OPINION Krysti G. Schneider was convicted of driving while intoxicated with two or more prior convictions for the same offense and was sentenced to five years’ imprisonment, but the trial court agreed to place her on community supervision for five years. See Tex. Penal Code §§ 12.34, 49.04, .09. In her first two issues on appeal, Schneider argues that her trial counsel provided ineffective assistance of counsel, and in her third issue she argues that the trial court erred by failing to hold an evidentiary hearing on her motion for new trial. We will affirm the trial court’s judgment of conviction. BACKGROUND After initiating a traffic stop of Schneider, Officer Terry Flugrath asked her to submit to field-sobriety testing and ultimately concluded that she had committed the offense of driving while intoxicated and arrested her. Officer Flugrath asked Schneider if she would agree to provide a breath sample, but she refused. Following Schneider’s refusal, Officer Flugrath prepared paperwork for a search warrant, and a judge signed a search warrant for a sample of her blood. Officer Flugrath drove Schneider to a hospital not for medical treatment but for the purpose of a blood draw, and there a nurse obtained a blood sample a couple of hours after she was arrested. The sample was placed in storage for over a month before being tested, and the results showed a blood-alcohol level of 0.109. Before trial, Schneider filed a motion to suppress all evidence obtained during the investigation. In a pretrial hearing, the State explained that the parties had been conferring, that the parties were close to a resolution, and that Schneider was “going to pass on the motion today and hopefully we can get to a resolution.” No hearing on the motion was held thereafter. During the trial, the State called several witnesses, including Officer Flugrath, an eyewitness who reported observing reckless driving, the nurse who obtained Schneider’s blood sample, and the forensic scientist who analyzed the sample. In her case in chief, Schneider elected to testify. After considering the evidence, the jury found Schneider guilty of driving while intoxicated with two or more prior convictions for the same offense, and the trial court rendered its judgment of conviction. Following her conviction, Schneider filed a motion for new trial asserting that the search warrant issued in this case did not authorize the testing of her blood and that the testing was not done in a timely manner. The motion for new trial was overruled by operation of law. Schneider appeals the trial court’s judgment of conviction. DISCUSSION In her first two issues on appeal, Schneider contends that her trial attorney provided ineffective assistance by failing to challenge the admissibility of the results of the blood-alcohol testing performed and failing to present her timely filed motion for new trial. In her final issue on appeal, Schneider argues that the trial court erred by failing to hold an evidentiary hearing on her motion for new trial. We will address Schneider’s second issue first and then address her remaining issues in the order briefed. Ineffective Assistance of Counsel To succeed on an ineffectiveness claim, a defendant must show that the attorney’s “representation fell below an objective standard of reasonableness . . . under prevailing professional norms” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). An appellant’s “failure to show either deficient performance or prejudice will defeat the ineffectiveness claim.” Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); see Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To satisfy the first prong, the defendant must overcome the strong presumption that her trial “counsel’s conduct falls within the wide range of reasonable professional assistance” and might be considered sound trial strategy. Strickland, 466 U.S. at 689; see Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A reviewing court must be highly deferential to trial counsel and must strive to review the representation without “the distorting effects of hindsight.” Strickland, 466 U.S. at 689; see Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); Thompson, 9 S.W.3d at 813. In addition, evaluations of effectiveness are based on “the totality of the representation,” Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013), and allegations of ineffectiveness must be firmly established by the record, Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Regarding the second prong, the requirement that there be a reasonable probability that the results would have been different means “a probability that is sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; see Thompson, 9 S.W.3d at 812. “Prejudice to the applicant from counsel’s deficient performance is judged by ‘whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’” Ex parte Amezquita, 223 S.W.3d 363, 366 (Tex. Crim. App. 2006) (quoting Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005)). In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness claims because the record for that type of claim “is generally undeveloped,” particularly “where counsel’s reasons for failing to do something do not appear in the record.