Means v. Director, TDCJ-CID

Filing 18

MEMORANDUM ORDER adopting 15 Report and Recommendation. Ordered that the application for writ of habeas corpus is dismissed with prejudice. Ordered that the Petitioner Larry Means is denied a certificate of appealability sua sponte. Ordered that any and all motions which may be pending in this action are hereby denied. Signed by Judge Ron Clark on 8/18/2016. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
LARRY WAYNE MEANS

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v.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:15cv668

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Larry Means, proceeding pro se, filed this application for the writ of habeas
corpus under 28 U.S.C. §2254 complaining of the legality of his conviction. This Court ordered that
the matter be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and
(3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges.
I. The Facts of the Case
Means pleaded guilty to and was convicted of felony driving while intoxicated, receiving a
sentence of 50 years in prison. He complained that his attorney, John W. Moore II, failed to
investigate the warrantless blood draw and told Means there was no basis for a motion to suppress
the blood test, but the Supreme Court case of Missouri v. McNeely, 133 S.Ct. 1552 (2013) held that
where police officers can reasonably obtain a warrant before a blood sample is drawn, they must do
so. Although this decision was rendered over seven months before Means entered his plea, he
complains counsel failed to file a motion to suppress.
Means also complained that counsel failed to advise him of a flaw in the indictment, in that
the indictment charged him with “driving while intoxicated 3rd or more” and contained three
allegations of prior DWI convictions and one allegation of an arson conviction, but not a repeat or

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habitual offender notice. Thus, Means argued that each of the alleged prior offenses were elements
of the charged offense and only the arson conviction could be used to enhance the punishment range,
making the charged offense a second-degree felony carrying a punishment range of two to 20 years,
well under the 50-year sentence he received. He further complained that counsel told him he had
no issues for appeal and therefore should waive his appellate rights.
II. The Report of the Magistrate Judge
After review of the answer, Means’ reply, and the state court records, the Magistrate Judge
issued a Report recommending that the petition be denied. The Magistrate Judge observed that in
McNeely, the Supreme Court did not hold that the taking of a blood sample in the absence of a
warrant was per se invalid, but that the reasonableness of a warrantless blood test had to be
determined on a case by case basis in light of the totality of the circumstances. Means offered
nothing to suggest that under the totality of the circumstances in his case, a motion to suppress filed
by counsel would likely have been granted; thus, the Magistrate Judge concluded that Means had
failed to show that but for counsel’s alleged dereliction, the result of the proceeding would probably
have been different. See Ward v. Dretke, 420 F.3d 479, 488 (5th Cir. 2005) (attorney’s failure to
file a motion to suppress may constitute deficient performance if the evidence would have been
suppressed as a result of the motion); Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2674,
2583, 91 L.Ed.2d 305 (1986) (where petitioner alleges that defense counsel failed to litigate a Fourth
Amendment claim competently, the petitioner must show that his Fourth Amendment claim is
meritorious and that there is a reasonable probability that the verdict would have been different
absent the excludable evidence in order to demonstrate actual prejudice).
The Magistrate Judge next observed that Means signed a judicial confession attesting that
he was guilty of the offense alleged and that this statement carried a strong presumption of verity
which Means failed to overcome. The entry of a guilty plea with an eye toward showing the finder
of fact that the defendant deserves credit for admitting guilt can be a legitimate trial strategy, and

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the Magistrate Judge concluded that Means failed to overcome the presumption that counsel’s trial
strategy was sound.
The Magistrate Judge stated that Means’ indictment contained four paragraphs, of which the
first alleged the primary offense of driving while intoxicated (3rd offense), the second contained the
two prior convictions which made the primary offense the third offense, and the third and fourth
paragraphs contained prior felony offenses used for purposes of enhancement. Because Means
committed a felony offense and had previously been convicted of two earlier felony offenses, the
Magistrate Judge determined that the proper range of punishment was 25 to 99 years or life, and
Means was advised of this.
The state habeas court made findings of fact that Moore advised Means to sign a waiver of
appeal and Moore made clear that the decision belonged to Means, and that the trial court
admonished Means that the final decision to plead guilty and waive appeal was his and his alone.
Means did not rebut these findings by clear and convincing evidence. The Magistrate Judge also
stated that Means failed to show that but for counsel’s actions, he could have raised meritorious
grounds on appeal. Thus, the Magistrate Judge recommended that Means’ petition be denied and
that Means be denied a certificate of appealability sua sponte.
III. Means’ Objections to the Report
In his objections, Means states first that the reasoning for the warrantless blood draw was
an unconstitutional state statute. He asserts that “if the natural dissipation of alcohol in the blood
does not constitute an exigency sufficient to justify conducting a blood test without a warrant, then
surely an unconstitutional state statute cannot justify conducting a blood test without a warrant.” He
contends that “without a blood test there is no absolute proof of driving while intoxicated” and that
he has unexplained medical conditions which would impair his ability to perform the tasks required.
He also states that it was 2:43 a.m. and “drowsiness is a known impairment to a sobriety test.” He
maintains that he would not have pleaded guilty but would have insisted on going to trial had
counsel not been ineffective.

