Adekeye v. State, No. 14-12-01097-CR; 14-12-01098-CR

IAC and Severance: Electing not to sever counts in an indictment based on a concern that the State will have multiple opportunities to seek a conviction can be a sound trial strategy.

Legal sufficiency: Evidence of attempted aggravated robbery was sufficient even though the Appellant never exited the vehicle in the attempt of the aggravated robbery.

_________________________________________________________________________________

Affirmed and Majority and Dissenting Opinions filed June 12, 2014.

In The Fourteenth Court of Appeals

_______________________________________________________

NO. 14-12-01097-CR NO. 14-12-01098-CR

___________________________________

ADEDJI ALALINCOLN ADEKEYE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause Nos. 1349025 & 1349026

MAJORITY OPINION

Appellant was convicted of attempted aggravated robbery and unlawful possession of a weapon. Punishment was assessed at thirty-five years’ imprisonment on the first count, and ten years’ imprisonment on the second. In multiple issues, we are asked to consider whether the evidence is sufficient to support the conviction for attempted aggravated robbery, and whether appellant was denied the effective assistance of trial counsel. We affirm.

BACKGROUND

This case is about a thwarted robbery attempt. The crime occurred near a hair salon in a mostly vacant shopping center. The owner of the salon was sitting near the storefront, waiting for customers to arrive, when she noticed a suspicious woman walking by. The woman was wearing an unkempt wig and ripped jeans, and her movements were very slow. The woman passed by the salon twice in one minute. Within another two or three minutes, a white, older-model SUV parked in front of the salon. The salon owner grew concerned because the vehicle had no license plates and it was parked in reverse, as if to make a quick getaway.

The salon owner could see that the driver of the SUV was the same woman with the wig who had just walked by her store. Two male occupants were also inside the vehicle. One was bald and heavyset, and the other was slender. The slender man was turning his head from side to side, scoping out the area. The salon owner observed the heavyset male putting something on top of his head, but it was not fitting. The owner then saw the same man donning a pair of gloves and raising a handgun, as if to load to it with a magazine. The owner panicked and directed a coworker to call the police, believing that she was about to be robbed.

The owner watched as the heavyset male opened a passenger door with a bag in his hand. Before the man could fully touch the pavement, a shopper with a baby stroller walked in front of the salon, prompting the man to return to the vehicle. The man waited a few moments to try again. Just as he prepared to exit the vehicle a second time, a car drove by and parked two spaces away. The woman in the white SUV decided to move the vehicle to another spot. By the time she had parked, more cars had arrived at the shopping center and sirens could be heard in the distance. The SUV promptly drove away.

A police officer encountered the SUV not far from the shopping center. With lights and sirens engaged, a short chase ensued. At one point the SUV slowed down to a rolling stop, and the two male passengers jumped from the vehicle and ran off on foot. They discarded a black bag, a mask, gloves, and a handgun, which were all later recovered.

The police officer stayed with the SUV as it sped away, but he called for backup and gave descriptions of the two male passengers. A perimeter was established and a search team was called in, including dogs and a helicopter. Police were eventually led to a dump truck, where they found the bald, heavyset male hiding inside. He was sweaty and claimed to have been sleeping. Police apprehended the man and took him to the hair salon, where the salon owner identified him as the male passenger who had exhibited the gun. During trial, the owner made an in-court identification of appellant as the same bald, heavyset male.

Police detained the driver of the SUV after another short chase. She was also taken to the salon owner, who positively identified her as the woman with the unkempt wig and ripped jeans. Appellant’s only defense witness, his mother, established that the female driver was also appellant’s pregnant girlfriend. The slender male passenger was never caught.

SUFFICIENCY OF THE EVIDENCE

In his first and third issues, appellant challenges whether the evidence is sufficient to support his conviction for attempted aggravated robbery. Appellant asserts that there is no evidence that he had the specific intent to target the hair salon in a robbery or other criminal act. He also contends that, if he were involved in the act described, his actions only rose to the level of preparation, rather than criminal attempt.

When reviewing the legal sufficiency of the evidence, we examine all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Although we consider everything presented at trial, we do not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Our review includes both properly and improperly admitted evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. Id.

Under the law of criminal attempt, a person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. See Tex. Penal Code § 15.01(a). A person commits an aggravated robbery if, while in the course of committing a theft, he uses or exhibits a deadly weapon and intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See id. §§ 29.02(a)(2), 29.03(a)(2). “In the course of committing a theft” means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. Id. § 29.01(1).

Intent can be inferred by a person’s conduct and surrounding circumstances. See Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009). Based on the record as a whole, a rational jury could have determined that appellant had the requisite intent to commit an aggravated robbery of the hair salon. The evidence showed that appellant was seated in a car that was parked in a reverse position directly in front of a hair salon. The placement of the car was indicative of a person wanting to make a quick escape after criminal misconduct.

The evidence also showed that appellant lingered inside the vehicle while another male passenger monitored the area. Appellant was observed putting something on top of his head, and the jury could have inferred that the object was the mask that was recovered by police. Appellant was also seen donning a pair of gloves and raising a handgun, as though he were loading it with a new magazine. Appellant twice attempted to exit the vehicle with a bag in hand. On both occasions, appellant’s return to the vehicle coincided with the arrival of third-party shoppers. A jury could have inferred from this conduct that appellant was attempting to minimize the risks of detection before he finally effectuated a robbery.

Appellant contends that the evidence is insufficient because the testimony was not always consistent. The salon owner claimed that appellant was sitting in the front passenger seat of the SUV wearing a beige-colored shirt. By contrast, the responding officer testified that appellant was sitting in the rear passenger seat wearing a bright yellow shirt. Neither of these statements goes to an element of attempted aggravated robbery. The witnesses were in agreement that appellant was involved in the robbery attempt. His placement within the vehicle and the description of his clothing does not alter our determination that a jury could have found every essential element of the offense beyond a reasonable doubt.

Appellant also contends that his conduct may have had other explanations that fell outside the scope of the indictment. Appellant suggests that he “perhaps” intended to rob another business, instead of the hair salon. He also conjectures that he might have intended to commit an “other type of crime,” such as an assault on a customer in an adjoining business. Appellant seems to argue that the evidence is insufficient unless the State disproves other reasonable hypotheses for his behavior. But the State has no such burden. See Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). The evidence was sufficient to convict appellant as charged because the salon owner testified to facts demonstrating an attempted aggravated robbery on her business. The conviction was further supported by testimony that appellant had fled from police, which is circumstantial evidence of guilt that a jury may consider. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994).

Appellant finally contends that there is no evidence showing that he committed an act amounting to more than mere preparation. Appellant asserts that he abandoned a plan to commit an aggravated robbery before it rose to the level of actual attempt. We disagree.

Section 15.01 of the Texas Penal Code, the statute establishing the offense of attempt, draws an “imaginary line” between mere preparatory conduct, which is usually non-criminal, from an act which tends to effect the commission of the offense, which is always criminal conduct. See Flournoy v. State, 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). Where the imaginary line falls must be determined on a case-by-case basis. See Gibbons v. State, 634 S.W.2d 700, 707 (Tex. Crim. App. [Panel Op.] 1982); Sorce v. State, 736 S.W.2d 851, 857 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d). A person may commit an attempt even if he could have taken further actions without actually committing the intended offense. See Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim. App. [Panel Op.] 1981); Sorce, 736 S.W.2d at 857.

The evidence showed that overt acts were taken in furtherance of an aggravated robbery. Appellant’s girlfriend surveyed the hair salon, the intended target. Minutes later, she backed a vehicle into a parking spot in a reverse position. The parking spot was situated directly in front of the hair salon. By parking the vehicle so close to the hair salon and in a direction that would aid in a getaway, appellant participated in an act that tended but failed to effect the commission of an aggravated robbery.

The evidence also showed that the salon owner witnessed appellant putting something on top of his head. Although she denied affirmatively stating that the object was a mask, the jury could have determined that the object was in fact the mask that was recovered by police. Furthermore, the salon owner saw appellant exhibiting a gun, followed closely by his attempted exit from the vehicle with a bag in hand. The exhibition of a weapon is an act that tends to effect the commission of an aggravated robbery. Indeed, it is undisputed that appellant’s actions placed the salon owner in fear of imminent bodily injury or death. Viewed in the light most favorable to the verdict, the evidence supports a finding that appellant took actions beyond mere preparation in furtherance of an aggravated robbery.

Our dissenting colleague asserts that evidence of flight may not be considered in reviewing appellant’s attempt conviction. Although flight may not constitute an act that tends to effect an intended offense, it is still circumstantial evidence of guilt that bears on the defendant’s intent as he was performing other actions. Compare Hines v. State, 458 S.W.2d 666, 668 (Tex. Crim. App. 1970) (op. on reh’g) (conviction for attempted burglary supported by evidence that defendant entered a backyard at night, placed his hand on a door, then fled after being detected) with Bledsoe v. State, 578 S.W.2d 123, 125–26 (Tex. Crim. App. [Panel Op.] 1979) (conviction for attempted burglary of a vehicle reversed where the defendant was only seen near the vehicle and there was no evidence of flight after being confronted). Here, appellant performed specific acts that resulted in his detection and the calling of police—namely, he exhibited a weapon and attempted to exit a vehicle under circumstances indicative of an attempted aggravated robbery. Evidence of flight supports a finding that these acts tended but failed to achieve that robbery.

Our dissenting colleague also asserts that appellant never “attempted to enter a business,” as alleged in the indictment. But an attempt conviction can still be supported by legally sufficient evidence even if other actions could have been taken to accomplish the intended offense. See Slomba v. State, 997 S.W.2d 781, 782–83 (Tex. App.—Texarkana 1999, pet. ref’d) (conviction for attempted aggravated robbery supported where defendant rushed at a bank employee as she was entering the building, but failed to intercept). All that remained in this case was for appellant to fully exit the SUV, walk the short distance to the hair salon, and complete the theft of property. We conclude that a rational jury could have determined that appellant crossed the “imaginary line” and that his conduct amounted to more than mere preparation. Cf. Godsey v. State, 719 S.W.2d 578, 583 (Tex. Crim. App. 1986) (attempted murder conviction supported where there was only one “last proximate act,” the pulling of the trigger); accord New v. State, 606 S.E.2d 865, 866–87 (Ga. Ct. App. 2004) (attempted aggravated robbery conviction supported where defendant was observed moving his vehicle to different spots around a restaurant while wearing a mask and surreptitiously watching a group of people).