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Mallett, 65 S.W.3d at 63 (stating that “[i]n the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions”). In addition, before their representation is deemed ineffective, trial attorneys should be afforded the opportunity to explain their actions. Goodspeed, 187 S.W.3d at 392 (stating that “counsel’s conduct is reviewed with great deference, without the distorting effects of hindsight”). If that opportunity has not been provided, as in this case, an appellate court should not determine that an attorney’s performance was ineffective unless the conduct at issue “was so outrageous that no competent attorney would have engaged in it.” See Garcia, 57 S.W.3d at 440. “When the record is silent and does not provide an explanation for the attorney’s conduct, the strong presumption of reasonable assistance is not overcome,” and appellate courts “do not engage in speculation to find ineffective assistance when the record is silent as to an attorney’s strategy at trial.” Ex parte Torres, No. 08-10-00330-CR, 2012 WL 1431660, at *3 (Tex. App.—El Paso Apr. 25, 2012, no pet.) (op., not designated for publication). Presentment of the Motion for New Trial In her second issue on appeal, Schneider acknowledges that her trial counsel filed a motion for new trial after she was convicted but contends that her trial counsel provided ineffective assistance by failing to timely present the motion for new trial. See Tex. R. App. P. 21.6. The motion for new trial asserted two reasons for why Schneider’s blood-alcohol results should have been suppressed. First, the motion asserted that the Court of Criminal Appeals had clarified shortly before the trial in this case that a search warrant must specifically authorize the testing of a blood sample and that the results should have been suppressed because the search warrant issued in this case authorized the collection of the sample but not the testing of it. See State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019). Second, the motion asserted that the results should have been suppressed because the sample was not tested within the warrant deadline set out in the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 18.07. On appeal, Schneider contends that her trial attorney provided ineffective assistance by failing to present the claims in the motion for new trial to the trial court. Further, Schneider argues that “any competent lawyer would [have] take[n] the appropriate steps to ensure that the motion was properly presented.” Additionally, Schneider asserts that “‘but for’ counsel’s errors, . . . the result of the proceeding would have been different” in that the trial court would have addressed the arguments presented in the motion for new trial during an evidentiary hearing. Regardless of whether Schneider’s attorney properly presented the motion for new trial as contemplated by the Rules of Appellate Procedure, see Tex. R. App. P. 21.6, we cannot sustain Schneider’s issue on appeal. For ineffectiveness claims “concerning a failure of counsel to timely file or obtain a hearing or ruling on a motion for new trial,” reviewing courts “have consistently required a showing of actual prejudice, meaning that but for counsel’s deficient performance, the trial court would have granted the defendant a new trial.” See Jackson v. State, 550 S.W.3d 238, 244 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (collecting cases). Accordingly, any prejudice to Schneider in this case “is dependent on the merits of the motion.” See id. As set out above, Schneider first argued in the motion for new trial that the results of the blood-alcohol testing in this case should have been suppressed under an opinion issued by the Court of Criminal Appeals shortly before the trial in this case. In Martinez, the defendant was transferred to a hospital for treatment after being involved in a traffic accident, and the hospital collected samples of his blood “for medical purposes.” 570 S.W.3d at 281. “The State later acquired and tested the blood, both without a warrant.” Id. When deciding whether the trial court correctly suppressed the evidence, the Court explained that “there is an expectation of privacy in blood that is drawn for medical purposes.” Id. at 291. Further, the Court concluded that the “medical staff at the hospital performed a private search by beginning trauma procedures and drawing [the defendant]‘s blood for medical purposes,” that the State subjected the collected samples to testing “at the DPS laboratory,” that “the State’s subsequent testing of the blood was a Fourth Amendment search separate and apart from the seizure of the blood by the State,” and that the trial court properly granted the motion to suppress because the State did not “obtain a warrant before testing [the defendant]‘s blood.” Id. at 292. Martinez, unlike our case, addressed a warrantless seizure and testing of blood