AFFIRM; and Opinion Filed August 7, 2013.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-00940-CR

COURTNEY PIERCE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 6

Collin County, Texas

Trial Court Cause No. 006-85905-2011

OPINION

Before Justices FitzGerald, Francis, and Lewis 

Opinion by Justice Lewis

Appellant Courtney Pierce was charged by information with driving while intoxicated, a 

Class B misdemeanor. Appellant pleaded not guilty, and a jury convicted her as charged. The 

trial court assessed punishment at ninety days in jail, probated for fifteen months and an $800 

fine. In four issues, appellant challenges her conviction and alleges the trial court erred by 

sustaining the State’s objection to appellant’s evidence, and by overruling appellant’s objection 

to the State’s improper closing argument. Appellant also asserts she received ineffective 

assistance of counsel. For the reasons below, we affirm the trial court’s judgment.

BACKGROUND

Around 2:30 a.m. on August 7, 2011, Plano police officer Ben Waite saw appellant pull 

out of a gas station and drive the wrong way on the service road of Central Expressway. He 

immediately pulled her car over. Officer Waite testified that when he approached appellant, he 
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noticed she had heavy, watery eyes, and there was a strong odor of an alcoholic beverage coming 

from appellant. When he asked appellant if she had been drinking, she told him she had 

consumed one drink. Backup police officer Christopher Sanders also noted a strong odor of 

alcohol. Appellant told him she had come from the Londoner Pub in Allen, Texas. She believed 

she was in Dallas, rather than Plano. Appellant told Sanders that she had two drinks, a half-pint 

and a full pint of whisky and ginger ale. 

Officer Sanders administered the Standardized Field Sobriety Tests and appellant 

performed poorly. She showed all six possible clues on the horizontal gaze nystagmus test, well 

over the decision point of four clues that indicates intoxication. She could not complete either of 

her attempts in the walk-and-turn test. Sanders ultimately stopped the test because he was afraid 

she would injure herself. Finally, on the one-leg-stand test, appellant showed two clues, the 

decision point for intoxication. Officer Sanders then arrested appellant and placed her in the 

back seat of his police vehicle. While being transported to the Plano City jail, appellant slumped

down across the back seat and fell asleep. 

Upon arrival at the Plano City jail, Officer Mica Lunt had to assist appellant out of 

Sander’s car. Officer Lunt testified the entire car smelled of alcohol. Appellant almost fell 

getting out of the car, and Lunt had to place his hands on her shoulders to guide her into the 

building. Once he got her into the Intoxilyzer room, Officer Lunt noted that appellant had 

glassy, bloodshot eyes, her speech was slurred, and she had to lean against the wall or table to 

steady herself. Appellant agreed to take a breath test and eventually, was able to provide two 

sufficient breath samples. The results of the Intoxilyzer test were not introduced during the 

State’s case-in-chief.

Appellant reserved opening argument until after the State rested its case. During opening 

statement, appellant’s counsel told the jury that appellant had gone to the Londoner Pub to play 
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pool with a friend. He said two men purchased a drink for appellant and something must have 

been placed in that drink that caused her to not be in a normal state of mind. He explained that 

appellant had no memory of anything that happened from the time she sipped that drink until she 

woke the next morning in the Plano jail. During presentation of her case, Appellant recalled all 

three police officers and solicited testimony that some of her behavior had been unusual. She 

also took the stand in her own defense. 

Appellant testified she was a helicopter pilot and flew approximately six days a week. 

She testified that FAA guidelines do not permit a pilot to fly while under the influence of 

alcohol; a pilot cannot have consumed alcohol within eight hours before a flight; and a pilot’s 

blood-alcohol content must be less than .08. She also testified that a DWI conviction is a serious 

offense to the FAA that results in the pilot’s license being taken away. Appellant said she had 

personal “rules” when she goes out drinking, including not drinking twelve hours before a flight 

and always having cab fare or sharing a ride. Appellant admitted that around 10:30 p.m. on 

August 6, 2011, she met a friend, Cindy Bliss, at the Londoner Pub in Allen, Texas. She testified 

she had one drink when she first arrived and another drink around midnight. While they were 

playing pool, two men started talking to her and her friend and bought them each a beer. 

