Jose Isabel Lopez, Jr. v. State ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00115-CR
JOSE ISABEL LOPEZ, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 34503CR
MEMORANDUM OPINION
A jury found Appellant Jose Isabel Lopez, Jr., guilty of felony DWI and assessed
his punishment, enhanced by two prior felony DWIs, at thirty-two years’ confinement.
This appeal ensued. We will affirm.
Sufficiency
We begin with Lopez’s sixth issue, in which he contends that the evidence is
insufficient to establish the element of intoxication beyond a reasonable doubt.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 2712
(2012).
The Court of Criminal Appeals has also explained that our review of “all of the
evidence” includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson, 443 U.S. 307 at 326.
Further, direct and circumstantial evidence are treated equally: “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at
13. Finally, it is well established that the factfinder is entitled to judge the credibility of
witnesses and can choose to believe all, some, or none of the testimony presented by the
parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Lopez v. State Page 2
A person commits the offense of felony DWI if he operates a motor vehicle in a
public place while intoxicated, and has previously been convicted two times of any
other offense relating to the operating of a motor vehicle while intoxicated. See TEX.
PENAL CODE ANN. §§ 49.04(a), 49.09(b) (West Supp. 2012). “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, or a combination of two or
more of those substances, or any other substance into the body.” Id. § 49.01(2)(A) (West
2011).
Sergeant Michael Boyd testified that he has been a certified peace officer since
1994 and has worked with the Ellis County Sheriff’s Department since 2001. He took a
standardized field-sobriety class in 2002 and an update class in 2009. In those classes,
he was trained and certified to conduct the standard field-sobriety tests.
At about 3 a.m. on August 2, 2009, Boyd observed Lopez’s vehicle fail to stop at a
stop sign. Boyd activated his emergency lights to conduct a traffic stop. Lopez did not
stop immediately; rather, he drove on for “maybe a block” but then pulled over in a
driveway. As Boyd approached Lopez’s vehicle on the driver’s side, he could smell
alcohol and noticed alcohol containers in the back seat of the vehicle. As Boyd got to
the driver’s side door, he could also see an open container in the cup holder. Boyd
started to talk to Lopez and noticed that Lopez’s speech was slurred and that his eyes
were glassy. Boyd asked Lopez if he had been drinking, and Lopez replied that he had
been. When Lopez got out of the car to perform the field-sobriety tests, he was
“staggering a little bit.”
Lopez v. State Page 3
Boyd had Lopez first perform the horizontal gaze nystagmus (HGN) field-
sobriety test. Boyd testified, “That’s basically you hold a stimulus 12 to 15 inches
slightly elevated from the face and make several passes. You’re basically looking for
involuntary jerking of the eye.” Involuntary jerking, or nystagmus, is not visible to the
naked eye unless there is alcohol present. Boyd observed nystagmus in Lopez’s eyes.
He was looking for a total of six “clues” in that test, and Lopez had six clues. When
asked what type of clues he was looking for, Boyd replied, “I’m looking for a distinctive
sustained nystagmus at 45 degrees. Basically, you hold the stimulus at a set point and
his eyes will be totally turned, and you’re looking for just a slight jerking.” Boyd also
said, “I was looking for an onset prior to 45 degrees. Basically, as you move the
stimulus, before you get all the way out to 45 degrees, you’re looking for just a little --
little jerk in the eye.”1 Boyd stated that unless he had “some sort of medical reason,
head injury, something like that,” Boyd would not be able to see the jerking if Lopez did
not have alcohol or other substances in his body. Lopez did not indicate to Boyd that he
had a head injury, had been in a car accident, or anything like that.
Boyd then had Lopez perform the walk-and-turn test. Boyd described the walk-
and-turn test as follows: “Basically, they walk heel-to-toe in a single file line nine paces,
take several small steps, take nine paces back, keeping their hands down to their side
looking at their toes and counting out loud.” It is considered a divided-attention test
because the person is dividing his attention between a physical task and a mental task.
1Boyd then explained that there is also vertical nystagmus where “[i]t’s basically move the stimulus up,
and as their eyes go to the top, you’ll notice another little jerk.” Boyd did not look for vertical nystagmus,
however, and it is not part of the standard.
Lopez v. State Page 4
Boyd instructed and demonstrated to Lopez how to do the test. Lopez indicated that he
understood. When asked how Lopez performed on the test, Boyd replied,
He took too many paces, you know, used his hands a little for balance. He
had a hard time following instructions. You know, as I -- there’s an
instruction phase where you -- you have them stand on the line heel-to-toe
and wait for further instructions. He wasn’t able to do that. He kept
stepping off line. Took an improper turn.
Boyd then offered Lopez the one-leg stand test. Boyd described the test as
follows: “Basically, you pick either leg you want, you raise it six inches, you stare at
your toes, count out loud keeping your hands down to your side. The test takes about
30 seconds to perform.” It is also a divided-attention test. Boyd said that Lopez raised
his leg up once, stopped, and then started pleading with Boyd that “he was going to a
residence right there and was unable to finish the test.” Boyd arrested Lopez for
driving while intoxicated. Boyd testified that he felt Lopez was intoxicated because he
did not have the use of his mental and physical faculties.
When asked if Boyd found anything else that was interesting during the stop,
Boyd replied that there were narcotics located in plain view next to the driver’s seat in
Lopez’s vehicle. Boyd said that he was an undercover narcotics officer for
approximately one year, so he is familiar with different kinds of controlled substances.
He believed the substance to be cocaine. Jennifer Rumpee, a forensic scientist with the
Texas Department of Public Safety Crime Laboratory in Garland, later testified that the
drug specimen in fact contained cocaine and weighed 0.44 grams. On cross-
examination, Boyd stated that he did not take fingerprints off the baggy he found with
Lopez v. State Page 5
the drugs in it. He does not know who owned the vehicle that Lopez was driving, and
if it was somebody else’s vehicle, it is possible that it was not Lopez’s drugs.
Boyd stated that after reading Lopez the statutory warnings, Lopez initially
agreed to provide a breath sample. But during the twenty to twenty-five-minute ride to
the county jail, Lopez was very belligerent in the vehicle and was making racial
comments to Boyd and the other deputy in the vehicle. Lopez seemed to get more
aggressive the closer that they got to the jail. Once in the intoxilyzer room, Lopez
refused to provide a breath sample.
The State offered and the trial court admitted into evidence an audio/video
recording of the traffic stop, including Lopez’s ride to the jail.
Lopez argues that the foregoing evidence is insufficient to prove that he did not
have the normal use of his mental or physical faculties because Boyd’s testimony about
the field-sobriety tests was incorrect and incomplete and because his counsel was
ineffective for not correcting it on cross-examination. We will address Lopez’s
ineffective assistance of counsel claims below. But in determining whether the evidence
is sufficient, we must still consider Boyd’s testimony. See Lucio, 351 S.W.3d at 894 (“In
determining whether the evidence is legally sufficient to support a conviction, a
reviewing court must consider all of the evidence . . . .”) (emphasis added).
Here, Boyd testified that he believed that Lopez was intoxicated because he did
not have the use of his mental and physical faculties. The jurors also had the
opportunity to observe Lopez’s demeanor and conduct from the night of the stop
because they were shown an audio/video recording of the traffic stop, including
Lopez v. State Page 6
Lopez’s ride to the jail. By finding Lopez guilty, the jury obviously agreed with Boyd’s
opinion that Lopez did not have the normal use of his mental and physical faculties and
was therefore intoxicated. See Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston
[1st Dist.] 2003, pet. ref’d) (citing Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim.