obtained by hospital personnel for the purposes of medical treatment. The Court of Criminal Appeals did not address the circumstances present here in which the blood was collected pursuant to a search warrant. Additionally, the Court has more recently clarified that the terms of a search warrant need not specify that the blood may be collected and subjected to testing and that a second search warrant specifically authorizing testing is not required before blood samples collected under a search warrant can be subjected to testing. Crider v. State, 607 S.W.3d 305, 305-06, 308 (Tex. Crim. App. 2020) (determining that testing of sample of defendant’s blood lawfully collected under search warrant did not violate Fourth Amendment even though there was no “explicit authorization for such testing in the search warrant (or in a separate search warrant)” because, among other reasons, magistrate determined that probable cause “existed to justify its seizure—for the explicit purpose of determining its evidentiary value to prove the offense of driving while intoxicated”); see also Jacobson v. State, 603 S.W.3d 485, 491 (Tex. App.—Fort Worth 2020, pet. ref’d) (noting that Martinez did not mandate that second warrant be obtained before testing may be performed on sample collected under search warrant and that State already provided justification for why blood could be seized when it obtained warrant); State v. Stanton, 599 S.W.3d 614, 617-18 (Tex. App.—Dallas 2020, pet. ref’d) (stating that Martinez does not require that warrant expressly authorize testing); Hyland v. State, 595 S.W.3d 256, 260-61 (Tex. App.—Corpus Christi 2019, no pet.) (explaining that “unlike Martinez, the search here was not warrantless” and that blood was not drawn for medical purposes and concluding that State can “re-analyze evidence lawfully in its possession pursuant to a search warrant”). In light of the differences between this case and Martinez as well as subsequent case law rejecting the arguments Schneider made in her motion for new trial based on Martinez, we conclude that Schneider has failed to establish on appeal that but for her counsel’s failure to present the motion for new trial, the trial court would have erred in not granting her a new trial on this ground. See Jackson, 550 S.W.3d at 244. Turning to Schneider’s second assertion in her motion for new trial that the testing results should have been suppressed because the testing was stale, we note that Schneider’s argument was founded on article 18.07 of the Code of Criminal Procedure, which provides, in relevant part, as follows: “The period allowed for the execution of a search warrant, exclusive of the day of its issuance and the day of its execution, is . . . three whole days” unless the warrant is issued for purposes that are not relevant to this case. See Tex. Code Crim. Proc. art. 18.07(a)(3). After highlighting this statutory provision in her motion, Schneider argued that the evidence should have been suppressed because the testing was not conducted until more than a month after the sample was collected, which Schneider contended exceeded the three-day deadline authorized by article 18.07. However, we disagree with Schneider’s statutory argument and agree with the analysis from one of our sister courts of appeals rejecting the idea that the results of blood testing conducted more than three days after the issuance of a search warrant should not be admitted into evidence. See Ramirez v. State, 611 S.W.3d 645 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d). In reaching its decision, our sister court concluded “based on the plain language of chapter 18″ that “the three-day requirement for the execution of a search warrant sets the limit for the actual search for and seizure of the evidence by a peace officer, not the timing for any subsequent forensic analysis that may be conducted on the seized evidence.” See id. at 651-52 (referencing language from various provisions of chapter eighteen when construing subarticle 18.07(a)(3)). Further, our sister court reasoned that its construction “fits within the purpose of time restrictions on the execution of search warrants, which is to ensure that probable cause, as found by the neutral magistrate who signs the warrant, continues to exist,” and that the “policy of requiring timely execution of warrants seeks to avoid a situation where, due to the passage of time, the information underlying the probable cause determination is no longer valid.” Id. at 652; see also United States v. Grubbs, 547 U.S. 90, 95 (2006) (stating that “the probable-cause requirement looks to whether the evidence will be found when the search is conducted“); United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (observing that “[t]he policy behind . . . time limitation . . . is to prevent the execution of a stale search warrant”). Moreover, our sister court explained that the search warrant and the blood sample were both obtained within a few hours of the traffic stop and held “that the undisputed fact that the forensic analysis of appellant’s blood occurred