Appellant took a few sips of beer and started feeling “hot and sweaty.” She asserted she did not 

remember anything from that point forward until she awoke the next morning in jail. She 

testified she had no memory of leaving the bar, getting into her car, driving, being arrested, or 

taking the Intoxilyzer test. When she got out of jail, she tried to go to an emergency clinic for a 

drug test but the clinic was closed. She testified she called other clinics the next day but none 

could do a “date rape drug test.” She maintained she did not voluntarily drink more than the two 

drinks she ordered and a few sips of beer. She also asserted if she believed she was impaired, 

she would not have driven her car away from the Londoner Pub.
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In rebuttal, the State called Lori Fuller, a technical supervisor with the Southwest 

Institute of Forensic Science. She explained how the Intoxilyzer 5000 instrument works and 

verified it was functioning properly on the night of appellant’s breath test. Fuller also explained 

the Intoxilyzer tests only for ethanol, the type of alcohol that is most widely consumed. 

Appellant’s blood alcohol concentration tested at 0.148 and 0.150. Fuller testified that a 130-

pound female would have had to consume the amount of alcohol equivalent to six to nine

standard alcoholic drinks between 10:30 p.m. and 12:00 a.m., or 10:30 p.m. and 2:00 a.m., to 

have an alcohol concentration of 0.148 at 3:30 a.m., the time of the sample. She also testified the 

Intoxilyzer does not test for drugs of any sort and does not show the presence or absence of a 

“date rape drug” such as Rohypnol. 

The jury found appellant guilty of driving while intoxicated. Appellant filed a motion for 

new trial and motion in arrest of judgment, arguing the verdict was contrary to the law and the 

evidence. After the trial court denied appellant’s motion, she timely filed this appeal. 

DISCUSSION

Appellant raises four issues on appeal. First, appellant argues the trial court erred when it 

sustained the State’s objection to appellant’s testimony regarding her drinking habits. Appellant

contends such testimony was evidence of a pertinent character trait, was relevant to the offense 

on trial, and qualified as evidence of her habits to prove that her conduct on a particular occasion 

would have been in conformity with her habit or routine practice. Second, appellant argues the 

trial court erred when it overruled her objection that the State made an improper closing 

argument by arguing outside the evidence. In her third and fourth issues, appellant contends she 

received ineffective assistance at trial. Appellant complains that although her trial attorney 

purported to present a defense that appellant was drugged with Rohypnol or a similar drug, her 

trial counsel failed to present evidence regarding the presence of such a drug in appellant’s 
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system, and the effects of such a drug. Appellant also complains that her trial counsel 

improperly withdrew his objection to the State’s presentation of Fuller as a rebuttal witness.

A. Evidence of Habit 

Appellant argues the trial court erred in not allowing her to present testimony regarding 

her drinking habits to the jury. We review a trial court’s decision regarding the admissibility of 

evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 

2011); Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); Montgomery v. State, 810 

S.W.2d 372, 391 (Tex. Crim. App. 1990). A trial court abuses its discretion only if its decision 

is “so clearly wrong as to lie outside the zone within which reasonable people might disagree.” 

Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). If the trial court’s decision is 

reasonably supported by the record and correct on any theory of law applicable to the case, we 

will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). 

Appellant contends that testimony regarding her drinking habits was pertinent character 

trait evidence to support her defensive theory that had she not been drugged by Rohypnol or 

some similar drug, she would not have knowingly entered her vehicle and driven while 

intoxicated. Generally, character evidence is not admissible to show that a person acted in 

conformity with a character trait on a particular occasion. TEX. R. EVID. 404(a); Turner v. State, 

2012 WL 3207291, at *7 (Tex. App.—Fort Worth Aug. 9, 2012, no pet.). However, an accused 

is allowed to introduce evidence of a specific good character trait to show that it is improbable

that she committed the offense charged where that character trait is relevant to the offense. TEX.

