Opinion issued December 1 9 , 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00374
- CR

——————————— DELIA JAZMI N DELMA S , Appella nt

V. THE ST ATE OF TE XAS , Appell e e
On Appeal from the 230th District Court

Harris County, T exas Trial Court Ca se No. 1529893

MEMORANDUM OPINION Delia Delmas was charged with driving while intoxicated. Because she had earlier DWI convi c tions , this offense was charge d as a felony. T he jury found her
gu ilty . She elected to have the jury determi ne her sentence, and she was sentenced
to confinement for seven years. Delmas moved for a new trial, arguing that she2

received ineffective assistan c e of counsel in the guilt

- inno cen ce and p unishment phases of her trial. The trial court held a hear ing and d en ied her motion. In a single issue, Delmas contends the trial court abused its disc retion i n denying her motion for new trial. We affirm. Backgroun d L. Jenkins ’ s vehicle was struck in the p ark ing lot of El Fuego ’ s b ar on Durham Drive around 11 p

. m . one S u nd ay evening. Jenkins te stified that her car was stationary as she waited for traffic to clear on Durham so she could exit the parking lot

. She saw a small tr uck in the parking lot begin to rev erse. She thought it was
go ing to hit her car, so she honked he r horn

. The bike rack on the back of the truck struck Jenkin ’ s car. The driver of the truck was De l mas. Jenkin s testifie d that Delmas got out of her tr uck, refused to exchange insurance information, and then got back in to her truck t o leave. Jenkins went i n t o El F uego ’ s to call the police, and other people approache d Delmas to persuade her to stay. Delmas went into El Fu ego ’ s shortly after Jenki ns did

. Delmas took
Jen kins ’ s car keys from her and walked to the exit. Jenkins followed her and too k her car keys back

. The police arrived a few minutes later. A. Sierra with the Houston Police Department test ified that he responded to the call for police assistance about five minutes after receiving the call

. As he3

approached Delma s , he noticed that Delmas was “ swa ying, ” “ staggering, ” and

“ stumblin g ” as she walked. Sierra noticed a strong o dor of alc ohol when Delmas spoke. Sierra asked Delma what happened. He specifically a sked her i f she had been backing up, and she said yes. Delmas later denied that she had been d riving. S ierr a testified he tried to perform field sob riety test s on Delmas at the bar but Delmas did
not f ollow his instructions. Video of these interactions was admitted as evidence and played for th e jury. Sierra wanted to per form additional intoxicati on test s at the police s t ation , but Delmas refused to participate

. Delmas also refused to provide breath and blood samples. Sierra prepared a n affidavit in support of a search warrant, presented the affidavit to th e magis tr at e judge, and obtained a searc h warrant authorizing a bloo d draw to test Delmas ’ s blood

- alcohol content. Delmas ’ s blood w as drawn at the police detention facility and the blood

- test results were presented as evidence at trial.
K. Os bourne , a DWI technician with th e Houston P olice De par tment testified that she dr ew Delmas ’ s b lood the evening of her arrest. Osbourne drew the blood in

a s teri lized location in the detention center a nd followed the procedures for

c ollecting a blood sample without contamination. C. Rogers, a to xicology fo rens ic analy st wi th the Houston Forensic Science Center testified next. She described the protocol for testing blood, testified that she followed that protocol, and told the jury4

that Delmas ’ s blood

- al cohol l ev el was . 242, which w as three times the legal l imit to drive in Te xas. When the State rested, Delmas re sted as well, without Delmas testifying or calling any witnesses. A stip ulation was read to t he j ury about Delmas ’ s two p rior
DWIs