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IV. Discussion
Intoxication is defined under Texas law as either not having the normal use of mental or
physical faculties by reason of the introduction of alcohol, drugs, or any other substance into the
body, or a blood alcohol concentration of .08 or more. Tex. Penal Code Ann. art. 49.01(2). The fact
that a person lacks the normal use of his physical or mental faculties by reason of the introduction
of alcohol or drugs into his body may be proved by circumstantial evidence. Paschall v. State. 285
S.W.3d 166, 176 (Tex.App.-Fort Worth 2009, pet. ref’d), citing Smithhart v. State, 503 S.W.2d 283,
284 (Tex.Crim.App. 1973); see also Compton v. State, 120 S.W.3d 375, 380 (Tex.App.-Texarkana
2003, pet. ref’d) (evidence was sufficient to support conviction for driving while intoxicated when
the jury had the state trooper’s testimony concerning the stop as well as the video recording of the
appellant’s field sobriety tests).
Although Means argues that there is no absolute proof of intoxication without a blood test,
he fails to show that the evidence would not support a conviction even had his blood test been
suppressed. He was seen driving at a high rate of speed, his vehicle struck a curb and lost a wheel
but he continued to try to drive for a short distance, he was unsteady on his feet and had a strong
odor of alcohol, he gave inconsistent answers as to where he had been, and he failed three field
sobriety tests.
Furthermore, as the Magistrate Judge correctly stated, Means wholly failed to show that
under the totality of the circumstances in his case, a motion to suppress would likely have been
granted. Means argues that the reason for the blood draw was “an unconstitutional state statute,”
but he does not identify any such statute. Several Texas appellate courts have held that Tex.
Transportation Code art. 724.012, regarding the taking of blood or breath specimens, is
constitutional on its face. Cosino v. State, slip op. no. 10-14-00221-CR, 2016 Tex.App. LEXIS 8294
(Tex.App.-Waco, August 3, 2016); Gore v. State, 451 S.W.3d 182, 189 (Tex.App.-Houston [1st
Dist.] 2014, pet. ref’d); State v. Martinez, civil action no. 13-14-00117-CR, Tex.App.-LEXIS 4380
(Tex.App.-Corpus Christi, April 30, 2015). The Supreme Court held that a number of factors could

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affect the analysis of whether an exigency existed excusing the requirement to obtain a warrant,
including the need to attend to a car accident, the procedures in place for getting a warrant, or the
availability of a magistrate to issue the warrant. McNeely, 133 S.Ct. at 1568. Means did not
address whether or not any exigent circumstances may have existed in his case which could have
excused the requirement of obtaining a warrant. Because Means has not shown that counsel was
ineffective for failing to file a motion to suppress or that but for this failure, the result of the
proceeding would probably have been different, his objection on this point is without merit.
Means next argues that “the fact that the offense charged with DWI 3rd or more renders any
prior DWI as elements of the offense.” Thus, he contends that the previous conviction for DWI 3rd
or more was necessarily an element of the offense and was not available for enhancement purposes.
As the Magistrate Judge properly determined, paragraph 1 of the indictment charged Means
with driving while intoxicated on February 24, 2013, which was the primary offense. Paragraph 2
alleged that he had previous convictions for driving while intoxicated on March 5, 1992, and
September 15, 1993. These two previous convictions elevated the primary offense to felony DWI.
Paragraph 3 alleged that Means was convicted of arson on September 7, 1993, which is the first prior
felony alleged for enhancement, and paragraph 4 alleged that Means was convicted of felony DWI
on June 7, 2007, which is the second prior felony alleged for enhancement. Texas law permits a
prior felony DWI charge to enhance a present felony DWI charge when all of the charges are
separate and distinct. Ex Parte Serrato, 374 S.W.3d 636, 637 (Tex.App.-Fort Worth 2012, pet.
ref’d). Means has failed to show that the felony DWI alleged in paragraph 4 of the indictment was
an element of the offense rather than a separate felony alleged for enhancement. His objection on
this point is without merit.
Third, Means contends that the Magistrate Judge failed to address his claim that his guilty
plea was the product of ineffective assistance of counsel. The Magistrate Judge determined that
counsel did not render ineffective assistance and that Means failed to show that his guilty plea was
involuntary or coerced. Because counsel did not render ineffective assistance, Means has failed to

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show that but for counsel’s alleged errors, he would not have pleaded guilty but would have insisted
on going to trial. See Joseph v. Butler, 838 F.2d 786, 791 (5th Cir. 1988) (mere allegations from
petitioner that he would have demanded a trial if counsel’s advice had been different are insufficient
to establish a reasonable probability that he would have actually done so); DeVille v. Whitley, 21
F.3d 654, 657 (5th Cir. 1994) (where defendant understands the charges against him and the
consequences of a plea, and voluntarily chooses to plead guilty without being coerced to do so, this
plea will be upheld on federal review). The evidence was sufficient to support a finding of guilt
even had counsel filed a successful motion to suppress, and Means has offered nothing beyond
conclusory allegations to suggest that he would have insisted on a trial had counsel’s actions been
different. His objections are without merit.
V. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate
Judge’s proposed findings and recommendations to which the Petitioner objected. See 28 U.S.C.
§636(b)(1) (district judge shall “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”) Upon such de novo
review, the Court has determined that the Report of the Magistrate Judge is correct and the
Petitioner’s objections are without merit. It is accordingly
ORDERED that the Petitioner’s objections are overruled and the Report of the Magistrate
Judge (docket no. 15) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled application for the writ of habeas corpus is DISMISSED
WITH PREJUDICE. It is further
ORDERED that the Petitioner Larry Means is DENIED a certificate of appealability sua
sponte. Finally, it is

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ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
So ORDERED and SIGNED this 18 day of August, 2016.

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Ron Clark, United States District Judge

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