R. EVID. 404(a)(1)(A); Melgar v. State, 236 S.W.3d 302, 306–07 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d). Evidence of a person’s habit is relevant to prove that the conduct of the 

person on a particular occasion was in conformity with the habit. TEX. R. EVID. 406; Guerrero v. 

State, No. 14-10-00840-CR, 2011 WL 6808314, at *6 (Tex. App.—Houston [14th Dist.] Dec. 
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22, 2011, no pet.) (mem. op., not designated for publication). “Evidence of habit and character 

sometimes appear similar; but while character is a generalized description of a person’s 

disposition, habit describes a person’s regular response to a repeated specific situation.” 

Guerrero, 2011 WL 6808314, at *6. 

During appellant’s testimony, her attorney asked her to tell the jury what her habits were 

regarding alcohol. The State objected based on relevance and the trial court sustained the 

objection. Appellant’s counsel did not explain why such evidence was admissible, or make an 

offer of proof of the actual evidence sought to be admitted. Instead, appellant’s counsel 

continued questioning appellant, asking her whether she had any rules that she followed when 

she went out for a drink. Appellant answered, without objection, that she does not drink within 

twelve hours of a scheduled flight and always shares a ride or carries cash for a taxi whenever 

she goes out drinking. She testified that she had the number for a taxi cab company programmed 

into her phone. Appellant also testified that if she thought she was impaired, she did not drive 

her car. 

Appellant contends she should have been allowed to present evidence that as a 

responsible helicopter pilot who would lose her license if she were convicted of driving while 

intoxicated, she always carries cash for a taxi, has a taxi cab company programmed into her 

telephone, or shares a ride with another person. She also contends she should have been allowed 

to testify further regarding her drinking habits to show that she would not have knowingly 

entered her vehicle and driven while intoxicated. However, our review of the record reflects that 

appellant testified, without objection, to all of these things. It is well settled that an error in 

admission or exclusion of evidence is cured where the same evidence comes in elsewhere 

without objection. See Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); see also

Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (holding that to show harm, the 
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excluded evidence must be controlling on a material issue and not cumulative of other evidence); 

Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref’d) (holding there is 

no harm when complained-of evidence was admitted through other testimony). Appellant’s 

counsel did not make an offer of proof with respect to any additional evidence sought to be 

admitted so we are unable to determine what evidence, if any, was excluded. Having nothing to 

review, we overrule appellant’s first issue.

B. Improper Closing Argument

In her second issue, appellant argues the trial court erred when it overruled her objection 

that the State’s closing argument was improper. Even though appellant’s trial defense was based 

on the theory that she must have been drugged, she now complains it was outside the evidence 

for the State to argue she was not drugged because there was no trial evidence that she was 

drugged. Permissible jury argument generally falls into one of four areas: (1) summation of the 

evidence presented at trial; (2) reasonable deductions drawn from the evidence; (3) responses to 

argument by defense counsel; and (4) pleas for law enforcement. Brown v. State, 270 S.W.3d 

564, 570 (Tex. Crim. App. 2008); Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 

2000). The State is permitted to draw reasonable inferences from the evidence and is afforded 

wide latitude in its jury argument so long as the argument is supported by the evidence and is 

made in good faith. Griffin v. State, 554 S.W.2d 688, 690 (Tex. Crim. App. 1977); Jimenez v. 

State, 240 S.W.3d 384, 407 (Tex. App.—Austin 2007, pet. ref’d). 

The record contains no evidence that appellant had a date rape drug in her system. 

