Opinion filed October 18, 2012

In The

Eleventh Court of Appeals 

__________

No. 11-10-00244-CR

__________

STANLEY PRICE PARSON A/K/A STANLEY PRICE PERRIN, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 350th District Court

Taylor County, Texas

Trial Court Cause No. 9235-D

O P I N I O N

The opinion and judgment issued August 23, 2012, are withdrawn, and this court’s 

opinion and judgment dated October 18, 2012, are substituted therefor. The State’s motion for 

rehearing is granted. 

The jury convicted Stanley Price Parson a/k/a Stanley Price Perrin of driving while 

intoxicated, enhanced by two prior convictions for driving while intoxicated. See TEX. PENAL

CODE ANN. § 49.09(b)(2) (West Supp. 2012). During the punishment phase, appellant pleaded 

not true to two enhancement allegations. The jury found both enhancement allegations to be true 
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and assessed appellant’s punishment at confinement for thirty years. The trial court sentenced 

appellant accordingly. We affirm. 

Issues Presented

Appellant presents three issues for review. In his first issue, appellant contends that the 

trial court erred by denying his motion to suppress that was based on the contention that the 

police lacked reasonable suspicion to stop him. In his second issue, appellant contends that the 

trial court erred by overruling his objection to the prosecutor’s comment during closing argument 

on his postarrest silence. In his third issue, appellant contends that the trial court erred by 

denying his motion for new trial that was based on allegations of ineffective assistance of 

counsel.

Factual and Procedural Background

Appellant filed a pretrial motion to suppress the evidence, asserting that the arresting 

officer lacked reasonable suspicion to justify the stop. The trial court held a hearing on the 

motion. Abilene Police Officer Randy Brown was the sole witness at the suppression hearing.

Officer Brown testified that, on May 31, 2009, he was working as a patrol officer. At 

about 7:00 p.m. on that date, Officer Brown was dispatched to a domestic disturbance call at 

2842 South 5th Street. During questioning by the prosecutor, Officer Brown testified about the 

information that he received from his dispatcher:

Q. Okay. And did the dispatcher give you any other information about the 

circumstances surrounding this disturbance?

A. Yes. They informed me that the female calling in to report the 

disturbance was not at her residence. However, her two juvenile children were at 

the residence. She stated that information was relayed to her through her children 

that someone that she had had a relationship with in the past --

At this point, appellant’s counsel lodged a hearsay objection to Officer Brown’s testimony. The 

trial court overruled the objection, and Officer Brown’s testimony continued:

Q. So you would -- you were saying that there was enough information in 

the dispatch?

A. That’s correct.

Q. And what was that?
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A. That a male by the name of Stanley was parked across from the 

residence backed into a driveway facing the residence, and the female calling 

party stated that she, because of her relationship with Stanley in the past, was 

afraid for her children’s safety.

The dispatcher gave Officer Brown a physical description of “Stanley” and informed Officer 

Brown that “Stanley” was in a dark-colored Chevrolet pickup, which was located “[d]irectly 

south of the residence.” Officer Brown initially believed that the calling party’s name was

“Veronica,” but he later learned that Monica Ramirez was the calling party.

Officer Brown drove to the scene. He arrived there about five minutes after he received 

the dispatch. As he turned onto South 5th Street from Mockingbird Street, Officer Brown 

immediately saw a dark Chevrolet pickup that had been backed into and parked in a driveway 

that was across the street from Ramirez’s house. Officer Brown testified that he was about one 

hundred fifty feet away from the pickup when he first saw it. He said that the pickup was facing 

Ramirez’s residence. Officer Brown saw a white male in the driver’s seat of the pickup. Officer 

Brown testified that the man in the driver’s seat was appellant. The fact that the pickup was 

facing Ramirez’s house caused Officer Brown concern because he thought that appellant might 

be trying to “case the house” or to make a “speedy getaway” possible. Officer Brown testified 

that “[he] suspected that [appellant], in fact, was across the street from the residence, and 

because of [Ramirez’s] information she had given over the telephone, that she did actually fear 

for her children’s safety and that [appellant] was there to commit some sort of crime.”

