Allison Kurby Smith v. the State of Texas

             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-23-00022-CR
     ___________________________

   ALLISON KURBY SMITH, Appellant

                    V.

         THE STATE OF TEXAS


On Appeal from County Criminal Court No. 3
          Denton County, Texas
    Trial Court No. CR-2021-08708-C


  Before Birdwell, Bassel, and Womack, JJ.
 Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

                                  I. INTRODUCTION

      Appellant Allison Kurby Smith appeals her conviction for driving while

intoxicated (DWI) with an alcohol-concentration level of 0.15 or more. See 

(d). In a single issue, Smith argues that she received ineffective

assistance of counsel. Specifically, she asserts that her trial counsel was deficient for

failing to object to the admission of her blood-test results because the blood draw did

not comply with Transportation Code Section 724.017. See 

. We affirm.

                                  II. BACKGROUND

      Shortly after midnight on May 26, 2020, Devin White, a DJ and social media

consultant who was doing work for a bar called Dirty Dick’s, was walking along Fry

Street in Denton when he heard a car that he had seen attempting to exit a parking lot

collide with an unoccupied, parked vehicle. White turned around and saw a blonde,

Caucasian female dressed in white get out of the car and start yelling. White then

went to search for the owner of the parked vehicle.

      White eventually located the parked vehicle’s owner, Garrett Barton, and the

two men returned to the parking lot together. When White and Barton arrived back

at the parking lot, no one was around, but the car that had hit Barton’s vehicle was

parked with the windows down and a purse sitting inside. Shortly thereafter, Smith,

who matched the description of the woman White had seen getting out of the car and

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yelling after the collision, approached the two men. She appeared to be intoxicated.

Although she did not admit to driving the car, she offered to pay for the damage to

Barton’s vehicle. Because Smith did not have identification or proof of insurance on

her, Barton called 911.

       Denton police officer Yancy Green responded to the 911 call and conducted a

DWI investigation. Smith slurred her words, struggled to recite the alphabet, had

difficulty maintaining her balance, and failed to perform all of the standard field

sobriety tests.

       Because Smith did not consent to provide a blood sample, Officer Green

obtained a search warrant. Smith’s blood was drawn in a hospital room by Anissa

Lahr, a trained phlebotomist with nearly twenty years of experience. The entire blood

draw was recorded on Officer Green’s body camera. Testing of Smith’s blood sample

reflected an alcohol-concentration level of 0.164 grams of alcohol per 100 milliliters

of blood.

       Ultimately, Smith was charged with DWI with an alcohol-concentration level of

0.15 or more, a Class A misdemeanor. See 

(d). After a

jury found her guilty, the trial court sentenced her to 365 days in jail and fined her

$500, probating the sentence and placing her on community supervision for twenty-

four months. This appeal followed.




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                                  III. DISCUSSION

       Smith asserts that she was deprived of her right to the effective assistance of

counsel when her trial counsel failed to object to the admission of her blood-test

results on the ground that her blood sample was obtained in violation of

Transportation Code Section 724.017. See 

. This

argument is meritless.

A. Applicable Law

       To establish ineffective assistance, an appellant must prove by a preponderance

of the evidence both that her counsel’s representation was deficient and that the

deficiency prejudiced the defense.     Strickland v. Washington, 

,

 (1984); Prine v. State, 

 (Tex. Crim. App.

2017); see Hernandez v. State, 

 (Tex. Crim. App. 1999). We need

not address both parts of the Strickland test if the appellant makes an insufficient

showing of one component. 

, 

.

       An appellant claiming ineffective assistance of counsel at trial must identify

counsel’s allegedly erroneous acts and omissions.       Strickland, 

,

; Cooper v. State, 

 (Tex. App.—Fort Worth 2010,

pet. ref’d).   The appellate court then determines whether, in light of all the

circumstances, these identified acts or omissions were outside the wide range of what

constitutes competent assistance. Strickland, 

, 

;

Cooper, 

. An attorney’s isolated acts or omissions generally do not

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constitute deficient performance. See, e.g., Ingham v. State, 

 (Tex.

Crim. App. 1984).     However, an egregious error may satisfy both parts of the

Strickland test on its own. Lopez v. State, 

 (Tex. Crim. App. 2011).

      Furthermore, the record must affirmatively demonstrate that the ineffective-

assistance claim has merit. Thompson v. State, 

 (Tex. Crim. App.

1999). An appellate court may not infer ineffective assistance simply from an unclear

record or a record that does not show why counsel failed to do something. Menefield v.

State, 

 (Tex. Crim. App. 2012); Mata v. State, 

(Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity

to explain his actions before being denounced as ineffective.” Menefield, 

. If, as here,1 trial counsel did not have that opportunity, we should not conclude

that counsel performed deficiently unless the challenged conduct was “so outrageous

that no competent attorney would have engaged in it.” Nava v. State, 

 (Tex. Crim. App. 2013).       Direct appeal is usually inadequate for raising an

ineffective-assistance-of-counsel claim because the record generally does not show

counsel’s reasons for any alleged deficient performance. See Menefield, 363 S.W.3d at

592–93; 

 S.W.3d at 813–14.