. D elmas stipulated that , in 2008 , she w as convicted o f the Class B

m isde meanor offense of driving while intoxicate d and sentenced to 180 days in ja il, probated for one year , and that, in 2009, she was convicted of the C la ss A misd emean or offense of driving while intoxicated and sentenced to 60 days in jail. Delmas ’ s defensiv e theory in closing argument was that she had admi tt ed to Officer Sierra that s he “ backed out, ” but it w as not an admission that she had been driving h er car . Instead, it meant only that Delmas had gone “ back out ” to he r car : So, the question is: Well, wha t is the interpretation o f “ back ed ou t? ” Does that mean I go t in the vehi cle and drove or does that mean I went back out to my car? The defense argue d that the State had not proven beyond a r easonable doubt that Delmas was driving her truck when the collis ion occurred

. The jury unanimously co nv icted Delmas of driving while intoxicated. T h e trial then m oved into th e punishment phase. Delmas ’ s attorney stated that t he def ense would not be putting forth pun ishment evidence: Just wanted to put briefly on the re cord that for punishment, it ’ s my u nd er standing that we are just re

- offeri ng the judgments and the case in chief. Defense is not putting on any additional punish ment e vidence. The defendant is not choos ing to testify in her own behalf and has not5

brought a ny additional witnesses. It is not du e to lack of witnesses. Thi s is just what we have decided to do for trial strategy. T he State relied on the e videnc e it a dmitted during the guilt

- innocence phase and did not present any new evidenc e other than Delmas ’ s sec ond written stipulation, which

was r ead t o the jury . The second stipulation disclosed that Delmas had been convicted of a third DWI in 2012 and se ntenced to 10 years of confin e ment , which was probated for three years . Both sides then rested

. In closing , De lmas ’ s attorney asked the jury to sentence Delmas to t h e minimum sentence allowed

— tw o years

—highlighting that Delmas appear ed to have a problem with alcohol but there had been no evidence of any other cri mina l conduct

. The State ’ s at torney highlighted that this was Delmas ’ s fourth DWI an d asked the jury to distingui sh between a drinking problem and a drunk

- drivin g problem tha t endangers other members of the communit y. The Sta te a sked the ju ry to cons ider a
sentence at the “ upper end of the punishment ra nge , ” which would me an u p to 10 years of confinement

. The jury s en tenced Delmas to seven years of confinement

. The trial court accepted t he verdict , entered a judgment o f c onviction for the offense of third

- degree
f elony Driving Whi le Intoxicated , and sen tenced Delmas to seven years of confinement

. Delmas filed a m o ti on for new trial alleging that she received ineffective assistance of counsel , and the tria l court held a hearing. De lmas ’ s trial counsel,6

Dustan Neyland testified. He explained that he had a dvised Delmas about the phases of trial, Delmas had stated that s he did not want to t estify and did not want Neyland to involve any other pos sible wi tnesses in her cri minal trial, and his trial str ategy had centered on raising doubt whether Delmas had been driving the truck when th e collision occurred

. T he trial court d en ied Delmas ’ s motion. Delmas appealed.

Motion for New Tri al In a single iss ue, Delmas contends the tr ial court erred in denying her motion for new trial

. A. Standard of r eview and applicable la w The standard of review for a tri al court ’ s order denying a moti on for new trial is abuse of discretion. Lewis v. State , 91 1 S.W.2d 1, 7 (Te x. Crim. App. 1995). An
app ellate court will not substitute its judgment for that of the trial court ; instead, the appellate court decides only whether the trial court ’ s decisio n t o overrule the motion for new trial was arbitrary and unreasonable. Id. The defendant

- appellant ordinar ily has the burden of proof on a motion for new trial. See Patrick v. State , 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). As a general rule, appellate cou rt s should af ford almost total deference to the trial court ’ s determination of facts supported by the

r ecord. Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).7

Delmas moved for a new trial on a claim of inef fective assistance of counsel

. We evalua te claims of ineffective assistance of counsel unde r the standard set forth
in Strickland v. Washington , 46 6 U.S. 668, 687 (1984). Under Strickland , a defendant must show that (1) counsel ’ s p erformance fell below an objective standard of reasonableness and ( 2) but for counsel ’ s unprofessional error, there is a reasonable probabili ty that the result of the p roceedings would have been different. Id. at 687