Officer Brown said that appellant looked at him and then drove his pickup out of the 

driveway. Appellant turned left onto South 5th Street and then immediately turned left onto 

Miller Street. Officer Brown followed appellant and activated his emergency lights on Miller 

Street. Appellant stopped his pickup. Officer Brown exited his patrol car and contacted 

appellant. Officer Brown testified that, before stopping appellant, he did not see appellant 

commit any kind of traffic violation or see appellant do anything that gave him a suspicion that 

appellant might be driving while intoxicated. Officer Brown testified that he stopped appellant 

based on the suspicion “that [appellant] was there to commit some sort of crime.”

When he contacted appellant, Officer Brown observed that appellant had bloodshot eyes. 

Officer Brown testified that he smelled the odor of alcohol on appellant’s breath. Officer Brown 

administered field sobriety tests to appellant and ultimately arrested appellant for driving while 

intoxicated.
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After the suppression hearing, the trial court entered an order denying appellant’s motion 

to suppress. The case proceeded to trial.

Ramirez was the State’s first witness. She testified that she had previously been in a 

romantic relationship with appellant for about two years. Ramirez said that she ended the 

relationship in March 2009 against appellant’s wishes. She also said that, in May 2009, 

appellant wanted to get back together with her. At that time, appellant lived in Eastland. 

Ramirez testified that, on May 31, 2009, appellant called her. During the call, appellant told 

Ramirez that he wanted her to go to Eastland. Ramirez told appellant that she did not want to go 

to Eastland. At about 3:00 p.m. that day, Ramirez was with a friend at the mall in Abilene. 

Ramirez’s seventeen-year-old son and fifteen-year-old son were at her house. Ramirez testified 

that her sons called her and told her that appellant was outside her house. Ramirez said that she 

was nervous about appellant being there and that she wanted him to leave. She said that she 

called the police because appellant was sitting outside her house. 

After Ramirez concluded her testimony, appellant re-urged his motion to suppress. 

Appellant’s counsel argued that, based upon Ramirez’s testimony, “[there was] no criminal 

activity afoot” and that, therefore, Officer Brown did not have reasonable suspicion to stop 

appellant. The trial court denied the re-urged motion to suppress.

Officer Brown also testified at trial. His trial testimony about the stop of appellant was 

consistent with the testimony he gave at the suppression hearing. The State offered the police 

video of the stop into evidence during Officer Brown’s testimony. Appellant objected to the 

admission of the video and again re-urged his motion to suppress. The trial court admitted the 

video into evidence over appellant’s objections.

Standard of Review

We review a trial court’s ruling on a motion to suppress for an abuse of discretion. 

Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011); Lujan v. State, 331 S.W.3d 768, 

771 (Tex. Crim. App. 2011). In reviewing a ruling on a motion to suppress, we apply a 

bifurcated standard of review. Martinez, 348 S.W.3d at 922–23; Hubert v. State, 312 S.W.3d 

554, 559 (Tex. Crim. App. 2010). First, we afford almost total deference to the trial court’s 

determination of historical facts and of mixed questions of law and fact that turn on the weight or 

credibility of the evidence. Martinez, 348 S.W.3d at 922–23; Lujan, 331 S.W.3d at 771. Where, 

as here, no findings of fact were requested or filed, we view the evidence brought forward at the 
5

suppression hearing in the light most favorable to the trial court’s ruling and assume that the trial 

court made implicit findings of fact supported by the record. Valtierra v. State, 310 S.W.3d 442, 

447 (Tex. Crim. App, 2010); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). 

Second, we review de novo the trial court’s determination of pure questions of law and mixed 

questions of law and fact that do not depend on credibility determinations. Martinez, 348 

S.W.3d at 923. Thus, we review de novo the issue of whether the totality of the circumstances 

was sufficient to support an officer’s reasonable suspicion to make a stop. Madden v. State, 242 

S.W.3d 504, 517 (Tex. Crim. App. 2007).

Ordinarily, we consider only the evidence adduced at the suppression hearing in 

determining whether the trial court’s decision on a motion to suppress is supported by the record 

because the trial court’s ruling was based on it rather than evidence presented later at trial. 

Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However, where, as in this case, 

an appellant re-urges his motion to suppress following trial testimony, we may also consider 

relevant trial evidence in our review. Id.; Weaver v. State, 265 S.W.3d 523, 533, 535 n.4 (Tex. 

App.—Houston [1st Dist.] 2008, pet. ref’d).

Reasonable Suspicion

Under the Fourth Amendment, a warrantless detention of a person that amounts to less 

than a full-blown custodial arrest must be justified by a reasonable suspicion. Derichsweiler v. 