App. 1981)) (“[T]he jury is the exclusive judge of the facts, the credibility of the
witnesses, and the weight to be given to the witnesses’ testimony.”).
We “should not substantially intrude upon the jury’s role as the sole judge of the
weight and credibility of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex.
Crim. App. 2002); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
Viewing all the evidence in the light most favorable to the verdict, we thus conclude
that the evidence is sufficient to support Lopez’s conviction. We overrule Lopez’s sixth
issue.
Motion for New Trial Hearing
In his first issue, Lopez contends that the trial court violated the 5th, 6th, and
14th Amendments to the United States Constitution and Article I, Sections 10, 13, and 19
of the Texas Constitution by failing to allow a hearing on his motion for new trial.
Lopez also argues that the trial court abused its discretion in denying the hearing
because it denied him the ability to fully argue on appeal the ineffectiveness of his trial
counsel.2
2 The State initially responds that no constitutional violation is presented for review because Lopez
provides no argument or authority regarding any constitutional violation. We agree. To the extent
Lopez contends that the trial court violated the federal and state constitutions by failing to conduct a
hearing on his motion for new trial, the complaint is inadequately briefed and presents nothing for
review. See TEX. R. APP. P. 38.1(h), (i).
Lopez v. State Page 7
We review a trial court’s denial of a hearing on a motion for new trial for an
abuse of discretion; we reverse only if the decision was so clearly wrong as to lie outside
the zone within which reasonable persons might disagree. Smith v. State, 286 S.W.3d
333, 339 (Tex. Crim. App. 2009). The purposes of a hearing on a motion for new trial are
(1) to determine whether the case should be retried and (2) to prepare a record for
presenting issues on appeal if the motion is denied. Id. at 338. A hearing on a motion
for new trial is not an absolute right. Id. A hearing is not required when the matters
raised in the motion for new trial are subject to being determined from the record. Id.
But a trial judge abuses his discretion in failing to hold a hearing on a motion for new
trial when the motion and accompanying affidavits (1) raise matters that are not
determinable from the record and (2) establish reasonable grounds showing that the
defendant could potentially be entitled to relief. Hobbs v. State, 298 S.W.3d 193, 199
(Tex. Crim. App. 2009).
To establish the existence of reasonable grounds showing he could be entitled to
relief, the defendant is required to support his motion for new trial with an affidavit,
either of the defendant or someone else, specifically setting out the factual basis for the
claim. Smith, 286 S.W.3d at 339. The affidavit need not establish a prima facie case, or
even reflect every component legally required to establish relief. Id. It is sufficient if a
fair reading of it gives rise to reasonable grounds in support of the claim. Id. But
affidavits that are conclusory in nature and unsupported by facts do not provide the
requisite notice of the basis for the relief claimed; thus, no hearing is required. Id.
Lopez v. State Page 8
Lopez filed a motion for new trial complaining that his trial counsel provided
ineffective assistance. To prevail on an ineffective assistance of counsel claim, the
familiar Strickland v. Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521,
123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02
(Tex. Crim. App. 2005) (same). Under Strickland, the appellant must prove by a
preponderance of the evidence that (1) counsel’s performance was deficient, and (2) the
defense was prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at 687,
104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. Absent both showings, an appellate court
cannot conclude the conviction resulted from a breakdown in the adversarial process
that renders the result unreliable. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).
To establish deficiency under the first prong of the Strickland test, the appellant
must prove by a preponderance of the evidence that his counsel’s representation
objectively fell below the standard of professional norms. Smith, 286 S.W.3d at 340. To
show prejudice, the appellant must show there is a reasonable probability that, but for
his counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. (citing Strickland, 466 U.S. at 694, 104 S. Ct. 2052). A “reasonable
probability” is a probability sufficient to undermine confidence in the outcome,
meaning counsel’s errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable. Id.
Lopez v. State Page 9
Allowing Cocaine Evidence to Be Admitted Without Objection
In his motion for new trial, one of Lopez’s main complaints was that his counsel
rendered ineffective assistance because she let Lopez’s DWI trial turn into a possession
of cocaine trial. Specifically, Lopez argues that his counsel rendered ineffective
assistance because (1) she did not file a motion to suppress the cocaine found in the car
Lopez was driving; (2) the trial judge told the State and the defense to bring the issue of
the admissibility of the cocaine to his attention before it was offered as evidence, and
Lopez’s counsel did not object when the prosecutor immediately violated the trial
court’s ruling by bringing up the issue of drugs during the State’s opening statement;
(3) later, and again without abiding by the trial court’s instruction, the State offered the
cocaine itself as evidence without objection by Lopez’s counsel; (4) the narcotics officer
testified about the cocaine without objection from Lopez’s counsel; and (5) Lopez’s
counsel brought up the issue of drugs herself after previously arguing that they should
not be admissible.
These complaints raised matters that were not determinable from the record
because the reasonableness of counsel’s choices involves facts that do not appear in the
record. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (“Generally the
record on direct appeal will not be sufficient to show that counsel’s representation was
so deficient as to meet the first part of the Strickland standard. The reasonableness of
counsel’s choices often involves facts that do not appear in the appellate record.”
(footnotes omitted)). The issue then is whether Lopez’s motion and affidavits showed
reasonable grounds that could entitle him to relief. See Hobbs, 298 S.W.3d at 199.
Lopez v. State Page 10
Lopez supported his motion for new trial with four affidavits. The first two were
those of Lopez’s mother, Gloria Lynn, and Lopez’s girlfriend, Yisel Zavala. Both
women averred that Lopez’s counsel told them that she had never handled a case like
Lopez’s before and that “this was her first time.” Lynn added that Lopez’s counsel did
not appear to be effective, and she did not allow Lopez to participate in his own
defense. Zavala also asserted that she had watched the entire jury trial, it did not
appear that Lopez’s counsel was an effective attorney or knew what she was doing, and
Lopez’s counsel never argued anything that Lopez asked her to argue.
The third affidavit was that of Lopez. He averred that many times he asked his
counsel to do things on behalf of his defense that she did not do. His counsel “let the
prosecutor say whatever she wanted during the trial” without objection. Lopez heard
his counsel tell the trial judge that “she did not want evidence of the drugs coming into
the trial,” but she did not object when the drugs were brought up, and she even
mentioned the drugs herself on more than one occasion. Any suggestion he made
regarding his defense was disregarded by his counsel. He believes that his counsel was
ineffective and too inexperienced to handle his case; therefore, he believes that he was
denied a fair trial. His counsel should have told him when he hired her that she had no
experience with his type of case, but she did not. He could not believe that she told the
jury in the opening statement that he would testify when that decision had not been
made. He has read the motion for new trial to which his affidavit is attached, and each
and every statement is true and correct to the best of his knowledge.
Lopez v. State Page 11
The fourth affidavit was that of Monica Bishop, an attorney employed by the law
firm retained to represent Lopez with regard to his motion for new trial and appeal.
Bishop asserted that after having read the trial transcript in Lopez’s case, it is her
opinion that Lopez’s counsel failed to protect his constitutional and statutory rights at
every phase of the trial. Unlike an effective defense attorney, Lopez’s counsel failed in
the pretrial phase to challenge inadmissible evidence that was to be offered by the State.
