West v. State

• Decision Date: 30 July 2021
• Docket Number: 03-19-00598-CR
• Parties: Christopher Wayne West, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Christopher Wayne West, Appellant v. The State of Texas, Appellee

No. 03-19-00598-CR

Court of Appeals of Texas, Third District, Austin

July 30, 2021

Do Not Publish

FROM THE 21ST DISTRICT COURT OF LEE COUNTY NO. 8833, THE HONORABLE CARSON TALMADGE CAMPBELL, JUDGE PRESIDING

Before Justices Goodwin, Kelly, and Smith.

MEMORANDUM OPINION

Edward Smith, Justice.

Christopher Wayne West entered a plea of not guilty to driving while intoxicated, third offense or more. See Tex. Penal Code §§ 12.42, 49.09(b). The case proceeded to trial, and a jury found him guilty as charged. The jury also found two enhancement paragraphs to be true and assessed West's punishment at ninety-nine years of confinement with the Texas Department of Criminal Justice. West now appeals, arguing that he suffered ineffective assistance of counsel when his attorney failed to raise a for-cause objection to a certain venireperson and failed to timely move to suppress certain evidence. We will affirm the judgment of conviction.

BACKGROUND

The facts surrounding West's offense are not in dispute. On February 14, 2018, two men from the Giddings Police Department-Sergeant Stephen Stem and Officer Daniel Turner-were directing traffic at an intersection on U.S Highway 290, where a traffic signal was under repair. Both officers had parked their patrol cars in the outside lane of the four-lane highway, leaving the cruisers' red and blue lights illuminated to help alert drivers of the need to slow down and change lanes.

While the officers were directing traffic, a white Honda struck the rear of Sergeant Stem's cruiser. The driver of that Honda was later identified as West. West's girlfriend was also in the vehicle. Stem instructed West to pull the Honda into a parking lot to allow Stem to work the scene and obtain insurance information. West complied with the request.

Stem later testified that, upon making initial contact with West Stem began to suspect that West might be intoxicated. Stem's testimony characterized West as slurring his speech, unable to maintain his balance, and smelling of alcohol. According to Stem, West admitted to having recently been drinking and said to Stem, "Go ahead and take me to jail . . . I'm drunk." Stem asked West to perform the standardized field sobriety test, but West refused. When asked to explain the refusal, West replied, "I'm going to fail because I'm drunk." West then refused to take a breathalyzer test or submit to a blood draw without a warrant. During the subsequent search of West's vehicle, Stem found several empty bottles of alcoholic beverages.

Stem learned that West had been previously convicted of driving while intoxicated and prepared an affidavit for a search warrant, which was presented to the Justice of the Peace for Precinct 2 in Lee County. Upon obtaining the search warrant a blood sample was drawn and analyzed. The results revealed .235 grams of alcohol per 100 milliliters of blood. A grand jury later indicted West for "driving while intoxicated-3rd or more-habitual" in violation of Section 49.09(b) of the Penal Code and subject to an enhancement set forth by Section 12.42 of that Code. The first attempt to try West's case ended in mistrial when the presiding judge concluded that multiple members of the jury array had expressed "confus[ion]" over the State's burden of proof, leaving the judge unable to "seat a fair and impartial jury." West's case was rescheduled, and the court empaneled a new jury, which ultimately found West guilty of driving while intoxicated and found the enhancement allegations true. The jury sentenced West to ninety-nine years of confinement.

On appeal, West complains of two decisions by counsel. First counsel objected to venireperson 18 for cause and then withdrew that for-cause objection, instead using a peremptory strike that West contends could and should have been used against another venireperson. Second, counsel belatedly filed a motion to suppress the evidence of the results of West's blood analysis; West contends the motion would have been successful if timely filed.

