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Click here for the full text of this decision FACTS:During the evening rush hour on Nov. 8, 2004, Danielle Guessman was traveling along a two-lane road outside of Crosby, when she noticed Archie Doyle Martin Jr. driving erratically in front of her. Guessman’s passenger, Toni Alford, called 911 and reported that Martin was swerving and had nearly collided with oncoming traffic several times. Guessman and Alford saw Martin hit a concrete barricade and then saw him hit a Ford Explorer at an intersection, where Martin finally came to a stop. Guessman, who had stopped to check on the driver of the Explorer, testified that Martin got out of his vehicle and staggered as he walked to the Explorer. Alford testified that Martin was dressed in work clothes, that he smelled of sweat and alcohol, and that he had urinated on himself. In addition, Alford testified that Martin seemed disoriented, could not hold his head up and hung onto his vehicle for balance. Another driver at the intersection, Tiffany Hargrove, testified that she was stopped at the light behind the Explorer and that she swerved to get out of the way just before Martin hit the Explorer. Hargrove said that when she got out of her car, she heard the driver of the Explorer say to Martin, “You’re drunk.” Hargrove testified that Martin responded, “I am not drunk,” and that the driver insisted, “Yes, you are drunk.” Hargrove also observed that Martin seemed to have trouble keeping his balance. Harris County Deputy Sheriff Travis Kirkley arrived at the scene moments after the accident occurred. Kirkley testified that Martin seemed disoriented, was slurring his speech, was hanging onto his vehicle for stability, had urinated on himself, and had a strong odor of alcohol on his breath and person. Deputy Kirkley testified that Martin admitted he had taken “three sips of a beer.” Kirkley learned that Martin’s license had been suspended and saw an open container of beer on the driver’s side of the bench seat in Martin’s truck. Kirkley testified that, based upon his observations and upon the witnesses’ statements, he formed the opinion that Martin was intoxicated. Kirkley arrested Martin and found an unlabeled pill bottle containing white pills in Martin’s pocket, later determined to be muscle relaxers. Kirkley did not perform field sobriety tests at the scene because of the backup of traffic caused by the accident. Kirkley transported Martin 10 to 15 miles to the police station, where, normally, field sobriety tests would have been administered in front of a video camera. In this case, however, Kirkley testified that he was not sure if field sobriety tests had been performed and that any video created could not be found. Martin disputed that he was intoxicated. Martin testified that he had just left work and was driving to Crosby. Martin admitted that he stopped and purchased a beer at a convenience store, that he opened it, and that he took “a couple of big swallows” before he set it beside him in his lunch cooler on the seat. Martin testified that he was driving along until the Explorer made a sudden move at the intersection and he could not avoid the collision. Martin further testified that his truck sways, because it is a 1983 model with major problems in the steering box and tie rods. Martin, who is a pipe fitter, said that he was very sweaty and dirty but that at no time did he urinate upon himself. Martin explained that he has had multiple back surgeries and that the bottle of pills was an old prescription of his that he had found in his tool box that day and he was taking the medication home from the job site. Martin testified that there were no field sobriety tests administered, but that he submitted two samples for breath testing. Martin claimed that his results were “0.00″ both times. There were no breath test results in evidence. On Nov. 10, 2004, Natasha Sinclair was appointed as counsel for Martin. At Martin’s request, Sinclair moved for blood testing to establish that Martin was not under the influence of a controlled substance, which the trial court granted. Sinclair also moved for the appointment and payment of an investigator to assist with the preparation of Martin’s defense, which the trial court granted. The results of any testing or investigation, however, are not in the appellate record. On Dec. 16, 2004, Sinclair withdrew as counsel and the trial court substituted attorney Walter Boyd. The trial was held on July 18, 2005. The state presented evidence that Martin previously had been convicted of DWI, in years 2000 and 2001. The trial court instructed the jury that it could find Martin guilty of having operated a motor vehicle in a public place while intoxicated by alcohol, by an unknown drug, or by a combination of both. The jury returned a general verdict of guilty. On Sept. 19, 2005, Boyd withdrew as Martin’s counsel. On Dec. 15, 2005, the trial court assessed punishment at two years of confinement, signed the judgment and appointed appellate counsel. There was no motion for new trial. This appeal