### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00598
- CR

Christopher Wayne West , Appellant

v. The State of Texas , Appellee

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

M E M O R A N D U M O P I N I O N

Christo p her Wa yne 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 fou nd him guilty as charged

. The jury also f ound two enhan cement paragraphs to be true and assessed West ’ s punishment at ninety

- nine years of confinement with th e Texas Department of Criminal Justice

. West now appeals, arguing that h e suff ered ineffective assist ance of co unsel when his a tt orney failed to raise a for

- cause object ion to a certain venireperson and failed to timely move to suppress certain evid ence
. We will affirm the judgment of conviction.

BACKGROUND The facts surrounding West ’ s offense are not in dispute

. On February 1 4 , 2018, two men from the Giddings Police Department

— Sergeant Stephen Stem and Officer Daniel
Turner

— were directing traffic at an intersection on US Highway 290 , where a traffic signal was2 under repa ir. Both officers had parked their patrol cars in the ou t s id e lane of the four

- la n e 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. Th e driver of that Honda was late r identified as West

. West ’ s girlfriend was also in the vehicle. S te m instructed West to pull the Honda into a parking lot to allow Stem to wo rk the scene and obtain insurance information

. West complied with the reques t

. Stem later testified that, u pon making initia l contact with Wes t , Stem began to suspect that West might be intoxicated

. Stem ’ s testimony characterized We st as slur ring his speech, unable to maintain his balance, and smelling of alcohol. According to S t e m , West admitted to having recently been drin k ing and said to Stem, “ G o 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 ref usal, West replied, “ I’m g oing to fail because I’m drunk.” West then re fused 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 b ottles of alcoholic beverages

. Stem learned that West h a d been previously convicted of driving while
i ntoxicated and prepared an affidavit for a search warrant , which was pres ented to the Justice of the Peace for Precinct 2 in Lee County

. Up on obtaining the search warrant, a blood sample was drawn and analyz e d

. 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 en hancement set fort h b y Section 12.42 of that Code. The f ir st attempt to try West ’ s case ended in mistrial when the presid ing judge concluded that multiple members of the jury array had expressed “ confus[ion] ”3 over the State ’ s burden of proof , leaving the judge un able to “ s e a t a fair and impartial jury

. ”
West ’ s c ase was resch eduled , and the court empane led a new jury , which ultimately found West guilty of driving while intoxicate d and found the enhancement allegations true . The jury sentenced West to n inety

- nine years of co n f i nement

. O n app eal, West com p lain s of two decisions by c ounsel

. First, counsel objected to venireperson 18 fo r cause and then withdrew that for

- cause objection, instead using a
per emptory strike that West contends could and should have been used agains t a n other venireperson

. Se cond, counsel belate dly filed a motion to sup press the evidence of the results of
West ’ s blood analysis ; West contends the motion would have been successful if timely filed.

DISCUSSI ON

“ To establish in effective assistance of c ou ns el, an appellant must demonstrate by
a prep onderance of the evidence a deficient performance by counsel and the defendant suffered prejudice as a result

. ” Strickland v . Washington , 46 6 U.S. 668 , 687 (1984); Miller v. State , 548 S.W.3d 497, 499 (Tex. C ri m. Ap p. 2018). The appellant must first demo nstrate that counsel’s performanc e fell below an objective standard of reasonableness under prevailing professional norms. S trickland , 466 U .S. at 687

– 8 8; Ex parte Scott , 541 S.W.3d 10 4, 115 (Tex. Crim. App. 20 17 ). The appellant must then show the existe nce of a reasonable probability

— o ne sufficient to undermine confidence in the outcome

— that the result of the proceeding would have been diffe rent absen t counsel ’ s deficient performance. Strickland , 466 U.S. a t 69 4; 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 th e ineffectivenes s claim.”
S

trickland , 466 U.S. at 700; acco rd Perez v. State , 310 S .W .3 d 8 90, 893 (Tex. Crim. App. 2010).4 Our revi ew of counsel’s representation is highly deferential; we must “indulge in a strong presumption that counsel’s conduct was not deficient.” Na va v. Stat e , 415 S.W.3d 289,
307

