### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00763- CR

Terr ance Mauric e Yar brough, Ap pellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 3 O F WI LLIAM SO N COUNTY NO. 13- 0581 5-3 , H ONO RAB LE DOUG ARNO LD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Terr ance Maurice Yar broug h of the class B misde me a n or offe nse of driving while intox icated, and the trial court assessed punishment at confi n em ent for thirty day s in the county jail. I n one point of err or, appellant complains about ineffe ctive assistance of counse l. Finding no reve rsible er ror, we aff

irm the trial cour

t’s judgme nt of conviction.

BACK GR OUND Appellant was the driver in a single -vehic le acc ident in the ear ly morning hours of J uly 14, 2013, in Wil liamson County

. His vehicle left I -35 and ended up in a “ditch” on the median betwee n I -35 and the frontag e road. A passeng er in a nother vehicle sa

w the ac cident, ca lled 911, and stopped “to chec k on the state of the person or persons in the vehicle.” A police office r from Travis County also stopped to “make sure that ever y body was o k ay . ” Ap p ell ant g ot out of his vehicle and, afte r speaking with the office r, “starte d jogg ing” awa y from appellant’ s vehicle and theoffice r on the shoulder of the interstate highw ay . Around this time, a police office r from the City

of Ge org etown ar

rived. The City of Georg etown officer “par alleled” appellant and “shined [his] spotlight” from the patrol car on appellant. Appellant “t o o k off running ” acr oss the lanes of the interstate highw ay and “[j] umped the concr ete barr ier.” The police office rs set up a perimete r and

wer e able to locate appellant on the other side of the interstate highw ay in some bushes. Appellant

was arr ested and transporte d to jail. He did not submit a specimen of his blood or breath for testing.

Appellant was char g ed with the offe nse of driving while intox i ca t ed. Appellant, throug h his appointed counsel, filed a motion to suppress evidenc e “der ived from shortly befor e the stop and/or detention” of appellant o n t h e g round t hat hi s arr est was without probable cause or a

war rant. He also filed a motion to reda ct inadmissible evidenc e from the office rs’ video rec ording s based on Texas Rules of Evidence 403 and 404(b)

. See Tex. R. Evid. 403 (addr essing exclusion of relevant evidence fo r prejudice , confusion, or other reasons), 404(b) (addressing admissibili ty of evidenc e of “cr im e, wrong , or other act” ). After an evidentiar y hear ing, the trial court denied appellant’ s motion to suppress but g rante d the m oti o n to reda ct porti ons of t he poli ce rec ording s about appe llant’s owner ship of the vehicle

.

Appellant enter ed a plea of not g uilty , and his case was tried bef o re a j u ry . The State’s witnesses included the ey ewitness to the acc ident who called 911, the Travis County police office r, and police office rs from the City of Geor g etown. The ey ew i tness testified about the

acc ident and his observa

tions of appellant’ s behavior

. He testified that, when he walked up to the vehicle, appellant was in the driver’ s seat “somewhat incoher ent” and that the vehicle “smelled very much like marijuana .” The office rs testified about their investigation of the acc ident, the sear ch for

2appellant afte r he ran acr oss the highw ay , appellant’ s arr es t , t h e s i gns of intox ication, and their

observa tions of appellant. The Ci ty of Georg etown officer s who ob s erve d appellant at the s cene opined t hat, based on their obser vations, appellant was intox icated. The officer who i nventoried ap p el l ant’s car testified t hat he smelled “burnt marijuana in the vehicle” and found “the end o f a marijuana cig are tte, commonly called a roac h,” in the vehicle’ s front floorboar d. He did not keep the “roa ch” beca

use it was not “a usable amount” of marijuana but noticed that “it was still wet at the tip.” The vehicle had to be towed beca use it was not drivable. Trial exhibi ts included the audio

rec ording of the 911 call and DVDs of video rec ording s of the scene of the acc ident, the discovery of appellant in the bushes, and communications betwee n appellant and the office rs at the jail. The

rec ording s were admitted without further obje ction. 1

The jury found appellant g uilty of the offe nse of driving while intox icated, and the trial court assessed punishment at thirty day s in the county jail based on a plea ag ree ment in which appellant did not waive his rig ht to appea l. Appellant filed a motion for new trial with new counsel, which wa s overr

uled by operation of law. This appe al followed.

