## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 18

- 00208

- CR

____________________ _______

On Appeal from County Criminal Court N o. 10 Ta rrant County, Texas Trial Court No. 1527882

Before Sudderth, C.J.; Kerr and Womack , JJ. Memorandum Opinion by Justice Kerr 

### R OBYN 

### D YAN 

### S OWERS 

### , Appellant

V


### . T H E 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION A jury convicted Appellant Robyn Sowers of misdemeanor dri ving while intoxicat ed (DWI) ; the trial court sente nced her to 75 days in the Tarrant County Jail. She n ow appeals, arguing in a single i ssue that her trial counsel was ineffective. We will affirm. B ackground In the early morning hours of November 14, 201 7, Officer Arnold, a night

shift patrol officer fo r the City of Hur st, Texa s, saw a black truck drifting and weaving as it went down the highway in front of him

. After observing several traffic violations, Officer Arnold pulled the tr uck over. At trial, the jury watched the d ashcam video, whi ch inclu ded footage of the truck’s erratic driving , the stop itself , and the driver Sowers’s eventual arrest. Officer Arnold describe d Sowers as having “glassy” eyes. And alth ough she was driv ing in H urst, which is northeast of Fort Worth, she claimed to be on her way from Burleson heading to Springtown

— towns that are , r espectively, to the south and north west of Fort Wor th. As Officer Arnold put it, Sowers was “definite ly off course by a s ignif icant amount.” Sowers also told Officer Arnold that she had taken Nyquil. S owers performed poorly on the standardized field

- sobrie ty tests he then administered to he r , displaying all six intoxication clues on the ho rizontal

- gaze nys tag mus t est , seven of eight during the walk

- and

- turn test , and four of four intoxication clues when taking the one

- leg

- stand test

.3 B ased on all these thin g s, Officer Arnold arrested Sowers for suspicion of DWI

. A resulting blood draw, to which Sowers consented, revealed the presence of methamphetamine in her system

. A unanimous jury found Sowers guilty of misdemeanor DWI

. See Tex. Pen al Code Ann. § 49.04. I n accordance with Sowers’s earlier election to let the trial court decide any punishment , the trial court sentenced her to 75 days in the Tarrant County Jail. Sowers did n ot file a motion for new trial. I ssue on Appeal Sowers argues in h er lone issue tha t she re ceived ineffective assistance of counsel resulting from the cumulative effect of five different failings

— none of which, she concedes, separately “rises to the level of ineffectiven ess demanding a reversal of the cause” :

• n ot objecting to Officer Arn o ld ’s testimony about certain of Sowers’s post

arrest statements because they were not electronically recorded and admitted into evidence, as Texas law requires;

• n ot objecting to expert toxicology evidence implying that Sowers was an exp er ienced methampheta mine user;

• f ailing to seek a limiting instruction for (unspecified) evidence admitted under rules 40 3 and 40 4(b) of the Texas rules of evidence;

• n ot objecting to improper cl osing argument by the State; and

• i ntroducin g evidence of Sow er s’s pa st criminal his tory during the punishment phase.4 A

pplicable Law To prevail on an ineffective

- assistance claim, a defendant must show two things: (1) that counsel’s performance was defic ient and (2) that the deficient performance deprived him or h er of a fair trial

. Str ickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Prine v. State , 537 S.W.3d 113, 116 (Tex. Crim. App. 2017). An ineffective

- assistance claim must be “firmly founded” in a record that “affirmati v el y demo nstrate[s]” that the claim is m eritorious. Gomez v. State , 552 S.W.3d 422, 432 (Tex. App.

