Lacey Lauren Young v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00452-CR
__________________
LACEY LAUREN YOUNG, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 18-331233
__________________________________________________________________
MEMORANDUM OPINION
Appealing a conviction on a Class B offense of DWI, Lacey Lauren Young,
in the first two of three issues, argues her attorney provided her with ineffective
assistance of counsel at trial. In Young’s third issue, she contends the evidence in
1
her trial is insufficient to support the jury’s verdict finding her guilty of committing
the DWI. Because Young’s issues lack merit, we affirm. 1
Background
One evening in April 2018, John Blue, a deputy employed by the Montgomery
County Sheriff’s Office, noticed a car in front of him turn without first signaling the
turn. Deputy Blue stopped the car. He determined that Young was driving.
According to Deputy Blue, upon encountering Young, he noticed that she had “red,
glassy eyes and slurred speech.” She also had a strong odor of alcohol coming from
her car. Deputy Blue testified that, when he spoke to Young, she volunteered “she’d
definitely had too much to drink.”
Sergeant Steven Terrell went to the scene to assist Deputy Blue with the
investigation of the stop. After he got to the scene, Sergeant Terrell took over the
investigation. He asked Young to perform several tests on the scene, including those
police use when giving others a standardized field sobriety test. According to
Sergeant Terrell, Young’s eyes were red and glassy. He also smelled alcohol “on her
person.” When Terrell gave Young the HGN test, he found that she had six of six
possible clues that police officers look for to decide whether someone is intoxicated.
He also explained the standardized field sobriety test is designed to assist police
1
Tex. Penal Code Ann. § 49.04(a), (b).
2
officers in evaluating whether someone is exhibiting any signs of intoxication.
During the tests, Young told Sergeant Terrell that she drank four drinks at a bar.
When Terrell told Young he felt she was too drunk to drive, she agreed. After Young
completed her field sobriety testing, he arrested her based on his suspicion that she
had committed a DWI.
After arresting Young, Terrell placed her in his patrol car and gave her the
opportunity to hear an audio version of the DIC-24 mandatory warning, 2 a warning
that he played on a computer after placing Young in his car. Sergeant Terrell also
signed a form titled “STATUTORY WARNING,” but Young did not sign the form.
Terrell testified that he requested Young to provide him a specimen, but she refused.
After that, he took her to jail.
In May 2018, the State charged Young in an information with DWI. 3 That
October, the parties tried the case to a jury. Three witnesses testified in the trial:
Deputy Blue, Sergeant Terrell, and Young. Several exhibits were admitted into
evidence during Young’s trial, including the statutory warning form that Sergeant
Terrell signed, a video recording of Young’s stop, which depicts Young taking her
2
No doubt Terrell’s testimony refers to the DIC-24 Mandated Statutory
Warning, the required statutory warning law enforcement officers must give
suspects arrested for DWI. See Tex. Transp. Code Ann. § 724.015.
3
See Tex. Penal Code Ann. § 49.01(2)(A).
3
field sobriety tests, and a photograph, taken more than a year before Deputy Blue
stopped Young. The photo shows Young drinking at a party with several friends.
According to Sergeant Terrell, he had been working as a police officer for
around eleven years before April 2018, when he arrested Young. Terrell described
his training as it relates to field sobriety testing, explaining that he is trained and has
a certification demonstrating he is qualified to conduct a field sobriety test. Terrell
also explained he has had training that is designed to help police officers understand
the effects intoxicating substances may have on a person’s ability to drive. Terrell
described the steps involved in administering the standardized field sobriety test.
Based on the result of the investigation he conducted in Young’s case, Terrell formed
the opinion that Young was intoxicated and based on that, he arrested her for DWI.