STANDARD OF REVIEW I n a single point o f error, appellant claims he was denied eff ective assistance of

coun s el. To establish ineffe ctive assistance of counsel, an appellant must demonstrate by a preponde ranc e of the evidenc e both defic ient perf ormanc e by counsel and prejudice suffe red by the defe ndant. Strickland v. W ashington , 466 U.S. 668, 687 (1984); Nava v. Stat e , 415 S.W .3d 289,

As discussed ear lier, the trial court g rante d appellant’ s motion to reda ct audio portions of 1 the re cording s. 3307 (Tex. Crim. App. 2013). The appellant must first demonstrate that counsel’s perf ormanc e fell below an objective standard of rea sonablene ss under preva iling professional norms. Strickland , 466 U.S. at 687–88; Nava , 415 S.W .3d at 307. The appellan t m ust also show the exis tence of a

rea sonable probability

—one sufficie nt to undermine confide nce in the outcome—that the result of the proce eding would have been differ ent absent counsel’s defic i en t p er fo rmanc e. Strickland , 466 U.S. at 694; Nava , 415 S.W .3d at 308. Fa ilure to make the require d showing of either defic ient perf ormanc e or sufficie nt prejudice defe ats the ineffe ctiveness claim. Strickland , 466 U.S. at 700; see Pe rez v. State , 310 S.W .3d 890, 893 (Tex. Crim. App. 2010).

Appellate revie w of counsel’s repr esenta tion is highly defe rential; we must “indulg e in a strong presumption that counsel’s conduct was not defic ient.” Nava , 415 S.W .3d at 307–08. To rebut that presumption, a claim of ineffe ctive assistance must be “firmly founded in the rec ord,” and “the rec ord must aff

irmatively demonstrate” the meritorious nature of the claim. See Mene field

v. State , 363 S.W .3d 591, 592 (Tex. Crim. App. 2012); Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial re cord by itself be sufficie nt to demonstrate an ineffe ctive-a ssistance claim. Nava , 415 S.W .3d at 308. I f trial counsel ha s not be en aff orded the opportunity

to expl ain the rea sons f

or his c onduct, we will not find him to be deficie nt unless the challeng ed conduct was “so outrag eous that no competent attorney would have eng ag ed in it.” Id

. (quoting Mene

field , 363 S.W .3d at 593); Goodspee d , 187 S.W .3d at 392.

DISCUSSIO N Appellant contends that his trial counsel rende red ineffe ctiv e assi stance at trial beca use he “fa iled to understand the law up o n which his entire trial strateg y was based” and his
4counsel’s adopted trial strateg y “wa s not plausible under applicable law” due to this

misunderstanding

. Appellant arg ues t hat hi s trial counsel should have objected to the admis sion of evidenc e that was obtained afte r he invoked his rig ht t o co u n s el instead of seeking a jury instruction un d er article 38.23 of the Code of Criminal Procedur e. See U.S. Const. amend. V; Tex. Code Cri m . P ro c. art. 38.23; Edwards v. Arizona , 451 U.S. 477, 484–85 (1981); State

v. Gobert , 275 S.W .3d 888, 892 (Tex. Crim. App. 2009) (“O nce the suspect h as invoked his Fifth Amendment rig ht to counsel, police interrog ation must cea se until counsel has been provided or the suspec t himself reinitiates a dialog ue.”)

.