However, the record reflects that appellant’s defense was based on the theory that something

must have been placed in her drink because she never would have voluntarily driven while 

intoxicated. In his opening argument, appellant’s trial counsel told the jury they believed 

something had been placed in appellant’s drink. Appellant then testified she did not remember 
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what happened on the night in question. She also testified of her efforts to be drug tested once 

she was released from jail. During closing argument, appellant’s trial counsel conceded 

appellant voluntarily ordered and drank two drinks, but argued that appellant’s actions during the 

rest of the evening were not voluntary. He argued the State had not proved beyond a reasonable 

doubt that appellant voluntarily drove her car while intoxicated. 

In its closing argument, the State first reviewed the evidence of appellant’s intoxication. 

The State then responded to the closing argument of appellant’s trial counsel, stating “he wants 

you to believe that the defendant was drugged.” The State asked the jury to consider all the 

evidence that appellant was not drugged and use their common sense, keeping in mind that the 

purpose of date rape drugs is to make the victim incapable of fighting off a rapist. Defense 

counsel did not object the first time the State discussed the purpose of date rape drugs. See TEX.

R. APP. P. 33.1 (requiring a timely objection in order to preserve error); see also Davis v. State, 

329 S.W.3d 798, 823 (Tex. Crim. App. 2010). The second time the State reminded the jury of 

the purpose of date rape drugs, appellant’s counsel objected to the State arguing outside of the 

evidence. The trial court overruled appellant’s objection, stating the State was making a 

reasonable deduction. The State then referenced the purpose of date rape drugs a third time, 

without objection by defense counsel. 

To preserve a complaint about improper jury argument, a defendant must object each 

time the impermissible argument is made, or the complaint is waived. See Davis, 329 S.W.3d at 

823; see also Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (defendant’s failure to 

object to a jury argument forfeits his right to complain about the argument on appeal). We 

conclude appellant failed to preserve her complaint for appeal. Davis, 329 S.W.3d at 823. Even 

if we were to reach the merits of this allegation, appellant’s claim would fail because the 
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prosecutor’s argument was a reasonable deduction from the evidence and an answer to the 

argument of opposing counsel. Id. Appellant’s second issue is overruled.

C. Ineffective Assistance of Counsel

In her third and fourth issues, appellant maintains she was denied effective assistance of 

counsel because her trial counsel: (1) failed to call an expert witness to develop evidence that 

she had Rohypnol in her system; (2) failed to call an expert witness to testify as to the effects of 

Rohypnol and similar date rape drugs; and (3) withdrew his objection to the State’s rebuttal 

witness. In response, the State argues the record is inadequate to support appellant’s complaints. 

To prevail on a claim of ineffective assistance of counsel, an appellant must meet the 

two-pronged test established by the United States Supreme Court in Strickland v. Washington, 

466 U.S. 668 (1984), and adopted by Texas two years later in Hernandez v. State, 726 S.W.2d 53

(Tex. Crim. App. 1986). Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). 

Appellant must show that (1) trial counsel’s representation fell below an objective standard of 

reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability 

that the result of the proceeding would have been different but for trial counsel’s deficient 

performance. Strickland, 466 U.S. at 688–92; Lopez, 343 S.W.3d at 142. Appellant bears the 

burden of proving her claims by a preponderance of the evidence. Lopez, 343 S.W.3d at 142. It 

is not enough to merely show, through the benefit of hindsight, that trial counsel’s actions were 

questionable. Id. at 142–43. 

Review of counsel’s representation is highly deferential, and we indulge a strong 

presumption that counsel’s conduct fell within a wide range of reasonable representation. 

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Salinas v. State, 163 S.W.3d 

734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001). 

To overcome the presumption of reasonable professional assistance, “any allegation of 
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ineffectiveness must be firmly founded in the record, and the record must affirmatively 

demonstrate the alleged ineffectiveness.” Salinas, 163 S.W.3d at 740 (quoting Thompson v. 

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). 