State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A police officer has reasonable suspicion to 

detain if he has specific, articulable facts that, combined with rational inferences from those 

facts, would lead him to reasonably conclude that the person detained is, has been, or soon will 

be engaged in criminal activity. Id. This standard is an objective one that disregards the actual 

subjective intent of the arresting officer and looks, instead, to whether there was an objectively 

justifiable basis for the detention. Id. It also looks to the totality of the circumstances; those 

circumstances may all seem innocent enough in isolation, but if they combine to reasonably 

suggest the imminence of criminal conduct, an investigative detention is justified. Id. The 

relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of 

suspicion that attaches to particular noncriminal acts. Woods v. State, 956 S.W.2d 33, 38 (Tex. 

Crim. App. 1997). Moreover, the detaining officer need not be personally aware of every fact 

that objectively supports a reasonable suspicion to detain; rather, the cumulative information 

known to the cooperating officers at the time of the stop is to be considered in determining 
6

whether reasonable suspicion exists. Derichsweiler, 348 S.W.3d at 914. A police dispatcher is 

ordinarily regarded as a “cooperating officer” for purposes of making this determination. Id. 

Finally, information provided to police from a citizen-informant who identifies himself or herself 

and may be held to account for the accuracy and veracity of his or her report may be regarded as 

reliable. Id. at 914–15. In such a scenario, the only question is whether the information that the 

known citizen-informant provides, viewed through the prism of the detaining officer’s particular 

level of knowledge and experience, objectively supports a reasonable suspicion to believe that 

criminal activity is afoot. Id. at 915.

The facts invoked to justify an investigative detention must support more than a mere 

hunch or good-faith intuition that criminal activity is afoot. Id. at 916. To support a finding of 

reasonable suspicion, the specific facts articulated by the detaining officer must show some 

unusual activity, some evidence that connects the detainee to the unusual activity, and some 

indication that the unusual activity is related to a crime. Martinez, 348 S.W.3d at 923. However, 

there is no requirement that the officer suspect that a particular offense is being committed; it is 

enough if the facts suggest that something of an apparently criminal nature is brewing. 

Derichsweiler, 348 S.W.3d at 916–17.

Application of Law to Facts

Ramirez identified herself when she called the police department; therefore, she could be 

held to account for the accuracy and veracity of her report to the police. Under these 

circumstances, the information that Ramirez provided to the police may be regarded as reliable. 

Id. The dispatcher relayed the following information to Officer Brown: that Ramirez was not at 

her house; that Ramirez’s children were at the house; that appellant had backed his dark-colored 

Chevrolet pickup into, and had parked it in, a driveway across the street from Ramirez’s house so 

as to be facing her house; that appellant was sitting in the pickup; that Ramirez had been in a 

relationship with appellant in the past; and that, because of that past relationship, Ramirez was 

afraid for her children’s safety. 

When Officer Brown arrived at the scene, appellant was parked in the manner that 

Ramirez described to the dispatcher. Appellant was sitting in the driver’s seat of his darkcolored Chevrolet pickup and facing Ramirez’s house. These facts show that appellant was 

engaging in unusual and suspicious behavior. Officer Brown believed that appellant may have 

been casing Ramirez’s house. Appellant had parked his pickup in a manner that would allow 
7

him to make a speedy getaway from the scene. Officer Brown also believed that Ramirez feared 

for her children’s safety. Appellant engaged in further unusual and suspicious behavior after 

Officer Brown arrived at the scene in that, as soon as he saw Officer Brown, he drove his pickup 

out of the driveway and away from the area. Officer Brown stopped appellant because he 

suspected that appellant was going to commit a domestic disturbance crime.

Based on our review of the evidence, we conclude that the totality of the circumstances, 

including the information that Ramirez provided the police and Officer Brown’s observation of 

appellant’s suspicious behavior, gave rise to a reasonable suspicion that appellant was about to 

engage in criminal activity. The facts known to Officer Brown were sufficient to suggest that 

something of an apparently criminal nature was brewing. Id. at 917. Therefore, Officer Brown 

had reasonable suspicion to stop appellant and to detain him for investigative purposes. Id. at 

914. We note that appellant does not contend that Officer Brown was mistaken about any of the 

facts that Ramirez told the dispatcher. Even if Officer Brown were mistaken about the facts, a 

reasonable mistake about the facts may legitimately justify an officer’s conclusion that 

reasonable suspicion to detain exists. Robinson v. State, No. PD-0238-11, 2012 WL 4092941, at 

*5 (Tex. Crim. App. Sept. 19, 2012). A mistake about the facts, if reasonable, will not vitiate an 

officer’s actions in hindsight so long as his actions were lawful under the facts as he reasonably, 

albeit mistakenly, perceived them to be. Id. The trial court did not err by denying appellant’s 

motion to suppress. Appellant’s first issue is overruled.

