This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,381 9 ALEJANDRO RUIZ, 10 Defendant-Appellant, 11 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 12 Jerry H. Ritter, Jr., District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Carlos Ruiz de la Torre, A ssistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 VIGIL, Judge. 22 Defendant challenges the sufficiencyof the evidence to support his 23 conviction for driving while under the influence (DWI) pursuant to State v. 242 Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer , 103 1 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985). [DS 5] We issued a calendar 2 notice proposing to summarily affirm Defe ndant’s convictions. Defendant filed a 3 timely response and a motion to amend the docketing statement, which we have 4 duly considered. Because we remain unpersuaded by Defendant’s assertions of 5 error, we affirm. 6 DISCUSSION 7 Sufficiency 8 Defendant continues to challenge the sufficiency of the evidence to support 9 his convictions pursuant to Franklinand Boyer . [MIO 6-9] “Substantial evidence 10 review requires analysis of whether direct or circumstantial substantial evidence 11 exists and supports a verdict of guilt beyond a reasonable doubt with respect to 12 every element essential for conviction. We determine whether a rational factfinder 13 could have found that each element of the crime was established beyond a 14 reasonable doubt.” State v. Kent , 2006-NMCA-134, ¶10, 140 N.M. 606, 145 P.3d 15 86 (citations omitted). On appeal, we view the evidence in the light most favorable 16 to the verdict, resolving all conflicts and indulging all reasonable inferences in 17 favor of the verdict. State v. Apodaca , 118 N.M. 762, 765-66, 887 P.2d 756, 759- 18 60 (1994). 193 The record indicates that the jury wa s given instructions and verdict forms 1 on both the per se and impairment altern atives of DWI pursuant to NMSA 1978, § 2 66-8-102(A) and (C)(1) (2008); the jury found Defendant guilty of both 3 alternatives. [RP 64-65, 104-05, 188] In order to convict Defendant of DWI under 4 Section 66-8-102(A), the State was required to prove beyond a reasonable doubt 5 that (1) Defendant operated a motor vehicl e, and (2) at the time he was under the 6 influence of liquor in that he “was less ab le to the slightest degree, either mentally 7 or physically, or both, to exercise the clear judgment and steady hand necessary to 8 handle a vehicle with safety to the person and the public.” [RP 64] See UJI 14- 9 4501 NMRA. In order to convict Defe ndant of driving with a blood alcohol 10 concentration of eight one-hundredths ormore under Section 66-8-102(C)(1), the 11 State was required to prove beyond a reas onable doubt that (1) Defendant operated 12 a motor vehicle, and (2) within three hours of driving Defendant had an alcohol 13 concentration of eight one-hundredths grams or more per one hundred milliliters of 14 blood as a result of alcohol consumed beforeor while driving the vehicle. [RP 65] 15 SeeUJI 14-4503 NMRA. 16 According to the docketing statement, Deputy Geraldine Y. Martinez 17 testified that she pursued Defendant’s vehicle through Tularosa after she attempted 18 to stop the vehicle for speeding and the driver refused to stop. [DS 3] Deputy 194 Martinez briefly lost sight of the vehicl e before it entered the parking lot of an 1 apartment complex. [Id. 3-4] When Deputy Martinez came upon the vehicle parked 2 in the lot, it was not occupied. [Id. 4] Deputy Martinez spoke with several 3 individuals outside the apartment building and determined that Defendant was the 4 owner of the vehicle and that he reside d in the building. [Id.] Deputy Martinez 5 located Defendant at an apartment, wh ere he admitted to having a suspended 6 driver’s license, to using medication, and to consuming an energy drink containing 7 alcohol. [Id.] After Deputy Martinez conducte d field sobriety tests in the parking 8 lot, Defendant was arrested for DWI. [I d.] Defendant’s blood test results indicated 9 that his blood alcohol concentration was 0.10 grams per 100 milliliters [Id.] 10 The tape log in the record further i ndicates that Deputy Martinez testified as 11 follows. While pursuing Defendant’s vehicl e, she noticed that the driver of the 12 vehicle was a young male with short hair and a small head, which was consistent 13 with Defendant’s appearance at the time. [RP 151, 158] She only lost sight of the 14 vehicle for fifteen to twenty seconds be fore seeing it parked in the apartment 15 complex lot. [Id. 151-52] Several females were on the sidewalk by the vehicle and 16 she asked them where the driver of the vehicle went. [Id. 152] She found the driver 17 in an upstairs apartment. [Id.] When she knocked on the