Affirmed and Memorandum Opinion filed October 29 , 2015

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 14

- 00241

- CR NO. 14

- 14

- 00242

- CR

GRISELDA AZA , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 174th District Court

Harris County, Texas Trial Court Cause No s . 1366175 & 1366176

M E M O R A N D U M O P I N I O N
Appellant killed two people in a drunk

- driving accident when she ran through a red light and collided with another vehicle. The State charged her with two counts of intoxication manslaughter, and she pleaded guilty to each count without an agreed recommendation as to punishment

. On both counts, the trial
court sentenced her to fifteen years’ imprisonment and ordered that the sentences

were to run concurrently . Now , in a single issue on appeal, appellant argues that2

she was denied the effective assistance of trial counsel because counsel never moved to suppress the results of a blood draw that proved her i ntoxication

. We review claims of ineffective assistance of counsel under the standard set
forth in Strickland v. Washington , 466 U.S. 688 (1984). Under Strickland , the defendant must prove that her trial counsel’s representation was deficient, and that
the deficient performance was so serious that it deprived her of a fair trial. Id. at 687. Counsel’s representation is deficient if it falls below an objective standard of
reasonableness. Id. at 688. A deficient performance will only deprive the defendant
of a fair trial if it prejudices the defense. Id. at 691

– 92. To demonstrate prejudice, there must be a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694. Failure to make
th e required showing of either deficient performance or sufficient prejudice defeats
the claim of ineffectiveness. Id. at 697. This test is applied to claims arising under
both the United States and Texas Constitutions. See Hernandez v. State , 726 S.W.2d 53, 56

– 57 (Tex. Crim. App. 1986). Our review of defense counsel’s performance is highl y deferential, beginning with the strong presumption that counsel’s actions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State , 87 7 S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to counsel’s strategy, we will not conclude that the defendant received ineffective assistance unless the challenged conduct was “so outrageous that no competent attorney would have eng aged in it.” See Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation.
See Bone v. State , 77 S.W.3 d 828, 833 (Tex. Crim. App. 2002). In the majority of cases, the defendant is unable to meet the first prong of the Strickland test because3

the record on direct appeal is underdeveloped and does not adequately reflect the alleged failings of trial counsel. See Mata v. State , 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Isolated instances in the record reflecting errors of omission or commission do not render counsel’s performance ineffective, nor can ineffective assistance of counsel be established by isolating one portion of trial counsel’s performance for examination.
See Ex parte Welborn , 785 S.W.2d 391, 393 (Tex. Crim. App. 1990) . Moreover, it is not sufficient that the defendant show, with the benefit of hindsight, that her counsel’s actions or omissions during trial were merely of questionable competence. See Mata , 226 S.W.3d at 430. Rather, to establish that counsel’s acts or omissions were outside the range of professionally competent assistance, the
defendant must show that counsel’s errors were so serious that s he was not functioning as counsel. See Patrick v. State , 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).
The blood draw at issue revealed that appellant had an alcohol concentration that was nearly three times the legal limit. Appellant contends that if this evidence had been suppressed, then she would have been in a better position to negotiate a more favorable plea bargain, or perhaps even proceed to trial.
She argues further that this evidence could have been suppressed because it was obtained pursuant to a mandatory blood

- draw statute , rather than a court

issued warrant . Appellant refers specifically to Section 724.012(b)(1)(A) of the Texas Transportation Code, which mandates the taking of a blood specimen in
certain cases where an individual has died as a direct result of a drunk

- driving4

accident. Appellant takes issue with this statute , claiming that it cannot operate as an exception to the Fourth A mendment’s warrant requirement. She relies on a recent decision from this court, in which we held that the S tate had not proved its burden of showing an exigency exception for another warrantless blood draw, despite facts that implicated a different provision of the same statute. See Douds v.
State , 434 S.W.3d 842, 862 (Tex. App.

— Houston [14th Dist.] 2014) (en b anc) (op. on reh’g), rev’d on other grounds , — S.W.3d

— , 2015 WL 5981121 (Tex. Crim. App. Oct. 14, 2015)

. We need not address the challenge to the blood

- draw statute because the record does not affirmatively demonstrate counsel’s ineffectiveness. Appellant did not file a motion for new trial, and thus, the record is completely silent as to counsel’s tactics and strategy regarding the treatment of the blood

- draw evidence.
We c annot deem counsel’s performance constitutionally deficient without speculating as to counsel’s motivations, which we are not permitted to do. See Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“Any allegation of
ineffectiveness must be firml y founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.”)

. Moreover, we note that the record do es not affirmatively demonstrate that
the blood draw was obtained without a warrant , which is an essential premise t o appellant’s claim. The only evidence of the circumstances surrounding the blood
draw is recited in a presentence investigation report. The report states that appellant was transported to a hospital after the accident, and that a “mandatory blood sample” was obtained there “for medical reasons.” There is no discussion indicating whether or not the State procured a warrant to obtain the blood specimen . T he mere mention of the word “mandatory” does not mean that the
blood draw was necessarily warrantless

.5

W e further note that the presentence investigation report raises the suggestion that the blood draw was ordered by the hospital for the sole purpose of medical treatment, rather than by the State for the purpose of criminal investigation. If that suggestion were true , appellant would not have a reasonable expectation of privacy in the blood

- draw evidence, and she would lack standing to challenge its admission under the Fourth Amendment

. See State v. Hardy , 963 S.W.2d 516, 527 (Tex. Crim. App. 1997); Tapp v. State , 108 S.W.3d 459, 461

– 62 (Tex. App.

— Houston [14th Dist.] 2003, pet. ref’d). Thus , counsel would not have
been ineffective for failing to file a motion to suppress.
The record in this case is underdeveloped. There is no evidence that the
blood draw wa s obtained without a court

- issued warrant. Even if there were such evidence affirmatively showing the blood draw was warrantless, the record is still silent on counsel’s reasons for not challenging the admission of that evidence. Appellant has not overcome the strong presumption that counsel acted reasonably. Therefore, we overrule her sole issue on appeal and affirm the judgment of the trial

court.

/s/ Tracy Christopher Justice

Panel consists of Chief Justi ce Frost and Justices Christopher and Donovan

. Do Not Publish

— Tex. R. App. P. 47.2(b).