### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00797- CR

Dana Sn okhou s, Appellan t

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F WI LLIAM SO N COUNTY NO. 08- 0278 6-1 , H ONO RAB LE SUZ ANNE B ROO KS , JUDGE P RESIDING

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

A jury convicted appellant Dana Sn o k h o u s o f th e o f

f e n s e o f d r iv in g w hile intox icated. See Tex. Penal Code Ann. § 49.04 (West 2003). Punishm ent was assessed at 180 day s’ confine ment and a $2,000 fine, but the trial co u rt s u s p en d ed imposit ion of the sentenc e and place d Snokhous

on community supervision for 24 months. I n two points of err or, Snokhous asser ts that the trial court abused its discretion in admitting hear say testimony and that trial counsel rende red ineffe ctive assistance by failing t o object to evidenc e that Snokhous ref used to submit a blood specimen for analy sis. W e will aff

irm the judg ment.

BACK GR OUND The jury hear d evidenc e that on the ni ght of April 13, 2008, Snokhous cra shed her

car in a n open field located in a Round Rock neig hborhood. The cra sh was observe d by witnesses Christopher Gre enstein and J onathan Ander son, who wer e play ing a g ame of pool in Ander son’sg ara g e. Gre enstein testified that, as he was rac king the pool balls, he hear d tires squealing , looked

up, and saw a maroon Tahoe make a sharp left turn and “just keep on turning and g o up, hop the curb into the open field.” The vehicle then “g lance d off a littl e stand of ceda r tree s” and came to a stop. The ve hicle attempted to e x it the field but “g ot hung up on a big boulde r.” Gre enstein then “ra

n acr oss the street to see if [t he driver] was o k ay . ” I n court, Gre enst ei n i d entified S nokhous as t he driver of the vehicle. Gre enstein recounted that he opened the door to the vehicle and noticed the smell of alcohol. He observe d that Snokhous did not appea r injured in any way . Gre enstein testified, “I asked her if she was okay

. The Def endant said help me and that’s when I rea lly smelled alcohol and her head was sway ing, speec h was slurred.” Gre enstein

rea ched into the car , put the vehicle in pa rk, turned it off, and took the key s. Gre enstein did so out of conce rn that “thing s could g et worse” if she was able to drive awa y . He explained, “Well, I mean she was obviously , in my opinion, at that time intox icated, inebriate d and I had conce rns about her making it safely

to the house.” G ree nstein then retur ned to Ander son’s house and c alled 911. Whil e Gre enstein was making the call, he continued, Snokhous’s husb and, David,

arr ived and, with Ander son’s help, succe eded in g etting the vehicle off the rock. Gre enstein testified that David drove the car out of the field while Snokhous, who was no lo n ger in the vehicle, “attempted to walk down the sidewalk to [her] house.” Acc ording to Gre enstein, “I saw her having trouble walking a straig ht line, y ou know, stumbli ng , not very g ood control and actua lly fell down a couple of times betwee n, y ou know, wher e we wer e loca ted and my house.” Ander son testified that he also witnessed the vehicle “cr ash into the curb and then g o out into that open field acr oss the street.” He explained, “I t went throug h the field, hit a tree , vehicle

2sat there for a few seconds, back up, tried to g et off the t re e, couldn’t immediately g et off, went

forwa rd a littl e bit, put it back in reve rse and then eventua lly g ot off the tree and then started to turn around at which point it g ot lodge d” on a boulder. Ander son opined that the turn Snokhous had tried
to make, which he testified was at a 9 0 -d egr ee an g le, require d drivers to slow down but that Snokhous had not slowed down “until she hit the tree .”

Whil e Gr eenstein was calling 911, Ander son approa ched the vehicle to chec k on the condition of the driver. When he spo k e with Snokhous, Ander son rec ounted, he noticed that “she was cry

ing. Kind of, y ou know, just mumbling. I t was hard to understand what she was say ing. Vi sibly upset.

. . . And she just kind of kept say ing the same thing, y ou know, help me, help me,

over and over was rea lly all she said.” Ander son added, “I could smell alcohol and just her overa ll demea nor, . . . I mean, she was strug g ling.” Both Ander son and Gre enstein testified that the smell of alc ohol on Snokhous got strong er w hen she w as spea king w ith them.