Acc ording to appellant, trial counsel’s strateg y was to al l o w the admission of evidenc e that the trial court would have suppressed upon proper reque st and then to ask the jury to disreg ard the evidenc e by seeking an article 38.23 jury instruction “ for the purpose of demonstrating that law enfor ceme nt office rs had no reg ard for their duty to uphold the law of the land.” See Tex. Code Crim. Proc. art. 38.23(a ). Article 38.23(a) states:

No evidenc e obtained by an office r or other person in violation of any provisions of the Constit ution or laws of the State of Texas, or of the Constit ution or laws of the United States of Americ a, shall be admitted in evidenc e ag ainst the acc used on the trial of any

criminal ca se. I n any case wher e the leg al evidenc e raises an issue here under, the jury shall be instructed that if it believes, or has a re as o n able doubt, that the evidenc e was obtained in violation of the provisions of this Article, then and in such event, the jury shall disreg ard a

ny such evide nce so obta ined.

Id. Appellant contends that the failure t o o b j ect to the evidenc e in question prec luded a jury instruction under a

rticle 38.23.

5I n his reply brief, howeve r, appell an t co n cede s that trial counsel “adopte d a trial

strateg y which was plausible under applicable law” and that the failure to object to the evidenc e in question did not prohibit his trial co u n s el from reque sting an article 38.23 jury instruction. See Holmes v. State , 248 S.W .3d 194, 202 (Tex. Crim. App. 2008). I n Ho l me s , the Texas Court of Criminal Appea ls “re iterate [d] that an objection to the admis s i b i l i t y of evidenc e under the first
sentenc e of Article 38.23 is not a prer equisite to the rig ht to a jury instruction reg arding a disputed fac tual issue under the second se ntence of Article 38.23.” Id . The c ourt explained:

A defe ndant who aff

irmatively states, “No objection,” wh en evidenc e is offe red, waives his rig ht to complain on appea l that the evidenc e was, as a mat t er o f l aw, illega lly obtained under Article 38.23. But that same defe nd an t may still reque st and rec eive a jury instruction under Article 38.23 if the evidenc e raises a contested fac tual issue that is materia l to the lawfulne ss of obtaining the evidenc e. These are two distinct issues: one is a leg al qu es t i o n of admissibili ty for the judge and the other is a que stion of disputed fact f or the jury ’s consider ation and re solution.

Id

. at 196. Thus, assuming that trial counsel’s strateg y was as descr ibed by appellant, appellant’ s point of err or fa ils to raise a ba sis for conc luding his counse l’s perf ormanc e wa s deficie nt. Ap p ellant, howeve r, revises his complaint in his reply brief and arg ues that t ri al counsel’s perf

ormanc e was defic ient beca use he “did not obtain an instruction under Article 38.23, and instead abandone d the issue altog ether without obtaining an adver se ruling from the trial court.” Appellant ar g ues that he w as entitled to the instruction bec ause the re were fac tual disputes about whether the office rs had probable cause to arr est him, whether he unequivoca lly invoked his rig ht
to counsel, and whether the officers improperly continued int err og ating h i m after he invoked hi s

6rig ht to counsel. During the char g e confe renc e, trial counsel reque sted an article 38.23 jury 2

The audio portion of one of the DVDs includes the arr esting office r advising appellant of 2 his Miranda rig hts while he appar ently is still in the patrol car at the jail and appellant appea rs to reque st an attorney at that point. The office r then asked appellant if he was “g oing to g ive these g uy s a h ar d t i m e g etting out of the car ? ” Appellant responds with more questions about the charges ag ainst him and eventually asks t o speak to a serg eant. I n another one of the DVDs, the arres t ing office r tells other office rs that she advised appellant of his Miranda rig hts afte r he was arr ested and that appellant responde d that he did not understand the char g es and that he “nee d[ed] to speak to my lawy er.” L ater on this rec ording , appellant stated that he did not “run” from the officer s but “wa s lost,” and appellant refused t o cooper ate with sobriety tests. Acc ording to appellant, the jury was improperly allowed to see this portion of the rec ording that showed appellant’ s “lac k of cooper ation and conf used statements.” Appellant’s cou

n s e l c r o s s e d

- e xa

mined the office r about appellant’ s statement conce rning his lawy er a s follows: Q. Okay