– 08 (Tex. Cr im. App. 2013) (emphasis i n ori ginal) ; see also Strickland , 466 U.S. at 689. To rebu t that presumption, a claim of ineffective assistance must be “firmly founded in the record,” and “the record must a ffirmatively dem onstrate” th e meritorious nature of the clai m. Menefield
v. St at e , 36 3 S.W.3d 591, 592 (Tex. Crim. App. 2012); Goo dspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). If trial counsel has not been affor de d the opportunity to explain the reasons for his or her conduct, we will not find a deficient performance u nl ess t he chal len ged conduct was “so outrageous that no competent attorney would have engaged in it.” Nava , 415 S.W.3d at 308 (quot ing Menefield , 3 63 S.W.3d at 593); Goodspeed , 187 S.W.3d at 392.
Complaint Regarding Jury Selecti on In his first issue, 1 We st c om p lains o f his attorney ’ s treatment of venireperson 18, arguing that “ trial counsel’s failure to actually challenge the prospective juror for cause am ounts to ineffective assistance of co unsel. ” The record reveals that co unsel initially objected to

v eni re p e rson 18 for cause because “ as a tow truck driver [,] he was speaking about [how] one should not refuse and if one refuses, then they ’ r e hiding guilt

. ” When t he trial court asked follow

- up questions regarding the attempted for

- cause challenge, coun se l w ith d rew tha t challenge and used a p er emp tory strike on venireperson 18. See Tex. Code Crim. Proc.

1 West has frame d his appeal as p resent ing a singl e issue

— ineffective as sistance of co uns el. Becau se he raises two distinct and unre lated arguments in support of his i neffectiv e assis tance ch allenge , for clarity and convenience we will treat these arguments as two discre te issues. See N iess v. State , No s. 03

- 11

- 00213

- CR, 03

- 11

- 00214

- CR, 0 3

- 1 1

- 00215

- CR, 03

- 11

- 00216

- CR, 03

- 11

- 00217

- CR, 2012 WL 2383300, at *1 (Tex. App.

— Austin Jun e 21, 2 012 , no pet.) (mem. op. , not designated for publication) (“Though Niess raises th ese arg uments in thirte en separate points of error, for conven ience we have gro uped the points of error into four legal issues on appeal.”).5 art. 35.14 (“A peremptory challenge is made to a juror without assigning any reason therefor.”).
Af ter the court swo re in and discharged the jury, the fo llo win g colloquy ensued:

THE COURT: The jury is not present in the courtroom. Proce ed with your objections, sir. C OUNSEL : 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 Ho nor, b a sically my objection to the panel is that I was not a

ble to use my voir dire to have the intelligent use of my pree mptory st rikes. I was curtailed when I was trying to question the jurors about levels of proof, about the exclusion of all doubt, rea sona ble doubt, excuse me, the

– it lessened the burden of pr oof on the State and basically allows a jury to convict on les s than pr oof bey ond a reasonable doubt. In addition, when you were going over your specific

— I guess your portion of the voir dire, on e of th e things that you stated was that a fair jury is one not having heard any of the evidence, is not committed to eith er side. For th e record, I believe that ’ s improper statement of the law and I believe that without having heard any of the evidence, the la w 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 objec tions, 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 he re? COUNSEL : Well, just I wasn ’ t able to intelligently use my preemptiv e strik es
. THE COURT : I ’ ve heard that. What ’ s your objection to the 14 people over there? COUNSEL: My understanding is to pr eser ve it for error, I have to make my objection n ow rather than once the jury panel

— THE COURT: Make your objection. COUN SEL: Is t hat

— 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

—6 T HE COURT: I ’ m not going to tell you how to try your c ase. I ’ ve asked for objections. COUNSEL: Okay. And then in a ddition t o that, my other objection, as I stated earlier, was to Juror Number 18. I had asked for a challenge for ca use to Juror Numb er 1 8. That was denied and I had to use one of my strikes o n Juror Number 18, which prevented me from using that strike o n Juror N umber 2 6. So I asked for an additional strike. That was denied, so I object to that as well. THE C OURT: Anything else? COUNS EL : No, Your Honor. THE COURT: Okay. Thank y ’ all. I will s ee y ’ all Monday at 9:00.