Ander son testified that David assisted Snokhous in g etting out of the vehicle, started the vehicle using an extra set of car key s, and attempted t o get it off the rock. Eventually , with help from Ander son, he was able to do so. Dav i d t h en as k ed S nokhous to g et i n the vehicle, but,

acc ording to Ander son, she ref used. Ander son rec alled that, at that po i n t , S n okhous seeme d “irritate d” and “ag itated.” David th en d rove awa y in the vehicle, and Snokhous “starte d to walk home.” Ander son also noticed that Snokhous had difficulty walking : “She was walking down the field side of the stre et on the sidewa lk and proba bly walked 15 to 20 fee t a

nd fell down. We w ere standing on the drivewa

y and t h en s h e go t b ack up, started to walk acr oss the street,

. . g ot to the curb and fell down ag ain, picked herse lf back up.” Ander son was asked how intox icated he thought

3Snokhous was, “on a scale from one to ten with one being the least i n t o x icated person y ou’ve

ever seen and ten being the most intox icated person y ou have ever seen.” Ander son re p l i ed , “I would put her a t about an eig ht on that scale.”

Offic ers Tate Hunter and J onathan Miner of the Round R o ck P o l ice Depa rtment responde d to the 911 call. Hunter testified that he was told by dispatch that there had been a single

vehicle acc ident involving an intox icated driver. When Hunter arr ived at the scene of the acc ident, he spoke with both Gre enstein and Ander son. Both men repor ted what they had observe d reg arding th e c r a s h a n d Snokhous’s behavior , and they informed Hunter that they believed she was intox icate d

. Hunter and Miner then went to Snokhous’s house to cont i n u e t h eir investiga tion. They observe d the Tahoe in the driv ew ay an d n o t i ced g rass, dirt, and debris in and around the front bumper. Howeve r, neither office r observe d any signific ant damag e to the vehicle. They then approa ched the front door of the residenc e, announce d their prese nce, and wer e g ree ted by David. Hunter rec alled, “Of

fice r Miner asked David if his wi fe wa s at t h e house and he said y es. And
at th at t i m e [ we ] observe d the fema le Dana to walk up to the front door.” Hunter rec alled his observa tions as she approa ched: “My initial observa tion is that she’s uneasy on her fee t, she’s stag g ering , sway ing, and as she approa ches the door fra me she has to use the door fra me to support herse lf and is unable to stand without assistance of the door fra me.” Also, Hunter testified, “She had

a strong odor of alcohol on her p er s o n an d I could tell that her ey es wer e g lazed and water y and bloodshot.” Hunter first noticed the smell of alcohol emana ting from Snokhous when she was “betwe en five to seven feet” awa y from him

. Hunter added that he had not smelled alcohol when David had f

irst opened the door

and the of

fice rs wer e spea

king w ith him.

4Hunter proce eded to ask Snokhous how the acc ident had happene d. Whil e Snokhous

was tal k i ng to Hunter, he “noticed she had rea l thick, slurred speec h.” Acc ording to Hunter, Snokhous told him “that abou t 15 minutes ag o she was driving and ran off the roadw ay ,” but “she didn’t know how it happene d.” Snokhous also told Hunter that she was on her way home from

a local bar wher e she works as a barte nder. Snokhous then admitted “that she had drank two shots of Goldschlag er liquor about two hours prior to leaving .” Hunter explained to the jury that Goldschlag er is a liquor that is probably “50 to 60 perc ent al co h o l i f I had to g uess. I t’s a clea r liquor.” On cross, Hunter acknow ledg ed that Goldschlag er does not contain as much alcohol as “har d liquors” such as Everc lear , b u t on redire ct he added, “Well, it’s a lot more [alcohol] than drinking a beer

. I mean, I would say it’s closer to having a shot of whiskey than it would—a strong er whiskey than it would be somebody sipping a small g lass of wine and having a domestic light beer or something .” Hunter then asked Snokhous if she had any i n j u ri es , an d she told him that her “ea r hurt very bad.” Hunter offe red to call an ambulance to take her to a hospital, which Snokhous

acc epted. Hunter explained that when EMS is reque sted, it is standard opera ting proce dure for the police not to perf

orm any field sobriety tests. For that rea son, Hunter testified , he did not p erform any such tests on Snokhous. Howeve r, while EMS was en route, Hunter continued the investiga tion. He asked Snokhous if she ha d any thing to ea

t or drink or ha d taken a

ny medication since she had arr ived home. Snokhous said she had not and told him “that all she had done once she went inside wa s use the re st room.”