Appellant suggests that he abandoned the attempt because he twice returned to the vehicle after trying to exit it. Abandonment, or renunciation, is an affirmative defense, but appellant never submitted it as a theory in the jury charge. See Tex. Penal Code § 15.04(a). Furthermore, abandonment must be voluntary, and the defense is not available if the abandonment is motivated in whole or in part “by circumstances not present or apparent at the inception of the actor’s course of conduct that increase the probability of detection or apprehension or that make more difficult the accomplishment of the objective.” Id. § 15.04(c)(1). Even if the defense had been charged, a rational jury could have determined that appellant did not voluntarily abandon the offense because his return to the vehicle was actually motivated by the arrival of other shoppers, who increased the probability of detection or apprehension.

Appellant’s first and third issues are overruled.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second and fourth issues, appellant asserts that he is entitled to a new trial because his defense attorney’s performance was constitutionally defective. Appellant complains of more than a dozen acts and omissions from his trial counsel. We review these claims under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, appellant must prove that his trial counsel’s representation was deficient and that the deficient performance was so serious that it deprived him of a fair trial. Id. at 687. Counsel’s representation is deficient if it falls below an objective standard of reasonableness. Id. at 688. This deficiency will deprive appellant of a fair trial only when counsel’s performance prejudices appellant’s defense. Id. at 691–92. To demonstrate prejudice, appellant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at 697. This test is applied to claims arising under both the United States and Texas Constitutions. See Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

A sound trial strategy may be imperfectly executed, but the right to effective assistance of counsel does not entitle a defendant to errorless or perfect counsel. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). As a reviewing court, we look to the totality of the representation and to the circumstances of the case, not to isolated instances in the record reflecting errors of commission or omission. Id. Moreover, we consider the adequacy of assistance as viewed at the time of trial, rather than through hindsight. Id. at 482.

Our review of defense counsel’s performance is highly deferential, beginning with the strong presumption that the attorney’s actions were reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Ordinarily, counsel must be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. See Bone v. State¸ 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent as to trial counsel’s strategy, we will not conclude that appellant received ineffective assistance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

When a defendant moves for a new trial on a claim of ineffective assistance, as appellant has done in this case, we review the trial court’s ruling for an abuse of discretion, reversing only if the ruling was clearly erroneous and arbitrary. See Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). A trial court abuses its discretion if no reasonable view of the record could support its ruling. Id. Under this standard, we view the evidence in the light most favorable to the trial court’s ruling. Id. In the absence of express findings, we presume that the court made all necessary findings in favor of the prevailing party. Id.

Failure to Investigate

Appellant asserts that counsel failed to perform a laundry list of items, all in connection with his basic duty to investigate and prepare for trial. Specifically, appellant complains that counsel did not (1) obtain a full copy of the offense report, (2) view and photograph the salon and the SUV, (3) interview possible witnesses, (4) request the criminal histories of the State’s witnesses, (5) review the State’s subpoena list, and (6) request statements that were allegedly made by both appellant and his girlfriend after they had been taken into custody. In addition to these complaints, appellant also asserts that counsel failed to present the trial court with pretrial motions. Appellant does not specify the relief that should have been requested in these motions, but based on the context of the complaint, he seems to argue that counsel failed to move for discovery of such information that could have been found through reasonable investigation.

The record shows that counsel hired a private investigator, but as to these other matters of discovery, the record is silent regarding counsel’s trial strategy. Assuming for the sake of argument that counsel failed to meet an objective standard of reasonableness, appellant has not shown that he suffered any prejudice. There is no evidence that information beneficial to appellant’s defense would have been discovered but for counsel’s unprofessional errors. Accordingly, these claims of ineffective assistance of counsel must fail as a matter of law. See Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).

Failure to Sever

In his next claim, appellant argues that counsel was ineffective because he failed to request a severance. Appellant cites to section 3.04 of the Texas Penal Code, which gives the defendant a right to have separate trials if he has been charged with more than one offense arising out of the same criminal episode. Because only one criminal episode was alleged in this case, counsel could have severed the attempted robbery charge from the unlawful possession charge and proceeded with two different trials and two different juries.

Appellant insists that a severance would have been preferable to the consolidated trial that he received. The reason, he argues, is that the proof admissible in the unlawful possession case would have been inadmissible in the case for attempted robbery. Appellant refers to the element in unlawful possession prosecutions that the defendant must have been convicted of a prior felony. See Tex. Penal Code § 46.04. Appellant stipulated that he was a felon in this case, but the stipulation specifically advised the jury that the conviction was for another aggravated robbery. Because the other pending charge in the consolidated trial was for a similar offense, this evidence had a tendency to be unfairly prejudicial. Appellant accordingly argues that counsel had no reason for failing to request a severance.

Counsel testified about his strategies in a hearing on a motion for new trial. He said that he tried the two charges together because he did not want the State to have “two shots of getting a guilty verdict.” This strategy invoked legitimate concerns over the laws governing punishment. If a defendant is found guilty of more than one offense in a consolidated trial, then his sentences must run concurrently. Id. § 3.03(a). But if the offenses are severed, the trial court has the discretion to order the sentences to run either concurrently or consecutively. Id. § 3.04(b). Thus, appellant could have received stacked sentences if counsel had requested a severance. Here, the sentences could not be stacked because of the consolidated trial. Appellant has not rebutted the presumption that counsel’s decision was motivated by sound trial strategy.

The Prior Conviction

Continuing with a related claim, appellant argues that if it was reasonable to have a consolidated trial, then it was objectively unreasonable to advise the jury of his particular type of felony conviction. Appellant correctly observes that this level of proof is not required to prosecute a charge of unlawful possession. See McIlroy v. State, 188 S.W.3d 789, 793 (Tex. App.—Fort Worth 2006, no pet.). Counsel could have just stipulated that appellant was a convicted felon, without saying anything more. This tactic would have eliminated the “especially obvious” risk of unfair prejudice associated with mentioning a prior conviction that is similar to a pending charge. See Old Chief v. United States, 519 U.S. 172, 185 (1997) (“Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious . . . .”). Appellant accordingly claims that counsel was ineffective because he advised the jury of the nature of his previous offense. Appellant similarly complains that counsel was ineffective because (1) he did not object during the arraignment when the prosecutor read an allegation that he had a prior conviction for aggravated robbery, (2) he did not request a limiting instruction on the use of the prior conviction, (3) he elicited witness testimony that emphasized the nature of the prior conviction, and (4) he referred to the prior conviction in his closing statement.

Much of counsel’s testimony during the new trial hearing focused on his reasons for stipulating to the specific nature of appellant’s prior offense. Counsel agreed that it was error to make that stipulation, but he tried to excuse his mistake by claiming that he thought that the jury had already convicted appellant and that the trial had moved to punishment. The trial court expressly rejected this testimony as not credible. The court further found that counsel had a clear strategy to discuss the conviction during the guilt–innocence phase. That strategy was to advise the jury that the felony conviction had occurred when appellant was fifteen years old, that appellant had served his time, and that he was now gainfully employed and a better person overall.

The trial court did not make a separate finding that counsel’s strategy was objectively reasonable, nor did it comment on the issue of prejudice. Even if we assumed that counsel’s performance was objectively unreasonable, there is still no showing of prejudice under the second prong of Strickland.

Appellant only briefly addresses the issue of prejudice. In a single sentence, appellant makes a summary conclusion that his conviction should be reversed because counsel’s error was serious and the evidence of guilt was not overwhelming. We disagree.

Based on our review of the record as a whole, the State presented a strong case of appellant’s guilt. The eyewitness testimony of the salon owner placed appellant at the scene of the crime with a weapon in hand. A police officer further testified that appellant ran off on foot after being pursued in a vehicle. In the process, either appellant or his fellow passenger disposed of a bag, mask, gloves, and firearm, which fully corroborated the salon owner’s testimony. Finally, appellant was found hiding at the base of a dump truck, sweaty and claiming to have been sleeping. This evidence of guilt is overwhelming. Appellant has not shown a reasonable probability that the outcome of trial would have been different but for counsel’s unprofessional errors.

Failure to Request an Instructed Verdict

Appellant argues next that counsel should have requested an instructed verdict because the evidence was insufficient to show that he intended to commit a robbery, as opposed to another crime. Appellant similarly argues that an instructed verdict was available because there was no evidence that the salon owner was the intended target of any criminal action.

Counsel did not testify about his reasons for not requesting an instructed verdict on these specific grounds. Furthermore, we have already concluded that the evidence was sufficient to support a conviction for the attempted aggravated robbery of the hair salon. Any request for an instructed verdict would have been futile. Therefore, appellant has not shown that counsel’s performance was constitutionally deficient. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. 1991) (ineffective assistance claim will not stand on allegation that counsel failed to engage in the filing of futile motions).

The Plea Bargain

The next claim centers on counsel’s improvident advice during the plea-bargaining process. Appellant was offered a plea bargain of ten years’ imprisonment on both charged offenses, with the sentences to run concurrently. Counsel advised appellant that the State did not have a strong case and that he should proceed to trial. Counsel also told appellant that ten years was “about as worse as it can get” and that a harsher sentence would not be expected if appellant were ultimately convicted.

Ten years’ imprisonment is the maximum term for a third degree felony, which is what appellant faced on the unlawful possession charge. See Tex. Penal Code §§ 12.34, 46.04(e). But the attempted aggravated robbery charge was a first degree felony after the enhancement, and appellant faced a range of punishment between five and ninety-nine years’ imprisonment or life. Id. §§ 12.32, 15.01(d), 29.03(b).

Appellant made a counteroffer of three years’ imprisonment, but the prosecutor refused to consider it. Appellant then proceeded to trial, where he was fully admonished by the court that he would face the potential of more than ten years’ imprisonment if convicted on the attempt charge. Now that he has been convicted and sentenced to more than three times the plea offer, appellant complains that counsel failed to give competent advice.

Appellant claims that counsel assured him that he would be found not guilty or receive no more than ten years in prison. The record is not so clear on this first point. Counsel advised appellant that he believed the State’s case was “not strong enough to warrant a conviction.” There was no testimony that counsel specifically promised a not guilty verdict. In fact, counsel expressly disavowed any notion of having guaranteed an acquittal. In the absence of findings on this issue, we must review the record in the light most favorable to the trial court’s ruling. See Okonkwo, 398 S.W.3d at 694. Based on counsel’s own testimony, the court could have determined that counsel did not make the promise that appellant has asserted, and that appellant’s claim accordingly lacked merit.

