STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST
COURT OF APPEALS HARRIS COUNTY
J., delivered the opinion of the Court in which Keller, P.J.,
and Keasler, Hervey, Keel and Walker, JJ., joined. Alcala,
J., filed a dissenting opinion in which Richardson, J.,
joined. Newell, J., did not participate.
was arrested for the misdemeanor offense of driving while
intoxicated ("DWI") on September 24, 2004. In a
jury trial, he was convicted of that offense on January 11,
2005. His punishment was assessed at 180 days in county jail,
probated for a period of one year, and an $800 fine. Although
he originally intended to appeal his conviction, Appellant
filed a motion to dismiss the appeal, which was granted on
January 6, 2006. On September 27, 2013-more than seven and a
half years after his conviction became final by the dismissal
of his appeal-Appellant filed a post-conviction application
for writ of habeas corpus under Article 11.072 of the Code of
Criminal Procedure, alleging that his trial counsel's
representation had been constitutionally deficient to his
substantial detriment. Tex. Code Crim. Proc. art. 11.072.
convicting court conducted a hearing on the writ application
and ultimately denied relief. On appeal,  however, the
First Court of Appeals reversed, concluding that counsel had
performed deficiently and that Appellant had suffered
prejudice. Ex parte Bowman, 444 S.W.3d 272, 282
(Tex. App.-Houston [1st Dist.] 2014). The court of appeals
rejected the State's attempt to rely on the equitable
doctrine of laches to bar habeas corpus relief on the ground
that the State had not invoked laches during the writ hearing
at the convicting court level. Id. at 279. On the
State's petition for discretionary review, however, this
Court vacated the judgment of the court of appeals and
remanded the cause for further proceedings, holding that the
State did not forfeit its laches argument by failing to raise
it first in the convicting court. Ex parte Bowman,
447 S.W.3d 887, 888 (Tex. Crim. App. 2014).
court of appeals remanded the cause, in turn, to the
convicting court for further factual development in a hearing
on the laches issue. Ex parte Bowman, 483 S.W.3d
726, 731 (Tex. App.-Houston [1st Dist.] 2016). After
conducting the hearing, the convicting court concluded that
Appellant should be barred by laches from obtaining habeas
corpus relief. The court of appeals reversed the convicting
court again, however, holding that laches did not bar
Appellant from pursuing his ineffective assistance of counsel
claim, and once again granting Appellant relief on that
claim. Id. at 738, 741. We granted the State's
second petition for discretionary review with respect to two
issues: 1) Did the court of appeals err to reach the merits
of Appellant's habeas claim when he waited over seven and
a half years to assert it; and, if not, then, 2) in any
event, did the court of appeals err to hold that Appellant
established ineffective assistance of counsel at his 2005
trial for DWI. Because we hold that the court of appeals
erred to find trial counsel ineffective, we need not address
the laches issue.
jet-skiing in the afternoon with one friend, and then
drinking at least one glass of wine at the apartment of
another friend before briefly falling asleep on her couch,
Appellant drove home in the early morning hours of September
24, 2004. Officer William H. Lindsey of the Houston Police
Department clocked Appellant driving sixty miles per hour in
a thirty-five mile per hour speed zone and pulled him over
into the parking lot of a gentlemen's club. Lindsey
observed no other infractions of the law before stopping
Appellant. Once he did stop Appellant, however, Lindsey
detected the odor of alcohol on his breath. He therefore
asked Appellant to submit to field sobriety testing. At
first, Appellant refused to do any of the field sobriety
tests, claiming that he had prior injuries to his knee and
ankle. But when Lindsey placed him in handcuffs, Appellant
agreed to undergo the testing. Lindsey then uncuffed
Appellant and began administering the horizontal gaze
nystagmus test. From that test, Lindsey perceived six signs
of intoxication. Lindsey next asked Appellant to perform the
leg-lift test, but Appellant was unable to do it. He did,
however, perform the heel-to-toe test, after which Lindsey
arrested him for driving while intoxicated. The sobriety
testing and subsequent arrest were recorded on Lindsey's
dash camera. Down at the station house, Appellant refused to
submit to a breathalyzer test or further physical sobriety
testing. He was later charged with misdemeanor DWI.
December of 2004, Appellant replaced his originally retained
attorney with new counsel, Ned Barnett. The trial judge made
it clear to Barnett, however, that he would be expected to go
forward on the original trial date set for January 11, 2005.