Jury Argument

In his second issue, appellant contends that the trial court erred by overruling his 

objection to the prosecutor’s comments on his postarrest silence. When the State comments on a 

defendant’s postarrest silence, it violates the Fifth Amendment prohibition against selfincrimination. Doyle v. Ohio, 426 U.S. 610, 617–18 (1976); Dinkins v. State, 894 S.W.2d 330, 

356 (Tex. Crim. App. 1995). Commenting on a defendant’s postarrest silence is akin to a 

comment on his failure to testify at trial because it attempts to raise an inference of guilt arising 

from the invocation of a constitutional right. Dinkins, 894 S.W.2d at 356. A prosecutor’s 

comment amounts to an impermissible comment on a defendant’s postarrest silence only if, 

when viewed from the jury’s standpoint, the comment is manifestly intended to be, or is of such 

a character that a typical jury would naturally and necessarily take it to be, a comment on the 
8

defendant’s silence. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Bustamante v. 

State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). 

In this case, the prosecutor made the complained-of comments during his closing 

argument. We will briefly summarize relevant evidence here so that the prosecutor’s comments 

may be put in the proper context. Appellant called Tony Koch as a witness. Koch and appellant 

were friends. Koch testified about events that occurred on the date of appellant’s arrest in this 

case. Koch said that, at that time, appellant was in the process of restoring the cabinets in

Koch’s kitchen. He said that appellant arrived at his house at about 8:00 a.m. on the day that 

appellant was arrested. Koch testified that appellant worked on the cabinets all day. Koch said 

that, at about 6:00 p.m., appellant drove him to a store so that he could buy beer. Koch said that 

he bought a six-pack of Coors. Appellant and Koch then went to Koch’s house. Koch testified 

that he drank three or four of the Coors beers. He said that appellant did not drink any of the 

Coors beers but that appellant did drink two O’Doul’s non-alcoholic beers. Koch said that, after 

he finished his beers, he put the empty Coors bottles in the back of appellant’s pickup. He said 

that, at about 7:00 p.m., appellant dropped him off at a location in Abilene. Koch said that he 

left the unopened Coors beers in appellant’s pickup.

After stopping appellant, Officer Brown approached the driver’s side of appellant’s 

pickup and spoke with him. At that time, Officer Brown saw two unopened Coors bottles in a 

six-pack container in the front seat next to appellant. Abilene Police Officer Shad Phillips 

arrived as backup at the scene. During the stop, the officers found an open Coors bottle on the 

floorboard by the driver’s seat of appellant’s pickup and five empty Coors bottles in the bed of 

the pickup. The audio portion of the police video of the stop demonstrates that, before arresting 

appellant, Officer Brown asked him whether he had been drinking. Appellant responded that he 

had had “a couple of beers.” Appellant did not tell Officer Brown anything about O’Doul’s 

beers. Nor did appellant tell Officer Brown that the Coors beers in his pickup belonged to 

someone else. Later, Officer Brown arrested appellant and gave him his Miranda1 warnings. 

The police video also demonstrates that, in response to further questioning by Officer Brown, 

appellant again said that he had had “a couple of beers.” In response to a follow-up question, 

appellant told Officer Brown that he had drunk “two beers.” Appellant also said that he had 

 

1Miranda v. Arizona, 384 U.S. 436 (1966). 
9

drunk the last beer about thirty minutes earlier. Again, appellant made no mention of O’Doul’s 

beers, and he did not say that the Coors beers belonged to someone else.

The prosecutor waived opening jury argument. Therefore, appellant’s counsel argued 

first. During his argument, appellant’s counsel relied on the testimony from Koch that Koch 

drank the Coors beers and that appellant drank only O’Doul’s beers. Based on this testimony, 

appellant’s counsel argued that appellant did not drink any “real” beer. The prosecutor 

responded to this argument in his closing argument, during which the following exchange 

occurred: 

[PROSECUTOR]: When [the officers] arrived on the scene and the bottles 

were found in the car, there was testimony given that two were found in the front 

seat, they were cold, and they were sitting in a container. One was found under 

the driver’s seat, and bottles with suds were in the back, and I believe they were in 

a container as well. You saw the officers pour those out. Use your common 

sense. If you were placed in that situation, what would you believe? Oh, 

somebody else must have put those there. Well, they gave [appellant] an 

opportunity now to tell them what’s going on. They spoke a while. That’s where 

all of this other information had an opportunity to come out.

