Opinion issued August 6, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00745-CR
SONYA FAYE ZANES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Case No. 92857-CR
MEMORANDUM OPINION
A jury found Sonya Faye Zanes guilty of driving while intoxicated with a
child passenger,1 and the trial court sentenced her to one year’s imprisonment,
suspending the sentence and imposing three years’ community supervision in its
1
See TEX. PENAL CODE § 49.045.
place. Zanes filed a motion for new trial alleging ineffective assistance of trial
counsel, which was denied after a hearing. On appeal, Zanes argues she received
ineffective assistance of trial counsel and appellate counsel in presenting the motion
for new trial. We affirm.
Background
Zanes was pulled over for driving 70 miles per hour in a 60 mile per hour
zone. At the time, her ten-year-old grandson was in the front passenger seat.2 The
officer noticed that Zanes’s speech was slurred and “thick-tongued.” He did not
smell alcohol, so he asked Zanes if she had taken any medication. She admitted to
taking her anxiety medication about 20 minutes before she was stopped. The
officer’s body and dash camera footage showed that during the traffic stop, Zanes
displayed signs of impairment during standardized field sobriety tests. She also
struggled to follow instructions and maintain her balance.
Zanes was arrested and a warrant to test a sample of her blood yielded results
showing the presence of phentermine, clonazepam, codeine, and delta-THC. After
reviewing the video footage, police reports, and toxicology lab results, the State’s
drug recognition expert opined that the clonazepam in Zanes’s system correlated to
the impairment symptoms she displayed in roadside testing.
2
The disputed element of the offense at trial was whether Zanes was intoxicated. The
grandson’s presence in the car and his age were undisputed.
2
Zanes’s husband testified for the defense. He said that Zanes recently had her
front teeth pulled, and the missing teeth caused her to have trouble speaking clearly.
He also testified that Zanes had consulted a doctor about lowering her clonazepam
dosage because it was making her too lethargic, and the doctor had cut the dose in
half. He was surprised by the report that Zanes had told the responding officer that
she had taken double her dose. Zanes’s husband said that when pulled over, Zanes
had just picked up her grandson from school because he was suspended.
The State argued that Zanes understood the effects of her medications and
chose to drive with her grandson in the car anyway. The defense did not dispute that
Zanes had taken medication but contended that she was not intoxicated. According
to the defense, Zanes’s behavior stemmed from stress and anxiety related to her
grandson’s school conduct. The jury found Zanes guilty.
Zanes filed a motion for new trial alleging ineffective assistance of counsel.
The motion was denied after a hearing. Zanes appealed.
Ineffective Assistance of Trial Counsel
Zanes argues that she received ineffective assistance from her trial counsel.
We address each allegation of ineffectiveness in turn.
A. General Standards for Ineffective Assistance of Counsel
To prove she received ineffective assistance of counsel, a defendant must
show (1) her counsel’s performance was deficient, and (2) the deficiency prejudiced
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the defense. Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). The first Strickland prong
requires a defendant to establish her trial counsel’s performance fell below an
objective standard of reasonableness in light of prevailing professional norms and
the necessity of the case. Id. Review of a claim of ineffective assistance of counsel
is highly deferential. Strickland, 466 U.S. 689. “The defendant must overcome the
strong presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance and that the conduct constituted sound trial strategy.” Prine
v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017) (citation and internal
quotation omitted).
B. The trial court did not abuse its discretion in overruling Zanes’s motion
for new trial.
The trial court did not abuse its discretion in overruling Zanes’s motion for
new trial. On appeal and in the motion for new trial and hearing, she argues that trial
counsel was ineffective because he failed to call an expert witness, failed to
investigate evidence and witnesses from her grandson’s school, failed to adequately
consult with her before trial, and failed to adequately cross-examine the responding
officer.
1. Standard of Review on Zanes’s Motion for New Trial
Ineffective assistance of counsel may be raised in a motion for new trial. See
Smith, 286 S.W.3d at 340. We review the trial court’s ruling on such a motion under
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an abuse of discretion standard, reversing “only if the trial court’s ruling was clearly
erroneous and arbitrary.” Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App.
2013). An abuse of discretion occurs when no reasonable view of the record would
support the trial court’s ruling. Id. In applying this standard, we review the evidence
in the light most favorable to the trial court’s ruling on the motion for new trial. State
v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014). The trial court, as factfinder,
is the sole judge of witness credibility at a new-trial hearing. Okonkwo, 398 S.W.3d
at 694. In the absence of express findings, we presume that the trial court made all
findings in favor of the prevailing party. Id. We impute implicit factual findings that
support the trial court’s ultimate ruling on the motion for new trial when such
implicit factual findings are supported by the record. Id.