Appellant also contends that counsel assured him that his maximum sentence was ten years’ imprisonment, the same as the plea bargain. Again, the evidence is somewhat inconsistent. Counsel testified at one point that he advised appellant that ten years was “the worst” sentence he could receive. Later, counsel qualified this statement, asserting that he advised appellant that ten years was “about as worse as it can get.” The qualification suggests that counsel knew that appellant faced more than just ten years’ imprisonment. Based on this testimony, the trial court could have found that counsel did not give mistaken advice, as appellant has asserted.

Even if appellant’s advice had been wrong, appellant must still satisfy the second prong under Strickland that the advice resulted in prejudice. Where, as here, the bad advice arises in the plea-bargaining process, the defendant must show a reasonable probability that (1) he would have accepted the earlier offer if counsel had not given ineffective assistance, (2) the prosecution would not have withdrawn the offer, and (3) the trial court would not have refused to accept the plea bargain. See Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). Appellant does not address the prejudice prong at all in his brief. He makes no assertion that he would have accepted the plea bargain had counsel not given faulty advice. The trial court could have determined, based on the counteroffer, that appellant believed that any sentence longer than three years was unacceptable. Appellant has not established that he is entitled to relief on this claim.

The Mask

Appellant also contends that counsel was ineffective because he failed to object to an abandonment, or alteration to the face of the indictment. In the attempt case, the indictment alleged that appellant “attempted to enter a business wearing a ski mask and gloves and carrying a handgun.” The prosecutor moved to strike the word “ski” at the close of evidence because it was a variance from the proof, but not a fatal variance. Counsel stated on the record that he had no objection.

Appellant now complains that counsel was ineffective, but his brief contains just a short, four-sentence recitation of the facts. There is no citation to authority. Nor is there any legal analysis addressing counsel’s allegedly deficient performance. We overrule this issue as inadequately briefed. See Tex. R. App. P. 38.1(i).

Suggestive Identification

Appellant’s next complaint focuses on the salon owner’s out-of-court identification, which he contends was impermissibly suggestive. Appellant asserts that counsel should have moved to suppress the identification or otherwise requested a reliability instruction.

Counsel testified that his basic defensive strategy was to dispute appellant’s identity, but the record is silent on his reasons for not moving to suppress the salon owner’s identification or requesting a reliability instruction. Accordingly, appellant has failed to rebut the strong presumption that counsel’s omissions were motivated by sound trial strategy. See Greene v. State, 124 S.W.3d 789, 791–92 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

The Mother’s Testimony

Appellant argues next that counsel was ineffective because he elicited damaging testimony from appellant’s mother, the only defense witness. The mother testified that the female driver of the white SUV was appellant’s pregnant girlfriend. She also testified that appellant was very close to a male friend who drove a white jeep, and there was some suggestion that this third party was the other male passenger who had fled from police.

Appellant argues that there was no reason for eliciting this testimony because it actually had the tendency to link appellant to the commission of an offense. Counsel testified that he called the mother “basically to talk about the car.” At trial, the mother said that the white jeep belonging to the third party had tinted windows that could not roll down. The salon owner testified, by contrast, that the windows of the white SUV were partially rolled down. Counsel’s apparent strategy was to cast doubt on the salon owner’s testimony and suggest that the vehicle and its occupants were not associated with appellant, but with some other person. This strategy may have been risky and imperfectly executed. However, it is not objectively unreasonable to undercut the prosecution’s theory with evidence that the defendant may have been different from the description provided by the complaining witness.

Counsel did not specifically explain his reasons for questioning the mother about appellant’s pregnant girlfriend. The State suggests that counsel’s strategy may have been to gain sympathy with the jury. Assuming that counsel had no objectively reasonable strategy for eliciting this testimony, we cannot conclude that appellant was prejudiced. As we stated previously, the evidence of appellant’s guilt was overwhelming, based solely on the testimony from the State’s witnesses. We can perceive no reasonable probability that the outcome of the trial would have been different had appellant’s mother not testified at all.

Voir Dire

Appellant also claims that counsel was ineffective because he struck two venirepersons for cause. The venirepersons stated that they had friends and relatives who had had unfavorable interactions with law enforcement. There were some indications that these venirepersons might harbor some animosity towards the State. Counsel moved to strike them for cause, even though he commented that the venirepersons might actually be sympathetic to the defense: “It may be to my advantage, but I just want to be fair with the process.”

Appellant argues that there was no reasonable strategy for striking the two venirepersons. However, both venirepersons stated that they had scheduling conflicts that prevented them from serving on the jury. Counsel’s strategy was not addressed in the hearing on the motion for new trial. It is plausible that counsel struck the venirepersons for cause, having foreseen that they could not be seated anyways, in an effort to gain respect from the trial judge. Appellant has not rebutted the presumption that counsel’s actions were motivated by sound trial strategy. Similarly, because the venirepersons could not have been seated, there is no showing of prejudice.

Closing Argument

Appellant’s next complaint focuses on a statement made during closing argument. Counsel summarized the evidence and then stated, “We will never get to know how this one [appellant] gets to be in the car.”

Appellant has made no attempt to show that counsel’s performance fell below an objective standard of reasonableness. Appellant’s brief merely recites the facts of the closing argument. There is absolutely no legal analysis. It is not the role of this court to supply legal arguments on behalf of the parties. We overrule this issue as inadequately briefed. See Tex. R. App. P. 38.1(i).

Jury Question

Appellant’s final complaint concerns a question submitted by the jury during its deliberations. The jury sent a note requesting the court to recite portions of the testimony from the salon owner and the responding police officer. The jury indicated that it was confused by these witnesses’ conflicting statements regarding appellant’s position in the vehicle. The trial court responded with an instruction that “a request to have the court reporter’s notes read cannot be complied with unless the jury disagrees as to the statement of a witness.” The jury replied with another note certifying that there was a disagreement over the officer’s testimony. The jury indicated that the statement in dispute was the location of the two male suspects in the vehicle at the time of the rolling stop. The court allowed this portion of the testimony to be recited, but nothing else.

Appellant asserts that counsel was ineffective because he did not object to the court’s failure to provide the salon owner’s testimony as well. However, the jury never certified that there was a disagreement over her testimony. Thus, any objection would have been futile. Appellant has not shown that counsel’s omission amounted to a constitutionally deficient performance.

CONCLUSION

We conclude that the evidence is sufficient to support appellant’s conviction for attempted aggravated robbery. We further conclude that appellant has not established any claim to ineffective assistance of counsel. We overrule all four issues and affirm the judgment of the trial court.

/s/ Tracy Christopher
Justice
Panel consists of Justices Boyce, Christopher, and Brown. (Brown, J., dissenting).

Publish — Tex. R. App. P. 47.2(b).

DISSENTING OPINION

The majority concludes that the evidence is sufficient to sustain appellant’s conviction for “Attempted Aggravated Robbery.” I respectfully dissent because I believe that the evidence is insufficient to support the conviction. The case should be reversed and appellant acquitted.

I generally agree with the recitation of facts as put forth in the majority opinion. The incident took place outside of a hair salon in a sparsely occupied strip center. The salon owner was seated in the front portion of the salon. While waiting for customers, the owner observed a female walking by the front of the salon. The woman looked disheveled, wearing a wig and ripped jeans. The woman was moving slowly and walked by the salon twice in one minute. A short time later, a white, older-model SUV parked in front of the salon, backing into the parking space. The salon owner noted the vehicle had no license plates and became concerned.

The salon owner saw the driver of the SUV and noted that she was the same woman with the wig who had walked by her store. Two men were also seen inside the vehicle. One was bald and heavyset, and the other was slender. The slender man was moving his head from side to side, as if scanning the vicinity. The salon owner saw the bigger man trying to put something over his head. The salon owner then saw the same man putting on a pair of gloves and raising what appeared to be a handgun, as if to load it with a magazine. The owner told another woman in the salon to call the police because she thought that she was about to be robbed.

The owner saw the bigger man open the passenger door with a bag in his hand. Before he could get his feet on the ground, a woman pushing a baby stroller walked by the front of the salon, at which time the man ceased his exit from the vehicle. A short time later the same man opened the door of the vehicle. At that time another vehicle parked two spaces away from the SUV. The SUV was then moved to another nearby parking space. More cars had come into the strip center, and the salon owner could hear sirens in the distance. The SUV was then driven away from the strip center.

Appellant was charged by indictment with attempted aggravated robbery. The indictment alleged in pertinent part:

. . . that in Harris County, Texas, ADEDJI OLALINCOLN ADEKEYE,

hereafter styled the Defendant, heretofore on or about MAY 26,2012, did then and there unlawfully, intentionally, with the specific intent to commit the offense of AGGRAVATED ROBBERY of NORA MENDEZ,[the salon owner] hereafter styled the Complainant, do an act, to-wit: ATTEMPTED TO ENTER A BUSINESS WEARING A SKI MASK AND GLOVES AND CARRYING A HANDGUN, which amounted to more than mere preparation that tended to but failed to effect the commission of the offense intended.

Under the law of criminal attempt, a person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. See Tex. Penal Code § 15.01(a) (West 2013). A person commits an aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and he uses or exhibits a deadly weapon. See id. §§ 29.02(a)(2), 29.03(a)(2). “In the course of committing theft” means conduct that occurs in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of theft. See id. § 29.01(1). The statutory definition of aggravated robbery does not require a completed theft to have a completed aggravated robbery. Indeed, our jurisprudence is full of cases wherein individuals have been lawfully convicted of aggravated robbery, having obtained no property whatsoever from the victim. That is to say that an attempted theft rather than a completed theft took place.

By its very nature, the crime of attempted aggravated robbery, even where such a conviction is supported by legally sufficient evidence, requires some mental gymnastics. If an individual confronts another brandishing a firearm and demands property, but the person confronted escapes without handing over property, an aggravated robbery has still occurred. However, it seems virtually impossible to attempt to commit an act wherein you are attempting to commit a theft and for that act to amount to more than mere preparation that tends to but fails to effect the commission of the offense intended. Essentially, appellant is alleged to have attempted to enter a business while attempting to attempt the theft of property while using a weapon.

