Foley v. State
2010 Tex. App. LEXIS 10071
Tex. App.2010Background
- Foley Jr. was convicted of a third DWI and found to have used his vehicle as a deadly weapon, then sentenced to 25 years.
- The May 21, 2008 crash occurred on the Highway 59 service road in Wharton County; Foley’s vehicle crashed into an aluminum barrier.
- Witnesses Mallett and Hill observed Foley’s disorientation and intoxication symptoms near the scene.
- Officer Savino observed Foley’s red, glassy eyes, slurred speech, strong odor of alcohol, and found beer and wine in the truck; Foley refused breath/blood tests.
- A blood sample obtained via warrant showed a BAC of .26; Foley challenged the search warrant’s probable cause, and trial court proceedings followed with an appeal.
- Counsel for Foley argued ineffective assistance of counsel; the court analyzed performance and prejudice, ultimately upholding most arguments but sustaining the deadly weapon issue modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for blood search warrant | Foley contends field tests were unreliable for his age, undermining probable cause | Savino's affidavit alone could be insufficient without field test data | Probable cause supported; field tests excluded, affidavit still sufficient |
| Ineffective assistance of counsel | Counsel visited the client infrequently and failed to conduct certain investigations | Counsel’s conduct fell within reasonable professional assistance | No prejudice shown; ineffective-assistance claim rejected |
| Sufficiency of evidence for DWI | Evidence inadequate to prove intoxication beyond a reasonable doubt | Evidence showed intoxication and driving; sufficient for DWI conviction | Evidence sufficient under Jackson standard |
| Sufficiency of evidence for deadly weapon finding | Vehicle used or exhibited as a deadly weapon | No evidence that others were endangered; no deadly weapon finding warranted | Deadly weapon finding deleted; judgment affirmed as modified |
Key Cases Cited
- Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App.2007) (probable cause under totality of circumstances; fair probability of evidence)
- Illinois v. Gates, 462 U.S. 213 (U.S. 1983) (probable cause review; substantial basis standard)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (reasonable jury standard for legal sufficiency)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim.App.2010) (abrogates distinct factual sufficiency; applies Jackson standard)
- Laster v. State, 275 S.W.3d 512 (Tex.Crim.App.2009) (appellate weighing of evidence limited; fact-finder credibility)
- Villarreal v. State, 286 S.W.3d 321 (Tex.Crim.App.2009) (hypothetically correct jury charge for sufficiency analysis)
- Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997) (standard for sufficiency review under hypothetically correct charge)
- Drichas v. State, 219 S.W.3d 471 (Tex.App.-Texarkana 2007) (evidence of danger to others required for deadly weapon finding)
- Cates v. State, 102 S.W.3d 735 (Tex.Crim.App.2003) (deadly weapon analysis—must show others endangered)
- Williams v. State, 946 S.W.2d 432 (Tex.App.-Fort Worth 1997) (death or serious bodily injury must be possible for deadly weapon)