These failures caused Lopez’s statutory and constitutional rights to be abandoned by
his counsel. Throughout the evidentiary phase of the trial, Lopez’s counsel failed to
protect Lopez’s rights by failing to object a single time. Lopez’s counsel abandoned him
and preserved nothing for appeal by failing to object to inadmissible evidence, illegal
questions by the State, procedural deficiencies by the State, and illegal responses by
witnesses. There can be no strategic reason for a defense attorney not to preserve issues
for appeal; thus, the behavior and lack of behavior by Lopez’s counsel constituted
ineffective assistance. Bishop also averred that she read the motion for new trial to
which her affidavit was attached and that each and every statement is true and correct
to the best of her knowledge.
None of these affidavits provided the trial court with sufficient facts from which
the court could have reasonably concluded that counsel’s performance was deficient
with regard to the cocaine evidence, and then that, but for counsel’s errors, there was a
reasonable likelihood that the outcome of Lopez’s trial would have been different.
Lopez complains in his motion and affidavit that his counsel improperly allowed the
drug evidence to be admitted without objection, but he does not provide any facts in his
Lopez v. State Page 12
own or someone else’s affidavit from which the court might determine that the drug
evidence was in fact inadmissible. Without facts from which the trial court could
reasonably determine that the drug evidence was inadmissible, the trial court could not
reasonably conclude that Lopez’s counsel was potentially deficient and his defense
potentially prejudiced by the admission of the drug evidence without objection.
More specifically, Lopez has not provided any facts to support a determination
that he was stopped without reasonable suspicion or that he was arrested without
probable cause. Instead, as argued in his appellate brief, Lopez contends that the drug
evidence was irrelevant extraneous-offense evidence, impeachment on a collateral
matter, and/or evidence that was more prejudicial than probative. We disagree.
“Relevant evidence” means “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” TEX. R. EVID. 401.
Rule 402 states: “All relevant evidence is admissible, except as otherwise provided . . .
by these rules . . . . Evidence which is not relevant is inadmissible.” TEX. R. EVID. 402.
Rule 404(b) states: “Evidence of other crimes, wrongs or acts is not admissible to prove
the character of a person in order to show action in conformity therewith.” TEX. R. EVID.
404(b).
Lopez argues that, in his felony DWI trial, evidence that he possessed a
controlled substance was irrelevant and extraneous-offense evidence inadmissible
under Rule 404(b) because the evidence was not necessary to prove any material
elements of the offense. But the indictment alleged that Lopez “did then and there
Lopez v. State Page 13
operate a motor vehicle in a public place while intoxicated.” And as stated above,
“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, or a
combination of two or more of those substances, or any other substance into the body.” TEX.
PENAL CODE ANN. § 49.01(2)(A) (emphasis added). Thus, evidence that cocaine was
located in plain view next to the driver’s seat in the vehicle Lopez was driving was
relevant to prove the State’s allegation in the indictment that Lopez was intoxicated. See
Cook v. State, No. 12-05-201-CR, 2006 WL 1633250, at *2 (Tex. App.—Tyler Jun. 14, 2006,
no pet.) (mem. op., not designated for publication). Furthermore, because the
possession of cocaine evidence went to a material element of the State’s case, it was not
an extraneous offense. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993)
(“Circumstances of the offense which tend to prove the allegations of the indictment are
not extraneous offenses.” (citing Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App.
1991))). And the cocaine evidence could not be considered evidence of a collateral
matter that the State was using to impeach a witness.
We thus turn to Lopez’s argument that the drug evidence should have been
inadmissible because it was more prejudicial than probative. Under Rule 403,
otherwise relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, or needless presentation of cumulative
evidence.” TEX. R. EVID. 403.
Lopez v. State Page 14
[A] trial court, when undertaking a Rule 403 analysis, must balance (1) the
inherent probative force of the proffered evidence along with (2) the
proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not
been equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted. Of course,
these factors may well blend together in practice.
Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (quoting
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted)).
Probative force of the evidence: As just explained, evidence that cocaine was located
in plain view next to the driver’s seat in the vehicle Lopez was driving was relevant to
prove the State’s allegation in the indictment that Lopez was intoxicated. See Cook, 2006
WL 1633250, at *2. This factor thus weighs in favor of admissibility.
Proponent’s need for that evidence: As detailed above in the sufficiency discussion,
there was other evidence that Lopez was intoxicated. The cocaine evidence, however,
was the only evidence that the State had that Lopez was under the influence of a
substance besides alcohol. Furthermore, the predominant issue in dispute at trial was
whether Lopez was intoxicated. This factor thus weighs in favor of admissibility.
Tendency of evidence to suggest a decision on an improper basis: Possession of cocaine
is a criminal offense, see TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a)
(West 2010), and people may attach extremely negative associations to the possession of
cocaine. On the other hand, the amount of cocaine in question in this case was very
Lopez v. State Page 15
small, 0.44 grams, and the State presented the jury with an audio/video recording of
the traffic stop to support that Lopez was intoxicated. This factor weighs neutrally.
Jury confusion or distraction, undue weight, and amount of time or repetition: These
factors concern whether presentation of the evidence consumed an inordinate amount
of time or was repetitious, and the evidence’s tendency to confuse or distract the jury or
to cause the jury to place undue weight on its probative value. See Gigliobianco, 210
S.W.3d at 641-42; Newton, 301 S.W.3d at 320. The cocaine evidence was presented in
about thirteen pages of the reporter’s record. It was also mentioned briefly during
opening statements, and there was some discussion of the cocaine evidence during
closing arguments. The cocaine evidence, however, was not repetitious, and we do not
believe that it could cause jury confusion or distraction or cause the jury to give it
undue weight. All of these factors thus favor admission.
Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear
disparity between the degree of prejudice of the offered evidence and its probative
value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear
disparity” between the danger of unfair prejudice posed by the cocaine evidence and its
probative value.
Therefore, as stated above, Lopez’s motion and affidavits did not provide the
trial court with sufficient facts from which the court could have reasonably concluded
that counsel’s performance was deficient with regard to the cocaine evidence and that,
but for counsel’s errors, there was a reasonable likelihood that the outcome of Lopez’s
Lopez v. State Page 16
trial would have been different. Thus, Lopez’s motion and affidavits did not establish
reasonable grounds showing that he could potentially be entitled to relief with regard
to his complaint that his counsel rendered ineffective assistance because she did not
object to the cocaine evidence. Accordingly, the trial judge did not abuse his discretion
in choosing not to hold a hearing on the motion for new trial based on this complaint.
Reminding Jury That Lopez Had Two Previous DWI Convictions
Lopez also complained in his motion for new trial that his counsel rendered
ineffective assistance because she reminded the jury that he had two previous DWI
convictions. Again, the record does not establish the reasonableness of Lopez’s
counsel’s choices to mention the previous DWI convictions as she did; therefore, this
complaint raised matters that were not determinable from the record. The issue once
again then is whether Lopez’s motion and affidavits showed reasonable grounds that
could entitle him to relief.
The only portions of the supporting affidavits that might be considered relevant
to whether Lopez established his entitlement to relief on this specific complaint are
Lynn’s and Zavala’s statements that Lopez’s counsel did not appear to be effective, the
statement in Lopez’s own affidavit that he believes that his counsel was ineffective, and
Bishop’s assertion that after having read the trial transcript in Lopez’s case, she opined
that Lopez’s counsel failed to protect Lopez’s constitutional and statutory rights at
every phase of the trial. But these statements are conclusory in nature and unsupported
by facts; therefore, they do not provide the requisite notice of the basis for the relief
claimed. See Smith, 286 S.W.3d at 339. Furthermore, even if we assume from the
Lopez v. State Page 17
foregoing that counsel’s performance was deficient in mentioning Lopez’s two previous
DWI convictions, Lopez’s motion and affidavits did not provide the trial court with
sufficient facts from which the court could have reasonably concluded that, but for
counsel’s errors, there was a reasonable likelihood that the outcome of Lopez’s trial
would have been different.