Regardless of the nature of the conviction, reviewing courts are required to examine all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We do not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Our review includes both properly and improperly admitted evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. Id.

Evidence is legally insufficient when the “only proper verdict” is acquittal. Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2218 (1982). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact’s finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). In doing so, we give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Id. We defer to the fact finder’s resolution of conflicting evidence unless the resolution is not rational. See Clayton, 235 S.W.3d at 778. However, our duty requires us to “ensure that the evidence presented actually supports a conclusion that the defendant committed” the criminal offense of which he is accused. See Williams, 235 S.W.3d at 750.

The majority offers a review of the evidence and compares it to the facts in Slomba v. State, 997 S.W.2d 783 (Tex. App.—Texarkana 1999, pet. ref’d). The majority states, “All that remained in this case was for appellant to fully exit the SUV, walk the short distance to the hair salon, and complete the theft of property.” Based on the evidence in the record, all that remained was for appellant to commit the crime he was convicted of.

This case is very different from Slomba. A thorough review of the record demonstrates why the evidence was insufficient. First, the indictment clearly alleges that appellant “attempted to enter a business.” All that is clear from the record is that appellant attempted to exit an SUV. Appellant never got out of the car, much less made it to the door of the salon where the majority presumes he was going to enter. At trial the salon owner testified that appellant never exited the car or attempted to enter the salon. Second, the indictment alleges that appellant had the “specific intent to commit the offense of Aggravated Robbery of Nora Mendez.” The record reflects that the salon owner testified that she did not know where appellant was going or who his intended victim was. Additionally, it was alleged that appellant was wearing a mask as part of this offense. (2) Yet at trial the salon owner testified, “I did not say that he was putting a mask on. I said he was putting something on his head.” Finally, taking all of these defects of proof together, it is impossible to say that the acts of appellant tended but failed to effect the commission of aggravated robbery. The majority cites evidence of flight as circumstantial evidence of his guilt. While I agree that flight is circumstantial evidence of guilt of a crime, it is not circumstantial evidence of the specific crime that is the matter of this appeal. (3) The majority asserts “that a rational jury could have determined that appellant crossed the ‘imaginary line’ and that his conduct amounted to more than mere preparation.” Courtrooms are places of proof, not imaginary lines. Based on the evidence in the record, no rational jury could have found that the State met its burden beyond a reasonable doubt. I have no doubt that appellant was up to “no good.” However, the State chose to charge appellant in very specific language with attempted aggravated robbery. The evidence presented at trial fails to prove that charge as alleged.

I would find the evidence insufficient and acquit the defendant of the offense of attempted aggravated robbery.

/s/ Marc W. Brown
Justice
Panel consists of Justices Boyce, Christopher, and Brown. (Brown, J., dissenting).
Publish — TEX. R. APP. P. 47.2(b).

2 While the indictment alleged “ski” mask, the State abandoned the word “ski” prior to the charge being submitted to the jury; therefore, the jury only had to find that appellant was wearing a mask.
3 Appellant was also convicted for being a felon in possession of a firearm out of this same transaction. The sufficiency of evidence was not challenged for that conviction.

The text of this decision is from the appellate court's website, copied on the date of posting.  I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.

Petty v. State; No. 01-12-00902-CR; 01-12-00902-CR

In an intoxication manslaughter prosecution, defendant's trial counsel was not ineffective for electing to not obtain an expert to testify regarding horizontal gaze nystagmus, where there was "ample evidence of intoxication" outside of the HGN test.  Furthermore, per the particular fact scenario, trial counsel was not ineffective for electing to not obtain the assistance of an expert to testify regarding levels of the intoxicating substance.  

_________________________________________________________________________________

Opinion issued June 12, 2014

In The Court of Appeals For The First District of Texas

————————————

NO. 01-12-00902-CR

NO. 01-12-00903-CR

———————————

MICHAEL GREGORY PETTY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Case No. 1271999 & 1272000

O P I N I O N

Following a joint trial on two separate indictments, a jury found appellant Michael Gregory Petty guilty of two offenses of intoxication manslaughter and further found that he had used a deadly weapon, namely, a motor vehicle, during the commission of each offense. (1) The jury assessed punishment at 20 years’ in prison for each offense. The State filed a motion to cumulate the sentences, and the trial court ordered the sentences to be served consecutively. (2)

Appealing each judgment of conviction, Appellant raises two identical issues in each appeal. Appellant (1) claims that he received ineffective assistance of counsel during trial, and (2) he challenges the sufficiency of the evidence to support the court costs assessed against him by the trial court.

We affirm in each appeal.

Background

Midday, on July 26, 2010, Appellant was speeding down Interstate 45 when he lost control of his pickup truck. Appellant’s truck collided with a pickup truck driven by Manuel Portillo in which Cristo Alfonso was a passenger. The collision caused Portillo’s truck to flip and roll a number of times. The truck’s top was flattened, and Portillo’s head was pinned between the driver’s door and the roof. During the rollover, Alfonso had been ejected from the vehicle, landing in the middle of the freeway. Both Portillo and Alfonso died as a result of the injuries each sustained in the crash.

Before the crash, other motorists had seen Appellant speeding down the freeway, traveling 80 to 90 miles per hour in a 65-mile-per-hour zone. The motorists had been alarmed by Appellant’s speed and erratic driving. They saw Appellant changing lanes, zigzagging from one side of the freeway to the other, and darting between cars. When he approached slower traffic ahead of him in the far left lane, Appellant slammed on his brakes. He then shot to the right across all lanes of the freeway. Appellant lost control of his truck, and it hit the back left panel of Portillo’s vehicle. The force of the collision caused Portillo’s truck to flip and then roll side-over-side, coming to rest on the grassy shoulder of the freeway.

Appellant was not injured in the collision. A number of the motorists who had witnessed the crash stopped on the freeway. One of the motorists approached Appellant. He noticed that Appellant was moving and speaking slowly. Appellant was also repeating himself, saying that his accelerator had stuck.

Officer D. Egdorf, a certified drug recognition expert with the Houston Police Department, arrived at the scene to evaluate Appellant for signs of intoxication. Appellant told Officer Egdorf that he had not drunk any alcohol but stated that had taken a prescription medication, topiramate, about three hours earlier. Appellant said that he had been prescribed topiramate for his migraine headaches and had been taking the medication for a couple of weeks. He stated that he had been to the hospital the day before and had gotten a new prescription for topiramate. He told the officer that the bottle of topiramate was in his truck. Appellant said that the prescription directed him to take three topiramate pills a day.

Appellant also told Officer Egdorf that the label on the prescription bottle warned not to drive while taking topiramate. Appellant said that he had taken his girlfriend to work at a nearby restaurant that morning after taking the topiramate and then waited at the restaurant until the effects of the topiramate had worn off so that he could drive. He stated that his doctor had told him that the effects should wear off after two hours. Appellant indicated that he did not feel that the topiramate affected his ability to drive.

While at the scene, Officer Egdorf administered four field sobriety tests to Appellant: the Horizontal the Gaze Nystagmus (HGN), the one-leg stand, the walk-and-turn, and the Rhomberg. Appellant’s performance of the tests was recorded on the camera in Officer Egdorf’s vehicle.

Officer Egdorf first administered the HGN test to Appellant. Officer Egdorf observed that Appellant displayed all “six clues” during the test. Each of Appellant’s eyes showed (1) lack of smooth pursuit, (2) nystagmus or an involuntary jerking movement at maximum deviation, and (3) onset of nystagmus before forty-five degrees. This indicated to Officer Egdorf that Appellant was intoxicated.

Officer Egdorf then had Appellant perform the Rhomberg test in which Appellant was instructed to tilt his head back, close his eyes, and estimate thirty seconds. When Appellant indicated that 30 seconds had passed, 46 seconds had actually passed. Appellant’s failure to accurately estimate 30 seconds indicated a delay in Appellant’s reaction time and further indicated to Officer Egdorf that Appellant was intoxicated.

Officer Egdorf also administered the one-leg-stand test and the walk-and-turn test. Appellant displayed one clue for intoxication when he swayed during the one-leg-stand test. Appellant displayed four clues for impairment during the walk-and-turn test. He used his arms for balance, he stopped walking, he failed to walk heel to toe, and he made an improper turn. Based on Appellant’s performance on the field sobriety tests, particularly the HGN test, Officer Egdorf believed Appellant to be intoxicated.

In addition to Appellant’s performance on the tests, Officer Egdorf observed other behaviors by Appellant that further indicated to him that Appellant’s mental faculties were impaired. Appellant interrupted Officer Egdorf while he was instructing Appellant how to perform the field sobriety tests. And Appellant had difficulty following the instructions. Appellant’s statements regarding what the cause of the crash may have been continued to shift as he and Officer Egdorf spoke. Appellant told Officer Egdorf that, before the collision, a vehicle on the freeway traveling in front of him was “brake checking,” meaning the vehicle’s driver was tapping the brakes to send a message to another driver that the other driver needed to slow down. Appellant also told the officer that his engine had been revving. He mentioned that there had been a recall by the manufacturer of his truck regarding the floor mats. Appellant also told Officer Egdorf that he had cheap tires on the truck.

Based on Appellant’s performance of the field sobriety tests and his interaction with Appellant, Officer Egdorf arrested Appellant for driving while intoxicated. Officer Egdorf recovered the bottle of topiramate from Appellant’s truck. The bottle indicated that the prescription had been filled the preceding day. The label indicated the prescription was for 30 pills with each pill containing 100 milligrams of topiramate. Officer Egdorf counted the pills in the bottle and found that it contained 24 pills.

Officer Egdorf also recovered from Appellant’s truck the medication information sheet for the topiramate, which Appellant had received the previous day. The sheet indicated that topiramate is a prescription medication used to treat epilepsy and migraines. It also indicated that side effects for topiramate include: weakness, tiredness, drowsiness, dizziness, confusion, and difficulty concentrating. Under the heading “precautions,” the sheet stated that topiramate “may make you dizzy or drowsy or cause blurred vision. Do not drive, use machinery, or do any activity that requires alertness or clear vision until you are sure you can perform such activities safely.”

Officer Egdorf transported Appellant to the hospital where a blood sample was drawn. The officer then transported Appellant to the police station. There, Officer Egdorf again administered the HGN test to Appellant. Officer Egdorf used a piece of equipment known as a HawkEye to make a close-up video recording of Appellant’s eyes while the HGN test was administered. Appellant again exhibited all six clues of intoxication. In addition, Officer Egdorf observed that Appellant’s eyes showed a lack of convergence when he brought a stimulus in toward Appellant’s nose. This also indicated to Officer Egdorf that Appellant was intoxicated. 