followed. HOLDING:Affirmed. In one issue, Martin contended that he was denied his Sixth Amendment right to effective counsel because Boyd, his trial attorney: 1. failed to investigate and failed to conduct discovery with regard to the results of his breath tests; 2. failed “to object or limine prior convictions” of Martin; and 3. engaged in “bizarre and unprofessional” conduct at trial. To prove ineffective assistance of counsel, the court stated that under the 1984 U.S. Supreme Court case Strickland v. Washington, Martin had to show that Boyd’s performance fell below an objective standard of reasonableness, and, but for Boyd’s unprofessional error, there was a reasonable probability that the result of the proceeding would have been different. In alleging that Boyd failed to investigate and failed to conduct discovery with regard to the results of Martin’s breath tests, Martin contended that his breath tests would have conclusively shown that he was not intoxicated. The only evidence at trial that breath testing was conducted was Martin’s testimony that he was tested and that he saw the results attached to the state’s file at the probable cause hearing. At trial, Boyd asked the state if it had a copy of the results. The state replied that it did not and stated that Martin’s testimony concerning the breath tests was false. The record, the court stated, did not reflect whether Boyd sought the breath-test results or, if not, the reasons why Boyd did not seek the results through pretrial motions. The court noted that Boyd may have adopted a strategy to allow the jury to believe that the state had “conveniently lost” exculpatory evidence. Moreover, the court noted that the jury was charged that it could find Martin guilty on any one of three theories of intoxication: by reason of alcohol, an unknown drug or a combination of both. The breath-test results would not have provided a defense to the theory of intoxication by an unknown drug. Hence, Martin failed to show that, had the breath-test results been made available and admitted into evidence, there was a reasonable probability that the result of the proceeding would have been different. Second, Martin contended that he was denied effective assistance of counsel, because his trial counsel permitted the jury to hear evidence of previous convictions that were inadmissible. The court, however, concluded that Martin’s previous theft convictions, previous felony drug convictions and his conviction for lying to the police were likely admissible. Because it also appeared that Martin’s candor before the jury concerning his previous convictions was a strategic attempt to appear open and honest and to lessen the impact of any impeachment on the issue, the court could not conclude that his attorney provided ineffective assistance with regard to the introduction of these convictions. Third, Martin contended that “[t]he trial record is full of instances where trial counsel either acted in a non-adversarial manner, or acted in a bizarre, highly unusual way, all of which prejudiced Appellant.” At one point, Boyd stated to Martin on direct examination: “You’re not only like the prosecutor says and I’d have to agree you’re a liar, you’ve covered up, you’re a thief, you’re a drug dealer, you’re all of those things, and you’ve committed so many dad-gum crimes you cannot even remember them all.” The court noted a similar U.S. Supreme Court case in which a defense attorney mentioned a host of details concerning his client’s character and in which the defense attorney referred to the defendant as “a bad person, lousy drug addict, stinking thief, [and a] jail bird.” In refusing to find counsel ineffective, the Supreme Court explained that “[t]his is precisely the sort of calculated risk that lies at the heart of an advocate’s discretion. By candidly acknowledging his client’s shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issues in the case.” Thus, the court found that Martin failed to show that his attorney, by acknowledging the shortcomings that Martin had already placed before the jury through his own testimony, was deficient in his performance. Accordingly, the court concluded that Martin did not show that Boyd’s representation fell below an objective standard of reasonableness. OPINION:Higley, J.; Nuchia and Higley, JJ.. DISSENT:Jennings, J. “The record establishes that, throughout the trial below, Walter Boyd, trial counsel for appellant, Archie Doyle Martin, Jr., not only acted bizarre, but actually demonstrated in front of the jury patent contempt for his client. Boyd, in his scorn for his client, most notably through direct examination, effectively became a second prosecutor in the case. The majority erroneously concludes that Boyd merely”acknowledg[ed] the shortcomings’ of appellant and was trying to”win over’ his audience with”empathy,’ like Aristotle. In reaching its result, the majority misapplies the United States Supreme Court’s opinion and holding in Yarborough v. Gentry [540 U.S. 1 (2003)]. . . . Accordingly, I respectfully dissent.”

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