. So he just invoked his rig ht to counsel under the Six th Amendment [si c] of the United States Constitut ion, corre ct? A. Yes. * * * Q. S o h e just invoked his rig ht to counsel, and y ou just asked him anothe r question. I s that corr ect? You s aid, “Are y ou g oing to g ive t hese guy s any problems? ” A. That is not reg arding what he’ s being arr ested for

. Q. That’s not my

question. My question is: Did y ou ask hi m another question afte r that? A. Yes. I

asked him anothe r question. Q. Okay . So wouldn’t that be illeg al interrog ation? A. I ’m not interrog ating at that point. I ’m asking for the safe ty of the jailers who wer e fixing to take him into custody if— Q. He a sked for

the rig ht to a lawy er. I s that not true?

7i nstruction, and the parties and the court discussed whether there was a disputed fac t t h at wo u l d

entitle appellant to the jury instruction. See id. Appellant, howeve r, did not press the trial court for a ruling , and the instruction wa s not included in the cha rg e to the jury

. Appellant filed a motion for new trial, but he did not raise ineffe ctive assistance of counsel in the motion. No hea ring on the s ame was conduc ted, and the motion was ove rruled by operat ion of law. Thus, appellant’ s trial counsel was not aff orded an opportunity to explain his

rea sons for not pressing the trial court further on his reques t fo r t h e j u ry instruction. See Villa

v. State , 417 S.W .3d 455, 46 3 (T ex . Crim. App. 2013) (“[C] ounsel’s alleg ed defic iency must be aff irmatively demonstrated in the trial rec ord.”) ; Lopez v. State , 343 S.W .3d 137, 142 (Tex. Crim. App. 2011) (“[C] ounsel’s defic iency must be aff irmativ el y demonstrated in the trial rec ord; the
court must not eng ag e in retrospe ctive specula tion.”). Absent rec ord evidenc e reg arding counsel’s strateg y or rea soning, we will presume he exercised rea sonable profe ssional judgme nt. See Hill

v. State , 303 S.W .3d 863, 879 (Tex. App.—For t Worth 2009, pet. re f’ d ); Poole v. State , 974 S.W .2d 892, 902 (Tex. App.—Austin 1998, pet. ref ’d); see also Lopez , 343 S.W .3d at 143.

A. I t’s not an i n t er ro g ation. I t’s not—I ’m not asking him about a crime he’s committed. * * * Q. And y ou’re asking him questions, which would be a custodial interrog ation, corr ect? A. Iwouldn’t ag ree with that. 8Fur ther, an acc used is not e ntitled to entirely err orless repr esenta tion, a nd we look
to the totality of the repr esenta tion in g aug ing the adequa cy of counsel’s perf ormanc e. See Frangias

v. State , 450 S.W .3d 125, 136 (Tex. Crim. App. 2013). Th e re co rd re fl ects that trial counsel vigor ously repr esente d appellant , in c lu d in g f il in g a n d pursuing pre- trial motions, such as the motion to suppress evidenc e and to r edac t evidence on the video rec ording s, cross-e x amining the State’s witnesses, and p resenting arg uments. Ba sed on our revie w of his repr esenta tion, we cannot conclude that trial counsel’s conduct was “s o o utrag eous t hat no competent attorney would have eng ag ed in it.” See Mene field , 363 S.W .3d at 592. Acc ord i n gl y , we conclude that appellant has failed to demonstrate d efic ient perf ormanc e on the part of his trial counsel. See Frangias , 450 S.W .3d at 136 (“[U]nless there is a rec ord sufficie nt to demonstrate that counsel’s conduct was not the product of an informed strateg ic or tactica l decision, a revie wing court should presume that trial counsel’s perfor

mance was constitut ionally ade q u at e ‘u nless the challeng ed conduct was so outrag eous that no competent attorney would have eng ag ed in it.’” (quoting Goodspee d , 187 S.W .3d at 392)).

