Tex. Transp. Code Ann. § 550.023 (Vernon 1999). He was asked to provide a blood specimen and refused.

As a result of appellant's refusal, officers presented a "form TLE-51" to the medical staff of the jail. Sections 2 and 3 of article 6701l-5, V.T.C.S., are cited on form TLE51 as legal authority for collecting involuntary blood specimens. Article 6701l-5 was revised and codified in Chapter 724 of the Texas Transportation Code in 1995.

Although appellant objected to the involuntary taking of his blood, he did not physically resist. Prior to trial, however, appellant's trial counsel filed a motion to suppress the results of the State's blood test. In it, trial counsel argued appellant's blood specimen was taken as a result of an illegal search and seizure because (1) appellant was not arrested for an offense under Chapter 49 of the Texas Penal Code, as required by the statute; (2) appellant's sample was not taken within a reasonable time period after the incident in question; and (3) the person who withdrew appellant's blood was not a qualified technician and withdrew the sample in a place and manner violative of the Texas Transportation Code. Defense counsel did not argue the illegality of the State's actions based on the repeal of article 6701l-5.

The trial court denied the motion.

3. Discussion

Appellant contends the State lacked authority to draw appellant's blood because the Texas legislature "repealed" the statute cited by the State in its TLE51 form.² Appellant further argues that the blood taken by the State was the result of an illegal search and seizure and should have been suppressed. This failure to argue the repeal of article 6701l-5, appellant asserts, constituted ineffective assistance of counsel. We disagree.

First, appellant points to no place in the record where he has demonstrated that defense counsel's performance was deficient. An assertion of ineffective counsel will be sustained only if the record

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affirmatively supports such a claim. See Ex parte Ewing, 570 S.W.2d 941, 943 (Tex. Crim.App.1978). Without a record to explain trial counsel's rationale, there is a "strong presumption that counsel was competent." Perez v. State, 56 S.W.3d 727, 730-31 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); see also Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Indeed, to defeat the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland, 928 S.W.2d at 500.

Next, there is nothing in the record to suggest the trial court would have granted appellant's motion to suppress even if trial counsel had asserted appellant's proffered argument. Without such evidence, appellant cannot prove the second prong of Strickland—namely, that "but for" appellant's counsel's deficient performance a motion to suppress would have been granted. See Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; Bone, 77 S.W.3d at 833.

Appellant cannot prove Strickland's second prong because, even if trial counsel had asserted...