Young’s attorney cross-examined Sergeant Terrell about whether he ever
gave Young the mandatory DIC-24 warning during the stop. Sergeant Terrell
explained he gave Young the warning by playing the audio version of the warning
for her on the computer in his patrol car. He also testified that he gave Young a
written copy of the form which includes the warning. The trial court admitted a copy
of a form Terrell signed into evidence during Young’s trial. Young’s attorney also
asked Terrell whether he listened as the DIC-24 warning video was being played on
his computer. Terrell agreed he did not stay in his patrol car after starting the
4
recording; but he also testified he could hear the recording from where he was
standing outside his car. When Young’s attorney asked Terrell whether Young heard
the recording when it was played, Terrell responded: “She did.” Young’s attorney
also asked Terrell why Young never signed the written form. Terrell explained that,
while he customarily asks those he investigates for DWI to sign the form, he could
no longer remember whether he had asked Young to do so during a stop that occurred
in April 2018.
Young testified in her defense. According to Young, when Deputy Blue
stopped her car, she was only “slightly impaired” and not “too intoxicated to drive.”
Young also agreed she told Deputy Blue she had been drinking when he stopped her,
explaining she decided to tell the police what they wanted to hear since she thought
they had seen her driving her car out of the parking lot of a nearby bar. Young denied
she was intoxicated when she left the bar, explaining she has a high tolerance for
alcohol. When Deputy Blue stopped her, however, she acknowledged she had
“alcohol in [her] system.” But she testified, she didn’t think that she was unsafe to
be driving the evening she drove away from the bar.
Young also discussed whether the police gave her an oral or written statutory
warning during the stop. Young’s attorney asked the trial court to exclude from the
evidence in the trial that Young had refused Sergeant Terrell’s request, suggesting
5
that he never told her that her license would be suspended should she refuse his
request and provide him with a specimen that he could have tested to determine
whether she was intoxicated while driving on the night of her arrest. 4 While Young
denied that she ever heard Sergeant Terrell tell her that she could lose her license,
she did acknowledge she was in Sergeant Terrell’s car when he started the recording
on his computer. And Young agreed that she had refused Sergeant Terrell’s request
that night that she provide him with a specimen. According to Young, she tried to
cooperate that night, even though she was upset that she had been stopped and
worried “about [her] kids[,]” who were at home.
The photograph of Young drinking with friends at a party came into evidence
when the prosecutor’s cross-examined Young. At trial, the prosecutor explained the
State obtained Young’s photo that he wanted to introduce from Young’s social
media account. The photo shows Young drinking with friends. Young posted the
photo on the internet more than a year before the police stopped her and charged her
with DWI. Shortly before asking the court to admit the photo, Young testified she
did not go to parties.
In the questions submitted to the jury in the charge, the jury was asked to
decide whether Young was intoxicated based on “not hav[ing] the normal use of
4
See Tex. Transp. Code Ann. § 724.031-.032.
6
mental or physical faculties by reason of the introduction of alcohol…into the
body[.]” 5 When the jury returned its verdict, it found Young guilty of DWI. In a
punishment hearing tried to the court without a jury at Young’s request, the trial
court assessed a 180-day sentence, but then probated the sentence and placed Young
on probation for one year. The trial court’s judgment tracks the jury’s verdict the
jury reached in Young’s trial. Thereafter, Young failed to file any motions claiming
her attorney rendered ineffective assistance in representing her in her trial.
On appeal, Young filed a brief raising three issues for our review. In issues
one and two, she argues her attorney provided her ineffective assistance by failing
to move to suppress (1) evidence showing that Young refused the request by police
that she provide them a specimen they could test of her breath, and (2) the
photograph that shows Young drinking with her friends. In issue three, Young argues
the evidence does not support the jury’s conclusion that she was guilty of committing
the DWI.
5
See Tex. Penal Code Ann. § 49.01(2)(A) (the definition for intoxicated when
the State employs the impairment theory when charging the defendant with
committing DWI).
7
Sufficiency of the Evidence
Standard of Review
Evidence supporting a defendant’s conviction is sufficient if, from the
evidence, a rational jury could have found the defendant committed the essential
elements of the offense that were at issue in the trial based on a standard of beyond
a reasonable doubt. 6 In our review, we evaluate whether the record contains
sufficient evidence to support the jury’s verdict by reviewing the evidence from the
trial in the light that favors the jury’s verdict. 7 Under this standard, we must defer to
the jury’s role to “fairly resolve conflicts in testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” 8 Even when, as here,
jurors could have drawn multiple inferences from the facts proven in the trial,
“[w]here there are two permissible views of the evidence, the [jury’s] choice
between them cannot be clearly erroneous.” 9
6
Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020).