Appellant was charged with two offenses of intoxication manslaughter with respect to the deaths of Manuel Portillo and Cristo Alfonso. Each indictment read as follows:

. . . MICHAEL GREGORY PETTY, . . . on or about JULY 26, 2010, did then and there unlawfully by accident and mistake while operating a motor vehicle in a public place while intoxicated and by reason of that intoxication, cause the death of [the complainant], by driving his motor vehicle into and causing it to collide with a motor vehicle occupied by the complainant. 

[A]t the time that the Defendant committed the felony offense of INTOXICATION MANSLAUGHTER on or about JULY 26, 2010, as hereinabove alleged, he used and exhibited a deadly weapon, namely, a MOTOR VEHICLE, during the commission of said offense and during the immediate flight from said offense.

At trial, Appellant’s defense was two-fold. Appellant asserted that he was not intoxicated at the time of the collision. He claimed that the topiramate had not impaired his use of his mental or physical faculties. Appellant also asserted that he was not the cause of the collision. He claimed that there had been a mechanical problem with his truck. Appellant asserted that either a tire had blown out or the tie rod had broken, causing him to lose control of his truck and collide with Portillo’s vehicle.

The State presented numerous witnesses who had seen Appellant driving on the freeway immediately before the collision and had witnessed the collision itself. They testified regarding the great speed at which Appellant drove his truck, his erratic driving, his zigzagging between lanes, and his darting between cars. Two witnesses testified that Appellant was driving so fast that their cars shook as Appellant sped by their vehicles. One witness stated that, at the time, she thought Appellant was in a high-speed chase. The witnesses indicated that the collision occurred when Appellant slammed on his brakes to avoid the vehicles in front of him, swerved to right, and lost control of his truck. A number of the witnesses indicated that they had not noticed anything mechanically wrong with Appellant’s truck, including its tires.

The State presented evidence—through the testimony of the police officers who had reconstructed the collision—that Appellant had not lost control of his truck due to a blown out tire or from a broken tie rod. Following the crash, the truck was found to have a broken tie rod and a flat tire, however, the State presented evidence showing that this damage had happened as a result of the collision and was not the cause of the collision. In line with the testimony of the eye witnesses, the State’s accident reconstruction expert testified that Appellant had been going at least 84 miles-an-hour.

Appellant’s then-girlfriend, Kristen, testified that she and Appellant had gone to the emergency room the day before the crash because Appellant had a migraine headache. She stated that Appellant was released that same night around 8:00 or 9:00 p.m. Appellant filled his prescription at the pharmacy that night, but Kristen did not see him take the medication that night or the next morning. Kristen testified that Appellant had gone to the hospital a number of other times earlier in the month for his migraines.

Kristen also stated that, on the morning of the crash, Appellant had driven her to the restaurant where she worked. Appellant told her that he had taken a stool softener prescribed by the doctor the previous day. Appellant stayed at the restaurant for an hour or hour and-one-half until the stool softener worked. Kristen testified that when he left the restaurant, Appellant looked “normal” to her.

Immediately after the crash, Appellant called Kristen on his cell phone. The restaurant was close to where the crash had occurred, and Kristen went to the scene. She stated that she was able to talk to Appellant for a few minutes before he was placed in a patrol car. Kristen stated that Appellant appeared shaken and nervous but did not seem intoxicated.

Officer Egdorf also testified at trial. He described his interaction with Appellant at the scene, including Appellant’s repeated acknowledgment that he was aware that the topiramate warning label had an instruction not to drive after taking topiramate. Officer Egdorf testified that topiramate is a central nervous system depressant similar to alcohol. Officer Egdorf also described the field-sobriety tests he had administered to Appellant and explained how Appellant’s performance of the tests further indicated that he was intoxicated.

With regard to the HGN test, Officer Egdorf explained that nystagmus is the involuntary jerking of the eye caused by a central nervous system depressant, such as alcohol or topiramate. Officer Egdorf testified that the nystagmus can affect a driver’s vision. Specifically, nystagmus may affect a driver’s ability to see out of a vehicle’s side and rear view mirrors and could affect a driver’s peripheral vision.

The video taken by Officer Egdorf’s in-car camera at the scene was admitted into evidence during the officer’s testimony. The video showed Appellant’s performance of the field sobriety tests, and it captured Appellant’s interaction with Officer Egdorf. When asked, Officer Egdorf agreed that Appellant had been cooperative during the scene investigation. He also acknowledged that Appellant was not slurring his speech or stumbling. Aside from the HGN test, Officer Egdorf agreed that Appellant had correctly performed portions of the field-sobriety tests. He also agreed that, to the “average person,” Appellant may not have appeared intoxicated.

The Hawk Eye video showing a close up of Appellant’s eyes during the administration of the HGN test was also admitted into evidence. As the video was played for the jury, Officer Egdorf pointed out the jerking of Appellant’s eyes, or nystagmus, seen in the video.

Officer Egdorf acknowledged that much of his testimony offered to support his determination that Appellant was intoxicated related to Appellant’s performance on the HGN test. However, when asked to explain the basis for his belief that Appellant had lost the use of his physical faculties, Officer Egdorf responded, “We see that with the HGN tests, with the muscle control in his eyes. You see it on the physical test, the divided-attention test, with the clues that you see on the one-leg stand test, the Rhomberg balance test, the four clues that we see on the walk-and-turn test.”

When asked to support his opinion that Appellant had lost the use of his mental faculties, Officer Egdorf responded: “I think you hear in the video with his repetitive speech, his story changing, he’s not able to follow all the instructions that I gave him. He keeps interrupting as I’m trying to give instructions.”

The State also offered the testimony of Dr. Jeff Walterschied, assistant chief toxicologist at the Harris County Institute of Forensic Sciences. Dr. Walterschied testified that topiramate is a central nervous system depressant. He stated that alcohol is also a central nervous system depressant. He explained that a central nervous system depressant affects the central nervous system by slowing neural firing; it causes drowsiness and loss of coordination.

Dr. Walterschied said that topiramate is mainly used to treat epilepsy but can also be used to treat migraines when other treatments have failed. Dr. Walterschied provided the following testimony regarding the effects of taking topiramate:

Q. Now, when someone takes Topiramate or [the brand name] Topamax, what kinds of effects will it have on the body?

A. It can cause dizziness, drowsiness, loss of coordination, slurred speech. One of the most notable effects that’s been found is cognitive impairment or clouded judgment.

Q. What does cognitive impairment mean?

A. It’s the inability to, say, remember and recall memories, information, making judgments. Quick decisions are impaired.

Q. How does this impact someone’s driving abilities?

A. Adversely.

Q. In what ways?

A. In the safe operation of a vehicle, you have to keep track of a number of things; time and speed, distance relative to other cars,

keeping track of many different things. And whenever those—under the influence of an intoxicating drug, the ability to keep track of positions of cars and of rate and speed and coordination are all impaired.

Q. Now, is that true of someone that is taking a prescribed dose? Can they still be affected and have cognitive impairment on Topiramate?

A. It can, yes.

Dr. Walterscheid testified that Appellant’s blood contained 13 milligrams per liter (13mg/L) of topiramate. Dr. Walterscheid stated that this amount was much higher than expected under normal treatment for epilepsy or for migraines. He testified that a typical therapeutic dose of topiramate was four to five milligrams. He explained that a “[t]herapeutic dose would be the amount needed to achieve therapeutic resolution, but not too excessive to cause adverse effects.”

With regard to the level of topiramate found in Appellant’s blood, the following exchange occurred:

Q. So, typically, a therapeutic dose would be—what number would you be looking at?

A. Around 4 to 5 milligrams per liter.

Q. The 13 milligrams per liter, how much Topiramate would it take to get to this level?

A. About 5 to 600 milligrams.

Q. Now, is that 5 to 600 milligrams taken all at one time?

A. In a short interval.

Q. What does a short interval mean?

A. Maybe within five to ten hours.

Q. So, if someone had a prescription filled, let’s say, at about 10:00 p.m. for 30 hundred-milligram tablets of Topiramate and the next morning, around 12:30, it was discovered that six of those pills were missing, would that be consistent with the levels of Topiramate that were determined to be in the defendant’s body?

A. Yes.

Q. So, six 100-milligram tablets is how much Topiramate?

A. Six hundred.

Q. Six hundred milligrams.

. . . .

Q. Now, the level of 13 milligrams per liter, is that a therapeutic dose?

A. It exceeds what would be a normal therapeutic level.

Q. What—would that be an intoxicating amount?

A. Yes.

Dr. Walterschied also explained the meaning of a drug’s half-life. He stated, “Half-life is a concentration-dependent process of elimination in the body for certain drugs. And in this case, Topiramate has a half-life of around 20 hours. So, every 20 hours it goes by half and then half and then half of the original amount is left.” When asked how long a 100-milligram pill of topiramate would remain in a person’s body he stated, “[A]ny drug will persist about six to seven half-lives. So, that would be 140 hours . . . .”

Dr. Walterschied also testified regarding nystagmus. He stated,

Nystagmus is a natural mechanism the body uses to track objects as they’re passing, especially in peripheral vision. And so, you’re—whenever you’re in traffic or let’s say you’re stationary watching a car go by, you’re really locking on and tracking it. So, if nystagmus . . . is enhanced, affected, it’s—you lack the ability to lock and track. And it’s more of . . . a wavering, so kind of a blurry, double-vision sort of effect.

At the conclusion of its direct examination, the State asked: “Based on your experience and training and the results of this blood test, do you have an opinion as to whether or not the defendant was intoxicated at the time of this crash?” Dr. Walterschied responded, “Yes, this is intoxicating.”