— Fort Worth 2018, no pet.) (quoting Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). T he defendant mu st prove by a preponderance of the evidence t ha t coun sel was ineffect ive. Thompson , 9 S.W.3d at 813. The first Strickland prong, deficient performance, requires a defendant to establish that counsel’s performance fell below an objective standard of

reason ableness

— that is, that counsel’s actions did no t meet the objective n orms for profes sional conduct of trial counsel. Mitchell v. State , 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong, prejudice to the defense, calls for a showing that but for counsel’s deficient performance, the trial’s ou tcome wa s reasonably l ikely to have b een different. See Strickland , 466 U.S. at 694, 104 S. Ct. at 2069; Thompson , 9 S.W.3d at 812. Because the record is usually inadequately developed and “cannot adequately reflect the failings of trial counsel” in a w ay that allows us to “fa irly evaluate t he merits of such a serious allegation,” i t’s a “rare case”

— as Sowers acknowledges

— in which5 direct appeal is a satisfactory vehicle for assessing ineffectivenes s . Lopez v. State , 343 S.W.3d 137, 143 (Tex. Cr im. Ap p. 2011); see al so Gomez , 552 S.W.3d at 432 . As the court of criminal appeals has said repeatedly , “claims of ineffective assistance of counsel are generally not successful on direct appeal and are more appropriately urged in a hearing on an appli c at ion fo r a writ of habe as corpus.” Lopez , 343 S.W. 3d at 143. Without a developed record, counsel should be found ineffective “only if his conduct was ‘so outrageous that no competent attorney would have engaged in it.’” Prine , 537 S.W.3d at 117 (quoting G oo dspeed v. State , 187 S .W.3d 390, 392 (Tex. Crim. App. 2005)). A nalysis Failing to object to Officer Arn old ’s testimony about certain post

- arrest statements. Sowers’s first instance of ineffective assistance i nvolves Officer Arnold’s trial testim o ny about voluntary state ments Sowers made while in custody and after receivin g the Mir anda warnings

. See Miranda v. Arizona , 384 U.S. 436, 444

– 45, 86 S. Ct. 1602 , 1612 (1966). Sowers claims that her counsel should have objected because article 38.22 of the code of criminal procedure was not complied with. See Tex

. Code Crim. Proc. Ann.

art. 38.22 , § 3 (forbidding the u se, in a crimi nal proceedi ng, of an acc used’s oral statement “made as a result of custodial interrogation” unless (among other things) the statement was electronically recorded and admitted into evid ence ). Sowers asserts that “[n]o such recording was made and no such el ectr onic rec ording was ad mitted into evidence.”6 The State points out that Sowers is factually mistaken: her post

- arrest statements were in fact recorded , admitted into evidence as part of State’s Exhibit 3, and published to the j ury before Off icer Arnold started to re count their conversation. We have reviewed the relevant portions of the electronic recording and agree with the State. Sowers’s counsel had no reason to objec t to Officer A rnol d’s test imony u nder

a rticle 38.22. Failing to object to expert toxicology evidence implying that Sowers was an experienced methamphetamine user . Sowers argues that her counsel was ineffective for not objecting

to allegedly prejudicial te stimony of the chi ef toxic ologist for t he Tarrant County Medical Examiner’s office. Conceding that Dr. Johnson’s testimony about the results of Sowers’s blood testing was “perfectly proper , ” Sowers takes issue with his additional testimony abo ut n anogram levels of met ha mphetamine in the bloodstream and how they might affect “ novice ” and “tolerant” users differently , claiming that this testimony clearly implied that she was not a novice. But the context of the complaine d

- of exchange show s that D r. John son wa s discussing nanogram levels and their possible effects in a generalized way without necessari ly implying anything about Sowers’s experience one way or another: Q. Are you able to say by looking at [Sowers’s test result of 614 n anograms per m illi lit er] w hether that’s a high or low amount of methamphetamine? A. Well, it could certainly be fatal in a

— in a novice user so the number, again, doesn’t mean a lot for any given person. But we start to worry about

— in a postmortem cas e, we start to wor ry abou t overdose7 wit h numb ers above 500 nanograms per milliliter, but in a tolerant user, they could easily have three times as much in them and

— and would not be concerned about dying.