2. Evidence at the Motion for New Trial Hearing
During the hearing on the motion for new trial, Zanes testified that she told
her counsel that when she picked up her grandson, she spoke to a school resource
officer, a secretary, and a principal, but her counsel did not call these witnesses or
obtain the video surveillance of her time at the school. She also testified that her
counsel was ineffective for failing to consult a toxicology expert regarding the
effects of her prescribed medications and her reported use of CBD cream to manage
hand pain. Zanes testified that her counsel did not adequately consult with her
5
leading up to trial. He neither met outside of the courtroom nor reviewed the field
sobriety test videos with her.
Trial counsel testified that he met with Zanes multiple times before trial,
including in the courtroom and library and contacted her regularly by phone and text.
He was standby counsel when she represented herself, and he took over as lead
counsel about a year before trial. Trial counsel did not contact individuals with the
school or obtain school surveillance video because he did not think it would help
Zanes’s case. Trial counsel did not seek a toxicology expert because he had learned
from Zanes’s family members that she smoked marijuana, and he wanted to avoid
cross-examination on that topic.
At the conclusion of testimony during the hearing, the trial court asked
Zanes’s counsel about the allegation in the motion for rehearing that an officer had
told Zanes during the booking process that he thought she was no longer impaired
but that it was too late to change course. Counsel informed the court that he found
no evidence to corroborate what Zanes told him.
At the end of the hearing, the trial court denied the motion. The trial court
declined to speculate whether the witnesses that trial counsel did not call would have
been favorable to Zanes’s defense and agreed that no evidence presented at the
hearing showed that the arresting officer said Zanes was no longer intoxicated during
the booking process.
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3. The trial court’s Strickland findings were not an abuse of
discretion.
After reviewing the transcript of the motion for new trial hearing, we find no
abuse of discretion in the trial court’s conclusion that the record failed to show
ineffective assistance of counsel. We address each ground alleged in the motion.
(1) Failure to Call Expert Witnesses
In the first ground of her motion for new trial, Zanes argued that she received
ineffective assistance at trial because her attorney failed to call an expert witness to
explain the toxicology evidence. She claims that the expert could opine that the
marijuana found in her system resulted from her use of CBD lotion.
In order to prove ineffective assistance in failing to call expert witnesses,
Zanes must demonstrate that experts were available to testify and that their testimony
would have benefited her defense. See Washington v. State, 417 S.W.3d 713, 725
(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Nothing in the record suggests
either that an expert witness was contacted and was willing to testify or what
testimony such an expert would have provided.
Moreover, trial counsel testified that there were strategic reasons for not
calling a toxicology expert. Trial counsel said he learned during family interviews
that Zanes may have smoked marijuana, and he was concerned that such a witness
would face cross-examination about Zanes’s marijuana use. To be successful on an
ineffective assistance claim, the appellant must show that the choices made by trial
7
counsel were not part of any reasonable trial strategy. Wynkoop v. State, 251 S.W.3d
628, 631 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding trial court did
not abuse discretion in denying motion for new trial alleging ineffectiveness based
on trial counsel’s failure to call expert witness when counsel testified to strategic
reasons for doing so). A toxicology expert could have undermined counsel’s
emotional distress defense by focusing more attention on chemical impairment and
highlighting the evidence that supported the State’s intoxication theory. See Lair v.
State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“The
decision whether to present witnesses is largely a matter of trial strategy.”). Zanes
did not meet her burden to show how the outcome of the proceeding would have
been different if counsel had called a toxicology expert, and the record supports the
trial court’s implied determination that trial counsel’s decision not to call an expert
witness was reasonable trial strategy.
The trial court did not abuse its discretion in denying the motion for new trial
on this ground.
(2) Failure to Investigate and Call Witnesses
Zanes also argued in her motion for new trial that her counsel was ineffective
for failing to interview or call witnesses from her grandson’s school or obtain
surveillance video from the school. As with the failure to call an expert witness, in
order to succeed on an ineffective assistance claim based on failure to present
8
testimony from these witnesses, Zanes needed to show that they were available to
testify and that their testimony would have been of some benefit to the defense. Ex
parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (internal quotation
omitted).
At the hearing on the motion for new trial, Zanes’s trial counsel testified that
while this evidence may have established a timeline of events up to the traffic stop,
it would not have been helpful to Zanes’s case. A timeline leading up to the traffic
stop would not have negated the evidence of impairment that arose during and after
Zanes was pulled over. Zanes did not establish that further investigation or calling
these fact witnesses would have benefited her. Perez v. State, 310 S.W.3d 890, 894
(Tex. Crim. App. 2010) (stating failure to call witness does not demonstrate
ineffective assistance without showing that witness was available to testify and
testimony would have benefited defendant).