On cross-examination, defense counsel questioned Dr. Walterschied regarding his opinion that the 13 milligrams per liter of topiramate present in Appellant’s blood was an intoxicating level of topiramate and not a therapeutic level. Defense counsel first got Dr. Walterschied to concede that not everyone who takes topiramate will experience its side effects:

Q. And in your testimony, it’s fair to say that you cannot conclusively state what the effects of this . . . 13 milligrams per liter that [the laboratory analyst] came up with, how it would have affected Mr. Petty in this case, correct?
A. Well, based on my experience and training, it’s consistent with what is found in the medical literature.
Q. That this particular level that you all came up with had an intoxicating effect on Michael Petty?
A. I can only say it’s consistent with intoxication.
Q. Well, let me ask you this: When you talk about the side-effects of Topiramate, you’d agree with me that you cannot say that side-effects—these particular side-effects always occur, correct?
A. Not always.
. . . .
Q. In other words, there’s going to be the person that doesn’t experience dizziness or drowsiness, correct?
A. That can be true.
Q. Okay. There’s going to be the person who doesn’t have blurred vision the way it may affect other people, correct?
A. That’s possible.
Q. There’s going to be the person that has . . . no serious side-effects, although there may be a long listing of side-effects that may be common, correct?
A. True.
Defense counsel also questioned Dr. Walterschied regarding how he determined that 13 milligrams per liter of topiramate was an intoxicating level versus a therapeutic level:
Q. Now, you stated what you would expect for the therapeutic dose would be between 4 and 5, correct?
A. About that, yeah.
Q. And the number that you-all came up with is 13, correct?
A. Right.
Q. And so, at what point between therapeutic and intoxicating levels would you draw the number? Is it 6? Is 6 all of a sudden intoxicating?
A. No, . . . it’s kind of a gray area. It’s more of observations of—
Q. Okay. I’m sorry. I don’t want to cut you off. Observations of?
A. Observations of intoxication correlating with scientific data that we have.
Q. Okay. So, observations of whom?
A. From the police reports and witnesses.
Q. And so, in order for you to then move it to an intoxicating level, you’ve got to rely on what the police officers put in the report, correct?
A. That’s right.
Q. Because you have no—I mean, you weren’t out there at the scene at any time, didn’t become involved in this case until almost a year later, correct?
A. That’s right.
Q. And so, you’ve got to depend on whatever the arresting officers or the observing officers . . . to then come in here and tell the jury whether or not you think it’s therapeutic or intoxicating, correct?
A. Right.

Appellant testified in his own defense at trial. He stated that he had gone to the hospital the day before the crash because of a migraine headache. He testified that he was admitted as an outpatient and given Demerol intravenously for pain. Appellant stated that he was released from the hospital about 2:30 a.m. on the day of the crash with a prescription for topiramate. He said that he had already been taking topiramate for approximately two weeks. On his way home, he filled the topiramate prescription at the pharmacy. He stated that the prescription was for 30 topiramate pills with each pill containing 100 milligrams of topiramate. Appellant testified that he had taken one topiramate before he went to sleep. He woke up around 8:15 a.m. and took another topiramate. At that point, Appellant claimed that 28 topiramate pills remained in the bottle. Appellant stated that he drove his girlfriend, Kristen, to work around 9:45 a.m. He stayed at her workplace until lunchtime.

After leaving, Appellant immediately got onto Interstate 45 with his truck. He testified that he had taken a laxative that morning and, after entering the freeway, he felt that he needed to use the restroom. Appellant stated that he was traveling 70 miles an hour and changing lanes in attempt to reach his home to prevent having a bowel movement in his pants. He denied traveling at a rate of 80 to 90 miles an hour, as a number of witnesses had stated. Appellant claimed that he had not been on the freeway long when his tire blew out. He stated this caused him to lose control of the truck, and he crash into Portillo’s vehicle. Appellant testified that the topiramate had not affected his physical or mental faculties on the day of the crash. In other words, he denied that he was intoxicated.

Following closing arguments, the jury found Appellant guilty of two offenses of intoxication manslaughter.

During the punishment phase, the jury heard that Appellant had previously been convicted of assault, burglary of a motor vehicle, and criminal mischief. Appellant had also been convicted of reckless driving in 2007 because he had been zig-zagging between lanes and driving 90 miles per hour. Appellant’s driving record also showed a history of speeding tickets and getting into car accidents.

The State also presented records obtained from Appellant’s cell phone. The records were from several days preceding the crash. These records included text messages between Appellant and numerous other people. The text messages reveal that Appellant was dealing marihuana on the day of the crash. In one message, sent the morning of the crash, Appellant told a friend that he was required to take a drug class because he had failed a drug test at work. He stated that he had to start selling drugs to make ends meet.

A photograph recovered from Appellant’s phone was also admitted into evidence. It shows Appellant in a hospital gown smiling and flashing a gang sign. The photograph was taken the same month as the crash, during another hospital admission.

Members of the complainants’ families also testified regarding the good character of the complainants, how much the complainants were missed, and how greatly their deaths had affected the families. In addition, personal photographs of the complainants were admitted into evidence.

Appellant and his sister testified at the punishment phase. They each testified that Appellant was remorseful, and Appellant apologized to the complainants’ families. Appellant also admitted that he had been selling marihuana, as indicated in the text messages. Appellant admitted to causing the crash, but he continued to deny that he was intoxicated at the time of the collision.

After hearing the evidence, the jury assessed Appellant’s punishment at the maximum sentence for each offense: 20 years in prison. The trial court ordered the sentences to be served consecutively. In the judgments, the trial court ordered Appellant to pay $444.00 in court costs.

Appellant filed a motion for new trial in each case. Appellant claimed that he had received ineffective assistance of counsel at trial. He asserted that trial counsel “did not perform a scientific investigation into the issue of intoxication and did not consult or retain an expert or adequately prepare for trial.” To support the motion, Appellant attached an affidavit of Ed French, who holds a Ph.D. in pharmacology. Dr. French stated that the recommended dosage of topiramate to treat migraines is 100 milligrams divided into two 50 milligram doses. He also averred as follows:

In my search and review of a very reliable drug compendium, I could not find anything to support a finding of blood levels and degrees of intoxication. Topiramate is primarily cleared through the kidneys. Therefore, the blood levels of topiramate could be increased if kidney function has declined (which could result in involuntary overdose). If the defense had consulted with me or any properly trained pharmacologist prior to trial, they would have been able to present this information to the jury. 

I have been informed that Mr. Petty’s level of topiramate was 13 mg/L. This level is within the normal therapeutic range and is not indicative of intoxication. My current professional understanding is that the therapeutic range of topiramate is 2 mg/L–20 mg/L. The range in which topiramate induces intoxication has not been well-studied or established in scientific literature. Furthermore, most individuals display optimal response to topiramate with serum levels 2 mg/L–20 mg/L. Some individuals may respond well outside this range, or may display toxicity within the therapeutic range, thus interpretation should include clinical evaluation.

The State filed a response to the motion for new trial, supported by the affidavit of Dr. Walterschied, who had testified at trial. In his affidavit, Dr. Walterschied responded to the assertions made by Dr. French in his affidavit. Dr. Walterscheid agreed that the recommended dose for topiramate to treat migraines is 100 milligrams per day administered in two divided doses. However, he stated that the treatment must be administered with a four-week titration plan, meaning that the daily doses of topiramate are increased from 25 milligrams taken in the evening for the first week followed by an incremental increase into the fourth week of therapy to 100 milligrams per day.

Dr. Walterschied stated that the dosage that Appellant claimed to have taken before the crash was not large enough to explain a 13mg/L level of topiramate in his blood. Dr. Walterscheid acknowledged that poor kidney function would be a significant factor if the dosing of topiramate had occurred over several days, but he indicated in his affidavit that was not what had occurred in this case. Dr. Walterschied stated that the therapeutic range for topiramate of 2 mg/L to 20 mg/L, reflected in the medical literature, applied to the prevention of epilepsy rather than to the treatment of migraines. He also stated that “it is important to recognize that a therapeutic dose can still overlap with impairment. Patients who require larger doses to prevent onset of seizures are advised to not perform safety-critical tasks such as driving, particularly during the initial titration phase of therapy.”

In his affidavit, Dr. Walterscheid set out, explained, and then applied, the mathematical formula he used to determine the amount of topiramate in Appellant’s blood. He stated that this amount was consistent with the theory that Appellant had taken 600 milligrams of topiramate. Dr. Walterschied averred that this “supports the assertion that the missing 600mg tablets from the topiramate prescription bottle were ingested by the defendant.”

In response to Dr. Walterscheid’s affidavit, Appellant offered the affidavit of Thomas Kosten, a medical doctor board certified in neurology and psychiatry. He averred that, although topiramate is a sedative like alcohol, it “does not make you feel high or euphoric.” He stated that topiramate is “often considered unpleasant by patients,” particularly at the dosage level prescribed to Appellant. According to Dr. Kosten, ingesting 600 milligrams of topiramate at one time would likely make a person nauseous and possibly vomit. Dr. Kosten stated that topiramate is “not considered a controlled or abused drug.”

Dr. Kosten also stated that Appellant’s 13 mg/L topiramate blood level was “not clinically meaningful” and did not indicate that Appellant had ingested 600 milligrams of topiramate. Dr. Kosten averred that Appellant “has mild renal impairment leading to an increase in blood levels of this medication compared to the amount [of topiramate] ingested.” Dr. Kosten also stated that other factors affect the level of topiramate in a person’s blood and those factors should be considered. He identified timing and amount of the last dose taken and whether the medication had been taken acutely or chronically as factors to consider. Dr. Kosten noted, “Mr. Petty was taking this medication chronically and had no history of impairment with topiramate in the past.” Dr. Kosten concluded, “[F]or all of the above reasons [Dr. Walterschied’s] calculation is likely to be inaccurate and a significant over-estimation of the dose being taken.”

Dr. Kosten also addressed horizontal gaze nystagmus. He stated that nystagmus is a normal effect caused by therapeutic dosages of topiramate. He acknowledged that “[n]ystagmus is one sign of several signs to be used in a determination of intoxication.” Dr. Kosten offered his opinion that the video of Appellant at the scene “showed no other evidence of intoxication or impairment.”

Appellant’s trial counsel, Michelle Beck, also filed an affidavit regarding her trial preparation and strategy. In her affidavit, Beck stated her investigation had included personal research and reading of numerous articles on topiramate. She also read articles from the Internet provided by Appellant. Counsel stated that she reviewed literature on the effects of topiramate in DWl cases and on its prescribed uses. Beck stated that her next step was “to investigate whether this level of Topirimate was intoxicating.” She averred that she consulted with three pharmacists and the emergency room doctor, who saw Appellant, “for their professional opinions as to the intoxicating effects this amount of the drug would have on [Appellant].” Beck testified that she contacted Brandon Moody, Warren Moody, and Lance Henderson of Texas Southern University School of Pharmacy, who are each licensed pharmacist and “who have expertise in the area of toxicology and effects of drugs on the human system.” She stated, “I discussed with them the findings with regard to the disclosed levels of Topiramate and was informed that there is no set level of the drug which establishes intoxication.” (3) Beck testified that she “was told that these upper and lower levels for therapeutic verses intoxication limits could be manipulated based upon whomever was doing the analysis.”