. . . Q. Well, like amphetamine, with methamphetamin e th ere’s no

— there’s no .08, there’s no, li ke, per se standard similar

— like the State legislature hasn’t said there’s a .08 similar to alcohol. A. There is not, no. Again, any legal

— you can’t assign any specific side effect to any per son based only on the numb er. Q . Okay

. A. So there is no legal limit for any drug other than ethanol. Q. Do you have an opinion as to the amount of which a person should have in their system if they choose to operate a vehicle? A. You shouldn’t hav e any. Q. So zer o? A. Yes. An y
— an y amount above zero makes it dang erous to drive.

. . . T he cru x of Dr. J oh nson ’ s testimony was that any amount of methamph etamine impaired a person ’ s ability to drive safely. The amount that he found in Sowers was potentially dangerous for a n ovice but compar atively low for a tolerant use r. His point was not that Sowers was one or the other but t hat methamp hetami ne was prese nt. The actual amount did not corre late to specific side effec ts or necessarily to a particular drug

- use history. Whateve r Sower s ’ s drug his tory was, her driving sugge sted t hat she did not tolerate this particular amount w ell. E xpert opinion even about a particular8 defendant’s individual drug or alcohol tolerance can be admissible. S ee Brazda v. State , No. 14

- 97

- 01278

- CR, 19 9 9 WL 717725, at *3 (Tex. Ap p.

— Houston [1 4th D ist.] Sept. 16, 1999, no pet.) ( not designated for publication ) (concluding that trial court did not abuse its discretion in allowing expert’s testimony about defendant’s alcohol tolerance because that opinion r eflec ted on defen dant’s loss o f mental or phy sical faculties). O n this undeveloped record , we cannot say that counsel’s failure to object to Dr. Johnson’s general testimony was “so outrageous that no competent attorney” would have similarly kept q uiet , Pr i ne , 5 37 S .W.3d at 117 , and Sow ers has not cit ed us to any authority so holding. Failing to seek a limiting instruction for extraneous

- offense evidence admitted under Texas Rules of Evidence 40 3 and 40 4(b )

. Here, Sowers argues in a single short pa ragraph t hat h er c ounsel forfeite d error b y failing to request a limiting instruction to evidence admitted under rules of evidence 40 3 and 40 4(b)

. See Tex. R. Evid. 40 3 , 40 4(b)

. According to Sowers, this failure “further exacerbate[ed] [counsel’s] d eficient perfor m ance.” A lthough she c ites to the court’s char ge and to that part of the reporter’s record in which her counsel said “[n]o objections” to the charge , Sowers has not pointed us to where in the record any evidence supposedly sub j ect to a lim iting in struction was admitted, nor does she explain what that evidence was. 1

1 In context, we assume that Sowers is continuing to refer to the toxicolog ist ’ s testimony that, according to Sowers, implied that she was an exp erienced user. But a s we have expl ained i n the preceding section, Dr

. Johnson ’ s rem arks about nan ogram9 Not only do we not have a developed record from which we might evaluate on direct appeal whether counsel was ineffective for not seeking a limiting i nstruction, So w ers has not a dequatel y briefed th is part of her ineffective

- assistance issue

. See Belle v. State , 543 S.W.3d 871, 875 (Tex. App.

— Houston [14th Dist.] 2018, no pet.) ( “Appellant complains of comments made by the trial court when appellant requested sel f

- re p resentat ion at trial . Appellant’s brief contains no references to the record where such comments were made. See Tex. R. App. P. 38.1(i). Accordingly the issue is waived

. ”); Briscoe v. State , 542 S.W.3d 100, 106 n.6 (Tex. App.