5Hunter also testified conce rning David’s demea nor and statements while the office rs

wer e at the house. Hunter testified, “He ’s kind of almost just laid back. He doesn’t rea lly car e. He’ s kind of—kind of just whateve r happens happens kind of attitude.” Hunter also testified that he was advised by David “that when [S nokhous] walked into the hous e af t er h er wreck she fell down and hit her head.” Finally , over a hear say objection by defe nse counsel, Hunter was asked if David made “any comments th at l ed y ou to believe that he was under the impression that his wife was intox icated.” Hunter te stified, “The statement that Da vid made to me was whateve r y ou g uy s can do to keep he r out of a D WI I would rea lly

appre ciate it.” After EMS arr ived, Snokhous was transporte d to the hospit al

. Hu n t er and Miner

arr ived shortly there afte r and, onc e they met up with her in the e merg ency room, place d her unde r

arr est fo r d ri ving while intox icated. Hunter reque sted a specimen of her blood, which Snokhous ref used to g ive. Hunter then advised her that becaus e she was at the hospital, it was standard opera ting procedur e to rele ase her, get a warra nt for her arrest, and take her i nto custody afte r she had bee n rele ased f

rom the hospital. The off icer s arr ested he r the ne x t day

. Offic er Miner’s testimony was l ar gel y consistent with Hunter’ s testimony

. Miner simil arly observe d Snokhous stumbli ng as she walked toward the front door, having trouble keeping her balance , sway ing “from side to side,” and leaning ag ainst the door “to h el p her stay uprig ht.” He also “smelled a strong odor of an alcoholic bever ag e coming from her” that he had not smelled when Da vid had opene d the door. Miner testified that Snokhous had told him t hat, whil e she w as at the bar, she had drank “two or three shots of liquor.” Both Hunter and Miner testified that, in their

6opinion, based on what they had lear ned during the investiga tion and their prior ex p erience investiga ting DWI s, Snokhous had been ope rating a motor vehic le while she w as intox icated.

Di l l o n Eastwood, an EMS para medic, examined Snokhous when the ambulance

arr ived at the hous e at approximately 10:00 p.m. Eastwood testi fied that during the ex amination, Snokhous told him that she had consumed “five shots” of alcohol since 7:00 p.m. that night

. Eastwood also noted during the examination that Snokhous exhibi ted “slurre d speec h.” Eastwood testified that he has responde d to thousands of car acc idents over the course of his car eer , that “quite a few ” of them involved alcohol, and that, in his opinion, alcohol play ed a role in Snokhous’s

acc ident. Trac ey L ewis, another EMS para medic who h ad ex amined Snokhous, testified simil arly

. L ewis not iced that Snokhous had “slurred speech” an d “a n alcohol-like smell.” L ewis al so rec alled that Snokhous “wa s having some issues reme mbering some things like phon e numbers.” L ewis conclude d that she believed S n o khous was intox icated while she was speaking with her a nd that alcohol had pla

y ed a r ole in the ac cident that nig ht. Stacy Domel, a reg istered nurse who had trea ted Snokhous at the hospital wher e Snokhous was admi t t ed , al s o testified. Domel explained that when she was trea ting Snokhous, she asked her “if there was alcohol use prior to arr ival.” Acc ording to Domel, Snokhous “stated to

me specific ally three Goldschlag er which I rec orded in my notes for the phy sician to have to revie w.” Domel also observe d “tha t t h er e was a smell of alcohol on her brea th.” Howeve r, on crossexamination, Domel also rec alled that Snokhous was “ale rt and oriented” when she examined her.

7Snokhous’s medical rec ords from her hospital visit wer e admitted into evidenc e. An

emer g ency room repor

t included in the rec ords indicates that, by the time of Snokhous’s discha rg e from the hospital, she was “not curr ently cli nically intox icated.” Domel testified that this assessment was made at approx imately 1:00 a.m., over t wo hours afte r S nokhous had arrived at the hos pital.

Following Domel’s testimony , the State rested its c ase. The defe nse then rested its

case wi t h o ut calling any witnesses. The jury found S nokhous g uilty of driving whil e int ox icated. Following a sentenc ing hear ing befor e the trial court, Snokhous was place d on co mmunity supervision for 24 months. This appea l followed.

ANALYSIS Hearsay I n her f

irst point of error, Snokhous asser ts that the t rial court abused its discretion in admitting over objection the following testimony by Offic er Hunter: “The statement that David made to me was whateve r y ou g uy s can do to ke ep her out of a DWI , I would rea lly appre ciate it.” Snokhous contends that this sta t em en t was inadmissible hear say . The State responds that the
statement was admissible under an exception to the hear say rule. See Tex. R. Evid. 803(1) (pre sent

sense impression), (24) (statement ag ainst interest). Alterna tively , the State arg ues that any err or in the admission of the statement wa s harmless.