On this r ecord, West cannot prevail with his ineffec tive

- assistance argument premised on counsel ’ s withdraw al of the for

- cause challenge to v enireperson 18. The Court of Crim ina l Appeals has held that trial counsel ’ s failure to c hallenge a venire person who has voiced

a lack of impartiality does not constit ute per se ineffective assistance of counsel. Jackson v.
State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) ; Delrio v. Stat e , 840 S.W.2d 443, 447 (Tex. Crim. App. 1992) ; see also McKinley v. State , No. 03

- 04

- 00009

- CR, 2005 WL 366022, at *4 (Tex. App

. — Austi n Feb. 17, 2005 , pet. ref ’ d ) (mem. op., not designated for publi cation) (applying Jackson and Delrio to hold that def e ndant co uld not meet his burden on appeal to show ineffecti ve assistance in counsel ’ s failure to object to venireperson ’ s placemen t on ju ry)

. In Jackson , a venire person in a robbery case stated that he had been the victim of burglary and could not be imp a rtial

. See 877 S.W.2d at 7 69

. C ounsel did not challenge t he venire person for
cause or use a p er emptory challenge a gain st him , an d the t rial cou rt seated the venire person on the jury. See id

. Because the record contained no explanation of the strategy i n cou nse l ’ s failure to challenge the venire person, the Cour t of Criminal Appeals was unable to conclude that assistance was ineffe ctive. See id . at 771

.7 Similar ly, in this cas e, it is not clear from the record why counsel chose to withdraw the for

- cause o bject ion to venireperson 18. W here the record is silent as to possible trial strategies, courts must not “ spe culate as to why counsel acted in a particular way. ” McKinley , 2005 WL 366022, at * 3 ( citing Jackson , 877 S.W.2d a t 771 ; Mayhue v. State , 969 S. W .2d 5 03, 511 (Tex. App.

— Austin 1998, no pet.) )

. Thus, and because judicial review of

a claim of ineffective a ssista nce must re main highly deferential to trial counsel , see id ., on this record West cannot meet his burden to show deficient performance conc e rning ve nireperson 18. See Strickland , 466 U.S. at 700 (explaining that failure to make required showing of either deficient performance or sufficient prejudice defeats ineffectivene ss claim). We ther efore overrule the i ssue.
Complain ts Regarding Motion to Su ppr ess In his se cond issue, West argues that he suffered ineffecti ve assistance o f cou n sel in that his counselors fai led to file a timely motion to sup press the results of his bloodwork. A counselor ’ s failure to fi l e a motion to suppress is not per se ine ffe ctive assista nce
. See Wert

v. State , 383 S.W.3d 747, 753 (Tex. App.

— Houston [ 14th D ist. ] 2012 , no pet. ) (citing Kimmelman v. Morrison , 477 U.S. 365, 384 (1986 ) ). Counsel has no obligation to file futile motions. See id. (citi ng Mooney v. State , 817 S .W. 2d 693, 698 (T ex. Crim. App. 1991) )

. To prevail on an ineffective

- assistance c laim p remised on counsel ’ s failure to file a motion to
suppress , an appellant must show by a preponderance of the evi dence that the mo tion would have been granted and t hat th e r emaining evide nce would have been insufficient to support his conviction. See id. (c iting Jacks on v. State , 973 S.W.2d 954, 956

– 57 (Tex. Crim. App. 1998 ) ).8 To meet his burden, an appellant is required to pr oduce evidence that would defeat the
pr esumpt ion of proper pol ice conduct. See id. (citing Jackson , 373 S.W. 2 d. at 957 ). In th is cas e, West fir st argue s that “ untimeliness of the filing of the motion to suppress is in and of itself ineffective a ssistance of co unsel that requires a new trial. ” But a s j us t described, the failure to file a timely motion does not “ in and of it self ” establ ish ineffe c tive assistance

. See Kimmelman , 477 U.S. at 384 ; Wert , 383 S.W.3d at 753

. Next, a lthough his argument is not entir ely clear, West appears to argue t hat a time l y motion to suppress might ha ve been granted bec ause the blood draw violated his

co nstitutiona l right to remain free of unreasonable search and seizure

. See U.S. Const.

am end. IV; Tex. C onst. art. I, § 9. Cour ts employ a t wo - part test to deter mine w hethe r blood i s d rawn from a defendant in a constitutional ly sound manner : fi rst, the c ourt consid er s whether the police had justification to require the suspect to su bmit to the draw ; second, the court considers wh ether the police employed reasonab le mea ns an d procedures in obtaining and analyzing the blood

. See State v. Johnston , 33 6 S.W. 3d 649, 65 8 (Tex. Crim. App. 2011). West contends that police lacked the justification required to satisfy the fi rst prong of the Johnston tes t bec ause “ [ t] he w arrant specif ically provide [d] for the taking of blood from [West] ; however, it d [id] no t prov ide for the analyzation of that blood. ” In support o f his argument, West offers State v. Hardy , 963 S.W.2d 516, 51 6 (Tex. Crim. App. 1997)