— Tex arkana 2018, pet. ref’ d) ( r e ferencin g appellate

- procedure rule 38.1(i) and noting “[t]he failure to ade quately brief an issue, either by failing to specifically argue and analyze one’s position or provide authorities and record citations, waives any error on appeal”); see also Tex

. R. A pp. P. 38.1(i )

. Failing t o object to improper closing argument by the S tate
. Sowers identifies six comments during the State’s closing argument that she contends were improper and thus should have been objected to. T he o nly authority Sowe r s ci tes he re is a case that si mply recites the four proper areas of the State’s closing argument: summation of the evidence, reasonable deduction from the evidence, answer to argument of opposing counsel, and plea for law enforcement. Al ejandro v. State , 4 93 S .W.2d 230, 231 (Tex. Crim. App. 1973). As was the situation in another case from our court, “Appellant did
levels w ere generalized and did not necessarily imply that Sowers had developed a u sage
- based tolerance

.10 not cite to any legal authority to support his assertion that the [State’s unobjected

- to closing ] arguments were erroneous .” E scamilla v. State , No. 02

- 13

- 00317

- CR , 2014 WL 44 63121, at *4 (Tex. App.

— Fort Worth Sept. 11, 2014, no pet. ) (mem. op. , not designated for publication ). In contrast, the State asserts that the pros ec utor ’ s arguments were proper

— and has cited supporting authorities. But e ven if we overloo k a rule 38.1(i) briefing deficiency and assum e Sowers is right that the St ate stray ed outside the bounds of prope r argume nt one or more times, Sowers has given

us no basis on which to conclude that her counsel’s failure to o b ject constituted outrageous ly poor legal work that no competent lawyer would engage in. See Prine , 537 S. W.3d at 1 17. Moreover, we do not have a d eveloped record from which to conclude here that failing to object during closing argument represented inef f

ecti ve assistance as oppose d t o trial strategy. In a direct appeal from a similar situation, one of our si ster

cou rts observed, after declining to l abel the failure to object as outrageously bad , that “it is possible appellant’s trial counsel chose not to obje ct based on a reasonabl e t rial strategy.” Orellana v. State , 489 S.W.3d 537, 550 (Tex. App.

— Houston [1 4th Dist .] 2016, pet. ref’d); see also Kuh n v. Sta te , 393 S.W.3d 519, 539 (Tex. App.

— Austin 2013, pet. ref’d) (“One such reasonably sound strategic m o tiva tion could have been th e d esire to avoid drawing additional attention to the prosecutor’s opinion.”). Sowers h as not met her burden to persuade us other wise.11 I

ntroducing evidence of Sowers’s past criminal history during the punishment phase . Finally, but without citing any auth ori ty, Sowers argues that her counsel ’s introducing her criminal history during punishm ent was “inexcusable.” The rec ord before us does not permit us to conclude that trial counsel rendered ineffective assistance by d oing so. Before trial, the St ate had filed a notice of two extraneous offenses forming Sowers’s criminal history that it might introduce into evide nce. Once the jury returned its guilty verdict, Sowers elected to have the trial court assess her puni shment and took the sta nd to ask for probation because of her mother’s health problems. The State pos tulates that trial coun sel could ha ve antic ipated Sowers’s being cross

examined about her criminal history and chose n to confront it head

- on d u ring direct examination to app ear more forthright and candid in her quest for leniency. T hat theory do es not strike us as unreasonable , a nd so we disagree with Sowers that “[n]o legitimate purpose can be contrived to excuse this decision.” More to the point, o n
t his record w e cannot know what trial counsel was thinking, but we do know that “[t] o conclude counsel’s performance wa s defici ent , we would have to engage in prohibited speculation.” Escamilla , 2014 WL 4463121, at *4. Moreov e r, S o wer s admits that the r eco rd is silent regarding whether she understood her right not to testify and whether she waived it knowingly , nor does the

recor d s how whether Sower s testified against her coun sel ’ s ad vice. I f she did, this change s the dynamic s : “ Whe n a defe nda n t [who testifies against his counsel ’ s advice] refuses to follow t rial coun sel ’ s strategy, a claim of ineffective assistance of c ounsel is12 ina ppropriate. ” Montoya v. S t ate , No. 14

