Schneider v. State

• Decision Date: 10 March 2021
• Docket Number: NO. 03-19-00732-CR,03-19-00732-CR
• Parties: Krysti G. SCHNEIDER, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

623 S.W.3d 38

Krysti G. SCHNEIDER, Appellant

v.The STATE of Texas, Appellee

NO. 03-19-00732-CR

Court of Appeals of Texas, Austin.

Filed: March 10, 2021

Discretionary Review Refused July 28, 2021

John G. Jasuta, Austin, for Appellant.

Joshua D. Presley, New Braunfels, Stacey M. Soule, Austin, for Appellee.

Before Chief Justice Byrne, Justices Baker and Kelly

OPINION

Thomas J. Baker, Justice

Krysti G. Schneider was convicted of driving while intoxicated with two or more prior convictions for the same offense and was sentenced to five years' imprisonment, but the trial court agreed to place her on community supervision for five years. See Tex. Penal Code §§ 12.34, 49.04, .09. In her first two issues on appeal, Schneider argues that her trial counsel provided ineffective assistance of counsel, and in her third issue she argues that the trial court erred by failing to hold an evidentiary hearing on her motion for new trial. We will affirm the trial court's judgment of conviction.

BACKGROUND

After initiating a traffic stop of Schneider, Officer Terry Flugrath asked her to submit to field-sobriety testing and ultimately concluded that she had committed the offense of driving while intoxicated and arrested her. Officer Flugrath asked Schneider if she would agree to provide a breath sample, but she refused. Following Schneider's refusal, Officer Flugrath prepared paperwork for a search warrant, and a judge signed a search warrant for a sample of her blood. Officer Flugrath drove Schneider to a hospital not for medical treatment but for the purpose of a blood draw, and there a nurse obtained a blood sample a couple of hours after she was arrested. The sample was placed in storage for over a month before being tested, and the results showed a blood-alcohol level of 0.109.

Before trial, Schneider filed a motion to suppress all evidence obtained during the investigation. In a pretrial hearing, the State explained that the parties had been conferring, that the parties were close to a resolution, and that Schneider was "going to pass on the motion today and hopefully we can get to a resolution." No hearing on the motion was held thereafter. During the trial, the State called several witnesses, including Officer Flugrath, an eyewitness who reported observing reckless driving, the nurse who obtained Schneider's blood sample, and the forensic scientist who analyzed the sample. In her case in chief, Schneider elected to testify.

After considering the evidence, the jury found Schneider guilty of driving while intoxicated with two or more prior convictions for the same offense, and the trial court rendered its judgment of conviction. Following her conviction, Schneider filed a motion for new trial asserting that the search warrant issued in this case did not authorize the testing of her blood and that the testing was not done in a timely manner. The motion for new trial was overruled by operation of law.

Schneider appeals the trial court's judgment of conviction.

DISCUSSION

In her first two issues on appeal, Schneider contends that her trial attorney provided ineffective assistance by failing to challenge the admissibility of the results of the blood-alcohol testing performed and failing to present her timely filed motion for new trial. In her final issue on appeal, Schneider argues that the trial court erred by failing to hold an evidentiary hearing on her motion for new trial. We will address Schneider's second issue first and then address her remaining issues in the order briefed.

Ineffective Assistance of Counsel

To succeed on an ineffectiveness claim, a defendant must show that the attorney's "representation fell below an objective standard of reasonableness ... under prevailing professional norms" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An appellant's "failure to show either deficient performance or prejudice will defeat the ineffectiveness claim." Perez v. State , 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) ; see Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

To satisfy the first prong, the defendant must overcome the strong presumption that her trial "counsel's conduct falls within the wide range of reasonable professional assistance" and might be considered sound trial strategy. Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ; see Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) ; Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A reviewing court must be highly deferential to trial counsel and must strive to review the representation without "the distorting effects of hindsight." Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ; see Lopez v. State , 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) ; Thompson , 9 S.W.3d at 813. In addition, evaluations of effectiveness are based on "the totality of the representation," Frangias v. State , 450 S.W.3d 125, 136 (Tex. Crim. App. 2013), and allegations of ineffectiveness must be firmly established by the record, Mallett v. State , 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

