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Orchard v. State9/6/2001
s or illnesses or things like that, it's not the defendant's normal use. It's the normal non-intoxicated person.
This description of the standard of intoxication is accurate. Fogle v. State, 988 S.W.2d 891, 894 (Tex. App.--Fort Worth 1999, pet. ref'd) (holding that an allegation that appellant did not have normal use of his mental and physical faculties means that the faculties which must be tested belong to appellant, and that evidence of inability to use his faculties as a normal non-intoxicated person is sufficient, unless the jury finds the inability to perform was not due to intoxicants). As a result, any objection by trial counsel would have been properly overruled. The failure to object to admissible evidence does not constitute ineffective assistance of counsel. Webb v. State, 991 S.W.2d 408, 419 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd).
We also note that the jury was properly charged with the law of intoxication. The jury is presumed to have followed the language set out in the jury charge. King v. State, 17 S.W.3d 7, 18 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd).
Appellant has therefore failed to show that his trial counsel was ineffective in this respect.
D. Incorrect statement of law by appellant's trial counsel during voir dire
Appellant contends that his trial counsel made an incorrect statement of law during voir dire when he said, ". . . and I know that it is not wise to drive after you have consumed some alcohol; and I think that is a good law; and it ought to be followed." According to appellant, this led the venire to the inaccurate belief that driving after drinking any amount of alcohol is illegal.
Contrary to appellant's assertions, when we look at this statement with the language that surrounded it, it is clear that appellant's trial counsel was attempting to persuade the venire that he was not complaining about the DWI law itself. Rather, he was asking the venire to consider that appellant was not legally impaired, though he did drink some alcohol before driving. In the sentence immediately following the one complained of by appellant, his trial counsel stated, ". . . I'm not in dispute with the DWI law, . . . . However, it's not against the law to drive after you've consumed some alcohol. It is against the law to drive after you have consumed too much alcohol, and that's the point on which I am here representing and defending Mr. Orchard today."
The statement complained of, when looked at in isolation, is a misstatement of law. However, when we look at the statements surrounding this isolated statement, as we must, we find that trial counsel's statement was not improper. See Ferguson v. State, 639 S.W.2d 307, 310 (Tex. Crim. App. 1990).
Appellant has failed to prove that in making this statement, his trial counsel was ineffective. The right to effective counsel is not the right to error-free counsel. Hernandez v. State, 726 S.W.2d at 58. The statement appellant complains of, when read in context, does not fall outside the wide range of reasonable professional assistance.
E. Incomplete Voir Dire
Appellant complains that counsel was ineffective for failing to conduct an adequate voir dire relating to the issues of breath test refusal, victims of drunk drivers, knowledge of members of the district attorney's office, knowledge of the arresting police officer, presumption of innocence, indictment not being evidence, burden of proof, proof beyond a reasonable doubt, range of punishment, probation eligibility, victims of crime, and appellant's prior DWI convictions.
We begin by noting that of all the above topics which appellant comp
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