IN THE

TENTH COURT OF APPEALS

No. 10-19-00049-CR

OTHO PRINCE HILL IV,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2015-1394-C2

MEMORANDUM OPINION

In five issues, appellant, Otho Prince Hill IV, challenges his conviction for felony 

driving while intoxicated (“DWI”). See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2019). 

We affirm.

I. BACKGROUND

In the instant case, Hill was charged by indictment with felony DWI with two prior 

DWI convictions on December 7, 2006, and June 16, 2014. This case was tried to a jury, 
Hill v. State Page 2

and at the conclusion of the trial, the jury found Hill guilty of the charged offense and 

sentenced him to ten years’ confinement in the Institutional Division of the Texas 

Department of Criminal Justice. The trial court certified Hill’s right of appeal, and this 

appeal followed.

II. HILL’S SURVEYOR WITNESS

In his first two issues, Hill complains about the trial court’s purported decision to 

exclude testimony from Jason Meeks, a surveyor. Specifically, Hill contends that the trial 

court erred by: (1) determining that Meeks was an expert witness; and (2) excluding 

Meeks’s testimony without first considering the reason why he was not timely designated 

as an expert and what impact allowing the testimony would have on the State.

During the testimony of Sergeant John Allovio of the Waco Police Department, 

Hill proffered for admission into evidence a map of Valley Mills Drive and New Road 

and Waco Drive done by surveyor James David Dossey, dated January 16, 2019. This 

map contained the official stamp of the survey company—Surveying & Engineering, 1519 

LLC.com, located in Central Texas. The State objected that the map needed to be 

authenticated because it is not a government record, and because there was no testimony 

concerning the scale on the map and the corresponding measurements. Hill countered 

that the map was self-authenticating because the map was certified and stamped by the 

surveying company. The trial court sustained the State’s objection to the admission of 

the map into evidence, but allowed Hill to ask Sergeant Allovio questions about the map.
Hill v. State Page 3

After the State rested, Hill made another attempt to introduce the map, as well as 

proffer the testimony of Meeks to authenticate the map. The State objected to Meeks’s 

testimony, arguing that Meeks had not been designated as an expert witness prior to trial. 

Hill argued that: (1) the exhibit was self-authenticating because of the surveying stamp; 

and (2) he did not believe the surveyor was an expert for which notice was necessary. 

Hill also suggested that the trial court “could take judicial notice of the map because 

everybody in here has driven through that intersection.” In response, the trial court noted 

the following: “I understand. I’ll sustain the State’s—sustain the State’s objection to the 

exhibit as tendered.” In this exchange, the trial court did not rule on the admissibility of 

Meeks’s testimony, nor did Hill request the trial court to so rule.

An appellate issue involving the proffer of evidence, as opposed to an objection, 

must still satisfy the preservation-of-error requirements. See Reyna v. State, 168 S.W.3d 

173, 179 (Tex. Crim. App. 2005) (stating that the purpose of requiring an objection is to 

give the trial court or opposing party an opportunity to correct error or remove the basis 

for the objection and reasoning that “[a]lthough this case involves a proffer of evidence 

rather than an objection, the same rationale applies.”). To preserve error for appellate 

review, a party must present a timely request, motion, or objection to the trial court, 

stating the specific grounds for the objection, and obtain an adverse ruling. See TEX. R.

APP. P. 33.1(a)(1); see also Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008).
Hill v. State Page 4

As noted above, the trial court only ruled on the State’s objection to the admission 

of the map into evidence. The trial court did not rule on the admissibility of Meeks’s 

testimony. Furthermore, Hill did not request that the trial court rule on the admissibility 

of Meeks’s testimony, nor did he proffer Meeks’s testimony again after the trial court’s 

ruling on the admissibility of the map. Moreover, in his offer of proof, Hill focused on 

the map exhibit, not on the testimony of Meeks. Therefore, based on the foregoing, we 

cannot say that Hill preserved error in his first two issues regarding the admissibility of 

Meeks’s testimony. See Reyna, 168 S.W.3d at 179; see also TEX. R. APP. P. 33.1(a)(1); Luna, 

268 S.W.3d at 604. Accordingly, we overrule Hill’s first two issues.

III. DUE PROCESS

In his third issue, Hill contends that the trial court’s purported exclusion of 

Meeks’s testimony denied him his constitutional right to present his defense. Again, the 

record does not reflect that the trial court excluded Meeks from testifying. Indeed, the 

trial court never ruled on the issue of Meeks’s testimony; Hill never requested the trial 

court to rule on the issue of Meeks’s testimony; and Hill, in his offer of proof, focused on 

the admissibility of the map exhibit, rather than the testimony of Meeks. As such, we 

conclude that this issue lacks merit and overrule Hill’s third issue.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