door, Defendant came out 18 agitated and admitted he was driving the vehicle. [Id.] He said he did not stop 195 because he had a suspended license and admitted to drinking an energy drink that 1 has alcohol in it. [Id. 152-53] Deputy Martinez noticed that Defendant was 2 swaying and had bloodshot eyes, slurred speech, and an odor of alcohol. [Id. 153] 3 Defendant was arrested after performing poorly on field sobriety tests. [Id. 153-54] 4 The tape log also indicates that the State introduced testimony about 5 Defendant’s blood tests from the hospital employee who drew Defendant’s blood 6 and an expert witness from the Scientif ic Lab Division. [RP 160-65] The blood 7 test results indicated that Defendant had an alcohol concentration of 0.10 grams per 8 100 milliliters. [Id. 163] Another deputy testif ied about the field sobriety tests and 9 his belief that Defendant was intoxicated based on observations about his poor 10 balance, odor of alcohol, bloodshot and watery eyes, and admission to drinking the 11 alcohol-based energy drink. [Id. 165-66] In addition, the jury viewed a video of 12 the traffic stop recorded from Deputy Martinez’s vehicle. [Id. 156-57] 13 Under these circumstances, we proposedto hold that the State introduced 14 sufficient evidence to support Defendant’s conviction under both DWI alternatives. 15 We proposed to hold that sufficient evidence was introduced to support a 16 conviction that Defendant was under the in fluence to the slightest degree based on 17 Defendant’s speeding, bloodshot eyes, slurred speech, odor of alcohol, swaying, 18 admission of driving, admission of drinking, poor performance on the field 196 sobriety tests, and the blood test results . In addition, we proposed to hold that 1 sufficient evidence was introduced under the per se alternative based on the results 2 of Defendant’s blood test. We therefore proposed to reject Defendant’s challenge 3 to the sufficiency of the evidence. 4 We also proposed to reject Defendant’s argument that the jury erred by not 5 considering the alibi testimony of Terry Cordova. [DS 4-5] Assuming Cordova 6 testified consistent with the represen tations in the docketing statement, we 7 concluded that the jury was entitled to reject Cordova’s version of events. See 8 State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing 9 that it is for the factfinder to make credibility determinations and resolve any 10 conflict in witness testimony). 11 Defendant’s response does not persuadeus that our understanding of the 12 facts and our proposed disposition are in error. Defendant contends that three 13 other witnesses could have testified that Defendant was not the driver of the car 14 that was being chased and suggests that Deputy Martinez may have misheard some 15 of what Defendant told her. [MIO 8-9] Although Defendant claims that the State 16 failed to prove the identity of the driver, wecontinue to believe that the jury could 17 find that Defendant was the driver based on the deputy’s description of the driver 18 that matched Defendant’s appearance at the time of the incident, the deputy’s 197 testimony about Defendant’s agitated state, and Defendant’s admission that he was 1 driving the vehicle and did not stop because he had a suspended license. 2 We also reject Defendant’s claim thatthe State did not meet its burden to 3 prove the existence of a fourth prior DWI conviction, a contention that was not 4 raised in the docketing statement. [MIO 9] Although Defendant may have asserted 5 that he only had three prior DWIs, the j udgment indicates that the State introduced 6 evidence of four prior convictions. [RP 196] Defendant has given us no reason to 7 question the district court’s ruling on the number of prior convictions. 8 We therefore affirm Defendant’s convictions. 9 Motion to Amend 10 Defendant seeks to raise an additional issue of ineffective assistance of 11 counsel. [MIO 1-2] As Defendant notes, [id.] such a motion may only be granted 12 if it is timely, and if the issues are viable. See State v. Moore , 109 N.M. 119, 128- 13 30, 782 P.2d 91, 100-102 (Ct. App. 1989), overruled on other grounds by State v. 14 Salgado , 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991). For the reasons that 15 follow, we conclude that the second requirement, viability, has not been met with 16 respect to the issue that Defendant seek s to raise. Accordingly, we deny the 17 motion. 