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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-12-00334-CR

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JAYCOB MORRIS PONDER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 75th District Court

Liberty County, Texas

Trial Cause No. CR 29637

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MEMORANDUM OPINION

A jury convicted appellant Jaycob Morris Ponder of driving while 

intoxicated as a habitual offender and assessed punishment at twelve years of 

confinement. In two issues, Ponder contends trial counsel provided ineffective

assistance. We affirm the trial court’s judgment.

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

satisfy a two-pronged test:
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First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so serious 

that counsel was not functioning as the “counsel” guaranteed the 

defendant by the Sixth Amendment. Second, the defendant must show 

that the deficient performance prejudiced the defense. This requires 

showing that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984); see also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 

1986). An appellant must demonstrate a reasonable probability that but for his 

counsel’s errors, the outcome would have been different. Bone v. State, 77 S.W.3d 

828, 833 (Tex. Crim. App. 2002). “Appellate review of defense counsel’s 

representation is highly deferential and presumes that counsel’s actions fell within 

the wide range of reasonable and professional assistance.” Id.

Ponder must prove that there was no professional reason for specific acts or 

omissions of his counsel. See id. at 836. Furthermore, “[a]ny allegation of 

ineffectiveness must be firmly founded in the record, and the record must 

affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 

482, 500 (Tex. Crim. App. 1996)). The bare record on direct appeal is usually 

insufficient to demonstrate that “counsel’s representation was so deficient . . . as to 
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overcome the presumption that counsel’s conduct was reasonable and 

professional.” Bone, 77 S.W.3d at 833 (footnote omitted). 

In his first issue, Ponder asserts that trial counsel did not attempt to 

rehabilitate “potentially favorable jurors” who had indicated a bias against the 

State and that trial counsel did not object to a juror who clearly indicated a bias 

against Ponder and was ultimately chosen to serve on the jury. Ponder did not file a 

motion for new trial or otherwise create a record elucidating counsel’s possible 

reasons for not attempting to rehabilitate the three jurors Ponder argues were 

favorable to him or for not striking the juror Ponder asserts was biased against him. 

We must presume that counsel’s conduct falls within a wide range of reasonable 

representation. See Strickland, 466 U.S. at 690; Bone, 77 S.W.3d at 833; see also

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (Counsel’s 

decisions regarding use of peremptory strikes asking questions at voir dire did not 

constitute ineffective assistance of counsel when record was silent as to counsel’s 

trial strategy.). With a silent record, we cannot presume that counsel’s conduct 

constituted ineffective assistance. See Thompson, 9 S.W.3d at 813; Bone, 77 

S.W.3d at 833. Accordingly, we overrule issue one. 

We turn now to issue two, in which Ponder contends trial counsel was 

ineffective for failing to object to testimony regarding retrograde extrapolation. 
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Camille Stafford, a forensic scientist with the DPS crime laboratory, analyzed a

specimen of Ponder’s blood, and she testified that Ponder’s blood alcohol level 

was 0.27. Stafford testified that if she were given information concerning the time 

a person last drank, whether the person ate food, the time the person was stopped, 

and the time the person’s blood was drawn, she could use average rates of alcohol 

elimination to estimate what the person’s approximate blood alcohol level was at 

the time of the stop. Stafford explained that if the stop occurred at 9:00 p.m., 

Ponder’s last drink was around 7:00 p.m., and Ponder’s blood alcohol 

concentration at the hospital was 0.27, Ponder’s blood alcohol level at the time of 

the stop was approximately 0.315. Stafford opined that Ponder was driving while 

intoxicated. 

Ponder complains of counsel’s failure to object to Stafford’s testimony. 

Assuming without deciding that counsel’s performance was deficient, Ponder has 

failed to establish that, but for counsel’s alleged errors and omissions, the outcome 

of his trial would have been different. See Bone, 77 S.W.3d at 833. Even if trial 

counsel had objected to the retrograde extrapolation testimony and successfully 

excluded that testimony from evidence, the evidence was still legally sufficient for 

the jury to have found Ponder guilty. Officers and paramedics who were at the 

scene testified that Ponder was alone in the vehicle when the accident occurred, 
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Ponder had an abrasion from the driver’s side seat belt, and Ponder had glassy, 

bloodshot eyes, slurred speech, slow coordination, an unsteady gait, and a strong 

odor of alcohol on his breath. Ponder also told paramedics that he had consumed “a 

couple” of alcoholic drinks. Ponder also failed the horizontal gaze nystagmus field 

sobriety test, and a sample of Ponder’s blood drawn at the hospital approximately 

two hours after the stop showed that Ponder’s blood alcohol level was 0.27. See 

Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (citing Jackson v. 

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (In evaluating 

the legal sufficiency of the evidence, an appellate court reviews all the evidence in 

the light most favorable to the verdict to determine whether any rational fact-finder 

could have found the essential elements of the offense beyond a reasonable 

doubt.); Letner v. State, 138 S.W.3d 539, 541 (Tex. App.—Beaumont 2004, no 

pet.) (Retrograde extrapolation evidence is not required to support a verdict of 

guilt.). We therefore overrule issue two and affirm the trial court’s judgment.

AFFIRMED.

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 STEVE McKEITHEN

 Chief Justice

Submitted on May 1, 2013

Opinion Delivered May 15, 2013

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.