Warren v. State

Appellant was charged by information with driving while intoxicated with an enhancement paragraph alleging that appellant had an open container of an alcoholic beverage in his immediate possession at the time of the offense. A police officer was dispatched to the scene of a minor accident, where appellant had crashed into a ditch. The officer found an open container of an alcoholic beverage in the truck, with some of the beverage spilled onto the passenger's seat, and he testified that the hood of the truck was warm. The evidence was sufficient to establish that appellant was intoxicated at the time he was driving in a public place. Appellant was not subject to a custodial interrogation because he was not in custody at the time the officer asked appellant how many drinks he had consumed and whether he was taking any medication. Without any proof that the officer was not qualified to testify as an expert, appellant has failed to meet his burden of showing that he received ineffective assistance of counsel for the failure to object to the officer's expert testimony. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-10-00047-CR, 09-08-2011.