In his fourth and fifth issues, Hill contends that his trial counsel was ineffective by 

failing to designate Meeks as an expert witness and by failing to allege that an ordinance 
Hill v. State Page 5

purportedly identical to the one used as a basis for the traffic stop had been found to be 

unconstitutional. See, e.g., Meisner v. State, 907 S.W.2d 664, 668-69 (Tex. App.—Waco 1995, 

no pet.). In making these arguments, Hill cites to no legal authority governing the 

analysis for ineffective assistance of counsel. Moreover, in his fourth issue, which 

pertained to trial counsel’s failure to designate Meeks as an expert witness, Hill cites to 

no legal authority at all. We therefore hold that these issues were inadequately briefed 

and, therefore, present nothing for review. See TEX. R. APP. P. 38.1(i) (“The brief must 

contain a clear and concise argument for the contentions made, with appropriate citations 

to authorities and to the record.”); see also Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. 

App. 2008) (“This Court has no obligation to construct and compose appellant’s issues, 

facts, and arguments ‘with appropriate citations to authorities and to the record.’” 

(quoting TEX. R. APP. P. 38.1(i))).

Nevertheless, even if Hill had adequately briefed these issues, we cannot say that 

Hill satisfied both prongs of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984) (stating that, to prevail on a claim of ineffective assistance of counsel, 

appellant must satisfy the two-prong test by a preponderance of evidence showing that: 

(1) his attorney’s performance was deficient; and (2) his attorney’s deficient performance 

deprived him of a fair trial). First, we note that the record is silent as to trial counsel’s 

trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (noting 

that trial counsel should be afforded an opportunity to explain his actions before being 
Hill v. State Page 6

denounced as ineffective); see also Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston 

[1st Dist.] 1996, no pet.) (stating that, when the record is silent regarding the reasons for 

counsel’s conduct, a finding that counsel was ineffective would require impermissible 

speculation by the appellate court).

Next, we note that the record does not establish the second prong of Strickland by 

a preponderance of the evidence—that there is a reasonable probability, or a probability 

sufficient to undermine confidence in the outcome, that the result of the proceeding 

would have been different. Strickland, 466 U.S. at 687. Looking at the totality of the 

representation, trial counsel made numerous objections to the evidence and vigorously 

cross-examined the witnesses, as well as called witnesses on Hall’s behalf. See Thompson 

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (noting that we look to the totality of 

the representation and the particular circumstances of each case in evaluating the 

effectiveness of counsel); see also Ex parte Welborn, 785 S.W.2d 391, 392 (Tex. Crim. App. 

1990) (“Isolated instances in the record reflecting errors of commission or omission do 

not cause counsel to become ineffective, nor can ineffective assistance of counsel be 

established by isolating or separating our one portion of the trial counsel’s performance 

for examination.”). 

Additionally, the evidence of guilt of the charged offense is overwhelming. A 

blood test revealed that Hill’s blood-alcohol level was 0.162—more than double the legal 

limit—shortly after being stopped. Moreover, Sergeant Allovio testified that Hill had 
Hill v. State Page 7

glassy eyes and slurred speech, smelled of alcohol, and fumbled for his driver’s license 

during his initial encounter with police.

Furthermore, regarding the basis of the stop, Sergeant Allovio and Detective Eric 

Trojanowski of the Waco Police Department stated that they observed Hill’s vehicle 

spinning its tires and entering the intersection at a high rate of speed. Sergeant Allovio 

noted that these actions violated a city ordinance and the racing statute—section 545.420 

of the Texas Transportation Code. See TEX. TRANS. CODE ANN. § 545.420 (West 2011). 

Sergeant Allovio further testified that, based on his training and experience in estimating 

vehicle speeds, Hill was traveling approximately fifty miles per hour in a forty-mile-perhour zone and that Hill appeared to be racing another vehicle. This evidence supports 

the trial court’s finding that officers had a good-faith belief that Hill committed multiple 

traffic offenses, including speeding, racing, and violation of the city ordinance for 

“digging out”—all of which justified the traffic stop. As such, we cannot say that the 

record establishes a reasonable probability that, but for counsel’s purported errors, the 

result of the proceeding would have been different. See Thompson, 9 S.W.3d at 812. 

Accordingly, we overrule Hill’s fourth and fifth issues.

V. CONCLUSION

Having overruled all of Hill’s issues on appeal, we affirm the judgment of the trial 

court.
Hill v. State Page 8

JOHN E. NEILL

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Neill

Affirmed

Opinion delivered and filed March 18, 2020

Do not publish

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