7
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
8
Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at 318-19); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
9
Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006).
8
Analysis
In Young’s third issue, she argues the evidence is insufficient to prove she
was intoxicated when stopped by police on the night police arrested her for DWI.
We address that issue before addressing issues one and two.
A person commits the offense of DWI if the State proves the person operated
a motor vehicle in a public place without having the normal use of the person’s
mental or physical faculties by reason of introducing alcohol or another substance
into the person’s body. 10 Under the statute creating the offense of DWI, the State
need not prove what intoxicant the defendant ingested to prove the defendant
committed the offense. 11 The State may rely on circumstantial evidence to prove the
defendant ingested an intoxicant that caused the defendant to lose the normal use of
her mental or physical faculties in a trial. 12 Importantly, even in criminal trials, juries
may decide to view circumstantial evidence as evidence that has just as much
probative value as direct evidence in evaluating whether the State established the
defendant is guilty of having committed the DWI. 13
10
Tex. Penal Code Ann. § 49.01(2).
11
Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004).
12
Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).
13
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
9
In cases involving DWIs, evidence that an individual lacked balance or had
slurred speech when encountered by police at the scene is circumstantial evidence
that juries may choose to rely on when deciding whether the defendant no longer
had the normal use of her mental or physical faculties when stopped and investigated
for suspicion of DWI. 14 What’s more, evidence showing the defendant performed
poorly on a standardized field sobriety test, when the test is administered by a trained
and experienced police officer, is additional circumstantial evidence that juries may
reasonably choose to rely upon in deciding a defendant was intoxicated when she
was stopped by police. 15 In Young’s case, the testimony allowed the jury to infer
that Young refused Sergeant Terrell’s request for a specimen of her breath. That is
yet another circumstance that supports the jury’s ultimate conclusion finding Young
guilty of the DWI. 16
Finally, the jury could have rationally inferred that Sergeant Terrell’s
opinion—that Young was intoxicated—was reliable given his training and
experience in handling the investigation of cases involving suspected DWIs. 17
14
Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001).
15
Zill v. State, 355 S.W.3d 778, 786 (Tex. Crim. App.—Houston [1st Dist.]
2011, no pet.).
16
See Tex. Transp. Code Ann. § 724.061; Russell v. State, 290 S.W.3d 387,
397 (Tex. App.—Beaumont 2009, no pet.).
17
See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (explaining
that an experienced police officer’s testimony that a person was intoxicated along
10
Sergeant Terrell’s testimony reflects that as a policeman, he has conducted hundreds
of investigations into DWIs before arresting Young in April 2018. He also described
the training he had received in giving suspects standardized field sobriety tests and
in recognizing the effects alcohol has on a person’s control over the normal use of
their faculties. Terrell testified that, in his opinion, Young was intoxicated because
she did not have the normal use of her mental or physical faculties given the clues
that he discovered in the investigation he conducted after Young’s stop. His opinion
appears to be rational, as he based it on Young’s appearance, statements she made
admitting that she had been drinking, the results of her field sobriety tests, and
Young’s statement admitting that she thought she had had too much to drink to drive.
The sobriety tests Terrell gave Young included the horizontal-gaze nystagmus, the
walk-and-turn, the one-leg-stand, and others. According to Terrell, Young
performed poorly on the tests.
While Young testified that she felt fine and has a high tolerance to alcohol,
the jury could have reasonably rejected her testimony that she was not intoxicated
with facts consistent with intoxication that the officer personally observed is
sufficient evidence to support the jury’s verdict finding the defendant guilty of
DWI); Brister v. State, 414 S.W.3d 336, 341 (Tex. App.—Beaumont 2013) (“When
based upon facts an experienced officer observes and then describes to the jury, an
officer’s opinion concerning a person’s intoxication provides sufficient evidence of
intoxication.”), aff’d, 449 S.W.3d 490 (Tex. Crim. App. 2014).
