## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00553 - CR

STEVEN DEWAYNE KNIGH T APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- Appellant Ste ven Dewayne Knight appeals his conviction for felony drivin g while intoxicated (DWI) . We affirm the trial court’s judgment.

1 See Tex. R. App. P. 47.4.2 I. B ackground On May 8, 2011, Knight was at a restaurant when the owner of the restaurant noticed that Knight appeared to be int oxicated. Knight was alone. Knight began “stumbling” out of the re staurant to get in his car, and the
restaurant owner called the police. Officer Frank Carroll responded to the call and quickly located Knight ’s car. Officer Carroll saw Knight pull into a convenience store and stop at a gasoline pump. Officer Carroll parked his car behind Knight ’s , and Knight got out of the driver’s side of the car and began walking toward Officer Carroll. Knight smelled of alcohol, slurred his words, kept his hand on his car for balance, and began to urinate on himself while talking to Officer Carroll. Knight told Officer Carroll that his driver’s license had been suspended, but gave him a state
- issued identification card. He also told Offic er Carroll he was not driv ing

. Officer Carroll checked Knight ’s i dentification information and determined that Knight had two prior DWI convictions. Knight refused to perform the field sobriety tests. Officer Carroll put Knight in handcuffs and began taking him to the patrol car

. At this point, Knight became “belligerent,” “vulgar , ” and “argumentative.” For example, Officer Carroll testified that Knight s tated “he was going to kick my a [

-- ]” and that “he was going to f [

--- ] my wife.” Officer Carroll took Knight to have his blo od drawn at a hospital , where it was discovered Knight ’s blood alcohol concentration was four times the legal limit. See Tex. Penal Code Ann. § 49.01(2)(B) (West 2011 ).3 Knight was indicted for felony DWI based on his two prior DWI convictio ns

. S ee id. § § 4 9.04(a), 49.09(b)(2) (West Supp. 2012 ). S pecifically, the indictment charged that Knight “did . . . drive and operate a motor vehicle in a public p lace while . . . intoxicated.” At trial, Knight ’s defensive theory was that he was not the driver

. Inde ed, the keys were not in the car when police officers inventoried the car after Knight ’s
arrest , and Knight did not have the keys when he arrived at the jail. 2 Th e State contended during closing arguments that Knight ’s assertion that he was not driving wa s not credible: [I]f in fact I was looking at going to prison for a DWI, and I was not driving, I wouldn’t have told Officer Carroll that statement one time when he originally made contact with me that I wasn’t driving; I would have been saying nothing but , “I was not driving. I was not driving.” That’s all he would have heard on the way to the Springtown Police Department, that’s all he would have heard on the way to the Weatherford Regional Hosp ital, that’s all the other officer would have heard when he came up to assist with the blood draw. That’s all the phlebotomist would have heard. “I was not driving.” That’s all you would have heard from me, if, in fact, that we re true and that wasn’t a lie. Th e jury found Knight guilty

. At punishment, Knight pleaded true to the enhancement paragraphs, which alleged that Knight p reviously was convicted of DWI and aggravated assault with

2 This is the only evidence in the record that suggests Knight was not alone in the car. As noted above, Officer Carroll saw Knight get out of the driver’s side of his car. Further, Knight was a lone before he got in his car.4 a deadly weapon. The jury assessed Knight ’s punishment at confinement for life. Se e id. § 12.42(d) . This appeal followed. I I. Admission o f Knight’s Statement In his first point , Knight argues that the trial court abused its discretion by admitting his statement regarding Officer Carroll’s wife because it was inadmissible character evidence and was overly prejudicial . Before elic iting the disputed testimony from Officer Carroll, Knight objected that such evidence was not relevant and was too prejudicial. See Tex. R. Evid. 403, 404(b). The trial court overruled the objection, concluding that the statements were “contemporane ous with the arrest” and “go to the probative value of whether or not his mental faculties are there.” We review the trial court’s admission of the statement under an abuse

- of

- discretion standard. See Lum v. State , 903 S.W.2d 365, 371 (Tex. App.

— Texarkan a 1995, pet. ref’d). The trial court did not abuse its discretion by admitting the statement over Knight ’s objection under r ule 403. Knight ’s demeanor

— including his threatening statements to Officer Carroll , his slurred speech, and his lack of motor cont rol

— was directly relevant to the issue of intoxication. See Jones v. State , 795 S.W.2d 171, 175 (Tex. Crim. App. 1990); Cotton v. State , 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985). Thus, ev en though Knight ’s statement about Officer Carroll’s wife arg uably was prejudicial, such pre judice was not outweighed by its probative value to an issue to be submitted to the fact

- finder. See State v. Mechler , 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).5 Likewise, the trial court did not abuse its discretion by ad mitting Kn ight’s statement over Knight’s r ule 404(b) objection. Knight argues that the only probative value of the statement lies in its support of an inference of character conformity; thus, it is inad missible under r ule 404(b). See, e.g., Montgomery v. State , 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh’g)