- 97

- 00196

- CR, 1999 WL 374092, at * 5 (Tex. App

. — Hou ston [ 14th Dist.] June 10, 1999, no pet.) (not designated for publicatio n) (citing Duncan v. State , 717 S.W.2d 345, 348 (Tex. Crim. App. 1986)). “ [W ] hen a defendant pree mpts his attorney ’ s strategy by insisting that a different def ense be followed, no cla i m of ineffectiveness ca n b e made. ” Duncan , 717 S.W.2d at 348; s ee als o Thompson v. St ate , N o s. 0 2

- 18

- 00230

- CR, 02

- 18

- 00231

- C R , 02

- 18

- 00232

- CR, 2 019 WL 1065925 , at * 4 (Te x. App.

— Fort Worth May 8, 2019, pet. ref ’ d) (mem. op., not de signated f or publicat i on) ( “ A criminal defendant has a constitutional right to testify in his def ense, including duri ng the punishment phase of the trial

. This righ t can be knowing ly and voluntar ily waived only by the defenda nt, not his counsel. ” (internal ci tations omitted) ). In short, Sowers has n ot c arried her burden to sh ow by a preponderance of the evidence that her trial counsel’s performa nce was constitutionally deficient in any o f the lis ted ways. 2

2 And that is of course but one of the Strickland prongs: Sower s has sa id virtually nothi n g about the co mpanion requirement that t he deficient performance resulted in prejudice, which in this context means a “reasonable probability tha t, but for counsel’s unprofessional errors, the r esult of the proceeding would have been dif ferent.” Holland v

. State , 761 S. W.2d 307, 314 (Tex. Crim. App. 1988) (citing Strickland , 466 U.S. at 694, 104 S. Ct. at 2068). Here, the jury heard direct evidence on every element of the charged offense. See Esc amilla , 2014 WL 4463121, at *4 n.3 (“Even i f defense counsel’ s failure to ob ject to the prosecutor’s c losing argument was deficient conduct, the jury heard direct evidence from the complainant on every eleme nt of the offense charged. Appellant failed to me et the second prong of Strickland

— t hat ther e was a reasonable probability th at the result of the tria l would have been different had the objections to the arguments been sustained. See Washington v. State , 7 71 S.W.2d13 And without some error of that type, there can be no cumulative error : non
errors cannot cum u late to create harmful erro r. See Chamberlain v. State , 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) . Particularly in view of Sowers’s concessi on that “n o single act o[r] omission by counsel rises to the level of ineffectiveness demanding a reversal of the c ause ,” she has n ot met her burden under Strickland

. See Rodriguez v. State , 336 S.W.3d 294, 303 (Tex. App.

— San Antonio 201 0, pet. ref’d) ( holding that because appellant “did not meet her burden of establishing individual instances of ineffectiv e ass istance of counsel,” sh e “ cannot show an adverse cumulative effect” from trial counsel’s actio ns). We therefore overrule Sowers’s appella te issue. C onclusion Having overruled Sowers’s sole issue on appeal, we affirm the trial court’s judgment.

537, 545 (Tex. Crim. App. 1989).”). And regarding punishment, despite Sower s ’ s committing this offen s e while on p ro bation for ano ther offens e , the t rial court ’ s sentence falls in the punishme nt range ’ s l ower half. See Tex. Penal Code Ann. § § 12 .2 2 (2) (authorizing confinement in jail fo r a term not to exceed 180 days for a Cl ass B misde mean or) , 4 9.04(b) ( providing that DWI is gen e rally a Class B misdem eanor ).14 /s/ Elizabeth Kerr E liza b et h Kerr J ustice

Do Not Pu b lish Tex. R. App. P. 47.2(b) Delivered: August 22, 2019