[DEFENSE COUNSEL]: Judge, I’m going to object to that. That’s 

improper argument because he’s attacking [appellant] for post-Mirandized --

[THE COURT]: Response?

[DEFENSE COUNSEL]: That’s improper.

[THE COURT]: Response, [prosecutor]?

[PROSECUTOR]: Your Honor, I’m merely quoting from what came from 

the video.

[DEFENSE COUNSEL]: Judge, objection.

[THE COURT]: Overruled. Please, continue.

[PROSECUTOR]: When you take a look at the situation and [appellant] 

was asked, Have you been drinking, and he said, A couple of beers, did he say a 

couple of O’Doul’s? A couple of beers. Is that something that should have really 

been pointed out at that point? Now, by his own statement to Officer Brown that 

you witnessed on this tape, he said the two beers were 30 minutes prior (emphasis 

added).
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Appellant contends that the part of the prosecutor’s argument that is italicized above constituted 

an improper comment on his postarrest silence.

Appellant’s contention necessarily depends on the premise that he was silent after his 

arrest. However, the record shows that appellant did not remain silent, either before or after his 

arrest. He did not invoke his right to remain silent after receiving his Miranda warnings but,

instead, answered Officer Brown’s questions. By answering Officer Brown’s questions, 

appellant waived his postarrest right to silence. Garcia v. State, 126 S.W.3d 921, 924 (Tex. 

Crim. App. 2004). Because appellant did not remain silent after his arrest, the complained-of 

argument by the prosecutor could not constitute a comment on postarrest silence. Salazar v. 

State, 131 S.W.3d 210, 215 (Tex. App.—Fort Worth 2004, pet. ref’d); Maxson v. State, 79 

S.W.3d 74, 77 (Tex. App.—Texarkana 2002, pet. ref’d). Therefore, the trial court did not err by 

overruling appellant’s objection to the prosecutor’s comments.

Also, the record does not show that the complained-of statements by the prosecutor 

related to appellant’s postarrest conduct. Before his arrest, appellant told Officer Brown that he 

had had “a couple of beers.” At that time, appellant did not tell Officer Brown anything about 

O’Doul’s beers or that the Coors beers in his pickup did not belong to him. The prosecutor’s 

comments—“[w]ell, they gave [appellant] an opportunity now to tell them what’s going on” and 

“[t]hat’s where all of this other information had an opportunity to come out”—may have related 

to appellant’s pre-arrest conduct. Thus, assuming that appellant remained silent after Officer 

Brown arrested him, the record does not show that the prosecutor intended to comment on 

appellant’s postarrest silence or that a typical jury would naturally and necessarily take the 

prosecutor’s comments as such. For this additional reason, the trial court did not err by 

overruling appellant’s objection to the prosecutor’s argument. Appellant’s second issue is 

overruled.

Ineffective Assistance of Counsel

Appellant raised his ineffective-assistance-of-counsel claim in a motion for new trial. In 

the motion, appellant claimed that his trial counsel rendered ineffective assistance because he 

“failed to have X-rays taken of [appellant’s] back to explain why he was not able to successfully 

complete the field sobriety tasks.” The trial court held a hearing on appellant’s motion. At the 

hearing, appellant testified that he had a back problem that affected his ability to satisfactorily 

perform the walk-and-turn test and the one-leg stand test. Appellant said that, although he told 
11

his trial counsel about his back condition, his trial counsel failed to arrange for him to have a 

medical examination. Appellant also said that he told his trial counsel that he wanted to present 

medical evidence about his back condition to the jury but that, against his wishes, his trial 

counsel failed to present such evidence. Appellant believed that an X-ray would have shown the 

jury that his medical condition, and not intoxication, prevented him from successfully 

performing the field sobriety tests. Appellant’s trial counsel did not testify at the hearing on 

appellant’s motion for new trial.