Be cause appellant failed to meet his burden on the first prong of Strickland , we need
not consider the require ments of the second prong —prejudice

. See Lopez , 3 4 3 S.W .3d at 144; W illiams v. State , 301 S.W .3d 675, 687 (Tex. Crim. App. 2009) (“A n appellant’ s failure to satisfy

one prong of the Strickland test neg ates a court’s need to consider the other prong .”). Neve rtheless,

we a lso find that appellant fa iled to demonstrate that he suffe red pr ejudice.

Even if an appellant shows that particula r err ors of counsel wer e unrea sonable, he
must further show that they actua lly had an adver se eff ect on the defe nse. Strickland , 466 U.S. at

9693–95; Cochran v. State , 78 S.W .3d 20, 24 (Tex. App.—Ty ler 2002, no pet.). Mere ly showing

that the err ors had some conce ivable eff ect on the proce eding s will not suffice

. Strickland , 466 U.S.
at 693; Ex parte Martinez , 330 S.W .3d 891, 901 (Tex. Crim. App. 2011). I nstead, he must prove that counsel’s err ors, judge d by the totality of the repr esenta tion, not by isolated instances of err or or by a portion of the tr ial, denied him a f air trial. Strickland , 466 U.S. at 695–96. Even without c onsidering evidenc e that was obtained afte r appellant was arr ested, the State prese nted ample evidenc e to support its char g e that appellant was g uilty of the offe nse of driving while intox icated. Appellant was involved in a single -vehic le acc ident in the ear ly morning hours and, afte r appellant left his car and an office r shined a spotlight on him, appellant ran acr oss the lanes of the interstate highw ay , jumping the concr ete barr ier and then hiding in bushes until the police wer e able to locate him. The ey ewitnes s t es t i fi ed that he saw appellant “vee r” off the interstate highw ay and into the ditch on the median, that appellant did not appea r injured but w as “no d d i n g i n and out” and “somewhat incoher ent” while sitti ng in the driver’ s seat, and that the vehicle “smelled very much like marijuana .” He also agr ee d that appellant’ s appea ranc e was consistent with somebody that was “ stoned or hig h.” Offic ers also testified about t heir observa tions of appellant and his vehicle at the

scene of the acc ident, including the smell of marijuana coming from the vehicle and a “roa ch” that

was “we t” on its tip that an office r found on the vehicle’ s front fl o o rb o ar d

. One of the office rs testified that appellant appea red to be under the influence of some t y p e o f n ar coti c based on his “slow and letharg ic” movements, “g lassy and extremely bloodshot ey es,” and difficulty opening his ey elids “all the way .” Another office r descr ibed appellant’ s movements as “lethar g ic,” his ey es as

10“kind of g lassy ,” hi s ey elids as “ver y droopy ,” and his answe rs to their questions difficult to understand. She testified that “the sig ns that [s he] observed at the scene initially wer e consistent with somebody

intox icated.” On t h e rec ord befor e us, we conclude that appellant has failed to demonstra t e defic ient perf

o rm an ce on the part of hi s trial counsel or that he suffere d prejudice beca use of the alleg ed err ors of counsel. Thus, he has not shown himself entitled to reve rsal based on ineffe ctive assistance of counse l. We overrule a ppellant’s point of er

ror.

CONCLUSION Having overr

uled appellant’ s point of err or, we aff irm the judgme nt of conviction.

_ _ _ _ _ _ _ _ _ _ _ _ ____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Melissa Goodwin, Jus tice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land Affir med Filed: Nove mber 13, 2015 Do Not Publish

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