The record shows that Lopez stipulated to the two previous DWI convictions;
nevertheless, the State mentioned the previous DWI convictions several times
throughout the trial. At the beginning of Lopez’s trial, the State read the indictment to
the jury, mentioning the two jurisdictional prior DWI convictions. See Tamez v. State, 11
S.W.3d 198, 202 (Tex. Crim. App. 2000). Thus, the jury was informed of the precise
terms of the charge against the accused. See id. The State also briefly mentioned in its
opening statement that the jury would hear evidence that Lopez had been convicted of
a DWI offense twice before. During the State’s case-in-chief, Lopez’s stipulation of
evidence regarding the two prior DWI convictions was then admitted. See Hollen v.
State, 117 S.W.3d 798, 801-02 (Tex. Crim. App. 2003) (holding that stipulation itself is
allowed into evidence to make jury aware of the two previous DWI convictions). The
State also mentioned in its closing argument that it had proven that Lopez has two prior
convictions because Lopez had so stipulated. See id. at 802 (“Since the two prior
offenses were validly mentioned in the indictment and validly introduced into evidence
via the stipulation, . . . the prior convictions were the legitimate subject of voir dire,
opening statements, and closing arguments.”). Moreover, Lopez himself even
mentioned on the audio/video recording that he had previous DWI convictions.
Lopez v. State Page 18
Because the State was allowed to make the jury aware of Lopez’s two previous
DWI convictions and Lopez himself even mentioned the convictions on the recording,
Lopez’s counsel’s mention of the two previous DWI convictions would be considered
harmless even if improperly admitted. See Estrada v. State, 313 S.W.3d 274, 302 n.29
(Tex. Crim. App. 2010); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An
error [if any] in the admission of evidence is cured where the same evidence comes in
elsewhere without objection.”). Thus, Lopez’s motion and affidavits did not establish
reasonable grounds showing that he could potentially be entitled to relief with regard
to the complaint that his counsel rendered ineffective assistance because she reminded
the jury that he had two previous DWI convictions. Accordingly, the trial judge did not
abuse his discretion in choosing not to hold a hearing on the motion for new trial with
regard to the complaint.
Failing to File Any Pretrial Motions
Lopez also complained in his motion for new trial that his counsel rendered
ineffective assistance because she did not file any pretrial motions. The State replied in
its response to Lopez’s motion for new trial that although Lopez’s counsel may not have
filed any pretrial motions in this particular case, she did file pretrial motions in Lopez’s
companion case, and they were heard for both causes.
The clerk’s record before us contains two pretrial motions filed by Lopez’s
counsel—a “Motion in Limine Regarding Opinion Testimony on Chemical Test” and a
“Motion to Sever Offenses.” The clerk’s record also contains orders granting the two
motions. Furthermore, the reporter’s record of the final pretrial hearing does indicate
Lopez v. State Page 19
that several pretrial motions were heard for both causes. The trial court made the
following rulings at the final pretrial hearing: (1) the defense’s request for notice of the
State’s intention to use evidence of extraneous offenses at the trial was denied except to
the extent it was already covered by the court’s standing pretrial order; (2) the defense’s
motion to sever was granted; (3) the defense’s motion for continuance was moot since
the parties had already submitted an agreed motion; (4) the defense’s motion for
discovery was denied except to the extent it was already covered by the court’s
standing pretrial order; (5) the defense’s motion in limine concerning the “field test”
was denied except to the extent it was already covered by the court’s standing pretrial
order; (6) the defense’s motion in limine regarding testimony on the “chemical test” was
granted; and (7) the defense’s motion invoking “the Rule” was granted.3
Nevertheless, the record does not establish the reasonableness of Lopez’s
counsel’s choices not to file other pretrial motions; therefore, once again, this complaint
in the motion for new trial raised matters that were not determinable from the record.
We thus turn once again to the issue of whether Lopez’s motion and affidavits showed
reasonable grounds that could entitle him to relief.
The only portions of the supporting affidavits that might be considered relevant
to whether Lopez established his entitlement to relief on this specific complaint are
Lynn’s and Zavala’s statements that Lopez’s counsel did not appear to be effective, the
statement in his own affidavit that he believes that his counsel was ineffective, and
3 The State clarified in its response to the motion for new trial that “a motion to suppress and a motion in
limine” were related only to Lopez’s companion case.
Lopez v. State Page 20
Bishop’s assertions that she opined that Lopez’s counsel failed to protect Lopez’s
constitutional and statutory rights at every phase of the trial, that unlike an effective
defense attorney, Lopez’s counsel failed in the pretrial phase to challenge inadmissible
evidence that was to be offered by the State, and that these failures caused Lopez’s
statutory and constitutional rights to be abandoned by his counsel. But again, these
statements are conclusory in nature and unsupported by facts; therefore, they do not
provide the requisite notice of the basis for the relief claimed. See Smith, 286 S.W.3d at
339. The only specific pretrial motion that Lopez complained about not being filed was a
motion to suppress the cocaine found in the car he was driving. But, as explained
above, Lopez’s motion and affidavits did not provide any facts from which the court
might determine that the cocaine evidence was in fact inadmissible.
Therefore, considering that the record establishes that the trial court did consider
some pretrial motions in this case, the record shows that the trial court had entered a
lengthy standing pretrial order, and Lopez did not identify any other specific pretrial
motions that he believed should have been filed, we conclude that the trial court could
not have reasonably concluded that Lopez’s defense was potentially prejudiced by
counsel’s failure to file any other pretrial motions. Thus, even if we assume that
counsel’s performance was deficient with regard to the filing of pretrial motions,
Lopez’s motion and affidavits did not provide the trial court with sufficient facts from
which the court could have reasonably concluded that, but for counsel’s errors, there
was a reasonable likelihood that the outcome of Lopez’s trial would have been different.
Lopez’s motion and affidavits thus did not establish reasonable grounds showing that
Lopez v. State Page 21
he could potentially be entitled to relief with regard to his complaint that his counsel
rendered ineffective assistance because she did not file any pretrial motions.
Accordingly, the trial court did not abuse its discretion by not holding a hearing on the
motion for new trial based on the complaint.
Failing to Request 702 Hearing
Lopez also complained in his motion for new trial that his counsel rendered
ineffective assistance because, when Boyd began to testify about the HGN test
administration, his counsel did not ask for a 702 hearing to challenge the science and
the application of the science by the officer. Again, the record does not establish the
reasonableness of Lopez’s counsel’s choice not to ask for a 702 hearing; therefore, once
again, this complaint raised matters that were not determinable from the record. We
thus turn once again to the issue of whether Lopez’s motion and affidavits showed
reasonable grounds that could entitle him to relief.