Appellant filed a motion for new trial; however, the motion did not assert any claims that 

appellant received ineffective assistance of trial counsel. There is no record of a hearing at 

which appellant’s trial counsel was afforded the opportunity to explain his actions or trial 

strategy. When no evidentiary record is developed at a hearing on a motion for new trial, it is 

extremely difficult to show that trial counsel’s performance was deficient. See Bone v. State, 77 

S.W.3d 828, 833 (Tex. Crim. App. 2002) (trial counsel should ordinarily be afforded an 

opportunity to explain his actions before being denounced as ineffective).1

 

In her third issue, appellant argues her trial counsel’s ineffectiveness prevented

presentation of her defense that she did not engage in the voluntary act of driving while 

intoxicated due to being drugged by a date rape drug. She contends her trial attorney was 

ineffective because he failed to present expert testimony regarding the presence of Rohypnol in 

appellant’s system and the effects that Rohypnol or a similar drug has on a person. “A criminal 

defense lawyer has a duty to make an independent investigation of the facts of a case, which 

includes seeking out and interviewing potential witnesses.” Brennan v. State, 334 S.W.3d 64, 71 

(Tex. App.—Dallas 2009, no pet.). Here, the record is silent as to the extent of trial counsel’s 

investigation of the facts of this case and the effects of Rohypnol. Although appellant opines 

that an expert would not be difficult to find, there is no evidence that such an expert was 

available to testify at trial or that such testimony would have been beneficial to appellant. See 

Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986); Garza v. State, 298 S.W.3d 837, 842 

 1

 Absent a record from a hearing on a motion for new trial, a reviewing court will rarely be in a position on direct appeal to fairly evaluate the 

merits of an ineffective assistance claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. For that reason, the Texas Supreme Court 

has repeatedly stated that such claims are more appropriately urged in a hearing on an application for a writ of habeas corpus. See Lopez, 343 

S.W.3d at 143.
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(Tex. App.—Amarillo 2009, no pet.). Ascertaining trial counsel’s reasoning concerning these 

issues would require us to speculate, which we cannot do. Brennan, 334 S.W.3d at 73. In the 

face of this silent record, we conclude that appellant failed to overcome the strong presumption 

of reasonable assistance. See Thompson, 9 S.W.3d at 813. Appellant’s third issue is overruled.

In her fourth issue, appellant complains that her trial counsel was ineffective because he

withdrew his objection to the State’s rebuttal witness. At the close of the defense’s case, the 

State called Lori Fuller, Technical Supervisor for Southwest Institute of Forensic Sciences, as a 

rebuttal witness. Appellant’s trial counsel objected, arguing that Fuller’s testimony would not 

augment or rebut any of the testimony heard in the trial. The trial court questioned counsel’s 

objection, noting that appellant’s testimony was that she was not intoxicated and perhaps 

Rohypnol was involved. The State argued that Fuller’s testimony would directly rebut 

appellant’s testimony and show that it was alcohol in her system that caused her to be 

intoxicated. At that point, appellant’s trial counsel withdrew his objection. 

The record is silent as to why trial counsel decided to withdraw his objection to the 

State’s rebuttal witness. An attorney’s decision to withdraw his objection to a witness is a 

strategic decision. We cannot speculate beyond the record provided, and must presume the 

actions taken by trial counsel were part of a strategic plan for representing his client. Brennan, 

334 S.W.3d at 74. Due to the lack of evidence in the record concerning trial counsel’s reasons 

for withdrawing his objection to Fuller’s rebuttal testimony, we are unable to conclude that 

appellant’s trial counsel’s performance was deficient. Appellant’s fourth issue is overruled.
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CONCLUSION

Having overruled all of appellant’s issues, we affirm the trial court’s judgment.

Do Not Publish

Tex. R. App. P. 47

120940F.U05

/David Lewis/

DAVID LEWIS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

COURTNEY PIERCE, Appellant

No. 05-12-00940-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law 

No. 6, Collin County, Texas

Trial Court Cause No. 006-85905-2011.

Opinion delivered by Justice Lewis. 

Justices FitzGerald and Francis participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 7th day of August, 2013.

/David Lewis/

DAVID LEWIS

JUSTICE