### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 516 -CR

Ri c har d Bar ne tt , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF CALDWELL COUNTY , 421S T JUDICIAL DISTRICT

NO. 2006 -10 6 , HO NORAB LE TODD B LOM ERTH , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appe llant Richa rd Ba rnett g uilty of driving while intox icated, third offe nse. See Tex. P enal Code A nn. § 49.04 (West 2003), § 49.09(b)( 2) (W es t S u p p . 2 008). The dis tr ic t c ourt

a sse sse d p un ish me nt, e nh anc e d b y tw o p re vio us fe lony

c on vic tio ns , at fo rt

y -f ive y e a rs ’ imprisonment. I n two points of err or, appellant contends that the evidenc e is fac tually insufficient to s up po rt the jur y ’s ve rd ic t and

tha t hi s tr ia l c ouns e l r e nd e re d in e ff e c tiv e a ssi sta

nc e . We ov e rr

ule these c ontentions and aff

irm the conviction. Appellant questions t he sufficiency of t he evidence only with respec t to the question of his int oxic a tion. I n a fa c tua l su ff ic ie nc y re vie w, we vie w a ll the e vid e nc e in a ne utr a l li g ht, favor ing ne ither par

ty
. Ro be rts v . S

tat e , 2 20 S.W. 3d 52 1, 52 4 ( Te x. Cr im. Ap p. 20 07 ); W atson
v . S tat e , 20 4 S.W. 3d 40 4, 41 4 (T e x. Cr im. Ap p. 20 06 ); J oh ns on v . S

tat e , 2 3 S. W.3 d 1 , 7 (T e x. Cr im. App. 2000). The jury ’s ver dict may be set a side only

if it is so contrary

to the overw helming w eig htTh e re c or d r e fl e c ts that T or re s w a s n ot e mpl oy e d a s a po lic e of fi c e r at th e tim e of

the tr ia l. 1 2 of th e ev i d en ce a s to be clea rly wrongand unjust or if it is ag ainst the g reat weig ht and preponde ranc e of the evidenc e. W atson , 2 04 S.W. 3d

a t 41 4- 17 ; Johnson , 23 S.W .3d at 7, 11. The St at e’ s only

witness at the g uilt-innocence stag e wa s L ockhar t police offic er Ys idr o T or

re s. Torre s testified that he stopped a pickup truck be ing dr iven without headlig hts at 1 11:45 p.m. Appellant was the ope rator of the truck. Tor

res i m m ed i at el y

noticed that appe llant’s ey es wer e bloodshot, his speec h was slurred, and he had about him the odor of a lcoholic beve rag e. When Torre s asked ap p ell ant to g et out of his vehicle, the office r noticed a n open bee r ca

n in the truck. Torre s later deter

mined that this can wa s half-f ull and cold to the touch. Torr es testified that
a pp e lla nt’ s p ants we re we t, a s if

he ha d s pil le d b e e r i n h is la p o r u ri nate d in his pa nts . App e lla

nt t old Torre s that he wa s on his way home from a

bar a nd that he had c onsumed “a couple of beer s.” Torre s and appe llant were standing in a gas station parking lot. Torres testified that the surf a c e wa s “ fl a t and

le ve l,” bu t a

pp e lla nt’ s “ ba lanc e wa s un sure ” and he “ sw ay e d fr om s ide to side.” Tor

res sa id that he attempted to administer the hor izon t al g aze ny stag mus test, but he was unable to complete the test bec ause a ppellant did not follow his inst ructions. During the walk- andturn test, appellant stopped while walking , stepped off the line, and r aised his hands. Dur ing the oneleg g ed stand test, appe llant stopped counting at five. Torre s testified that it was his opinion, based on his training a

nd e xp e r ie n c e , that appellant wa s intox icated. F ollowing his ar rest, appe llant refuse d to submit a sample of his br eath f or testing . A videotape showing appellant at the scene of the stop and in the intox ilyzer room at the jail wa s introduced in evide nce a nd play ed for

the jury
.3 Def ense w itness Fra

nces B ennett testified that she lived with appellant for eig hteen months. S he said that a

ppellant does not spe ak clea rly , that he “stutters and slurs.” She added that appellant’ s broken f

alse tee th make his speec h even w ors e. Be n nett testified that appe llant’s arm and lef t foot are “messed up from surg ery ,” and that he “w alks with his arm out” and “ does we ird things with his fing ers.” She descr ibed appe llant as “slow,” and she said that “y ou would think he is di s a b le d in th e w ay h e w a lk s an d

ta lk s . ” B e n n e tt , a

s ix- y e ar r e s id e n t o f

L o c kh art, a ls o te s ti f

ie d that she wa s familiar with the re putation of Off icer Torre s in the comm u n i t y , an d t h at he wa s considere d to be “a

dishonest cop.” Finally , Be nnett testified that she had of ten driven a

ppellant’s pickup truck a

nd that the hea dlights “w ould go of f and on sometimes.” The other defe nse witness wa s Russell Griffin. Griff in testified that he had know n
a pp e lla nt s inc e 19 80 . H is d e sc ri pti on of a pp e lla nt’ s manne r of

sp e a kin g and

mov ingwa s si mil a r t o Be nnett’s. He testified t hat appellant was “a sl ow per son” and that “sometimes y ou have to r epeat
or ex plain to [hi m] what y ou meant whe n y ou’re telling him something .” Gr iffin also testified that appellant’ s pickup truck wa s in poor condition and difficult to drive.