11
when the police stopped her for failing to signal in April 2018. We conclude the
evidence in Young’s trial contains more than enough support for the jury’s
conclusion that Young committed the DWI at issue in her appeal. 18 We overrule
Young’s third issue.
Ineffective Assistance of Counsel
In Young’s first two issues, she argues the attorney who represented her in her
trial was ineffective for two reasons, both involving the attorney’s failure to move
to suppress some of the evidence the trial court allowed into evidence in her trial. To
establish a claim of ineffective assistance of counsel, the defendant must satisfy a
two-pronged test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable. 19
When the defendant alleges she received ineffective assistance, the claim “must be
firmly founded in the record, and the record must affirmatively demonstrate the
18
See Tex. Code Crim. Proc. Ann. art. 38.04; Tex. Penal Code Ann. § 71.02;
see also Brooks, 323 S.W.3d at 902 n.19; Clayton, 235 S.W.3d at 778; Hooper, 214
S.W.3d at 13.
19
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
12
alleged ineffectiveness.” 20 In our review, we must presume “that counsel’s actions
fell within the wide range of reasonable and professional assistance.” 21 Given the
presumption that the defendant received effective counsel, the record in a direct
appeal from a verdict finding the defendant guilty is often not yet sufficiently
developed to allow an appellate court to determine whether the attorney represented
the defendant in a manner so deficient and lacking that the representation was
unreasonable or unprofessional. 22 When the defendant alleges a claim of ineffective
assistance, the defendant must show, by a preponderance of the evidence, no
plausible professional reason exists to explain why the attorney did or failed to do
whatever the defendant complains about after losing the trial. 23
In Young’s case, the record shows Young filed no post-judgment motions
claiming the attorney who represented her was ineffective. Thus, when this case was
in the trial court, Young’s attorney never had the chance to explain why he handled
Young’s defense in the manner that she complains about for the first time in her
appeal. Simply put, the record before us fails to affirmatively demonstrate that no
plausible reasons exist to explain why Young’s attorney did not move to suppress
20
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
21
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)
22
Id.
23
Id. at 836.
13
the evidence Young complains about in her appeal, the testimony that shows Young
refused to comply with Sergeant Terrell’s request for a specimen and the photograph
that depicts Young drinking at a party with her friends. 24
The bottom line is that claims of ineffective assistance “must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” 25 This record before us in Young’s appeal does not show the
complaints Young raises about her attorney are firmly founded in the record. 26 For
that reason, we conclude Young has not overcome the strong presumption that her
24
See id. at 834.
25
Thompson, 9 S.W.3d at 813.
26
For example, had Young given her attorney an opportunity to explain, he
might have pointed out that the Transportation Code provides that evidence showing
a person who refused an officer’s request for a blood or breath specimen is
admissible in a trial. Tex. Transp. Code Ann. § 724.061. Under the Transportation
Code, evidence showing a defendant refused a request for a biological specimen is
admissible when the defendant refuses to give a specimen to police after the police
asked the defendant to provide police a specimen. Id. And in Young’s case, the
evidence in the record allowed the jury to conclude that Sergeant Terrell provided
Young with the required statutory warning by playing an audiotape of the warning
for her on the computer in his car. Thus, as to admissibility, the trial court acted
within its discretion when it admitted the testimony in Young’s trial showing that
she refused to provide police with a biological specimen. See id. § 724.015 (the
statute provides the officer “shall inform the person” of the consequences orally or
in writing, it does not describe that the officer cannot comply with the statute by
playing a recording that contains the warning).
14
attorney provided her effective assistance during her trial. 27 Young’s second and
third issues are overruled.
Conclusion
For the reasons explained above, we affirm the trial court’s judgment
convicting Young of DWI.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on August 17, 2020
Opinion Delivered December 30, 2020
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
27
See Thompson, 9 S.W.3d at 814.
15