– 94; Thompson v. State , 9 S.W.3d 808, 81 2 (Tex. Crim. App. 1999). “A reasonable probability is a probabil it y sufficient to under mine confidence in the outco me.” Id.
at 69 4 . A defend ant must establish both pro ngs by a preponderance of the evidence. Jackson v. State , 973 S.W.2d 954, 956 (Tex. Crim . App. 1998). Failure to make a showing under either prong defeat s an ineffective

- assist ance claim. See Rylander v.
State , 101 S.W.3d 107, 11 0 (Tex. Crim. App. 2003).
I n reviewing counsel ’ s performance, we look to the totality of the representation to dete rmine the effectiveness of counsel, indulging a strong presumptio n that c ounsel ’ s performance falls within the wide range of reasonable profe ssional assistance and tria l strategy. See Robertson v. State , 187 S.W.3d 475,
482

– 83 (Tex. Crim. App. 2006); Thomp son , 9 S.W.3d at 813. In determining whether there was a reasonab le probability of a different result but for the ineffect ive assistance, we look for a “probability suf ficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694.8

B. First clai m of ineffectiveness: F ailure to pursue a motion to suppress Delm as first argues that Neyland was i neffective because he f ailed to pur sue

a m otion to suppress evidence of her blood

- al cohol content on an argument that the search warrant was invalid. At t he hearing on her motion for new tri al, Delmas ’ s counsel asked Neyla nd about the hand written time lis ted on th e aff idavi t in support of obtaini ng t he search warrant compared to the handwritten time listed on the search
warrant itself

. Neyland testified that t he affidavit listed a time of 1:21 a.m. and the resulting search w arrant listed a time of 1:30 a.m. Delmas ’ s counsel ask ed whet her the handwritten time on the search warrant might act ually by 1:00 a. m. (not 1:30 a.m.). Neyland agreed that it was possible. 1
Delmas ’ s post

- conviction argument is that the possibility that the arrest warrant was signed at 1:00 a. m. required Neyland to p ursue a motion to supp ress on the theory that a search warrant that preexi sts the affidavit in support of a search

warra nt is i nvalid. We cannot agree that the trial court erred in denying the motion for new trial on this basis

. Bo th the affidavit an d the warrant wer e before the court . The affidavit lists a specific police de partment incident number ; pr ovides details of Delmas ’ s

a rrest, s igns of intoxication, and refus al to consent to a blood test ; and requests a

1 See addendum.9

warrant to obtain a sa mp le of Delmas ’ s bloo d. The h an dwritten time on the affidavit, signed by Officer Sierra, is 1:21 a .m. The arrest warrant identif ie s Office r Sierra b y name as the officer who has presented an affidavit in support of a r equest for a search warrant . It sta tes that the warrant is requested to obtain a s am ple of Delmas ’ s blood. The search w arrant references the same specific police incident number listed i n the officer ’ s affidavit. The arrest warrant states that Officer Sie rra ’ s a ffidavit “ is attached hereto and expressly made a part her eof for all purposes

. ” Th e a rrest warrant is signed by a

m agistrate j udge and a time of issuan ce is handwritten on the war rant , as shown in the adde ndum to this memorandum opinion.
It i s not reasonable to contend that a search warrant that is sig ned by a

m agist rate , references the na me of the off icer who presented the affidavit, includes the incident number from the affidavit , and has the affidavit attached to it, somehow was prepared before the affidavit that supplied all the relev ant informa tion included in the warrant. T he magist ra te ’ s handwriting in specifying the time of issuance may not have been clear , but none of th e i nformation the magistrate included in the body of the search warrant would have been available to or known by the magistrate without t he magistrate first review in g and considering the officer ’ s affidavit . Had events occurred in the reverse order, the magis trate could not have known the information she included in the w arrant.10

D elmas ’ s argument does not provide a viable basis f or suppres sion of her blood