      “Trial management is the lawyer’s province: Counsel provides his or her

assistance by making decisions such as ‘what arguments to pursue, what evidentiary


      1
       Smith did not file a motion for new trial.


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objections to raise, and what agreements to conclude regarding the admission of

evidence.’” McCoy v. Louisiana, 

 (2018) (quoting Gonzalez v. United

States, 

, 

 (2008)). Generally, a record devoid of

counsel’s reasoning behind a particular decision––including failure to object to or

proffer evidence––will not show deficient performance. See Prine, 

;

Lopez, 343 S.W.3d at 143–44.

B. Analysis

      When an appellant alleges deficient performance based on her trial counsel’s

failure to object, she must show that the trial court would have erred by overruling

that objection.   See Prine, 537 S.W.3d at 117–18 (first citing Ex parte Martinez,

 (Tex. Crim. App. 2011); and then citing Ortiz v. State, 

 (Tex. Crim. App. 2002)). Smith cannot make this showing.

      Smith contends that her trial counsel should have objected to the admission of

her blood-test results because Lahr, the phlebotomist who drew her blood, was not a

“qualified technician” for purposes of Transportation Code Section 724.017(a). See

(a).           However, Transportation Code Section

724.017(a) does not control when—as here—there is a warrant to draw blood.2


      2
         Because Smith’s blood was drawn pursuant to a search warrant, the proper
inquiry is whether the blood draw complied with Fourth Amendment reasonableness
principles, not whether it complied with Transportation Code Section 724.017(a). See
Kury v. State, No. 02-19-00417-CR, 

, at *5 (Tex. App.—Fort Worth
May 6, 2021, no pet.) (mem. op., not designated for publication) (first citing Schmerber
v. California, 

, 

 (1966); and then citing Pacheco v.

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Beeman v. State, 

 (Tex. Crim. App. 2002); accord State v. Johnston,

 (Tex. Crim. App. 2011) (recognizing prior holding that

“Chapter 724 is inapplicable when there is a warrant to draw blood”); see also State v.

Morales, No. 08-20-00021-CR, 

, at *4 (Tex. App.—El Paso May 6,

2022, no pet.) (not designated for publication) (reversing trial court’s order

suppressing defendant’s blood-test results in DWI case on the grounds that, inter alia,

“the trial court erred by applying Chapter 724 . . . because the arresting trooper

obtained a search warrant before drawing [the defendant’s] blood”). This alone is

sufficient to defeat Smith’s ineffective-assistance-of-counsel argument.

      But even if we were to assume that Chapter 724 governed, Smith still could not

satisfy her burden. Smith’s argument is premised on her contention that Lahr is not a

“qualified technician” for purposes of Transportation Code Section 724.017(a).

Although Lahr does not hold any licenses or certifications, she testified that she was

State, 

 (Tex. App.—Fort Worth 2011, no pet.)). Thus, setting
aside the justification for the warrant (which Smith does not challenge), we note that
the relevant threshold question for her ineffective-assistance argument is whether the
trial court would have erred by overruling an objection to the admission of Smith’s
blood-test results on the grounds that the police did not employ reasonable means
and reasonable procedures in taking the blood. See 

 (citing State v. Johnston,

 (Tex. Crim. App. 2011)). However, nothing in the record
suggests that the manner in which the blood draw was performed threatened Smith’s
safety or health, caused her trauma or pain, endangered her life or health, or created a
level of intrusiveness greater than a typical blood draw. See 

 at *6 (citing Siddiq v.
State, 

 (Tex. App.—Fort Worth 2016, no pet.)). Accordingly,
even if Smith had properly framed her ineffective-assistance argument, she still could
not satisfy her burden to show that the trial court would have erred by overruling her
objection to the admission of the blood-test results.


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trained as a phlebotomist, had worked at the hospital for almost twenty years, and

drew blood often (including “legal draws”). She was able to describe the process for a

legal draw and testified that she followed that process when drawing Smith’s blood.3

Given Lahr’s extensive experience, we cannot conclude that she is not a “qualified

technician,” much less that the trial court would have abused its discretion by

determining otherwise and admitting Smith’s blood-test results over her objection.

See Krause v. State, 

, 85–87 (Tex. Crim. App. 2013) (holding emergency

medical technician (EMT) was a “qualified technician” based on her extensive blood-

drawing experience, primary duties as a phlebotomist at the hospital, and ability to

describe “the procedure used to take blood specimens when directed to do so by

police officers in [DWI] cases”); Torres v. State, 

 (Tex. App.—Fort

Worth 2003, no pet.) (holding phlebotomist was a “qualified technician” despite her

lack of formal training because her experience—including having drawn blood

thousands of times while working in a hospital for twenty-four years—and her ability

to describe blood-draw procedures was sufficient); see also Zuliani v. State, 

 (Tex. Crim. App. 2003) (admonishing that a reviewing court should not

reverse a trial court’s decision to admit or exclude evidence “unless a clear abuse of

discretion is shown”).



      As noted above, the entire blood-draw procedure was recorded on Officer
      3

Green’s body camera. This recording was played for the jury.


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         Because Smith cannot show that the trial court would have erred by overruling

an objection to the admission of Smith’s blood-test results on the ground that the

blood draw violated Transportation Code Section 724.017(a), we overrule her sole

issue.

                                    IV. CONCLUSION

         Having overruled Smith’s sole issue, we affirm the trial court’s judgment.

                                                        /s/ Dana Womack

                                                        Dana Womack
                                                        Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 28, 2023




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