Beck further stated in her affidavit as follows: 

Because there was no definitive conclusion in research articles as well as the expert opinions of those that I spoke with concerning established levels of intoxication with regard to this drug, I decided it was not necessary to hire an expert to testify in this matter. I determined that I would be able to get the State’s expert witness with regard to toxicology to admit on cross-examination that there are no established levels of intoxication and no legal limits established with regard to Topiramate. I accomplished this with Dr. Walterschied. I used the State’s own witness to make my point.

I then decided to look at what signs of intoxication the defendant exhibited just after the accident which would go to loss of normal use of mental and physical faculties. After reviewing the defendant’s performance at the scene and the police station, I determined that he performed pretty well. The normal signs of speech and a coherent thinking processes were present. He performed relatively well on the standardized field sobriety tests and I knew that the State would rely heavily on the HGN test which normally is not enough alone to convince a jury of intoxication. The State only had one witness, Ofc. Egdorf, who I predicted they would attempt to make their entire case of intoxication on. I made a strategical decision to base our defense on the visual evidence that the jury would be able to review with their own eyes. I also spoke with the defendant’s then girlfriend Kristen [L.], to determine what, if any signs of intoxication she observed in the defendant and she stated none. I also spoke with the defendant about his physical and mental state at the time of the accident and brought that testimony out at trial regarding his level of loss of normal use.

At a hearing on Appellant’s motions for new trial, the trial court admitted the affidavits into evidence. No live testimony was presented. At the end of the hearing, the trial court denied Appellant’s motions for new trial.

These appeals followed. Appellant presents the same two issues in each appeal. He asserts that he received ineffective assistance of counsel at trial and claims that the court costs reflected in the judgments are not supported by sufficient evidence.

Ineffective Assistance of Counsel

Appellant frames his first issue as follows: “Trial counsel rendered ineffective assistance of counsel for failing to present an expert witness on topiramate and was therefore unable to offer any meaningful challenge to the findings and conclusions of the State’s experts, many of which proved to be incorrect.” Appellant summarized his arguments in his brief as follows:

Despite the fact that counsel knew the State would argue that her client was intoxicated on little-known prescription medication that did not have well-accepted levels of intoxication, she failed to retain the expert assistance that was necessary in order to present a defense and counter the arguments made by the State’s expert witnesses. An expert was crucial to inform the jury as to the effects of topiramate, the significance of the blood levels, especially with regard to Mr. Petty’s kidney disorder, and the meaning of the HGN test.
. . . .
The State’s experts testified unchallenged that topiramate was an intoxicating drug similar to alcohol and that since Mr. Petty’s blood levels were three times the therapeutic amount and he failed the HGN, he must have been legally intoxicated. Trial counsel was completely unable to refute these inaccurate conclusions without the assistance of an expert and was therefore ineffective in violation of [Appellant’s] rights.

A. Applicable Legal Principles

To prevail on an ineffective assistance claim, an appellant must show that (1) his counsel’s representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 669, 104 S. Ct. 2052, 2055 (1984); see also Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010). An appellant must satisfy both prongs by a preponderance of the evidence; failure to demonstrate either deficient performance or prejudice will defeat a claim of ineffectiveness. See Perez, 310 S.W.3d at 893.

Under the second Strickland prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Perez, 310 S.W.3d at 893 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). An appellant must show more than “that the errors had some conceivable effect on the outcome of the proceeding.” Id. (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at 2067). “Rather, he must  show that ‘there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’” Id. (quoting Strickland, 466 U.S. at 695, 104 S. Ct. at 2068–69). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

When, as here, the prejudice prong of the Strickland test is dispositive, we need address only that prong on appeal. See My Thi Tieu v. State, 299 S.W.3d 216, 225 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069). And, when, as here, the ineffective assistance claim is asserted by a defendant in a motion for new trial, and that motion is denied after an evidentiary hearing, we review the denial of the motion under an abuse of discretion standard. See Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We review de novo the trial court’s decision on the prejudice prong while giving deference to the trial court’s implied resolution of underlying factual determinations in support of the denial of the motion for new trial. Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005) (quoting Charles v. State, 146 S.W.3d 204, 213 (Tex. Crim. App. 2004), superseded by TEX. R. APP. P. 21.8(b) (amended 2007)). When no express fact findings are made by the trial court, appellate courts should “impute implicit factual findings that support the trial judge’s ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record.” Id.

B. Analysis

On appeal, Appellant asserts, “If counsel had acted as a reasonable attorney facing a case that hinged upon the effects of an unusual and nonscheduled medication, she would have retained an expert. An expert would have explained the effects of topiramate, the significance of the blood levels, and the meaning of the HGN test.” We ask: If trial counsel had presented such evidence is there a reasonable probability that the outcome of the proceeding would have been different?

The HGN Evidence

Appellant points out, “The HGN was a major point of evidence for the State.” He asserts that his trial counsel was ineffective because “the jury was never informed that normal, therapeutic levels of topiramate would also cause HGN, as Dr. Kosten’s affidavit asserts.” However, Dr. Kosten also acknowledged in his affidavit that “the presence of nystagmus can signify some aspects of intoxication.” Indeed, the Court of Criminal Appeals held in Emerson v. State that the HGN test is a reliable indicator of intoxication. 880 S.W.2d 759, 777 (Tex. Crim. App. 1994). Here, Officer Egdorf testified that Appellant exhibited all six clues of intoxication on the HGN test.

Appellant also criticizes trial counsel because she “did not challenge the repeated assertion that HGN equates with blurred vision and proves intoxication.” In support of his criticism, Appellant cites a publication by the National Highway Traffic Safety Administration, entitled “Horizontal Gaze Nystagmus: The Science & The Law–A Resource Guide for Judges, Prosecutors and Law Enforcement.”4

The publication states, “Most types of nystagmus, including HGN, are involuntary motions, meaning the person exhibiting the nystagmus cannot control it. In fact, the subject exhibiting the nystagmus is unaware that it is happening because the bouncing of the eye does not affect the subject’s vision.” 5 However, a footnote to the last sentence in the quote states, “There have been some studies that suggest that HGN due to alcohol impairment may affect the ability of a person to see clearly.”6 At trial, the State presented evidence that topiramate and alcohol are both classified as depressants, which affect the central nervous system. In his affidavit offered to support Appellant’s motion for new trial, Dr. Kosten acknowledged that topiramate is a sedative like alcohol. Given the footnote and the evidence, Appellant has not shown that he would have benefitted from a challenge to the State’s evidence that HGN equates with blurred vision.

In addition, it is significant that ample evidence of Appellant’s intoxication, aside from the HGN evidence, was presented at trial. The jury in this case was correctly instructed, “‘Intoxicated’ means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.” See TEX. PENAL CODE ANN. § 49.01(2)(A) (Vernon 2011).

Numerous witnesses testified that he or she saw Appellant driving in an alarming and erratic manner at a high rate of speed. The State’s accident reconstruction expert testified that Appellant was driving at least 84 miles-an-hour, while darting between cars and zigzagging between lanes. When he approached slower moving traffic, witnesses stated that Appellant had slammed on his brakes, swerved right across the freeway, lost control, and crashed into Portillo’s truck. The State offered evidence showing that the crash had not been caused by a blown out tire or broken tie rod, as Appellant testified at trial.

In addition to the HGN test, Officer Egdorf testified that Appellant displayed clues of intoxication on the three other field-sobriety-tests. Significantly, on the Rhomberg test, Appellant estimated the passage of 46 seconds to be the passage of 30 seconds. Officer Egdorf testified that this indicated to him a delay in Appellant’s reaction time. Officer Egdorf also testified that Appellant displayed four clues for intoxication during the walk-and-turn test and one clue when he swayed during the one-leg-stand test.

Officer Egdorf further stated that he observed signs that Appellant’s mental faculties were impaired. Officer Egdorf testified that Appellant continually interrupted him while he was instructing Appellant how to perform the field sobriety tests. He stated that Appellant had difficulty following those instructions. Officer Egdorf also noted that Appellant’s statements regarding what may have caused the crash continued to shift as he and Appellant spoke.

The jury also heard Appellant, in the scene video, admit to Officer Egdorf that the topiramate label had a warning not to drive while taking the medication. Appellant stated that he had taken one 100 milligram topiramate after he left the hospital at 2:30 a.m. and another when he awoke at 8:15 a.m. The collision occurred at approximately at 12:30 p.m.

The drug information sheet, recovered from Appellant’s truck and admitted into evidence, warned that the side effects for topiramate include: weakness, tiredness, drowsiness, dizziness, confusion, and difficulty concentrating. Under the heading “precautions,” the sheet stated that topiramate “may make you dizzy or drowsy or cause blurred vision. Do not drive, use machinery, or do any activity that requires alertness or clear vision until you are sure you can perform such activities safely.”

Dr. Walterscheid also testified that topiramate can cause dizziness, drowsiness, and loss of coordination. He stated that one of the most notable effects is cognitive impairment or clouded judgment. Dr. Walterscheid explained that cognitive impairment adversely affects a person’s ability to drive. He explained,

In the safe operation of a vehicle, you have to keep track of a number of things; time and speed, distance relative to other cars, keeping track of many different things. . . . [U]nder the influence of an intoxicating drug, the ability to keep track of positions of cars and of rate and speed and coordination are all impaired.

Dr. Walterscheid testified that cognitive impairment may occur even when a person is taking a prescribed dose of topiramate.

Furthermore, the State presented evidence that the pill bottle recovered from Appellant’s truck contained only 24 of the 30 prescribed pills. This was circumstantial evidence from which the jury could have inferred that Appellant had taken six pills, rather than the two pills that he claimed to have taken. Lastly, the blood test showed that Appellant had topiramate in his system. In short, there was ample evidence of Appellant’s intoxication, aside from the HGN evidence. Appellant has failed to show that he was prejudiced by his trial counsel’s handling of the HGN evidence.