Assuming without deciding t h at the above statement was inadmissible hear say that does not fall under one of the exceptions to the hear say rule, we cannot conclude on this rec ord
t h at Snokhous was harme d by its admission. A violation of the evidentiar y rules that results i n the err oneous admission of evidenc e is non-constitutional err or. See King v. State , 953 S.W .2d 266,

8271 (Tex. Crim. App. 1997). Any non-constitutional err or “that does not af fe ct s u bstantial rig hts
must be disreg arde d.” Tex. R. App. P. 44.2(b). Substantial rig hts are not aff ecte d by the err oneous admission of evidenc e if the appellate court, afte r examining the rec ord as a whole, has fair assura nce that the err or did not influence the jury , or had but a slight eff ect. Motilla v. State , 78 S.W .3d 352, 355 (Tex. Crim. App. 2002).

Having revie wed th e record, we have fair assura nce that the alleg ed hear say did not inf luence the jury , or had but a slight eff ect. This wa s a ca se in which sever al witnesses—two ey ew i t nesses to the acc ident, two police office rs, two para medics, and a reg istered nurse— ea ch provided extensive testimony tending to show that Snokhous had opera ted a moto r v eh i cl e while intox icated. Greenst ein and Ander son, both of whom wer e ey ewitnesses to the accident, testi fied that they smelled alcohol on Snokhous when they approa ched he r immediately afte r t he crash and that the smell was strong er when she was talking to them. Gre ens t ei n t es t i fi ed that her head was sway ing and her speec h was slurred; Ander son testified that she was mumbling and “kept say in g the same thing, y ou know, help me, help me, over and over.” Also, Ander son testified that, prior to the cra sh, Snokho u s had not slowed down “until she hit the tree ,” even though, acc ording to Ande rs o n , the turn was at a 90-deg ree ang le that require d a slow rate of speed to succe ssfully navig ate. Gre enstein testi fi ed that he had hear d “tires squealing ” immediately befor e the cra sh. Moreove r, Gre enstein and Ander son both testified that, as Snokhous was walking awa y from the

acc ident (af

ter she had ref

used to g et into the car with her husband), she was stumbli ng , had trouble walking in a straig ht line, and fe ll down on two separa te occ asions.

9Officer s Hunter and Miner eac h testified that, in his opinion, Snokhous had been

intox icated while she was opera ting a motor vehicle. They came to this conclusion afte r persona lly observing such things as her slurred speec h, her “g lazed,” “wa tery ,” and “bloodshot” ey es, and her difficulty in w alking and maintaining her balanc e as she stood nea r the door. They both sme lled a strong odor of alcohol coming from Snokhous as she approa ched them (ac cording to Offic er Hunter,

as soon as she was “be t ween five and seven fee t” awa y from him) and that they had not smelled alcohol when h er h u s b an d had first g ree ted them at the door. Moreove r, both office rs testified that Snokhous admitted to them that she had drank either two or three shots of Goldschlag er liquor that night. T h e me d ic a l p r o f essionals who had trea ted Sn o k h o u s te s ti f ie d to s im il a

r o b s e r v a ti o n s . Eastwood noted that Snokhous e x hibited “ slurred speec h.” L ewis likewise noticed tha t Snokhous had “slurre d speec h” and “an alcohol- like smell.” L ewis also rec alled that Snokhous “wa s having some issues reme mbering some things like phone numbers.” Moreove r, Eastwood testified that Snokhous had told him that she had consumed “five shots” of liquor since 7:00 p.m. that night. The acc ident happene d at approxi m at el y 1 0 : 0 0 p.m. Both Eastwood and L ewis testified that they believed alcohol “play ed a role” in Snokhous’s acc i d ent. Finally , Nurse Domel testified that Snokhous had admitted to her that she had consumed three Goldschlag er shots a nd “that there

was a smell of alcohol on her brea th.” Thus, the evidenc e shows that Snokhous had admitted to

m u l t i p l e witnesses that she had drank betwee n two and five shots of liquor that night les s t h an three hours prior to her acc ident. Hunter testified that Goldschlag er liquor, althoug h not containing as much a lcohol as Ever clea r, wa s simil ar to a

“strong er w hiskey .”