To determine whether appellant’s trial counsel rendered ineffective assistance, we must 

first determine whether appellant has shown that counsel’s representation fell below an objective 

standard of reasonableness and, if so, then determine whether there is a reasonable probability 

that the result would have been different but for counsel’s errors. Wiggins v. Smith, 539 U.S. 510 

(2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. 

Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We must indulge 

a strong presumption that counsel’s conduct fell within the wide range of reasonable professional 

assistance, and appellant must overcome the presumption that, under the circumstances, the 

challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. 

State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). “[C]ounsel is strongly presumed to have 

rendered adequate assistance and made all significant decisions in the exercise of reasonable 

professional judgment.” Strickland, 466 U.S. at 690. 

An allegation of ineffective assistance must be firmly founded in the record, and the 

record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. 

Under normal circumstances, the record on direct appeal will not be sufficient to show that 

counsel’s representation was so deficient and so lacking as to overcome the presumption that 

counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. 

Crim. App. 2002). Rarely will the record on direct appeal contain sufficient information to 

permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id. In light of 

these limitations, it is well settled that claims of ineffective assistance of counsel should usually 

not be raised on direct appeal because the record is often undeveloped. Goodspeed v. State, 187 

S.W.3d 390, 392 (Tex. Crim. App. 2005); Andrews, 159 S.W.3d at 103; Thompson, 9 S.W.3d at 

813–14.
12

Where, as here, an appellant raised his claim of ineffective assistance of counsel in a 

motion for new trial, we review the trial court’s denial of the motion for an abuse of discretion. 

My Thi Tieu v. State, 299 S.W.3d 216, 223 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). 

A trial court abuses its discretion by denying a motion for new trial only when no reasonable 

view of the record could support the trial court’s ruling. Webb v. State, 232 S.W.3d 109, 112 

(Tex. Crim. App. 2007). At a hearing on a motion for new trial, the trial court is the sole judge 

of the credibility of the witnesses and the weight to be given their testimony. Melton v. State, 

987 S.W.2d 72, 75 (Tex. App.—Dallas 1998, no pet.).

Appellant testified that he told his trial counsel that he wanted to present medical 

evidence relating to his back condition. However, there was no evidence explaining why counsel 

chose not to present medical evidence at trial. Therefore, the record is silent as to why 

appellant’s trial counsel did not present any medical evidence. Because the record contains no 

evidence of the reasoning behind trial counsel’s actions, we cannot conclude that counsel’s 

performance was deficient. Appellant has failed to overcome the presumption that his trial 

counsel’s conduct was reasonable and professional. Bone, 77 S.W.3d at 833; Green v. State, 191 

S.W.3d 888, 894–95 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (Because the defendant 

failed to present evidence rebutting the presumption that trial counsel had plausible reasons for 

their actions, the court could not conclude that their performance was deficient.).

Additionally, we note that the police video shows that appellant told Officer Brown that 

he had back problems before Officer Brown administered the walk-and-turn test and the one-leg 

stand test. Officer Brown testified that he took appellant’s back problems into consideration 

when he evaluated appellant’s performance on those tests. Officer Brown also administered the 

horizontal gaze nystagmus (HGN) test on appellant. Officer Brown testified that appellant 

exhibited all six of the HGN clues that indicate intoxication. Appellant admitted during his 

testimony that his back condition did not affect his ability to perform the HGN test.

During jury argument, appellant’s trial counsel relied on appellant’s statement to 

Officer Brown that he had back problems and on Koch’s testimony that appellant had worked all 

day. Appellant’s trial counsel stated that, when Officer Brown administered the field sobriety 

tests, appellant was “[a] 54-year-old guy with a bad back who [had] been working all day.” 

Appellant’s trial counsel asserted that appellant being fatigued, coupled with appellant having a 

bad back, explained why appellant did not perform perfectly on the walk-and-turn test and the 
13

one-leg stand test. For any number of reasons, appellant’s trial counsel may have decided, as a 

matter of trial strategy, to raise the issue of appellant’s back condition in this manner rather than 

to present medical evidence relating to appellant’s back condition.

Appellant has not shown that his trial counsel rendered ineffective assistance of counsel. 

The trial court did not abuse its discretion by denying appellant’s motion for new trial. 

Appellant’s third issue is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

October 18, 2012

Publish. See TEX. R. APP. P. 47.2(b).

Panel2consists of: Wright, C.J.,

McCall, J., and Hill.3

 

2

Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a 

successor by the governor or until the next general election.

3

John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.