In a jury trial on that date, Lindsey testified against
Appellant as summarized above, and the video of
Appellant's field sobriety testing was admitted into
evidence. In addition, Officer Raymond Cibulski testified
that, once Appellant arrived at the station house, he refused
to submit a sample of his breath for blood-alcohol analysis.
Though Cibulski smelled "a strong odor of an alcoholic
beverage on [Appellant's] breath, " saw his
"red bloodshot eyes, " and heard his "slurred
speech, " he was unwilling to state an opinion about
whether Appellant was intoxicated. Officer Chris Green gave
Appellant another "opportunity to perform motor skill
exercises[, ]" but Appellant "refused them
all." Like Cibulski, Green perceived "a strong odor
of alcoholic beverage on [Appellant's] breath and red,
glassy eyes." But he was also unwilling to offer the
opinion that Appellant had necessarily been intoxicated.
Lindsey had no such reluctance, confidently asserting at
several points during trial that it was his opinion that
Appellant had lost the normal use of his physical and mental
faculties because of alcohol intoxication.
cross-examination of Lindsey, Barnett established that, for
eighteen years, Lindsey's duties as a Houston police
officer had "focus[ed]" on DWI investigations, most
recently as a member of a "D.W.I. task force[.]"
Lindsey testified that both Cibulski and Green were also
members of the DWI task force. Lindsey acknowledged that he
is off duty when he testifies in court, for which he gets
"paid overtime, time and a half." He testified that
during the previous year he had made four hundred and
seventy-six arrests for driving while intoxicated:
Q. So, whenever you make an arrest and you go to court in
your off time, you're getting time and a half?
A. I'm required to be here by law, yes, sir.
Q. And that is part of your job description?
A. You're a police officer, you're expected to either
-- it's part of your job. I don't see how you can be
a police officer and not make an arrest or not write tickets
if you're in the street, that's correct.
Q. Testifying is part of your job description?
A. If you make arrests, yes, sir, it comes with the
Q. You make a lot of D.W.I. arrests, don't you?
A. It's what I do solely, yes, sir.
Q. Do you have an estimate of how many D.W.I. arrests you
make in a month?
A. No, because each month is different. You have cold weather
months, not too many people go out during the cold weather,
hot rainy months, rainy weather. On average, well, I can give
you -- last year, I can give you a number, I know the total
number of arrests I made for the year is four hundred and
seventy-six, myself, for the year.
Q. Four hundred and seventy-six in a twelve month period?
A. That's correct.
this juncture, Barnett turned to questioning Lindsey
specifically about his stop of Appellant. Later, during his
final summation to the jury, Barnett made no mention of the
ARTICLE 11.072 WRIT APPLICATION
after he was convicted, Appellant's appeal was dismissed
at his own behest, and his 2005 conviction for DWI became
final. More than seven years later, in April of 2013,
Appellant was again charged by information with misdemeanor
DWI. His 2005 DWI conviction was also alleged, as a prior
conviction, to enhance the 2013 DWI offense from a Class B
misdemeanor, with a minimum term of confinement of 72 hours,
see Tex. Penal Code § 49.04(b), to a Class A
misdemeanor, with a minimum term of confinement of 30 days,
see Tex. Penal Code § 49.09(a).
responded by filing an application for writ of habeas corpus
under Article 11.072, challenging the 2005 DWI conviction.
Tex. Code Crim. Proc. art. 11.072. In his application
Appellant alleged, among other things, that Barnett rendered
ineffective assistance of counsel during his 2005 trial by
failing vigorously enough to develop and present evidence of
a pattern on the arresting officer's part of making
unwarranted DWI arrests in order to earn overtime pay.
outset of the hearing on the writ application, Appellant
introduced a number of exhibits to substantiate this claim.
The State made no objection. These exhibits include a letter
from the Houston Police Department, generated in response to
Appellant's request under the Texas Public Information
Act, which shows that in the years 1992 through 2004,
inclusive, Lindsey earned more in combined overtime pay than
he earned in combined regular salary. In nine of those
thirteen individual years, Lindsey earned more in overtime
pay than in regular salary. And in the first eleven months of
2004-the year of Appellant's first DWI arrest-Lindsey
earned a total of $145, 957, of which only $63, 924 was
regular salary while $82, 032 was paid
other exhibits that were admitted at the hearing without
objection, three criminal defense lawyers from Harris County,
who asserted that they have tried "many" DWI cases
there, claimed as follows (as exemplified by the affidavit of
Doug Murphy, who described himself as
"specializing" in DWI cases):
It is common knowledge among lawyers in Harris County who
regularly handle DWI cases during Lindsey's tenure on the
DWI Task Force that he arrested many people in affluent parts
of southwest Houston-regardless of how well they performed
the field sobriety tests or how sober they appeared to be on
videotape-so he could obtain overtime pay for appearing in
court pursuant to a subpoena to testify at their trials.