. Hardy involved a dri ver so badly injured in an automobile accident that he was pr omptly med

- e vaced to

a nearby hosp it al, which drew his bloo d for medical purposes

. See id. at 5 17

– 18

. Prosecutors subsequently subpoenaed the results of the bl oo d work , eventually learning that the dr iver ’ s blood

- al c ohol level was .239 at the time of admission to the hosp ital , s ee id. at 5 18 , and then charged him with misdemeanor driving while into xicated. See id. The trial court granted a9 mo tion to suppres s, b ut the court of appeals reversed a nd rem anded, holding that there is no

“ r easonable expectation of privacy in me dical records in criminal cases

. ” See id

. The Court of Criminal Appeals agreed in part with the court of appeals, explaining that it wo uld dec line to determine “ whether society recog nizes a reasonable expectation of privacy in medical records in general ” but h olding that the C onstitution recognizes no privacy interest in “ blood

- alcohol test results from tests taken by hospital personnel solely f or medical purposes after a traffi c acci dent

. ” See id. at 527.
West co nten ds that Hardy stands for the proposition that “ t wo separate searches ”

— the draw itself and the subs equent analysis of that blood

— “ occur anytime blood is drawn ” and suggest s that Ser g e ant Stem need ed to obtain two war rants: one fo r the blood draw

an d one for the subsequent laboratory analysis. But the Court of Crimi nal Appeals has expressly rejected this interpretation of precedent

. See Crider v. State , 607 S .W.3d 305, 308 (Tex. Crim

. App. 2020) ( (holding that a sear ch war rant au thorizing a blood draw for evidence of intoxication also authorizes the testing of that blood)

. Moreo ver, even if W est were correct that his interpretation of Hardy would have somehow render ed a motion to suppr ess succ essful, W est has not sho wn how suppre ssion of the evidence would have resulted in a different outcome

. See Jackson , 97 3 S.W.2d at 956

– 57

. To the contra ry, the jury reviewed evidence that Hardy had a history of driving whi le intoxicated, that Serg e ant Ste m immedia tely noticed th at Wes t ’ s spe ech

was s lurred and that he smelled of alcohol, that West ’ s car contained multi ple empty b ott les of
li qu or, and that West rep eatedly st ate d that h e “ had be en drinking ” and was “ drunk ” and therefore could not pass a field sobriety test. Becaus e West has no t shown ho w a timely fil ed10 motion to suppress would have been successful such that he was prejudiced by counsel ’ s de cision , we overrule hi s issue

. 2

CON CLU SION Having overruled West ’ s arguments on ap peal, w e affirm the judgment of conviction.

____ ________ ______________________________ Edward Smit h , Justice Before Justices Goodwin, Kelly, and Smith Affirmed Filed: July 30, 2021 Do Not Publish

2 West also raises an argu m ent und er the s econd prong of the Johnston test , State v. Johnston , 336 S.W.3d 649, 65 8 (Tex. C rim. App. 2011) , contend ing that t he State did not use reasonable pro ced ures to draw his blood. To be considered reasonable, the b lood must be drawn in accordan ce with “ accept ed medical practices

. ” Schmerber v. California , 384 U.S. 757, 771 (1966) ; see a lso State v. Fikes , 585 S.W.3d 636 (Tex. App.

— Austin 2019 , no pet.). West claims the draw was not reasonable in that the phlebot omist failed t o s terilize hi s ar m befor e ins ert ing the needle. However, the record reflects that West declined sterilization o f his arm because he is

“ allergic to iodine. ” West has produced no evidence that drawing his blood in this manner , under these c ircumstances , is unsanitary or i n viola tion of established medi cal prac tices. He therefore has not met his burden to show, by a preponderance of the evidence, t hat his motion would have been successful

. See Siddiq v. State , 502 S.W.3d 387, 403 (Tex. App.

— Fort Worth 20 16, no pet.) (hold ing def endant h ad produced “no evidence that the manner in which Doolittle performed the blood dra w” was unreasonable) ; State v

. Daggett , 640 N.W.2d 546, 550

– 51 (Wisc. Ct. App. 2001) (holding, under Sch merber , 384 U.S. at 77 1 , that defend ant could not prev ail wit h argume nt that blood draw was unreasonable where defendant alleged but failed to produc e any evidence that circumstances of blood d raw were , in fact, “ unsanit ary ” ).