The only portions of the supporting affidavits that might be considered relevant
to whether Lopez established his entitlement to relief on this specific complaint are
Lynn’s and Zavala’s statements that Lopez’s counsel did not appear to be effective, the
statement in his own affidavit that he believes that his counsel was ineffective, and
Bishop’s assertion that she opined that Lopez’s counsel failed to protect his
constitutional and statutory rights at every phase of the trial. But as stated above, these
statements are conclusory in nature and unsupported by facts; therefore, they do not
provide the requisite notice of the basis for the relief claimed. See Smith, 286 S.W.3d at
339. Furthermore, even if we assume from the foregoing that counsel’s performance
Lopez v. State Page 22
was deficient by not asking for a 702 hearing, Lopez’s motion and affidavits did not
provide the trial court with sufficient facts from which the court could have reasonably
concluded that, but for counsel’s errors, there was a reasonable likelihood that the
outcome of Lopez’s trial would have been different.
Boyd’s testimony did not suggest that Lopez’s HGN test results translated into a
specific blood alcohol content, nor did Boyd’s testimony suggest that the test results
indicated that Lopez no longer had the normal use of his mental or physical faculties.
Rather, Boyd’s testimony limited the implication of the HGN test results to the presence
of alcohol or other substances in his system. And there is overwhelming evidence that
Lopez had alcohol or other substances in his system. Boyd could smell alcohol as he
approached Lopez’s vehicle that night. Boyd found alcohol containers in the back seat
of the vehicle, an open container in the cup holder, and cocaine in plain view next to the
driver’s seat. Boyd also asked Lopez if he had been drinking, and Lopez admitted that
he had. Moreover, as explained in the defense’s opening statement, Lopez was not
refuting at trial that he drank some alcohol that night. Instead, the defense’s argument
was that Lopez was not intoxicated because, despite having had some alcohol to drink,
he still had the normal use of his mental or physical faculties.
For these reasons, Lopez’s motion and affidavits did not establish reasonable
grounds showing that he could potentially be entitled to relief with regard to his
complaint that his counsel was ineffective for not asking for a 702 hearing.
Accordingly, the trial court did not abuse its discretion by not holding a hearing on the
motion for new trial based on this complaint.
Lopez v. State Page 23
Failing to Reference That Officer Did Not Look for Vertical Nystagmus
Lopez also complained in his motion for new trial that his counsel rendered
ineffective assistance because Boyd testified that he did not look for vertical nystagmus,
which is commonly used to determine if illegal drugs are causing the perceived
intoxication, and Lopez’s counsel made no reference to this at any time. Again, the
record does not establish the reasonableness of Lopez’s counsel’s choice not to reference
that Boyd did not look for vertical nystagmus; therefore, once again, this complaint
raised matters that were not determinable from the record. We look again at the issue
of whether Lopez’s motion and affidavits showed reasonable grounds that could entitle
him to relief.
The only portions of the supporting affidavits that might be considered relevant
to whether Lopez established his entitlement to relief on this specific complaint are
Lynn’s and Zavala’s statements that Lopez’s counsel did not appear to be effective, the
statement in his own affidavit that he believes that his counsel was ineffective, and
Bishop’s assertion that she opined that Lopez’s counsel failed to protect his
constitutional and statutory rights at every phase of the trial. But again, these
statements are conclusory in nature and unsupported by facts; therefore, they do not
provide the requisite notice of the basis for the relief claimed. Furthermore, even if we
assume from the foregoing that counsel’s performance was deficient by failing to
reference that Boyd did not look for vertical nystagmus, Lopez’s motion and affidavits
did not provide the trial court with sufficient facts from which the court could have
reasonably concluded that, if Lopez’s counsel had made references to the fact that Boyd
Lopez v. State Page 24
did not look for vertical nystagmus, there was a reasonable likelihood that the outcome
of Lopez’s trial would have been different.
Boyd did not testify that vertical nystagmus is commonly used to determine if
illegal drugs are causing the perceived intoxication. Nor did Boyd testify that he chose
not to look for vertical nystagmus in Lopez’s eyes because he did not believe Lopez had
used illegal drugs. Rather, the extent of Boyd’s testimony about vertical nystagmus was
simply that “[i]t’s basically move the stimulus up, and as their eyes go to the top, you’ll
notice another little jerk,” that a vertical nystagmus test is not part of the standard field-
sobriety tests, and that Boyd did not look for vertical nystagmus in Lopez’s eyes.
Thus, Lopez’s motion and affidavits did not establish reasonable grounds
showing that he could potentially be entitled to relief with regard to his complaint that
his counsel was ineffective for failing to reference that Boyd did not look for vertical
nystagmus. Accordingly, the trial court did not abuse its discretion by not holding a
hearing on the motion for new trial based on this complaint.
Failing to Challenge Field Sobriety Tests
Lopez also complained in his motion for new trial that his counsel rendered
ineffective assistance because, in her cross-examination of Boyd, she did not challenge
any of the field-sobriety tests or the manner in which they were administered. Again,
the record does not establish the reasonableness of Lopez’s counsel’s choice; therefore,
once again, this complaint raised matters that were not determinable from the record.
The issue once again then is whether Lopez’s motion and affidavits showed reasonable
grounds that could entitle him to relief.
Lopez v. State Page 25
The only portions of the supporting affidavits that might be considered relevant
to whether Lopez established his entitlement to relief on this specific complaint are
Lynn’s and Zavala’s statements that Lopez’s counsel did not appear to be effective, the
statement in his own affidavit that he believes that his counsel was ineffective, and
Bishop’s assertion that she opined that Lopez’s counsel failed to protect his
constitutional and statutory rights at every phase of the trial. But again, these
statements are conclusory in nature and unsupported by facts; therefore, they do not
provide the requisite notice of the basis for the relief claimed. See Smith, 286 S.W.3d at
339. Furthermore, even if we assume from the foregoing that counsel’s performance
was deficient by failing to properly cross-examine Boyd regarding the field-sobriety
tests, Lopez’s motion and affidavits did not provide the trial court with sufficient facts
from which the court could have reasonably concluded that, but for counsel’s errors,
there was a reasonable likelihood that the outcome of Lopez’s trial would have been
different.
We already discussed above the limited impact of Boyd’s testimony about the
HGN test. Boyd’s testimony limited the implication of the HGN test results to the
presence of alcohol or other substances in Lopez’s system, and there is overwhelming
evidence that Lopez had alcohol or other substances in his system. Moreover, the
defense’s main argument was not that Lopez had had nothing to drink that night but
that Lopez was not intoxicated because, despite having had some alcohol to drink, he
still had the normal use of his mental or physical faculties. Additionally, the impact of
Boyd’s testimony about all of the field-sobriety tests was limited because the jurors
Lopez v. State Page 26
were shown the audio/video recording of the traffic stop. The recording allowed the
jurors to see Lopez’s behavior and decide for themselves whether he had the normal
use of his mental and/or physical faculties that night.
Thus, Lopez’s motion and affidavits did not establish reasonable grounds
showing that he could potentially be entitled to relief with regard to his complaint that
his counsel was ineffective for failing to properly cross-examine Boyd regarding the
field-sobriety tests. Accordingly, the trial court did not abuse its discretion by not
holding a hearing on the motion for new trial based on this complaint.
