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Orchard v. State9/6/2001
Over his plea of not guilty, a jury found appellant, Donald Thomas Orchard, guilty of the felony offense of driving while intoxicated ("DWI"). The jury recommended a sentence of seven years' probation and a $5,000.00 fine. The judge sentenced appellant according to the jury's verdict, and, as a term of probation, ordered appellant to serve 30 days in the Brazoria County jail on weekends.
Appellant appeals his conviction, complaining of multiple claims of ineffective assistance of counsel, and of errors in the State's closing argument. For the reasons set out below, we affirm.
FACTUAL BACKGROUND
On November 30, 1996, Officer Robert Soliz, of the Richwood Police Department, saw a pick-up truck, driven by appellant, cross onto the shoulder of business highway 288. Soliz observed appellant's truck sway back and forth on the road. When Soliz attempted to stop appellant, appellant did not immediately pull over. According to Soliz, appellant smelled of alcohol. Soliz asked appellant to perform several field sobriety tests. Appellant reportedly failed these tests. Appellant told Soliz that he had just come from "Kicks," a local dance hall and bar. Based on these observations, Soliz concluded that appellant had lost the use of his physical and mental faculties. Soliz testified that appellant refused to take a breath test, but would not sign the breath test refusal paperwork.
At trial, the State called Soliz, who testified to the above information. The State also played the videotape of this scene for the jury. After the State rested, appellant called three witnesses. The first witness, Alicia Rachunek, testified that she was a close friend of appellant's, that appellant had been sober for three years, but that she did not know whether appellant had been drinking on November 30, 1996 because she was not with him.
The second witness, Ronnie Foley, testified that he saw appellant at "Kicks" in the early morning of November 30, but that appellant only drank part of a beer, and that appellant was not drunk. However, Mr. Foley admitted that by the time he saw appellant, he had consumed about four beers. He also added that he thought appellant could drink all night without becoming intoxicated. Finally, appellant took the stand. He admitted to his two prior DWI convictions. He also stated that after the incident on November 30, 1996, he stopped drinking entirely. He explained that he had problems doing the field sobriety tests because of injuries to his back, hip, knee, and ankle. He stated that the reason he swerved on the road was because he was on the phone, talking to his wife, and that he drove close to the edge of the road because he had a bad eye.
DISCUSSION AND HOLDINGS
I. Ineffective Assistance of Counsel
In his first point of error, appellant complains that his trial counsel did the following:
1. Failed to interview and subpoena two available witnesses to contradict Officer Soliz's testimony that appellant was intoxicated;
2. Failed to use a peremptory strike on veniremember Greutzmacher, whose husband had been killed by a drunk driver;
3. Failed to object to prosecutor's improper statement of law regarding normal use of mental or physical faculties;
4. Made a misstatement of law during voir dire;
5. Failed to conduct a complete voir dire examination; and
6. Failed to stipulate to appellant's two prior misdemeanor convictions.
For counsel to be ineffective at trial, the attorney's actions must meet the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by Texas in Hernandez
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