This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 33,358 4 JODY VALDEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Jacquelyn Flores, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Josephine H. Ford, Assistant Public Defender 12 Albuquerque, NM 13 for Appellant 14 MEMORANDUM OPINION 15 ZAMORA, Judge. 16 {1} Defendant appeals from an on-the-record district court judgment affirming his 17 metropolitan court conviction for DWI (first offense). We issued a calendar notice 182 proposing to affirm. Defendant has responded with a timely memorandum in 1 opposition. We affirm. 2 PROBABLE CAUSE 3 {2} Defendant continues to argue that hi s arrest was not supported by probable 4 cause. [MIO 11] Probable cause exists when “fact s and circumstances within the 5 officer’s knowledge, or on which the officerhas reasonably trustworthy information, 6 are sufficient to warrant someone of reasonable caution to believe that an offense has 7 been or is being committed.” State v. Galloway , 1993-NMCA-071, ¶ 10, 116 N.M. 8, 8 859 P.2d 476. As applied here, the arresting officer had to have probable cause that 9 Defendant was under the influence of in toxicating liquor while operating a motor 10 vehicle, and that this affected his ability to operate the vehicle to at least the slightest 11 degree. NMSA 1978, § 66-8-102(A) (2010); UJI 14-4501 NMRA. 12 {3} Here, at 1:56 a.m. an officer observe d Defendant’s vehicle swerving on four 13 different occasions. [MIO 2] When stoppe d, Defendant had bloodshot, watery eyes, 14 smelled of alcohol, and admitted to drinking. [MIO 2] Another o fficer arrived, later 15 testifying that Defendant had bloodshot, watery eyes, and a strong odor of alcohol 16 coming from his facial area. [MIO 3] Defe ndant was constantlyswaying. [MIO 4] 17 Defendant then proceeded to perform poorly on the field sobriety tests. [MIO 5-7] 18 Analogous circumstances have previously been deemed suffici ent to satisfy the 19 probable cause requirement. See, e.g., State v. Sanchez , 2001-NMCA-109, ¶¶ 8-9, 20 131 N.M. 355, 36 P.3d 446 (holding that an officer had probable cause to arrest the 213 defendant for DWI based on strong odor of alcohol, bloodshot watery eyes, admission 1 to drinking, and refusal to submit to field sobriety or chemical testing); State v. Ruiz , 2 1995-NMCA-098, ¶ 24, 120 N.M. 534, 903 P.2d 845 (holding that probable cause 3 existed where police observed the defendant’s car weaving, strong odor of alcohol, 4 glassy eyes and inability to perform the filed sobriety tests), abrogated on other 5 grounds by State v. Martinez , 2007-NMSC-025, 141 N.M. 713, 160 P.3d 894. 6 {4} Defendant maintains that his conduct c ould be explained by reasons other than 7 impairment. [MIO 12] However, Defendant’s argument ignores our standard of 8 review. As the above-noted authorities cl early illustrate, a variety of different 9 circumstances, including circumstances similar to those presented in this case, may 10 properly be relied upon to s upport an arrest for DWI. See generally Granillo-Macias, 11 2008-NMCA-021, ¶ 9, 143 N.M. 453, 176 P. 3d 1187 (“In reviewing the evidence 12 supporting probable cause, each case stands on its own facts; there is no one set of 13 circumstances required for probable cause.” (alteration, internal quotation marks, and 14 citation omitted)). 15 RIGHT TO JURY TRIAL 16 {5} Defendant continues to claim that he was not sufficiently advised of his right 17 to a jury trial. [MIO 13] There is no dispute that Defendant was entitled to a jury trial 18 if this right was timely invoked. See Rule 7-602(A) NMRA. As we observed in our 19 calendar notice, the judge advi sed Defendant that he facedtwo separate charges, each 20 of which carried a penalty of 90 days; he also informed all of the defendants present 214 that any of them facing more than 90 days had a right to a jury trial, subject to the 10- 1 day waiver provision. [MIO 1] Although Defe ndant maintains that it was difficult for 2 him to apply the advice to his own case, and that he was distracted by the proceedings, 3 this does not negate the court’s satisfaction of its obligation to convey the information 4 to him. To the extent that Defendant be lieves that the 10-day period is unfair because 5 it does not provide for sufficient time to appoi nt counsel, this Court lacks authority to 6 change the Supreme Court rule. See State v. Valles , 2004-NMCA-118, ¶ 14, 140 N.M. 7 458, 143 P.3d 496. 8 INEFFECTIVE ASSISTANCE 9 {6} Defendant continues to clai m that he received ineffec tive assistance of counsel. 10 [DS 16] We will not decide an ineffective assistance of counsel claim on direct appeal 11 unless a defendant makes a prima facie show ing that counsel was incompetent and the 12 incompetence resulted in prejudice to the defense. See State v. Richardson , 1992- 13 NMCA-112, ¶ 4, 114 N.M. 725, 845 P.2d 819. 14 {7} Here, Defendant claims that counsel was ineffective by advising him not to 15 testify about the use of an Albuterol inhaler during the DWI investigation. [MIO 16- 16 17] Defendant does not refuteour observation that this alleged advice is not part of 17 the record. Accordingly, we do not address the merits of Defendant’s claim in this 18 appeal. See State v. Martin , 1984-NMSC-077, ¶ 29, 101 N.M. 595, 686 P.2d 937 19 (holding that an appellate court may not consider matters not of record). 20 {8} For the reasons set forth above, we affirm. 215 {9} IT IS SO ORDERED. 1

_______________________________ 2 M. MONICA ZAMORA, Judge 3 WE CONCUR: 4

__________________________________ 5 JAMES J. WECHSLER, Judge 6

__________________________________ 7 MICHAEL E. VIGIL, Judge 8