Telling Jury Lopez Would Testify But Then Putting on No Evidence
Lopez also complained in his motion for new trial that his counsel rendered
ineffective assistance because she told the jury in the defense’s opening statement that
Lopez would testify but then rested without putting on any evidence. Lopez stated in
his affidavit in support of this complaint that he could not believe that his counsel told
the jury in the opening statement that he would testify when that decision had not been
made. The State submitted with its response to Lopez’s motion for new trial an
affidavit of Lopez’s trial counsel responding to this specific complaint. Lopez’s trial
counsel asserted:
The defendant was going to testify, that is why I mentioned he
would in my opening statement. After the police officer testified I looked
at the defendant, thinking at that point he should not testify because the
police officer did not do a good job showing that the defendant was
intoxicated; I then asked the defendant if he still wanted to testify, he
immediately and without hesitation said “no, I feel really good about how
things are going right now”. [sic] I said, “good, that is exactly what I was
thinking”. [sic] My thinking also was that we had an advantage because
Lopez v. State Page 27
we got to say what the defendant would have said in opening anyway
and he did testify in the sentencing phase.
A trial court has discretion to decide a motion for new trial based on affidavits
alone, particularly where the affiants have already appeared in the trial court and “the
trial judge ha[s] already had an opportunity to evaluate the affiants” and is “familiar
with the history and the facts of the case.” See Holden v. State, 201 S.W.3d 761, 764 (Tex.
Crim. App. 2006). Here, the trial judge who denied the motion for new trial conducted
the trial, so he had already had an opportunity to evaluate the affiants, Lopez and his
trial counsel, and he was familiar with the history and the facts of the case. The trial
court therefore did not abuse its discretion by deciding the motion for new trial on the
affidavits even though Lopez requested a hearing.
Furthermore, unlike with Lopez’s other complaints in his motion for new trial,
the record with regard to this complaint does reveal counsel’s strategy and reasoning
because the record includes counsel’s affidavit responding to the complaint. The trial
court is the sole factfinder and judge of appellant’s and his counsel’s credibility in
deciding the motion for new trial. Riley v. State, 378 S.W.3d 453, 459 (Tex. Crim. App.
2012). Thus, the trial court did not have to accept Lopez’s claim that he had not decided
whether to testify when his counsel told the jury during the defense’s opening
statement that he would testify. Rather, the trial court was free to accept counsel’s
explanation and therefore conclude that her representation of Lopez was not deficient
based on this complaint and that she did not render ineffective assistance with regard to
this complaint. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Smith, 286 S.W.3d at 340.
Lopez v. State Page 28
Based on the foregoing, we conclude that the trial court did not abuse its
discretion by not holding a hearing on the motion for new trial based on Lopez’s
complaint that his counsel rendered ineffective assistance because she told the jury in
the defense’s opening statement that Lopez would testify but then rested without
putting on any evidence. The complaint was determinable from the record. See Hobbs,
298 S.W.3d at 199.
Failing to Object to Leading Questions
Lopez also complained in his motion for new trial that his counsel rendered
ineffective assistance because Lopez’s counsel did not object to any of the forty-one
leading questions during the trial. The record does not establish the reasonableness of
Lopez’s counsel’s choice; therefore, this complaint raised matters that were not
determinable from the record. The issue then is whether Lopez’s motion and affidavits
showed reasonable grounds that could entitle him to relief.
The portions of the supporting affidavits that might be considered relevant to
whether Lopez established his entitlement to relief on this specific complaint are Lynn’s
and Zavala’s statements that Lopez’s counsel did not appear to be effective, the
statements in his own affidavit that he believes that his counsel was ineffective and that
his counsel “let the prosecutor say whatever she wanted during the trial” without
objection, and Bishop’s assertions that she opined that Lopez’s counsel failed to protect
his constitutional and statutory rights at every phase of the trial, that throughout the
evidentiary phase of the trial, Lopez’s counsel failed to protect his rights by failing to
object a single time, that Lopez’s counsel abandoned him and preserved nothing for
Lopez v. State Page 29
appeal by failing to object to “illegal” questions by the State, and that there can be no
strategic reason for a defense attorney not to preserve issues for appeal; thus, the
behavior and lack of behavior by Lopez’s counsel constituted ineffective assistance. As
stated above, many of these statements are conclusory in nature and unsupported by
facts; therefore, they do not provide the requisite notice of the basis for the relief
claimed. See Smith, 286 S.W.3d at 339. Moreover, none of the affidavits provided the
trial court with sufficient facts from which the court could have reasonably concluded
that counsel’s performance was deficient because she did not object to forty-one leading
questions during trial, and then that, but for counsel’s errors, there was a reasonable
likelihood that the outcome of Lopez’s trial would have been different.
Leading questions are questions that suggest the desired answer, instruct the
witness how to answer, or put words into the witness’s mouth to be echoed back. Tinlin
v. State, 983 S.W.2d 65, 70 (Tex. App.—Fort Worth 1998, pet. ref’d). Rule of Evidence
611(c) prohibits leading questions on direct examination “except as may be necessary to
develop the testimony of the witness.” TEX. R. EVID. 611(c). The rule thus contemplates
that some leading questions are acceptable at the trial court’s discretion. Wyatt v. State,
23 S.W.3d 18, 28 (Tex. Crim. App. 2000). To establish that a trial court abused its
discretion, an appellant must show the question resulted in undue prejudice. Id.
Lopez complains in his motion and affidavits that his counsel did not object to
forty-one leading questions during trial, but he does not specifically identify any of the
questions. Thus, the trial court could not reasonably conclude that Lopez’s counsel was
potentially deficient by not objecting to the questions. Further, Lopez complains in his
Lopez v. State Page 30
motion and affidavits that he is harmed because the failure to object to the questions
means that his issues are not preserved for appeal. But without facts from which the
trial court could reasonably determine that the objections would have been valid and
that Lopez was unduly prejudiced by virtue of the questions, the trial court could not
reasonably conclude that Lopez’s defense was potentially prejudiced by the leading
questions.
Thus, Lopez’s motion and affidavits did not establish reasonable grounds
showing that he could potentially be entitled to relief with regard to his complaint that
his counsel rendered ineffective assistance because she did not object to any of the forty-
one leading questions during the trial. Accordingly, the trial judge did not abuse his
discretion in choosing not to hold a hearing on the motion for new trial based on this
complaint.
Having concluded that the trial judge did not abuse his discretion in choosing
not to hold a hearing on Lopez’s motion for new trial based on any of his complaints,
we overrule Lopez’s first issue.
Evidentiary Issues
In his second issue, Lopez contends that the trial court erred by admitting
irrelevant evidence of his unadjudicated extraneous offense of possession of a
controlled substance and by allowing the jury to receive evidence detrimental to Lopez
that was not admitted during the trial. In his third issue, Lopez contends that the trial
court erred by admitting evidence of his unadjudicated extraneous offense of
possession of a controlled substance because the prejudicial effect of the evidence
Lopez v. State Page 31
outweighed any possible probative value and because admitting the evidence
constituted improper impeachment of Lopez.
We begin with Lopez’s complaints about the admission of evidence related to
possession of a controlled substance. To preserve a complaint for appellate review, a
party must present a timely request, objection, or motion stating the specific grounds
for the ruling desired. TEX. R. APP. P. 33.1(a). As discussed above, the State presented
evidence in this case that cocaine was located in plain view next to the driver’s seat in
the vehicle Lopez was driving. But Lopez made no objection when the evidence about
the cocaine was admitted; therefore, Lopez did not preserve for review his complaints
about the admission of the evidence related to possession of a controlled substance. See
id. Furthermore, we explained above why, even if Lopez had preserved his complaints
for review, the trial court did not err in admitting the evidence related to possession of a
controlled substance. We overrule the first portion of Lopez’s second issue and his
third issue.
