                                   NO. 07-05-0086-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                 DECEMBER 8, 2005
                          ______________________________

                               GREGORY JAMES ROMERO,

                                                                Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

                FROM THE COUNTY COURT OF COCHRAN COUNTY;

                    NO. 5790; HON. JAMES ST. CLAIR, PRESIDING
                         _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Gregory James Romero appeals from his conviction for driving while intoxicated.

His four issues concern 1) the legal and factual insufficiency of the evidence supporting the

verdict, and 2) his receipt of ineffective assistance of counsel at trial. We affirm the

judgment of the trial court.

                                       Background

       On March 10, 2000, at around 4:30 a.m., Deputy Inoe Valdez observed a vehicle

weave several times across the fog line onto the shoulder of the road and back into the
lane of traffic on Highway 114 in Cochran County. Valdez stopped the vehicle and had

appellant, who was the driver, roll down the window. At that time, the deputy smelled a

strong odor of alcohol coming from inside the vehicle and asked appellant to step out.

Valdez observed that appellant had slurred speech, bloodshot eyes, and a strong odor of

alcohol on his breath and person. Appellant told the officer that he had not been drinking

but that his friends had been drinking.

       Valdez performed the horizontal gaze nystagmus (HGN) test on appellant and

observed six clues. Appellant refused to undergo any other field sobriety tests and refused

to give a blood sample. Nonetheless, Valdez concluded that appellant was intoxicated and

arrested him.

       Appellant’s girlfriend (and mother of his children) testified that she and appellant had

been at a party and left to go home. She stated that appellant had not been drinking at the

party (even though she had allegedly been asleep part of that time) and that someone had

spilled beer on him as they were leaving. She denied that appellant’s vehicle had been

weaving in and out of his lane of traffic and did not remember Valdez performing the

horizontal gaze nystagmus test.

                     Issues 1 and 2 - Sufficiency of the Evidence

       Appellant initially contends that the evidence that he was intoxicated and

experienced impaired mental and physical function due to imbibing alcohol is legally and

factually insufficient. We overrule the issues.

       The standards by which we review claims of legal and factual sufficiency are well

established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), Zuliani v.

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State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim.

App. 2000) for an explanation of them.

         The only two witnesses at trial were Valdez and Sara Rios, appellant’s girlfriend.

Furthermore, the deputy testified that appellant wove outside his lane of traffic and across

the white fog line several times, had slurred speech, had bloodshot eyes, had the smell of

alcohol on his breath and in his clothes, exhibited six HGN clues indicating intoxication, and

refused to take a blood test to assess the level of alcohol, if any, in his system. So too did

the record contain evidence illustrating that appellant was returning (at 4:30 in the morning)

from a party whereat alcoholic beverages were present. Collectively, that is some evidence

upon which a rational factfinder could conclude beyond reasonable doubt that appellant’s

mental and physical faculties were impaired due to the ingestion of alcohol, i.e. that he was

intoxicated.

        That appellant’s girlfriend may have contradicted much of what the deputy said and

denied that her boyfriend had been drinking simply raised an issue of credibility for the

factfinders to resolve. It was within their power to believe either the officer or Ms. Rios.

Similarly, the jury was entitled to credit the deputy’s testimony regarding his administration

of the HGN test and its results, especially since no one objected to its admission nor

illustrated that the officer was unqualified to administer the test.1 Singleton v. State, 91

S.W.3d 342, 350 (Tex. App.–Texarkana 2000, no pet.) (holding that the failure to object at

trial that the witness was not an expert on the standardized field sobriety tests and did not

testify as to the proper administration of the tests did not preserve the complaint for


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         Valdez testified th at he was trained in “standardized field sobriety tests certified by the State of
Tex as” and that it includ ed training in the adm inistration of the HG N test.

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appeal). And, we cannot say (upon reviewing the entire record) that 1) the evidence

supporting the verdict was too weak to justify a finding of guilt beyond reasonable doubt or

2) the contradictory evidence was so strong as to negate the factfinder’s ability to find guilt

beyond reasonable doubt.

       In short, the verdict enjoys the support of legally and factually sufficient evidence.

                              Issues 3 and 4 - Ineffective Assistance

         In his next two issues, appellant contends he received ineffective assistance of

counsel at trial since his attorney failed to challenge 1) the legality of the initial traffic stop

and 2) the qualifications of the deputy to undertake HGN testing. We overrule the issues.

       One claiming ineffective assistance of counsel must establish not only that his

counsel was deficient but also that the deficiency was prejudicial. Bone v. State, 77 S.W.3d

828, 833 (Tex. Crim. App. 2002). If either or both prongs of the test are unsatisfied, then

the claim must be rejected. Garcia v. State, 887 S.W.2d 862, 880 (Tex. Crim. App. 1994),

overruled on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001).

Moreover, claims of ineffective assistance must be firmly founded and demonstrated in the

record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

       At bar, no motion for new trial was filed. Nor is there evidence of record illustrating

why defense counsel did not do that mentioned by appellant. It could be that he thought

evidence of one’s weaving across fog lines while driving at night was sufficient to justify a

stop, and authority would support that belief. See State v. McDougal, No. 07-02-0294-CR

2003 WL 21135572 at *2 (Tex. App.–Amarillo May 16, 2003, no pet.) (not designated for

publication) (holding that an officer was justified in stopping a vehicle when he saw it weave

across the fog line at night). And, as to the qualifications of the deputy, it may well be that

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defense counsel knew of the officer’s credentials and thought them sufficient. Indeed,

Valdez did testify that he trained to administer the HGN test through programs certified by

the State of Texas. Moreover, appellant cites us to no evidence of record nor have we

found any indicating that the deputy lacked the requisite certification to administer the HGN

test. Rather, appellant simply assumes that he may not have been certified since no one

specifically asked that question. In short, we are left to speculate upon the reasons why

counsel selected the course he did, and that we cannot do. Perez v. State, 56 S.W.3d 727,

731 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d). And, these circumstances prevent

us from concluding that appellant established that his trial attorney was ineffective. See

Fulgium v. State, 4 S.W.3d 107 116-17 (Tex. App.–Waco 1999, pet. ref’d) (holding that

without a record showing why defense counsel did not properly object to the trooper’s

testimony regarding administration of the HGN test and that the trooper was not certified

to administer the test, the claim of ineffective assistance could not be meaningfully

addressed).

       Accordingly, the judgment of the trial court is affirmed.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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