10The defe nse theory at trial was that beca use Snokhous was working as a barte nder the night of the acc ident, she had been in cl o s e p ro x i m i ty to people who wer e drinking , and the smell of alcohol was coming from Snokhous’s clothing ra ther than he r bre ath. There was also

some evidenc e tending to show that Snokhous may not have been intox icated at some point during her hospital stay , namely the assessment in the emer g ency room repor t that Snokhous was “not

curr ent ly clinically intox icated” upon her discharg e from the hos pital and Domel’s testimony that Snokhous was “ale rt and oriented” during her examination. Howeve r, the evidenc e tending to show that Snokhous was intox icated at the time of the acc ident and shortly there afte r can be fairly char acte rized as over

whelming

. We also observe that Offic er Hunter testified to the alleg ed hear say statement at only

one point during trial; the statement was not repe ated at other points during his testimony or the testimony of Offic er Miner. Also, the State mentioned the alleg ed hear say only once during its closing arg ument. Most of the State’s arg ument conce rned the other evidenc e in the case , which we have summarized a

bove. Thus, the alleg ed hear say was not empha siz ed by the State either during the pre sentation of evide nce or during arg ument. We cannot conclude on this rec ord that the alleg ed hear say influence d the jury or had but a slight eff

ect. Acc ording ly , we must conclude that the admission of the alleg ed hear say did not aff ect Snokhous’s substantial rig hts and was ha rmless. We overrule Snokhous’s first point of error

.

11Ineff

ect ive Assistance I n her second point of err or, Snokhous asser t s that her trial counsel rende red ineffe ctive assistance by not filing a motion to suppress evidenc e that Snokhous ref used to provide

a specimen of blood for analy sis. Snokhous claims that her war rantless arr est at the hospital was illega l and, there fore , that her ref usal to provide a blood specimen was a “fr uit” of the illega l arr est that counsel should have soug ht to suppress.

To preva il on a claim of ineffe ctive assistance of counsel, a defe ndant must prove by a prepondera

nce of the evidence that: (1) counsel’s performanc e was defic ient; and (2) cou n s el’s defic ient perf

ormanc e prejudice d the defe ndant. See Strickland v. W ashington , 466 U.S. 668, 687- 88 (1984); Ex parte Ellis , 233 S.W .3d 324, 330 (Tex. Crim. App. 2007); Hernande z v. State , 726 S.W .2d 53, 56-57 (Tex

. Crim. App. 1986). Unless the defe ndant makes both showing s, it
cannot be said that her conviction is rende red unreliable by a brea kdown in the adver sarial proce ss. Strickland , 466 U.S. at 687.

To establish defic ient perf ormance, a defe ndant must show that counsel’s conduct fell below an objective standard of rea sonablene ss. Davis v. State , 278 S.W .3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland , 466 U.S. at 687). We revie w the eff ectivene ss of counsel in light of the totality of the repr esenta tion and the circ umstances of eac h case . Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999). I n most case s, an undeve l o p ed re co rd on direc t appea l is insufficient to satisfy the require ments of Stricklan d b eca use the rea sonablene ss of counsel’s decisions often involves fac ts not appea ring in the appellate rec ord. Rylander v. State , 101 S.W .3d 107, 110 (Tex. Crim. App. 2003).

12To satisfy the second prong of the Strickland test, th e d efe ndant must show that “ther e

is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.” Id

. (citing Strickland , 466 U.S. at 692)

. A rea sonable probability is a “proba bility sufficie nt to undermine confide nce in the outcome,” meaning “counse l’s err ors wer e so serious as to deprive the defe ndant of a fair trial, a trial whose result is reliable .” Smith v. Sta te , 286 S.W .3d 333, 340 (Tex. Crim. App. 2009) (citing Strickland , 466 U.S. at 68 7 , 6 9 4 ). “The benchma rk for judging any claim of ineffe ctiveness must be whether counsel’s conduct so undermined the proper functioning of the adver sarial proce s s that the trial cannot be relied on as having produce d a just result.” Strickland , 466 U.S. at 686. I n other wor ds, we will not reve rse a conviction based on ineffe ctive assi stance of counsel unless the alleg ed defe cts in counsel’s perf ormanc e undermine our confide nce in the jury ’s ver dict. See Tapps v

. State , 257 S.W .3d 438, 451 (Tex. A

pp.—Austin 2008) , aff’d on other grounds , 294 S.W .3d 175 (Tex. Crim. App. 2009). Even wer e we to assume that counsel wa s d efic ient in failing to file a motion to suppress Snokhous’s ref

usal to submit a blood specimen, this would not undermine our confide nce in the jury ’s verdic t. We have al ready summarized the extensive evidenc e tending to show that Snokhous was opera ting a motor vehicle while intox icated. We cannot conclude on this rec ord that, if the evidenc e of Snokhous’s re fusal to submit a blood specimen had be en suppre ssed, there is a rea sonable proba

bility that the re sult of the proce eding would have be en diffe rent. We overrule Snokhous’s second point of er ror.

13CONCLUSION We affir m the judgme nt of the trial cour t.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton; Concurring Opinion by J ustice Patterson Affir med Filed: May

14, 2010 Do Not Publish

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