Competent defense lawyers made Public Information Act
requests to HPD to obtain Lindsey's payroll records
before they tried DWI cases in which he would testify.
* * *
Defense lawyers would present this evidence on
cross-examination to demonstrate Lindsey's motive for
making the arrest. They typically would argue that Lindsey
arrested sober drivers for DWI because he knew that they
would go to trial and he would receive overtime pay for
appearing in court to testify; that, for this reason, he gave
no driver the benefit of the doubt at the scene; that, in
effect, he received three days of pay for appearing at a
two-day trial; that he received the money even if the
defendant were acquitted; and that his overtime pay exceeded
his regular pay during his tenure on the task force.
Arguments of this nature frequently persuaded juries to
reject Lindsey's opinion regarding intoxication.
I believe that a reasonably competent criminal defense lawyer
trying a DWI case in which Lindsey was a key prosecution
witness in 2005 would have obtained his payroll records;
elicited on cross-examination the amount of money he had
received in overtime pay; and argued that his opinion that
the driver was intoxicated was not credible because he had a
financial motive to make the arrest. Eliciting only the
number of DWI arrests that Lindsey made during the previous
year and that he was paid time-and-a-half for overtime when
he testified would not have given the jury sufficient
information to fully assess his financial motivations.
other two attorneys' affidavits set out essentially the
addition, Appellant introduced an affidavit from the trial
judge from Appellant's 2005 DWI trial, former Judge
Michael Allen Peters. Appellant's habeas counsel posed
the following hypothetical question to Judge Peters: Would he
have allowed defense counsel at the 2005 trial to question
Lindsey "as to what amount of compensation he, in fact,
receives for testifying in a court wherein the trial or
hearing involves one of his arrestees, and what would be the
amount of overtime compensation both for the specific case
(Bowman) as well as for the year[?]" Judge Peters
In all probability I would have allowed the witness to answer
that question (if it was asked with the proper predicate) as
it would seem to show the jury or allow the jury to determine
a possible motive behind the arrests of 476 persons including
Mr. Bowman. The jury might conclude that . . . Officer
Lindsey had a financial interest, bias, perhaps a monetary
influence for his part of the testimony given in a trial or
hearing. * * * Moreover, this issue is familiar to me from
other cases involving Officer Lindsey, both in my court and
other courts, wherein Officer Lindsey had testified regarding
the relevance to the trier of fact of this matter.
Appellant contended that his trial counsel, Barnett, was
ineffective for not developing and presenting such evidence
of Lindsey's self-interest.
was the only witness to testify at the writ hearing. Over and
over, he professed not to be able to remember whether he had
obtained Lindsey's overtime pay records in preparation
for Appellant's 2005 trial:
Q. I want to talk to you, first of all, about your
cross-examination of Officer Lindsey. What did you know about
him when you tried the case?
A. As I sit here right now, I don't know a -- how -- at
some point I learned a lot about Officer Lindsey as everybody
did. I don't know what information I had at that point
here eight or nine years later.
Q. Did you know that he was the highest paid officer in the
city based on the way he worked the overtime system?
A. At some point I knew that. I don't know if I knew that
at the time this case was tried.
Q. Well, did you obtain Officer Lindsey's payroll records
to determine what he was doing with regard to his overtime
pay at the time you tried the case?
A. As I sit here now, I don't, I don't know if I had
them at that time.
Q. All right. But at the time you tried the case were you
aware of Officer Lindsey's reputation for arresting
everybody he stopped for DWI to collect overtime pay for
himself and his fellow Task Force officers?
A. I, I knew all these officers did that.
Q. Okay. Did you believe it would be important to obtain the
records regarding his overtime pay during that period of
A. Well, it could be. I think we talked about that quite a
bit in this case.
Q. So the question is: Did you have his overtime pay records
or not when you tried the case?
A. Oh, yeah. I don't know the answer to that.
Q. Did you know how to obtain an officer's overtime
payroll records back at the time you tried this case?
A. I'm sure I did at that time.
A. With an Open Records ...