We thus turn to Lopez’s complaint that the trial court erred by allowing the jury
to receive evidence detrimental to him that was not admitted during the trial. The State
offered into evidence an audio/video recording of the traffic stop. The recording was
admitted without objection. The State then moved to publish the recording to the jury,
which the trial court granted. At that time, the prosecutor noted that she and defense
counsel had previously agreed to mute certain portions of the video, from 3:09:51 to 55
and 3:11:27 to 31. The State then began to play the recording for the jury but had to stop
it because of technical issues with the audio portion of the recording. Later, the
Lopez v. State Page 32
prosecutor announced that the technical issues had been worked out and, instead of
playing the entire recording, played the recording beginning at 3:13:07. Following
closing arguments, the jury was then sent to deliberate along with “all the evidence
that’s been admitted in this case.”
Lopez argues that the trial court erred because it made no instruction to any
court staff to redact or mute the inadmissible portions of the audio/video recording
during the jury’s intra-deliberation viewing. But again, to preserve a complaint for
appellate review, a party must present a timely request, objection, or motion stating the
specific grounds for the ruling desired. TEX. R. APP. P. 33.1(a). Here, Lopez did not
make an objection when the jury was sent to deliberate with the audio/video recording
nor did Lopez request that the trial court make an instruction to its court staff to redact
or mute certain portions of the audio/video recording. Therefore, Lopez did not
preserve his complaint for review. See id. We thus overrule the remaining portion of
Lopez’s second issue.
Improper Admonishment
In his fourth issue, Lopez contends that both the trial court and trial counsel
violated the 5th, 6th, and 14th Amendments to the United States Constitution and
Article 1, Sections 10, 13, and 19 of the Texas Constitution in not fully advising him of
the range of punishment in his case.
As a pretrial matter, Lopez’s counsel stated to the trial court that she would like
to get on the record that Lopez rejected the plea offer. The trial judge then stated that
he wanted to be clear that Lopez understood that in exchange for a plea of guilty to the
Lopez v. State Page 33
felony DWI, supported by a judicial confession and his statement that each and every
allegation in the indictment was true and correct, the State was offering a sentence of
ten years’ imprisonment and dismissal of the enhancement paragraphs. The State
added that the plea bargain would also include Lopez’s plea of guilty to the pending
possession of controlled substance case. The trial judge then clarified that the plea of
guilty would be in exchange for ten years’ imprisonment and that both ten-year
sentences would run concurrently. The State agreed. The following exchange then
occurred:
THE COURT: Sir, did you understand what the proposed plea
bargain agreement is?
THE DEFENDANT: Yes, sir.
THE COURT: And did you discuss that with your attorney,
[Defense Counsel]?
THE DEFENDANT: Yes.
THE COURT: You understand that by signing this rejection of plea
agreement that you are telling the trial court, you’re telling your attorney,
you’re telling the State that you are, in fact, rejecting that plea bargain
offer?
THE DEFENDANT: Yes.
THE COURT: And you wish to go to this jury?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Understanding that the range of punishment in this
case, if you were convicted, the range of punishment is up to 99 years or
life in prison?
THE DEFENDANT: Yes, sir.
Lopez v. State Page 34
[Prosecutor]: Judge, and also for the purpose of the record, I want
to make sure that he understands that because the cases are now severed
that there’s a possibility in the Court’s discretion that the sentences, if he’s
convicted of this DWI and then later convicted of the possession of
controlled substance, that those sentences can run consecutive to each
other as opposed to concurrent because of the severance. I just want to
make sure he understands that.
THE DEFENDANT: Yes.
THE COURT: That’s correct. You understand that I have the
discretion, if in the event you would plead guilty in the other case and
were to be found guilty by a jury, that any sentence that you receive in
that case I could stack on top of it.
THE DEFENDANT: Yes.
THE COURT: And run consecutive with it?
THE DEFENDANT: Yes, sir.
Under article 26.13 of the Code of Criminal Procedure, the trial court must
admonish a defendant of the applicable range of punishment before accepting a guilty
plea. TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (West Supp. 2012). Lopez argues that it
seems that the same standard should apply to the rejection of a plea bargain offer and
request for a jury trial and that the record does not show that he was informed of the
minimum end of the applicable punishment range. But Lopez does not point to any
authority, nor have we found any, that supports his proposition of requiring the trial
court to admonish a defendant of the applicable range of punishment before he or she
rejects a plea bargain offer and enters a not guilty plea. Furthermore, the record does
not support Lopez’s apparent contention that his trial counsel never discussed the
Lopez v. State Page 35
minimum end of the applicable punishment range with him.4 The record only
establishes that he discussed the plea bargain offer with his counsel, that he was
rejecting the plea bargain offer and wanted to go to a jury, and that he understood that
the upper end of the applicable punishment range was ninety-nine years or life in
prison. We thus overrule Lopez’s fourth issue.
Prosecutorial Misconduct
In his fifth issue, Lopez contends that the prosecutor engaged in prosecutorial
misconduct by taking advantage of the ineffectiveness of his defense counsel. Lopez
asserts that the prosecutor offered legally inadmissible testimony, made improper jury
arguments during closing, and offered prejudicial exhibits into evidence, which
rendered his trial a “mockery” and deprived him of his right to due process.
Generally, a defendant is required to preserve a prosecutorial misconduct
complaint by (1) making a timely and specific objection (2) requesting an instruction to
disregard the matter improperly placed before the jury; and (3) moving for mistrial.
Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); see TEX. R. APP. P. 33.1(a);
Stahl v. State, 749 S.W.2d 826, 831 (Tex. Crim. App. 1988) (noting that, in cases in which
the Court of Criminal Appeals reversed for prosecutorial misconduct, defendant had
objected to prosecutor’s conduct). Lopez acknowledges that his counsel did not object
or preserve error when the prosecutor engaged in an alleged “objectionable tactic.”
Citing Rogers v. State, 725 S.W.2d 350 (Tex. App.—Houston [1st Dist.] 1987, no pet.),
4Whether Lopez’s trial counsel discussed the applicable range of punishment with him was not an issue
brought up in his motion for new trial.
Lopez v. State Page 36
Lopez argues that the prosecutor’s misconduct nevertheless interfered with the trial
process to such a degree that reversal is warranted.
In Rogers, our sister court reversed the trial court’s judgment of conviction even
though the appellant had failed to properly preserve many errors resulting from the
prosecutor’s misconduct. Id. at 360-61. The court explained:
Where there is serious and continuing prosecutorial misconduct that undermines
the reliability of the factfinding process or, even worse, transforms the trial into a
farce and mockery of justice, as occurred here, resulting in deprivation of
fundamental fairness and due process of law, the defendant is entitled to a new
trial even though few objections have been perfected. See Berger v. United
States, 295 U.S. 78, 84, 88, 55 S. Ct. 629, 631, 633, 79 L. Ed. 1314 (1935); Ruth
v. State, 522 S.W.2d 517 (Tex. Crim. App. 1975); Kerns v. State, 550 S.W.2d
91 (Tex. Crim. App. 1977). Reversal is justified to reaffirm the critical
importance of convicting the accused only upon the evidence presented,
without attempting to inflame or prejudice the minds of the jurors. Boyde
[v. State], 513 S.W.2d [588,] 591, 593 [(Tex. Crim. App. 1974)]; Stein v. State,
491 S.W.2d 548, 551 (Tex. Crim. App. 1973).
Rogers, 725 S.W.2d at 359-60.