Ap pe lla nt a rgue s th a t th e e vid e nc e re g ard inghis int oxic a tio n w a s w ho lly inf e re nti a l, that there was no “ actua l evidence ” that he did not have the norma l use of his mental or phy sical fac ulties. H e asser

ts that the signs of intox ication Torre s claimed to ha ve seen c an be e x plained by his sp e e c h im

pe dim e nt a

nd ph y sic a l disa

bil iti e s. Ap pe lla

nt ar g ue s tha t if he w a s d

ri vin g wi tho ut h is h e a d l i g h t s , i t w a s n o tb e c a u s e h e w a s i n t o x i c a t e d

b u tb e c a u s e t h e l i g h t s w e r e d e f

e c t i v e . F i n a l l y,
a p p e l l an tu r g e s t h a tT o r

r e s w a s n o ta

c r e d i b l e w i t n e s s g i v e nh i s r e p u t a t i o ni nt h e c o m m u n i t y.4 The jury found the e vidence of intox ication to be per suasive, and w e owe that deter mi nation considera

ble def ere nce. Se e Kin g v . S

tat e , 29 S.W .3d 556, 562 (Tex. Crim. App. 2000). We may

not substit ute our judg ment for that of the jury , and we may

not order a

new tria l simply beca

use we disag ree with the jury ’s verdic t. Cai n v. Sta te , 9 58 S.W. 2d 40 4, 40 7 ( Te x. Cr im. App. 1997). The jury alone deter mines the weig ht to place on c ontradictory testimony

beca use that deter mination de pends on the eva luation of cre dibilit y and deme anor. Id . at 408. We may disag ree with the jury ’s re sult only to preve nt a m an i fe s t i n j u s t ice. Johnson , 23 S.W .3d at 9. Having
c on sid e re d all the e vid e nc e in a ne utr a l lig ht, we c on c lud e that th e jur y ’s ve rd ic t w a s n ot m anif

e stl y unjust. P oint of err or one is over ruled. I n h is s e c on d p oin t of

e rr or , a pp e lla nt c on te nd s tha t hi s tr ia l c ouns e l “ vio la te d [hi s] ri g ht
. . . to seek hy

br id r e pr e se ntatio n f

or the purp os e of

se e kin g to a llo w t

he jur y to h e ar [h im] invoke hi s r ig h t t o c o u n s e l o nth e D WI v id e o , c o n tr ar

y to h is la w y e r ’ s a d v ic e . ” A p p ellant’s argument under this point of err or is not, however , about hy brid repr esentation, which he wa s not absolutely entitled to a

nd, in a ny event, never

reque sted. Se e Sc ar br ou gh v . S tat e , 777 S.W .2d 83, 92 (Tex. Crim. App. 1989). Appellant is actua l ly asser ting a n ineffe ctive assistanc e of c ounsel claim. I n eff

ect, appellant argues that his attorney was ineffe ctive beca use she did not permit the jury to h e ar a pp e lla nt a sk fo r a lawy e r i n th e int oxily

zer ro om f oll ow ing his arr e st. To preva il on a claim of inef fec tive assistance of cou

nsel, an a ppellant must show that
c ouns e l ma de su c h se ri ou s e rr or s that he wa s n ot f un c tio nin g e ff

e c tiv e ly a s c ouns e l and

that th e se
err ors pre judiced the a

ppellant’s def

ense to such a

deg ree that he wa s d ep ri v ed of a f air trial. See Strickland v. W

ashington , 466 U.S. 668, 687 (1984). I n revie wing a claim of i neff ective a ssistance,5

we m u s ti n d

u l ge as t ro n g p re s u mp t i o nt h at co u n s el ’s co n d u ct fe l l wi t h i nt h e w i d e r an ge of re asonable profe ssional assistance. Se e J ac k so n v . S tat e , 8 77 S.W. 2d