DISCUSSION

"To establish ineffective assistance of counsel, an appellant must demonstrate by a preponderance of the evidence a deficient performance by counsel and the defendant suffered prejudice as a result." Strickland v Washington, 466 U.S. 668, 687 (1984); Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018). The appellant must first demonstrate that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88; Ex parte Scott, 541 S.W.3d 104, 115 (Tex. Crim. App. 2017). The appellant must then show the existence of a reasonable probability-one sufficient to undermine confidence in the outcome-that the result of the proceeding would have been different absent counsel's deficient performance. Strickland, 466 U.S. at 694; Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700; accord Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

Our review of counsel's representation is highly deferential; we must "indulge in a strong presumption that counsel's conduct was not deficient." Nava v. State, 415 S.W.3d 289, 307-08 (Tex. Crim. App. 2013) (emphasis in original); see also Strickland, 466 U.S. at 689. To rebut that presumption, a claim of ineffective assistance must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). If trial counsel has not been afforded the opportunity to explain the reasons for his or her conduct, we will not find a deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Nava, 415 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d at 392.

Complaint Regarding Jury Selection

In his first issue, ^[1] West complains of his attorney's treatment of venireperson 18, arguing that "trial counsel's failure to actually challenge the prospective juror for cause amounts to ineffective assistance of counsel." The record reveals that counsel initially objected to venireperson 18 for cause because "as a tow truck driver[, ] he was speaking about [how] one should not refuse and if one refuses, then they're hiding guilt." When the trial court asked follow-up questions regarding the attempted for-cause challenge, counsel withdrew that challenge and used a peremptory strike on venireperson 18. See Tex. Code Crim. Proc. art. 35.14 ("A peremptory challenge is made to a juror without assigning any reason therefor."). After the court swore in and discharged the jury, the following colloquy ensued:

THE COURT: The jury is not present in the courtroom. Proceed with your objections, sir.

COUNSEL: Sorry, Judge. I thought you had said we would do this on Monday so-.

THE COURT: We're going to get it done today.

COUNSEL: Your Honor, basically my objection to the panel is that I was not able to use my voir dire to have the intelligent use of my preemptory strikes. I was curtailed when I was trying to question the jurors about levels of proof, about the exclusion of all doubt, reasonable doubt excuse me, the - it lessened the burden of proof on the State and basically allows a jury to convict on less than proof beyond a reasonable doubt. In addition, when you were going over your specific-I guess your portion of the voir dire, one of the things that you stated was that a fair jury is one not having heard any of the evidence, is not committed to either side. For the record, I believe that's improper statement of the law and I believe that without having heard any of the evidence, the law is firmly on the side of the Defendant and it is not a-is not impartial to both sides at this point. So those are my objections, and I can go through the specific questions I would have asked for the record if you would like.

THE COURT: It's your case. What are your objections to the jury that's seated here?

COUNSEL: Well, just I wasn't able to intelligently use my preemptive strikes.

THE COURT: I've heard that. What's your objection to the 14 people over there?

COUNSEL: My understanding is to preserve it for error, I have to make my objection now rather than once the jury panel-

THE COURT: Make your objection.

COUNSEL: Is that-I'm sorry, Judge. I just want to make sure. You said I made this objection. Do I need to remake the objection as far as the-

THE COURT: I'm not going to tell you how to try your case. I've asked for objections.

COUNSEL: Okay. And then in addition to that, my other objection, as I stated earlier, was to Juror Number 18. I had asked for a challenge for cause to Juror Number 18. That was denied and I had to use one of my strikes on Juror Number 18, which prevented me from using that strike on Juror Number 26. So I asked for an additional strike. That was denied, so I object to that as well.

THE COURT: Anything else?

COUNSEL: No, Your Honor.

THE COURT: Okay. Thank y'all. I will see y'all Monday at 9:00.

On this record, West cannot prevail with his ineffective-assistance argument premised on counsel's withdrawal of the for-cause challenge to venireperson 18. The Court of Criminal Appeals has held that trial counsel's failure to challenge a venireperson who has voiced a lack of impartiality does not constitute per se ineffective assistance of counsel. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Delrio v. State 840 S.W.2d 443, 447 (Tex. Crim. App. 19...