Regarding the second prong, the requirement that there be a reasonable probability that the results would have been different means "a probability that is sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ; see Thompson , 9 S.W.3d at 812. "Prejudice to the applicant from counsel's deficient performance is judged by ‘whether 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.’ " Ex parte Amezquita , 223 S.W.3d 363, 366 (Tex. Crim. App. 2006) (quoting Ex parte Chandler , 182 S.W.3d 350, 353 (Tex. Crim. App. 2005) ).

In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness claims because the record for that type of claim "is generally undeveloped," particularly "where counsel's reasons for failing to do something do not appear in the record." Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) ; see also Mallett , 65 S.W.3d at 63 (stating that "[i]n the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions"). In addition, before their representation is deemed ineffective, trial attorneys should be afforded the opportunity to explain their actions. Goodspeed , 187 S.W.3d at 392 (stating that "counsel's conduct is reviewed with great deference, without the distorting effects of hindsight"). If that opportunity has not been provided, as in this case, an appellate court should not determine that an attorney's performance was ineffective unless the conduct at issue "was so outrageous that no competent attorney would have engaged in it." See Garcia , 57 S.W.3d at 440. "When the record is silent and does not provide an explanation for the attorney's conduct, the strong presumption of reasonable assistance is not overcome," and appellate courts "do not engage in speculation to find ineffective assistance when the record is silent as to an attorney's strategy at trial." Ex parte Torres , No. 08-10-00330-CR, 2012 WL 1431660, at *3 (Tex. App.—El Paso Apr. 25, 2012, no pet.) (op., not designated for publication).

Presentment of the Motion for New Trial

In her second issue on appeal, Schneider acknowledges that her trial counsel filed a motion for new trial after she was convicted but contends that her trial counsel provided ineffective assistance by failing to timely present the motion for new trial. See Tex. R. App. P. 21.6. The motion for new trial asserted two reasons for why Schneider's blood-alcohol results should have been suppressed. First, the motion asserted that the Court of Criminal Appeals had clarified shortly before the trial in this case that a search warrant must specifically authorize the testing of a blood sample and that the results should have been suppressed because the search warrant issued in this case authorized the collection of the sample but not the testing of it. See State v. Martinez , 570 S.W.3d 278 (Tex. Crim. App. 2019). Second, the motion asserted that the results should have been suppressed because the sample was not tested within the warrant deadline set out in the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 18.07.

On appeal, Schneider contends that her trial attorney provided ineffective assistance by failing to present the claims in the motion for new trial to the trial court. Further, Schneider argues that "any competent lawyer would [have] take[n] the appropriate steps to ensure that the motion was properly presented." Additionally, Schneider asserts that " ‘but for’ counsel's errors, ... the result of the proceeding would have been different" in that the trial court would have addressed the arguments presented in the motion for new trial during an evidentiary hearing.

Regardless of whether Schneider's attorney properly presented the motion for new trial as contemplated by the Rules of Appellate Procedure, see Tex. R. App. P. 21.6, we cannot sustain Schneider's issue on appeal. For ineffectiveness claims "concerning a failure of counsel to timely file or obtain a hearing or ruling on a motion for new trial," reviewing courts "have consistently required a showing of actual prejudice, meaning that but for counsel's deficient performance, the trial court would have granted the defendant a new trial." See Jackson v. State , 550 S.W.3d 238, 244 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (collecting cases). Accordingly, any prejudice to Schneider in this case "is dependent on the merits of the motion." See id.

As set out above, Schneider first argued in the motion for new trial that the results of the blood-alcohol testing in this case should have been suppressed under an opinion issued by the Court of...