at a date beyond the three-day window for execution of the search warrant did not render the search warrant stale.” Ramirez, 611 S.W.3d at 652. We agree with the analysis of our sister court and similarly conclude that the three-day requirement listed in subarticle 18.07(a)(3) refers to when the actual search and seizure of the evidence occurs and not to when any forensic analysis of the seized evidence is performed. See Tex. Code Crim. Proc. art. 18.07(a)(3). Moreover, given that Schneider did not challenge whether the blood sample was obtained within the three-day deadline and that the record established that the sample was collected within a few hours of her arrest, we similarly conclude that the forensic analysis occurring more than three days after the warrant issued did not render the results of the testing inadmissible. In light of the plain language of subarticle 18.07(a)(3), we conclude that Schneider has failed to establish on appeal that but for her counsel’s failure to present the motion for new trial, the trial court would have erred in not granting her a new trial on this ground. See Jackson, 550 S.W.3d at 244. For these reasons, we overrule Schneider’s second issue on appeal. Motion to Suppress In her first issue on appeal, Schneider contends that her trial counsel provided ineffective assistance of counsel by failing to challenge the admissibility of the testing performed on the sample of her blood. Although Schneider acknowledges that her trial attorney filed a motion to suppress before trial challenging the admissibility of that evidence and that a hearing on the suppression motion was scheduled, she notes that no hearing was held and that her attorney did not seek a ruling on the motion and did not mention the suppression motion or reference prior objections when the test results were offered at trial. Additionally, Schneider highlights that her trial attorney “failed to include” the “‘staleness’ argument in the motion to suppress,” discussed above involving article 18.07, and failed to argue that the blood-test results were inadmissible under Martinez. Further, Schneider contends that “‘[b]ut for’ trial counsel’s deficient performance, [she] would have had the issue of the admissibility of evidence of the results of the testing of her blood litigated and resolved prior to trial.” In this case, the record shows that Schneider’s trial attorney filed a motion to suppress the evidence obtained during the investigation, that a hearing was scheduled, that the parties informed the trial court that they were going to pass on the hearing because they were close to some type of resolution in the case, that no hearing was held on the motion, and that the trial court did not rule on the motion. Moreover, although Schneider filed a motion for new trial, no allegations of ineffective assistance were presented in the motion, and no hearing was held. Accordingly, Schneider’s trial attorney has not been afforded the opportunity to explain his reasons for not seeking a ruling on the suppression motion. For that reason, Schneider’s “ineffectiveness claim is not firmly found in the record, and the “record is silent as to” her trial attorney’s strategy “for not obtaining a ruling on the pending motion to suppress.” See Ex parte Torres, 2012 WL 1431660, at *3; see also Mallett, 65 S.W.3d at 63 (providing that “[w]hen the record is silent on the motivations underlying counsel’s tactical decisions, the appellant usually cannot overcome the strong presumption that counsel’s conduct was reasonable”); Villalobos v. State, No. 03-13-00687-CR, 2015 WL 5118369, at *5 (Tex. App.—Austin Aug. 26, 2015, pet. ref’d) (mem. op., not designated for publication) (stating that, in general, without record evidence regarding attorney’s strategy, appellate courts “cannot speculate as to whether a valid strategy existed, and thus [an] appellant cannot rebut the strong presumption of reasonable assistance”). Similarly, the record is silent regarding Schneider’s attorney’s reasoning for not objecting to the admission of the results at trial. See Thompson, 9 S.W.3d at 814-15 (concluding that record was not developed to analyze claim that trial counsel was ineffective for failing to object). Moreover, in her brief, Schneider asserts only that the evidence should not have been admitted because of the Martinez decision and because the testing did not occur within the three-day deadline found in article 18.07. However, given our prior discussion distinguishing Martinez from the facts present here and explaining that the plain language of article 18.07 does not support a conclusion that evidence of testing performed outside the three-day deadline should not be admitted, we cannot conclude that Schneider’s attorney’s failure to move to suppress or otherwise object to the testing results on those grounds constitutes ineffective assistance. See Garcia, 57 S.W.3d at 440. In light of the record before this Court, we are unable to conclude that Schneider’s trial attorney’s actions fell below an objective standard of reasonableness under prevailing professional norms. See Ex parte Torres, 2012 WL 1431660, at *3; see also Boswell v. State, No. 09-17-00258-CR, 2018 WL 3370592, at *2 (Tex. App.