76 8, 77 1 ( Te x. Cr im. App. 1994). The issue fir st arose dur ing the punishment pha se of tria l, where appellant testified. Asked by his attorney

if there was “ any

thing you’d like to tell the J udg e bef ore you get o ff the stand,” a ppellant re plied: Yes, ma’ am, about the wa y my trial went a

nd how I thought that it was mis re pr e se nte d. L ike wh e n th e . . . w hil e the y wa s w a tc hin g the vid e ota pe , h owa ll of a s u d d en my

lawy er jumps up, has it muted. Iwanted the jurors to see that beca use the c op I knew was a dishonest c op. And he r ead me my rig hts. And Iwent by my ri g hts
. They are saying I

ref used to blow. Iwa s n ’t refusing to blow. I wanted somebody

else, a lawy er or

somebody

else, that I

could trust. A dirty

cop. And I knew he was dirty
. And it’s a machine, and it c an be tampere d with. And Ifee l that was unfair that—when that video was muted, y ou know, beca use Iwanted to g et on the st and . M y

a tto rn e y did n’ t w ant m e on

the sta nd . Y ou kn ow , th a t w a s th e on ly chanc e I had to beat it. And I fee l I was mi srepr esente d. I fee l she messed w ith the evidenc e, y ou know.
The attorney

appoint ed t o re p resent appellant on appe al also ra ised the issue in a moti o nf o r n e w tr ia l. T h e mo ti o nc o mp la in e d th a t “ tr ia l c o u n s e l h a d

th e s o u n d

o nth e D WI videotape turned off during a sequenc e when Def endant was in the intox ilyzer room.” The motion
asser ted, “De fenda

nt w anted the jury to hear

him ask for a

n attorney , beca

use that would explain why he did no t su bmi t a br e a th s a mpl e . Wh a t D e fe nd ant w ante d th e jur y to u nd e rs tand wa s th a t he did not trust Office r Torr es to run the mac hine properl y . . . . ” At the new trial hea ring , appellantDuring the hea ring , the prosec utor ref

err ed to “improprie ties” by Torre s that had bee n “re ported 2 in various media outlets.” 6 testified that he wa

nted the jury to he ar him request an a ttorney “[t] o let them know I

wasn’t r efusing to blow, that Ijust didn’t trust t he off icer .” Appellant’s tria l counsel al s o t estified at the he aring . She ag ree d that appellant
wa nte d th e jur

y to u nd e rs tand wh y he re fu se d th e br e a th t e st:
He sa id he wante d the jury to know that the offic er—he didn’t trust the office r and that it rea lly

wasn’t that he n ev er re fused the test. He just wanted his lawy er. An d we t al k edab o u tt h at fr o m t h e f i rs tt i m e t h at Im et M r. Ba rn et t
. He k ep ts ay i n g, “I didn’t ref

use. I didn’t ref

use.” And I explained the l aw to him that invocation of his right to counse l or asking for c ounsel to be pre sent is an equivocal refusal. And s o w e w e n t b a c k an d f

o rt h a b o u t t h a t
. A n d I e x p l a i n e d t o h i m t h a tw e h a d o t h e r w ays to expl ain the lac k of trustworthiness of this offic er.[ ] 2
Couns e l te sti fi e d th a t sh e a dv ise d a pp e lla nt a g a ins t a llo wi ngthe jur y to he ar him

re qu e st c ouns e l,
and that a pp e lla nt n e ve r s a id, “ I wa

nt thi s don e , an d th is i s th e wa y it’ s g oin g to b e .” Re fe rr ingto B e nn e tt’ s te sti mony

re g ard ingTo rr e s’ s b a d r e pu ta tio n, c ouns e l sa id, “ I tho ug ht that wou ld h a nd le the sit uatio n. ” Couns e l a lso te sti fi e d th a t it wo uld have be e n a

“ su ic ide mis sio n” fo r a

pp e lla nt t o t es t ify at the g uilt st ag e bec ause the jury would have le arne d that he had two pr evious felony convictions for dr iving while intoxicated.

The issue be fore us is not whether appellant’s i nvocation of his rig ht to counsel wa s
or was not a dmissibl e as evidenc e of g uilt under the circ umstances of this case. Se e Gr iff

ith v . S tat e , 55 S.W .3d 598, 602-08 (Tex. Crim. App. 2001). The issue is w hether appellant’ s trial counsel wa s ineffe ctive bec ause she did not waive any objection and a sk that th e j u ry b e allowed to hear that7

inv oc a tio n. We c on c lud e that sh e wa s n ot. He ari ng a pp e lla nt inv ok e his ri g ht to co un se l wou ld n ot, in itself, have convey ed to the jury appellant’ s mistrust of the office r, which was his a lleg ed re ason for wa nting c ounsel to be present. At the same time, the jury might have considere d the re quest for
c ouns e l to be e vid ence th at app ella nt w a s awa

re of his int oxic a tio n a

nd fo r t hat r e a so n w ante d to consult with counsel bef ore taking the test. Se e id . at 601. Ap p el l an t has not shown that trial counsel’s decision to pr event the jury from hear ing his r equest for an attorne y was outside the br oad rang e of r easona

bly eff ective a ssistance. Point of err or two is overr uled. The judg ment of convic tion is affirmed.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Waldrop and H enson Affir med Filed: Nove mber 26, 2008 Do No t Pu

bli sh