188 “When an ineffective assistance claim is first raised on direct appeal, we 1 evaluate the facts that are part of th e record. If facts necessary to a full 2 determination are not part of the record , an ineffective assi stance claim is more 3 properly brought through a habeas corpus petition, although an appellate court may 4 remand a case for an evidentiary hearing if the defendant makes a prima facie case 5 of ineffective assistance.” State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 6 54 P.3d 61 (citing State v. Swavola , 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct. 7 App. 1992)). There is a two-fold test fo r proving ineffective assistance of counsel; 8 the defendant must show (1) that counsel’s performance fell below that of a 9 reasonably competent attorney, and (2) that defendant was prejudiced by the 10 deficient performance. State v. Hester , 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 11 P.2d 729. The burden of proof is on the defendant to prove both prongs. Id. 12 In his memorandum in opposition, De fendant contends that defense 13 counsel’s performance was deficient becausehe did not call three additional alibi 14 witnesses to testify at trial. [MIO 11] Generally, we do not second-guess the 15 decision whether to call a witness because it is a matter of strategy and tactics to be 16 made by trial counsel. See State v. Mora , 2003-NMCA-072, ¶ 14, 133 N.M. 746, 17 69 P.3d 256. Here, despite De fendant’s assertions that the testimony of the three 18 witnesses would have supporte d Defendant’s alibi, Defendant’s notice of intent to 199 claim alibi only listed Terry Cordova as analibi witness. [RP 33] The three other 1 witnesses were listed on De fendant’s witness disclosure. [Id. 34] There is no 2 information in the record about the natu re of the witnesses’ testimony or why 3 defense counsel chose not to call them at trial. Because there are many reasons 4 why defense counsel might have decide d not to call the witnesses, the mere 5 allegation that defense counsel failed to call them is not sufficient to support a 6 claim of ineffective assistance of counselor to justify reversal of Defendant’s 7 convictions. See Swavola , 114 N.M. at 475, 840 P.2d at 1241 (stating that a prima 8 facie case is not made whenthere is a plausible, rational strategy or tactic to 9 explain trial counsel’s conduct). 10 Defendant also asserts that defens e counsel’s performance was deficient 11 because counsel did not move for a new trial at sentencing when Defendant told 12 him that his son had confessed to being the driver of the vehicle. [MIO 9-12] 13 Defendant acknowledges that his claim about his son’s confession is not of record. 14 [Id. 12] Defendant argues, however, thathe has presented a prima facie case of 15 ineffective assistance of counsel because there was no rational strategy or tactic to 16 justify not disclosing Defendant’s claim about the confession to the district court 17 and moving for a new trial. [Id.] We are not persuaded. 1810 Trial counsel is not ineffective for failing to make a motion that is not 1 supported by the record. State v. Chandler , 119 N.M. 727, 735, 895 P.2d 249, 257 2 (Ct. App. 1995). Here, Defendant claims th at he told defense counsel at sentencing 3 that his son had recently confessed to Defe ndant that he was the driver of the car. 4 [MIO 5] However, Defendant does not sugge st that his son confessed to the police 5 or that he had any evidence of the confe ssion to present to the district court to 6 support the claim that Defendant’s son was th e driver of the vehicle. Accordingly, 7 defense counsel might have thought Defe ndant’s belated claim about his son’s 8 confession was not credible or did not meet the requirements of newly discovered 9 evidence. On the record before us, wewill not speculate about whether defense 10 counsel’s performance was deficient in failing to pursue the information. Thus, 11 Defendant has not demonstrated a prima f acie case of ineffectiveness. Defendant 12 must pursue this issue, if at all, in a habeas corpus proceeding. See State v. Telles , 13 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845; State v. Martinez , 14 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his Court has 15 expressed its preference for habeas co rpus proceedings over remand when the 16 record on appeal does not establish a prim a facie case of ineffective assistance of 17 counsel”); see also State v. Baca , 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 18 776 (“A record on appeal that provides a basis for remanding to the trial court for 1911 an evidentiary hearing on ineffective assist ance of counsel is rare. Ordinarily, such 1 claims are heard on petition for writ of habeas corpus[.]”). Because we find the 2 issue of ineffective assistance of couns el is not viable, we deny Defendant’s 3 motion to amend the docketing statement. 4 CONCLUSION 5 For these reasons, we affirm Defendant’s convictions. 6 IT IS SO ORDERED. 7
8 MICHAEL E. VIGIL, Judge 9 WE CONCUR: 10

11 MICHAEL D. BUSTAMANTE, Judge 12

13 ROBERT E. ROBLES, Judge 14