- test res ul ts

. Accordingly, Delmas cannot establish how she was prejudiced by Neyland ’ s failure to pursue such a s uppression motion. See Strickland , 466 U.S. at 694 (requiring defendant

- appe llant to show a reasonable probability that resul t of proceeding would have b een different to establish ineffective assistance of counsel ). We conclude the trial court did not a buse its discretion in denying Delmas ’ s motion on this argument. C. Second claim of ineffectiveness: F ailure to hire a t oxicology expert Ne xt, Delmas argues t hat Neyland was deficient because he failed to hire a toxicology expert or to “ request or s ubp oena any records about the lab technician ’ s qualification s or their pers onnel f ile. ” Duri ng opening statement s at the start of the guilt

- innocence phase of the t rial, Delmas ’ s trial counsel, Neyland, explained the defensive th eory of the case to the jury. Neyland told the ju ry that they would see video evidence of Delmas engaging in beha vior that she wa s embarras sed about . He conceded that Delmas appears drunk
i n the video bu t argued that the evidence would not establish she had been driving : You ’ re going to see a video that is an embarrassment to Ms. Delmas. She didn ’ t want to watch the whole thing when we were ge tting ready. She ’ s yelling at the cop and she ’ s ma d

. She ’ s angry. She ’ s being accused of something she didn ’ t do. She ’ s like yes, I ’ m intoxicated . I ’ m publicly intoxicated, but I was not driving that car. So, you ’ re going to see some things that are probab ly going to upset you. Probably going to get angry a bout the way that she acts, cussing out the o fficer, saying some mean things. But it ’ s becaus e she ’ s being wrongfully accused for11

something she didn ’ t do. You want to put her in a jail for the n ight, give her a Class C tick et for public intoxication? Dar n right, do it. But the evidence is not going to support that she ’ s operating that motor vehicl e. She merely got in to get her stuff out and that is when the other lady hit her bike rack. That ’ s w hat the ev iden ce is going to show. D elmas ’ s argument at the new

- trial hearing that he r attorney had been deficient for failing to hir e a toxicologist to c ha llenge wh ether she was drunk ignores the trial strategy implemented. At the hearing, N eyland explained that Delmas ’ s blood

- alc ohol content was “ really high ” and not close to the legal li mi t. Plus , there was video evidence of Delmas ’ s interactions with Of ficer Sierra

. Those facts informed their trial strategy. The defense c hosen was to raise doubt whether Delmas had been driving the truc k, not to challenge her intoxica t ion

. The t rial court did not a buse its discretion in deny ing a motion for n ew trial
pre mised on ignoring the chosen t rial st rategy and, with hi nd sight, advocating for an alternative trial

. See Hutchinson v. State , 663 S.W.2d 610, 612 (Tex. App.

— Houston [1st Dist.] 1983 , pet. ref ’ d) (stating that appellate court should no t “ second g uess ”
stra tegy adopted by trial counse l and that “ fact that another attorney would have adopted a di fferent trial strategy will not support a finding of i neffective assistance ” ). D. T hird claim of ineffectiveness: F ailure to interview witnesses N ex t, Delmas a sserts tha t Neyland was deficient in f ailing to interview witnesses to testify at either phase of the trial.12

Neyland testified t ha t his investigator inter view ed witnesses pretrial , including the other driver and two bartenders. The bar tenders be g an dod ging further involvement before t he time Neyland would have interviewed them personally. Regarding puni s h ment witnesses, Neyland testified that Delmas did not give him information abou t any potential witnesses to testify on her beha lf. N ey land ’ s unde rstanding of Delmas ’ s position was that “ she did n ot want to get anybody else additionally involved ” in her criminal trial. He stated that she did not provide names of any witnesses for him to call. Neyland read the aff

idav it Delmas prepared in support of her motion for new trial. He testified that he had discussed the pun ishment phase o f the trial with her. If her statemen ts in her affidavit were true

— that she did not understand that she could have called wi tnesses in the pun ishm e nt phase even if she did not call any witness es during the gui lt