—Beaumont July 11, 2018, no pet.) (mem. op., not designated for publication) (observing that “the record is silent as to why counsel did not set a hearing and obtain a ruling on the motion to suppress” and overruling ineffectiveness claim). For these reasons, we overrule Schneider’s first issue on appeal. Evidentiary Hearing In her final issue on appeal, Schneider contends that the trial court erred by allowing her motion for new trial to be overruled by operation of law without holding a hearing on the motion. Appellate courts review a trial court’s decision to deny a hearing on a motion for new trial for an abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). Accordingly, appellate courts reverse “only when the trial judge’s decision was so clearly wrong as to lie outside the zone within which reasonable persons might disagree.” Id. (quoting State v. Gonzalez, 855 S.W.2d 692, 695 n.4 (Tex. Crim. App. 1993)). Moreover, the “right to a hearing on a motion for new trial is not absolute.” See Torres v. State, 4 S.W.3d 295, 296 (Tex. App.— Houston [1st Dist.] 1999, no pet.). A trial court is not required to hold a hearing on a motion for new trial if the movant does not request a hearing. See Gallegos v. State, 76 S.W.3d 224, 228 (Tex. App.—Dallas 2002, pet. ref’d). As an initial matter, we note that it appears that Schneider did not preserve this complaint for appellate consideration. See Tex. R. App. P. 33.1(a). Although the record reflects that Schneider timely filed her motion for new trial, it does not reflect that she asked for a hearing on the motion. In her motion for new trial, Schneider did not specifically request a hearing and instead simply mentioned in her motion that the motion will be overruled by operation of law if a hearing was not held within 75 days of her sentence being imposed and asserted that the trial court should grant her a new trial based on the arguments in her motion and on “other reasons that may arise on the hearing of this Motion.” Rather than ask for a hearing on the motion, Schneider asked the trial court to set aside her conviction and order a new trial, and the motion was overruled by operation of law. See id. R. 21.8(a), (c); see also Gallegos, 76 S.W.3d at 228 (observing that “the trial court could not have abused its discretion in failing to hold” hearing on motion for new trial when “nothing in the record . . . suggest[ed] that appellant wanted or requested a hearing on his motion”); see also Roque v. State, No. 01-02-00933-CR, 2003 WL 22310916, at *1, *2 (Tex. App.—Houston [1st Dist.] Oct. 9, 2003, pet. ref’d) (mem. op., not designated for publication) (determining that defendant failed to preserve complaint that trial court erred by failing to hold hearing on motion for new trial where motion for new trial was overruled by operation of law and where record did not indicate that defendant made any “attempt to request a hearing on his motion for new trial”); Oestrick v. State, 939 S.W.2d 232, 234, 235 (Tex. App.—Austin 1997, pet. ref’d) (concluding that defendant failed to preserve for appellate review issue regarding hearing on motion for new trial even where request for hearing was included in motion for new trial because motion for new trial was overruled by operation of law meaning that “the trial court’s failure to conduct a hearing . . . is simply a ‘failure to rule’ on the request for a hearing” and because “there is no indication that appellant ever attempted to schedule a hearing or specifically brought to the trial court’s attention his desire for one”). In any event, we would be unable to conclude that the trial court abused its discretion by failing to hold a hearing. As set out above, in her motion for new trial, Schneider argued that the results of her blood test should have been suppressed because of the recent Martinez decision and because testing of her blood sample did not occur within the three-day deadline found in article 18.07. See Tex. Code Crim. Proc. art. 18.07; Martinez, 570 S.W.3d at 292. However, as set out earlier, the analysis from Martinez does not require that a search warrant authorizing a blood draw in a driving-while-intoxicated case also specifically authorize blood-alcohol testing or that a second search warrant expressly authorizing that type of testing be obtained before a blood sample may be tested, and article 18.07 does not require that a timely collected sample be subjected to testing within three days of the issuance of the warrant. Accordingly, we cannot conclude that the trial court would have abused its discretion by failing to hold a hearing regarding those legal questions.[1] For these reasons, we overrule Schneider’s final issue on appeal. CONCLUSION Having overruled all of Schneider’s issues on appeal, we affirm the trial court’s judgment of conviction. Thomas J. Baker, Justice Before Chief Justice Byrne, Justices Baker and Kelly Affirmed Filed: March 10, 2021 Publish
