David Howard Edwards v. the State of Texas

Affirmed and Memorandum Opinion filed October 22, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00819-CR

DAVID HOWARD EDWARDS, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 21-CR-1717

MEMORANDUM OPINION

In this appeal from a conviction for driving while intoxicated, the sole
question presented is whether counsel was ineffective for failing to call an expert
witness. On this record, we cannot say that he was.

BACKGROUND

Appellant caused a low-speed collision with another vehicle. He then failed
his field-sobriety tests and was arrested for driving while intoxicated.
The arresting officer was equipped with a body camera, and video of the
officer’s interaction with appellant was admitted into evidence during appellant’s
trial on the merits. At the beginning of the video, appellant admitted that he had been
drinking that day, but he said that he had only consumed one beer ninety minutes
earlier. He also revealed that he suffered from brain damage and that he had been
taking certain medications ever since he was injured in a wreck six months earlier,
but he did not know whether those medications were contraindicated with alcohol.

The officer tried to administer the horizontal gaze nystagmus test, but the
officer had to abandon the test because appellant failed to follow the officer’s
instructions. According to the officer, appellant was moving his head improperly,
and his eyes were not precisely tracking the officer’s pen, which were movements
that the officer described to appellant as being “deceitful.”

For the remaining two field-sobriety tests, the officer opined that appellant
exhibited several clues of intoxication. On the walk and turn test, appellant failed to
touch his heel with this toe, he used his arms for balance, and he made an improper
turn. And on the one-legged stand test, he again used his arms for balance, he
swayed, and he improperly brought his foot down. Based on these clues, as well as
appellant’s statements and an apparent smell of alcohol, the officer determined that
appellant had been driving at a time when he had lost the normal use of his mental
and physical faculties.

The officer requested a blood specimen, but appellant refused his consent. The
officer then applied for a warrant, which was granted by a court, and appellant’s
blood was drawn at a hospital. A subsequent blood test did not detect the presence
of any particular drugs. However, the blood test showed that appellant had a
concentration of 0.081 grams of alcohol per 100 milliliters of blood. The test had a
margin of error of 0.004, which meant that appellant could have had a blood alcohol

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concentration as low as 0.077 or as high as 0.085 at the time that the specimen was
collected. There was no retrograde extrapolation testimony to determine appellant’s
blood alcohol concentration at the time of the collision, as defense counsel
successfully moved to exclude it.

The only defense witness was one of appellant’s friends. The friend testified
that, before he was charged in this case, appellant was seriously injured in a
motorcycle accident, which had left him unconscious in the hospital for days. Since
that accident, the friend testified that appellant has had issues with his balance and
he has been unable to climb ladders.

In his closing statements, counsel asserted that the prosecution had not met its
burden of proof beyond a reasonable doubt. Counsel argued that the blood test was
not conclusive because the margin of error demonstrated that appellant may not have
been intoxicated per se. Counsel also challenged the officer’s testimony that
appellant was impaired, which would otherwise demonstrate that appellant was
intoxicated. Referring to appellant’s medical records and the testimony from his
friend, counsel argued that the officer did not understand the full scope of appellant’s
previous injuries or how those injuries impacted his ability to perform the field-
sobriety tests.

The jury rejected counsel’s arguments and convicted appellant as charged.

ANALYSIS

Appellant complains that his counsel was ineffective for not calling an expert
witness to testify that his brain injuries affected his performance under the field-
sobriety tests. We review this complaint under the standard set forth in Strickland v.
Washington, 466 U.S. 688 (1984). Under that standard, appellant must prove by a
preponderance of the evidence that his counsel’s performance was deficient, and that

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the deficient performance was so prejudicial that it deprived him of a fair trial. Id. at
687.

When, as here, a defendant claims that his counsel was ineffective because of
an uncalled witness, the defendant must show that the witness had been available to
testify and that his testimony would have been of some benefit to the defense. See
Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004).

Prior to this appeal, appellant moved for a new trial, but he did not attach any
evidence to his motion. And because appellant did not present his motion to the trial
court for a hearing either, no such hearing was ever held, and there has been no
showing that an uncalled expert witness was available to testify. Accordingly,
appellant has not met his burden of showing that his counsel was ineffective.

Appellant also suggests that counsel was ineffective because counsel failed to
elicit testimony, either from an expert or from “any other witness,” as to whether
appellant was suffering from the effects of a preexisting brain injury at the time of
his field-sobriety tests. But that evidence was already before the jury, as appellant
affirmatively stated on the video from the officer’s body camera that he had brain
damage.

Appellant finally appears to liken his case to Lopez v. State, 462 S.W.3d 180
(Tex. App.—Houston [1st Dist.] 2015, no pet.), which held that an attorney was
ineffective for not conducting a reasonable investigation into his client’s
background, and for delegating the important task of developing mitigation evidence
to the client instead. Id. at 187. Appellant does not clearly explain how Lopez is
comparable. There has been no showing that counsel here did not investigate the
facts of appellant’s case, or that he delegated any tasks to appellant. Lopez is further
distinguishable on the grounds that the attorney there filed an affidavit averring that
he was unaware that his client suffered from any mental health issues that could have
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been presented as evidence; whereas in appellant’s case, the record is completely
silent as to counsel’s reasons for pursuing his particular trial strategy. See Jackson
v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (presuming that counsel acts
according to a sound trial strategy); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005) (holding that this presumption cannot ordinarily be rebutted on a
silent record).

Perhaps counsel did not believe that an expert witness would be helpful,
considering that appellant had already affirmatively stated on video that his doctors
had cleared him to drive, notwithstanding his injuries and medications. Or perhaps
counsel thought that the best strategy of sowing reasonable doubt was to fault the
officer on cross-examination for not considering appellant’s previous injuries and
their potential impact on the administration of the field-sobriety tests.

Whatever his counsel’s strategy may have been, appellant has not established
on this record that counsel was ineffective for failing to call an expert witness.

CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
Do Not Publish – Tex. R. App. P. 47.2(b).

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