. Indeed, an accused cannot be tried for some collateral crime or for being a criminal generally. See Williams v. State , 662 S.W.2d 344, 346 (Tex. Crim. App. 1983). To introduce evidence o f other crimes, wrongs, or acts, the proponent of the evidence must satisfy the trial cour t that the other crime, wrong , or act has relevance apart from its tendency to prove character conformity; that it tends to establish some elemental fact, such as ide ntity or intent; that it tends to e stablish some evidentiary fact ( such as moti ve, opportunity, or preparation) leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing , for example, absence of mistake or accident. See Mo ntgomery , 810 S.W.2d at 387

– 88; see also Tex. R. Evid. 404(b)

. Evidence of an extraneous offense, wrong, or act that logically serves the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or acci dent is relevant beyond its tendency to prove the character of a person to show that he acted in conformity therewith. See Montgomery , 810 S.W.2d at 387. Here, as noted by the trial court, the evidence was relevan t to show Knight’s loss of mental faculti es due to intoxication at the time of the traffic stop . Tex. Penal Cod e Ann. § 49.01(2)(A) ; s ee Lopez v. State , No. 10

- 11

- 00115

- CR, 2013 WL6 765711, at *7 (Tex. App.

— Waco Feb. 28, 2013, no pet.) (mem. op., not designated for publication); Saxer v. State , 1 15 S.W.3d 765, 778

– 80 (Tex. App.

— Beaumont 2003, pet. ref’d) ; Smith v. State , No. 09

- 97

- 00 175

- CR, 1999 WL 64262, at *2 (Tex. App.

— Beaumont Feb. 10, 1999, no pet.) (not designated for publication). Thus, the evidence was admissible under r ule 404(b), and th e trial court did not abuse its discretion in its admission. W e overrule point one. III. Ineffective Assistance o f Counsel In his second point, Knight argues that his trial counsel was constitutionally ineffective because he failed to object to the Stat e’s closing jury argument , which commented on his post

- arrest silence

. To establish ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that hi s counsel’s representation fell below the standard of prevailing profe ssional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Davis v. State , 278 S.W.3d 346, 352 (Tex. Crim. App. 2009)

. In other words, for a claim of ineffective assistance of counsel to succeed, the record must demonstrate both deficient performance by counsel and prejudice suffered by the defendant. Menefield v. State , 363 S.W. 3d 591, 592 (Tex. Crim. App. 2012 ). Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonable representation. Salinas v. State ,7 163 S.W.3d 734, 740 (Tex. Cri m. App. 2005); Mallett v. State , 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)

. Direct appeal is usually an inadequate vehicle for raising a n ineffective

assistance

- of

- counsel claim because the record is generally undeveloped. Menefield , 363 S.W.3d at 592

– 93 ; Thompson , 9 S.W.3d at 813. This statement is tru e with regard to the deficient

- performance prong of the inquiry when counsel’s reasons for failing to do something do not appear in the record. Menefield , 363 S.W.3d at 593; Thompson , 9 S.W.3d at 813

. It i s not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State , 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity to explain hi s actions before being denounced as ineffective.” Menefield , 363 S.W.3d at 593 (quoting Rylander v. State , 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial counsel is not given that opportunity, then the appellate court should not find d ef icient perf orma n ce unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Id . (quoting Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) , cert. denied , 537 U.S. 1195 (2003) ). Here, it is clear that counsel’s failure to object fell within the wide range of reasonable representation our standard of review presumes because t he State’s arguments were in direct response to Knight ’s defensive theory

— that he was not the d river

— and were not a comment on Knight ’s post

- arrest silence

. See Hernandez v. State , 939 S.W.2d 692, 695 (Tex. App.

— Fort Wort h 1997, pet.8 ref’d) (holding State’s argument, which referred to defendant’s failure to explain his theory that someone else committed the crime, was not a comment on defendan t’s failure to testify) ; Mowbray v. State , 788 S.W.2d 658, 665 (Tex. App.

— Corpus Christi 1990, pet. ref’d) (holding State’s argument referencing defendant’s election not to testify was either a restatement of the charge or answer to defense argument) , cert . denied , 498 U.S. 1101 (1991). See generally Felder v. State , 848 S.W.2d 85, 94

– 95 (Tex. Crim. App. 1992) (listing permissible areas of ju ry argument, including answering opposing counsel’s argument) , cert. denied , 510 U.S. 829 (1993) . Therefore, the re cord presented on direct appeal does not show deficient performance by counsel , which is fatal to Knight ’s ineffective

- assistance

- of

- c ounsel claim. We overrule point two. IV. C onclusion Having overruled Knight’s two points , we affirm the trial court’s j udgment.

LEE GABRIEL JUSTICE PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App

. P. 47.2(b ) DELIVERED: May 23, 2012