- innocence phase

— then Delmas must have mi sunderstood his explanation of the legal pr oce edings. In other words, according to Neyland, he did not fail to explain it to her; she apparently failed to understan d what he explained. Delmas ’ s al legation of ineffect iveness , though, is not Ney land ’ s failure to ensure his client understood him . Instead, she arg ues he was deficient in failing to pursue trial witnesses to testify on Delmas ’ s behalf . But Neyland explained at the hearing that the trial strategy was to no t pursue ot her witnesses because Delmas told him she did not want other peo ple involved in her criminal trial. The trial court13

reasonably could have found Neyland ’ s t e stimony credible. See Kober v. State , 988 S.W.2d 230, 233 (Tex. Crim. A pp. 1999). On th is evidence , th e tri al court did not abuse it s discretion in denying Delmas ’ s motion for new trial. See Strickland , 466 U.S. at 687; see also Lester v.
State , No. 01

- 10

- 00026

- CR , 2011 WL 148118, at *8

– 1 0 (Tex. App.

— H ouston [1st Dist.] Jan . 13, 2011, pet. re f ’ d) (mem. op., not designated for publication) (c oncludin g that trial cour t reasonably could have found trial counsel credible and dis believed defendant

- appellant ’ s v ersion of pretrial events and further concluding
t hat t rial court did not err in denying mo tion for n ew trial )

. E. Fourth claim of ineffectiveness: “ F ailure to allow ” De lmas to testify during p unishment phase Delmas ’ s f

inal argu ment is that Neyland was ineffective because he did not allow Delmas to testify d uring the p uni shment phase of trial. She argues tha t she did not understand she could decline to testify at the guil t

- innocence phase of trial and still testify at the punishment phase . And she relies on Neyland ’ s testimony at the

new - trial hearing that he thought she should have testified during the punis hment phase.
But Neyland also testifie d that he explained the phases of the trial to her and that Delmas elected not to testify. Neyland testif ied that Delmas “ seemed like she wi shed that she did not want to testify

. ” He als o noted that, had she testified , “ it would leave her open to being ask ed about her prior probations and revocations , ”14

which could have been harmful. Neyland testified that he will not force a client to
tes tify against the client ’ s wishes. He explained, “ I m ean, if she says, hey , I don ’ t want to g et up there, I ’ m not going to make her get up there. ” The trial court reasonably could have determined on this record that Neyland explained the tri al proceedings to Delmas, Delmas told Neyland t hat s he did not

wan t to testify , and Neyl and r easonabl y pursued a trial strategy that would not include any testimony from Delmas. Cf. U nited S tates v. Teague , 953 F.2d 1525, 1535 (11th Cir. 1992) (evaluating effective of counsel based on counsel ’ s explanation of advi ce he h ad given to client at time of representation , even thou gh counsel later stated misgivings that client may not have fully understood advice or intended to accede to counsel ’ s recommendation ). The tri al court was not boun d to a ccept Delmas ’s version of even ts stated in her affi d avit and reasonably cou ld have cr edited Neyland ’ s explanation of his client advice and Delmas ’ s choice not to tes tify

. See Ex parte Ali , 368 S.W.3d 827, 840 (Tex. App.

— Austin 2012, pet . ref ’d) ( stating that “ the trial court would not have abused its discr e tion in disbelieving ” statements in defendant

- appellant ’s affidavit in support of allegation of ineffective ass istance of counsel )

. The trial court d id not abuse it s discretion in deny ing the motion for new trial on this final argumen t.15 Conclusion Having c onsidered each allegation of inef fective assistance of counsel presented by Delmas and conclu ded that the trial court did not abuse its disc retion in denying Delmas ’ s m otio n for new tr ial, w e affirm.

Sarah Beth Landau Justice Panel consis t s of Chief Justice Radack and Justices Landau and Hightower. Do not publish. T EX
. R. A PP
. P. 47.2(b).

Addendum