Unlike in Rogers, however, when we consider Lopez’s allegations of
prosecutorial misconduct in light of the record in this case as a whole, we cannot
conclude that the record supports a finding that the prosecutor was acting in bad faith.
See id. at 360. Thus, Rogers is distinguishable, and Lopez was required to properly
preserve his prosecutorial misconduct complaint, which he did not. See TEX. R. APP. P.
33.1(a); Penry, 903 S.W.2d at 764. We overrule Lopez’s fifth issue.
Ineffective Assistance
In his seventh through tenth issues, Lopez contends that he received ineffective
assistance of counsel at trial. We will address each claim in turn.
Lopez v. State Page 37
In his seventh issue, Lopez argues that his trial counsel was ineffective in not
challenging the admissibility of the HGN test either in a Rule 705 hearing before trial or
through cross-examination during trial in violation of the 5th, 6th, and 14th
Amendments to the United States Constitution and Article 1, Sections 10, 13, and 19 of
the Texas Constitution. But even assuming that counsel’s performance was deficient,
Lopez has not shown that his defense was prejudiced by counsel’s performance with
regard to the HGN test. We have already discussed the limited impact of Boyd’s
testimony about the HGN test. Boyd’s testimony limited the implication of the HGN
test results to the presence of alcohol or other substances in Lopez’s system, and there is
overwhelming evidence that Lopez had alcohol or other substances in his system.
Moreover, the defense’s main argument was not that Lopez had had nothing to drink
that night but that Lopez was not intoxicated because, despite having had some alcohol
to drink, he still had the normal use of his mental or physical faculties. Because Lopez
has not established by a preponderance of the evidence that his defense was prejudiced
by counsel’s performance in not challenging the admissibility of the HGN test either in
a Rule 705 hearing prior to trial or through cross-examination during trial, we cannot
conclude under the facts and circumstances of this case that counsel’s performance rose
to the level of ineffective assistance based on Lopez’s complaint on this issue. We
overrule Lopez’s seventh issue.
In his eighth issue, Lopez argues that his counsel was ineffective in allowing, by
not objecting to, inadmissible evidence to be taken with the jury for viewing during
deliberations in violation of the 5th, 6th, and 14th Amendments of the United States
Lopez v. State Page 38
Constitution and Article 1, Sections 10, 13, and 19 of the Texas Constitution. This
“inadmissible evidence” of which Lopez complains concerns, as discussed above, the
portions of the recording of the traffic stop that the prosecutor and defense counsel
apparently agreed to mute. But even assuming that counsel’s performance was
deficient, Lopez has not shown that his defense was prejudiced by counsel’s
performance in allowing the entire recording of the traffic stop to be taken with the jury
during deliberations.
As explained in Lopez’s brief, the first portion of the recording that the
prosecutor and defense counsel agreed to mute was a statement by Lopez’s female
family member that she knew the officers were going to have to take him because he
had been drinking. But there is overwhelming evidence that Lopez had alcohol or other
substances in his system, and the defense’s main argument was not that Lopez had had
nothing to drink that night but that Lopez was not intoxicated because, despite having
had some alcohol to drink, he still had the normal use of his mental or physical
faculties. The second portion of the recording that the prosecutor and defense counsel
agreed to mute was a statement by one of the officers that Lopez was probably
“speeding pretty good.” But when the prosecutor asked Boyd if Lopez was “flying
through” the stop sign, Boyd stated that Lopez was not and that he was just going a
“steady speed.” Thus, Lopez has not established by a preponderance of the evidence
that his defense was prejudiced by counsel’s performance in allowing the entire
recording of the traffic stop to be taken with the jury during deliberation; therefore, we
cannot conclude under the facts and circumstances of this case that counsel’s
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performance rose to the level of ineffective assistance based on Lopez’s complaint in
this issue. We overrule Lopez’s eighth issue.
In his ninth issue, Lopez argues that his trial counsel was ineffective in failing to
request a limiting instruction to be included in the charge to the jury regarding the
alleged extraneous bad acts, which violated the 5th, 6th, and 14th Amendments to the
United States Constitution, Article 1, Sections 10, 13, and 19 of the Texas Constitution,
and Texas Code of Criminal Procedure 1.05. The “alleged extraneous bad acts” of
which Lopez complains again concern the evidence that he possessed cocaine. We
concluded above, however, that because the possession of cocaine evidence went to a
material element of the State’s case, it was not an extraneous offense. Camacho, 864
S.W.2d at 532. Furthermore, we explained above why the trial court did not err in
admitting the evidence related to possession of a controlled substance. Because Lopez
has not established by a preponderance of the evidence that counsel’s performance was
deficient by failing to request a limiting instruction, we cannot conclude under the facts
and circumstances of this case that counsel’s performance rose to the level of ineffective
assistance based on Lopez’s complaint in this issue. We overrule Lopez’s ninth issue.
Lopez states in his tenth issue that his trial counsel was ineffective in not
objecting to the admission of evidence of possession of cocaine, in not requesting a
limiting instruction at the time the evidence was admitted, in not requesting a limiting
instruction in the jury charge and not requesting any burden-of-proof instruction in the
jury charge concerning the extraneous offense in violation of the 5th, 6th, and 14th
Amendments to the United States Constitution and Article 1, Sections 10, 13, and 19 of
Lopez v. State Page 40
the Texas Constitution. Within the substance of the issue, Lopez also states that his
counsel
provided ineffective assistance of counsel by (1) failing to file an
evidentiary Motion to Suppress to keep out testimony related to an
unadjudicated allegation of possession [of] cocaine; (2) failing to file a 702
motion and request a hearing to challenge the training and qualifications
of the state’s expert prior to testimony before the jury; (3) failing to object
at trial to the use of extraneous unadjudicated bad acts; (4) failing to seek
limited use of the bad act evidence; (5) failing to object to unresponsive
answers given by state witnesses; (6) failing to familiarize herself with the
protocol of the Standard Field Sobriety Tests and failing to cross examine
the arresting officer as to the administration of those tests; (7) failing to
object to a multitude of leading questions asked by the State’s attorney; (8)
telling the jury during opening remarks that defendant was going to
testify when that was Appellant’s decision and the decision had not been
firmly made by Appellant.
In response to Lopez’s previous issues, we have already discussed these claims
and explained why, considering the totality of counsel’s representation, we conclude
that Lopez has not proven by a preponderance of the evidence that (1) his counsel’s
performance was deficient, and/or (2) his defense was prejudiced by counsel’s deficient
performance.5 We therefore overrule Lopez’s tenth issue.
Cumulative Effect of Error
In his eleventh issue, Lopez argues that the cumulative impact of the above
errors was so great that the 5th, 6th, and 14th Amendments to the United States
Constitution and Article 1, Sections 10, 13, and 19 of the Texas Constitution were
violated and reversal is required. We disagree. The Court of Criminal Appeals has
5 Unlike in Lopez’s motion for new trial and accompanying affidavits, Lopez does provide on appeal a
list of the questions that he contends that his trial counsel should have objected to during trial as leading.
But Lopez still provides no explanation of how he was unduly prejudiced by virtue of the questions and
therefore how his defense was prejudiced by counsel’s failure to object to them.
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stated, “It is conceivable that a number of errors may be found harmful in their
cumulative effect.” Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).
But the Chamberlain court continued that non-errors may not in their cumulative effect
cause error. Id. Because we have not concluded that the trial court erred in this case,
we overrule Lopez’s eleventh issue.
Conclusion
Having overruled all of Lopez’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 28, 2013
Do not publish
[CRPM]
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