Topiramate Blood Levels

Appellant also criticizes trial counsel because she did not retain an expert to refute Dr. Walterschied’s testimony (1) that the therapeutic level of topiramate was not limited to 4 to 5 mg/L and (2) that Appellant’s blood level of 13 mg/L exceeded a normal therapeutic level to the point it was an intoxicating level. As she stated in her affidavit, trial counsel decided not to retain an expert to show that there is no set intoxicating level of topiramate; rather, she made the strategic decision to use the State’s expert, Dr. Walterscheid, to make this point.

As set out above, the following exchange occurred between trial counsel and Dr. Walterscheid during cross-examination:

Q. Now, you stated what you would expect for the therapeutic dose would be between 4 and 5, correct?
A. About that, yeah.
Q. And the number that you-all came up with is 13, correct?
A. Right.
Q. And so, at what point between therapeutic and intoxicating levels would you draw the number? Is it 6? Is 6 all of a sudden intoxicating?
A. No, . . . it’s kind of a gray area. It’s more of observations of—
Q. Okay. I’m sorry. I don’t want to cut you off. Observations of?
A. Observations of intoxication correlating with scientific data that we have.
Q. Okay. So, observations of whom?
A. From the police reports and witnesses.
Q. And so, in order for you to then move it to an intoxicating level, you’ve got to rely on what the police officers put in the report, correct?
A. That’s right.
Q. And so, you’ve got to depend on whatever the arresting officers or the observing officers . . . to then come in here and tell the jury whether or not you think it’s therapeutic or intoxicating, correct?
A. Right.

By her cross-examination, trial counsel highlighted that Dr. Walterscheid’s opinion regarding therapeutic blood level versus intoxicating blood level was dependent on the observations of Appellant’s behavior by law enforcement officers and witnesses. It was not based solely on the amount of topiramate found in Appellant’s blood. This acknowledgement by Walterscheid had the potential to undermine his credibility with the jury regarding his earlier testimony, on direct examination, which gave the impression that what constituted a therapeutic level and what constituted an intoxicating level was a fixed amount, based solely on the level of topiramate in a person’s blood. Obtaining this testimony from Walterscheid was arguably more detrimental to the State’s case than obtaining it from a defense witness hired to refute Dr. Walterscheid’s opinion. And it was a more effective means to let the jury know that there is no set intoxicating level for topiramate. Although the State mentioned in its closing argument that Appellant’s topiramate blood level was three times the therapeutic level, defense counsel pointed out in her closing statement that Dr. Walterscheid admitted on cross-examination that there was no clear cut-off between therapeutic and intoxicating topiramate blood levels.

In addition to his concession regarding blood levels, Dr. Walterscheid also acknowledged on cross-examination that some people do not experience any side effects from topiramate. This acknowledgment from Walterscheid served to diminish the importance of his other testimony regarding topiramate blood levels. It also corresponded with Appellant’s claim that his physical and mental faculties were unaffected by topiramate. It supported the defense’s strategy to focus on that claim. In sum, the record does not show that Appellant was prejudiced by counsel’s decision not to retain an expert to address issues relating to topiramate blood level.

Amount of Topiramate Taken by Appellant

Appellant also avers that trial counsel should have retained an expert to assist in countering the State’s assertion that Appellant had taken six topiramate tablets instead of two, as he claimed. Dr. Walterscheid testified that Appellant’s topiramate blood level of 13 mg\L was consistent with having ingested six topiramate tablets, the amount missing from the prescription bottle. Appellant points to Dr. Kosten’s affidavit in which the doctor averred, “[Dr. Walterscheid’s] calculation is likely an over-estimation of the dose taken.” Dr. Kosten explained that Appellant has a “mild renal impairment leading to an increase in blood levels of this medication compared to the amount ingested.” Appellant asserts that trial counsel should have retained expert assistance to show that Appellant’s topiramate blood level did not necessarily correspond to ingesting six pills but could have resulted from a “false” elevation of his topiramate blood level resulting from his mild kidney impairment.

Even if counsel had presented evidence to refute Dr. Walterscheid’s conclusion that his blood level indicated that Appellant had ingested 600 milligrams of topiramate, no evidence was offered to explain why the prescription bottle recovered by Officer Egdorf contained only 24 pills; that is, to show why 600 milligrams of topiramate was missing from the bottle. This alone was evidence that Appellant had taken six topiramate tablets since filling the prescription less than a day before the crash.

Appellant also asserts that trial counsel should have offered evidence to show that, despite the State’s comparison of topiramate to alcohol, topiramate is not a drug that produces a “high” and does not have euphoric effect. Appellant points out that Dr. Kosten testified that “[d]rug abusers do not like taking this medication due to its side effects and lack of pleasant properties.”7 Appellant intimates that this information would have cast doubt on the State’s theory that Appellant had ingested 600 milligrams of topiramate.

With respect to the jury’s determination of guilt, the issue was not whether Appellant had ingested six pills or two pills; and it was not whether Appellant had taken topiramate to get high or whether he had taken it to keep his migraines at bay. Cf. Farmer v. State, No. PD–1620–12, 2013 WL 5538876, at *5 (Tex. Crim. App. Oct. 9, 2013) (stating that driving while intoxicated is a strict liability crime, not requiring a specific mental state). The issue was whether he was intoxicated. Even if counsel had offered expert testimony to cast doubt on the State’s theory that Appellant had taken six pills, the State presented ample evidence, as discussed above, demonstrating that Appellant was intoxicated. Thus, Appellant has failed to show that “‘there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’” See Perez, 310 S.W.3d at 893 (quoting Strickland, 466 U.S. at 695, 104 S. Ct. at 2068–69).

Appellant also asserts that, even if counsel’s failure to retain an expert to cast doubt on the State’s claim that Appellant ingested 600 milligrams of topiramate did not affect the verdict, such failure likely affected the maximum sentence assessed by the jury. Appellant claims that, by suggesting that he intentionally overdosed on topiramate, he was made to appear more culpable than if he had been following his doctor’s instructions with respect to dosage.

After reviewing the record, we disagree that there is a reasonable probability that any deficiency by counsel to retain an expert to refute the State’s claim that Appellant ingested 600 milligrams of topiramate affected Appellant’s sentence. As discussed, the jury heard testimony from numerous eye witnesses that, before the crash, Appellant was driving at a high rate of speed and handling his vehicle in an aggressive and erratic manner. The jury saw the scene video and observed Appellant’s demeanor and seeming lack of concern for the crash victims. The jury also saw the photographs from the autopsies and the crash scene, including photographs of Portillo’s head pinned between the roof and door of his truck.

During the punishment phase, the jury heard from the complainants’ families that they were both good, hard-working family men, who were greatly loved and missed by their wives and children. In contrast, the jury also heard evidence that Appellant had recently tested positive at work for drug use and was admittedly a drug dealer.

Additionally, the jury learned that Appellant not only had a history of speeding and car accidents, he had previously been convicted of reckless driving. In committing that offense, Appellant had been driving 90 miles an hour and zigzagging in between lanes, facts also present in this case. The jury also learned that Appellant had previous convictions for assault, burglary of a motor vehicle, and criminal mischief. Although he apologized to the complainants’ families and admitted to causing the crash, Appellant continued to deny at the punishment phase that he had been intoxicated, despite the jury’s guilty verdicts.

We conclude that Appellant has not shown that he was prejudiced by counsel’s alleged deficiencies; that is, he has not shown that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See Perez, 310 S.W.3d at 893 (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Appellant has failed to meet his burden to show he received ineffective assistance of counsel. The trial court did not abuse its discretion by denying his motion for new trial.

We overrule Appellant’s first issue in each appeal.

Assessment of Court Costs

In his second issue, Appellant asserts that the evidence was not sufficient to support the trial court’s assessment of $444 in court costs in the judgments.

A supplemental clerk’s record has been filed, containing a certified, signed bill of costs listing $444 in court costs. We review the assessment of court costs on appeal to determine if there is a basis for the costs, not to determine whether there was sufficient evidence offered at trial to prove each cost. See Johnson v. State, No. PD–0193–13, 2014 WL 714736, at *2 (Tex. Crim. App. Feb. 26, 2014). Traditional sufficiency-of-the-evidence standards of review do not apply to this review. Id.

Generally, a bill of costs must (1) contain the items of cost, (2) be signed by the officer who charged the cost or the officer who is entitled to receive payment for the cost, and (3) be certified. Id. at *5; see TEX. CRIM. PROC. CODE ANN. arts. 103.001, 103.006 (Vernon 2006). Here, the bill of costs contained in the supplemental clerk’s record identifies each item of cost, is signed by a representative of the district clerk’s office, who is entitled to receive payment of the costs, and is certified. See Johnson, 2014 WL 714736 at *4. There being no challenge to any specific cost assessed, the bill of costs supports the assessment of the court costs in the judgments. See id. at *8.

We overrule Appellant’s second issue in each appeal.

Conclusion

We affirm the judgment of the trial court in each appellate cause.

Laura Carter Higley
Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).

1 See TEX. PENAL CODE ANN. § 49.08 (Vernon 2011).
2 See TEX. PENAL CODE ANN. § 3.03(b) (Vernon Supp. 2013).
3 Appellant submitted an affidavit from Henderson in which he stated that Beck had called him requesting information regarding topiramate to aid in Appellant’s defense. Henderson stated that, after he had gathered some information, he did not receive a call back from Beck.

4 The publication Horizontal Gaze Nystagmus: The Science & The Law–A Resource Guide for Judges, Prosecutors and Law Enforcement is available at http://www.nhtsa.gov/people/injury/enforce/nystagmus/hgntxt.html (last visited June 8, 2014).

5 Id.

6 Id.

7 Appellant also points out that Dr. Kosten stated in his affidavit that ingesting a 600 milligram dose of topiramate would likely make someone nauseous and possibly vomit. Appellant testified that he vomited in a patrol car at the scene when he saw Portillo’s body. Eliciting testimony from an expert that 600 milligrams of topiramate would likely cause nausea had the potential to undermine Appellant’s claim that he became upset when he saw Portillo’s body. Rather than assisting Appellant, such testimony may have served instead to reinforce the State’s claim that Appellant had ingested 600 milligrams of topiramate.

The text of this decision is from the appellate court's website, copied on the date of posting.  I do not warrant the accuracy of the text, as it may have been amended since this posting, or an error may have occurred in formatting.