COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00553-CR

STEVEN DEWAYNE KNIGHT APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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MEMORANDUM OPINION1

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Appellant Steven Dewayne Knight appeals his conviction for felony driving 

while intoxicated (DWI). We affirm the trial court’s judgment.

 1

See Tex. R. App. P. 47.4.
2

I. Background

On May 8, 2011, Knight was at a restaurant when the owner of the 

restaurant noticed that Knight appeared to be intoxicated. Knight was alone. 

Knight began “stumbling” out of the restaurant 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 Officer 

Carroll he was not driving.

Officer Carroll checked Knight’s identification 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 stated “he was 

going to kick my a[--]” and that “he was going to f[---] my wife.” Officer Carroll 

took Knight to have his blood 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 convictions. 

See id. §§ 49.04(a), 49.09(b)(2) (West Supp. 2012). Specifically, the indictment 

charged that Knight “did . . . drive and operate a motor vehicle in a public place 

while . . . intoxicated.”

At trial, Knight’s defensive theory was that he was not the driver. Indeed, 

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

 The State 

contended during closing arguments that Knight’s assertion that he was not 

driving was 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 Hospital, 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 were true 

and that wasn’t a lie.

The jury found Knight guilty.

At punishment, Knight pleaded true to the enhancement paragraphs, which 

alleged that Knight previously 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 alone before he got in his car.
4

a deadly weapon. The jury assessed Knight’s punishment at confinement for life. 

See id. § 12.42(d). This appeal followed.

II. Admission of 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 eliciting 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 

“contemporaneous 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.—Texarkana 1995, pet. ref’d).

The trial court did not abuse its discretion by admitting the statement over 

Knight’s objection under rule 403. Knight’s demeanor—including his threatening 

statements to Officer Carroll, his slurred speech, and his lack of motor control—

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, even though Knight’s statement about Officer Carroll’s 

wife arguably was prejudicial, such prejudice 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).
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Likewise, the trial court did not abuse its discretion by admitting Knight’s 

statement over Knight’s rule 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 inadmissible under rule 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 of other crimes, wrongs, or acts, the proponent of 

the evidence must satisfy the trial court 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 identity or intent; that it tends to establish 

some evidentiary fact (such as motive, 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 Montgomery, 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 accident

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 relevant to show Knight’s loss of 

mental faculties due to intoxication at the time of the traffic stop. Tex. Penal 

Code Ann. § 49.01(2)(A); see Lopez v. State, No. 10-11-00115-CR, 2013 WL 
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765711, at *7 (Tex. App.—Waco Feb. 28, 2013, no pet.) (mem. op., not 

designated for publication); Saxer v. State, 115 S.W.3d 765, 778–80 (Tex. 

App.—Beaumont 2003, pet. ref’d); Smith v. State, No. 09-97-00175-CR, 1999 

WL 64262, at *2 (Tex. App.—Beaumont Feb. 10, 1999, no pet.) (not designated 

for publication). Thus, the evidence was admissible under rule 404(b), and the 

trial court did not abuse its discretion in its admission. We overrule point one.

III. Ineffective Assistance of Counsel

In his second point, Knight argues that his trial counsel was constitutionally 

ineffective because he failed to object to the State’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 his

counsel’s representation fell below the standard of prevailing professional 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, 
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163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63 

(Tex. Crim. App. 2001).

Direct appeal is usually an inadequate vehicle for raising an ineffectiveassistance-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 true 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 is 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 his 

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 

deficient performance 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 the State’s 

arguments were in direct response to Knight’s defensive theory—that he was not 

the driver—and were not a comment on Knight’s post-arrest silence. See 

Hernandez v. State, 939 S.W.2d 692, 695 (Tex. App.—Fort Worth 1997, pet. 
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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 

defendant’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 jury argument, including answering opposing counsel’s argument), cert. 

denied, 510 U.S. 829 (1993). Therefore, the record presented on direct appeal 

does not show deficient performance by counsel, which is fatal to Knight’s 

ineffective-assistance-of-counsel claim. We overrule point two.

IV. Conclusion

Having overruled Knight’s two points, we affirm the trial court’s judgment.

 

LEE GABRIEL

JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: May 23, 2012