The trial court did not abuse its discretion in denying Zanes’s motion for new
trial on this ground.
(3) Failure to Cross-Examine Responding Officer
In her motion for new trial, Zanes asserted that her trial counsel was
ineffective for failing to cross-examine the responding officer adequately or present
video of his statements. The motion alleged that after her arrest, when Zanes was
9
being processed, the officer told her that she no longer appeared intoxicated but that
it was too late to reverse course.
No additional evidence related to this claim was presented during the motion
for new trial. During the hearing, the trial court questioned Zanes’s appellate
attorney on this allegation, and the attorney responded that Zanes had told him the
interaction took place. Zanes did not meet her burden to show that the officer was
willing to testify and that his testimony would have benefited her defense. See Perez,
310 S.W.3d at 894.
The trial court did not abuse its discretion in denying her motion for new trial
on this ground.
(4) Failure to Communicate with Zanes
Zanes alleges that her trial counsel was ineffective for failing to adequately
communicate with her during trial preparation. She testified that she never met with
trial counsel except in the courtroom on days she was scheduled to appear. Trial
counsel testified that at first his role was standby counsel because Zanes was
representing herself. A year before trial, trial counsel took over from Zanes as lead
counsel on the case. He met with her in the courtroom and law library and
communicated with her by phone and text. He spoke with her family members as
well.
10
The trial court was entitled to credit counsel’s testimony over Zanes’s
conflicting account. Okonkwo, 398 S.W.3d at 694 (stating trial court is sole judge of
weight and credibility of evidence at motion for new trial hearing). Moreover, Zanes
did not establish how additional communication would have benefited her or led to
a better trial result. See Strickland, 466 U.S. at 694 (requiring defendant to show that
there is a reasonable probability that, but for counsel’s deficiency, result of
proceeding would have been different.). Accordingly, Zanes has not met her burden
to obtain reversal on this basis, and the trial court did not abuse its discretion in
denying her motion on this ground.
C. The record does not support Zanes’s new ground of ineffective assistance.
On appeal, Zanes argues for the first time that trial counsel was ineffective for
failing to file a written pretrial objection to the certificate of analysis for toxicology
lab results. See TEX. CODE CRIM. PROC. art. 38.41 (requiring State to file certificate
of analysis 20 days before trial, and defense counsel to file any written objection to
use of certificate not later than 10th day before trial begins). While trial counsel
objected orally at trial based on the Confrontation Clause, the objection was
overruled because the statute requires written notice at least ten days before trial. See
id.
Zanes did not raise this issue in her motion for new trial, so trial counsel was
not questioned about this allegation of ineffectiveness at the hearing on the motion.
11
The Texas Court of Criminal Appeals has said, “Trial counsel ‘should ordinarily be
afforded an opportunity to explain his actions’ before being denounced as
ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)
(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). As a
result, allegations of ineffectiveness “must ‘be firmly founded in the record.’” Bone
v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson v.
State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999)). “[T]he presumption of a
sound trial strategy cannot be overcome absent evidence in the record of the
attorney’s reasons for his conduct.” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex.
Crim. App. 2011) (quoting Busby v. State, 990 S.W.2d 263, 269 (Tex. Crim. App.
1999)).
As in Menefield, trial counsel may have had strategic reasons for failing to file
a written objection to the certificate of analysis. Menefield, 363 S.W.3d at 593
(stating avoiding practical consequences of written objection could be sound trial
strategy). The practical consequence of a timely written objection to a certificate of
analysis is that the State must call the forensic scientist who tested the specimen as
a witness, rather than simply seeking admission of the toxicology report at trial. Id.
Trial counsel may have made the strategic decision not to force the State to call the
live witness as that would have put more emphasis on the presence of multiple
controlled substances in Zanes’s blood.
12
Where an appellate record is silent on why trial counsel failed to take certain
actions, the appellant has “failed to rebut the presumption that trial counsel’s
decision was in some way—be it conceivable or not—reasonable.” Mata v. State,
226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson, 9 S.W.3d at 814.
Zanes did not meet her burden to establish ineffective assistance of trial counsel on
this ground.
***
We overrule Zanes’s issues related to ineffectiveness of her trial counsel.
Ineffective Assistance of Appellate Counsel
On appeal, Zanes argues that her appellate counsel “unreasonably failed to
support the claim of trial counsel’s ineffectiveness.” She alleges that appellate
counsel failed to develop evidence at the motion for new trial hearing.
The record on appeal does not affirmatively show that appellate counsel was
ineffective in failing to present more evidence at the hearing. See Bone, 77 S.W.3d
at 833 n.13 (stating allegations of effectiveness must be firmly founded in the
record). The record reflects that appellate counsel presented a viable ineffective
assistance of counsel claim, supported with testimony from both Zanes and her trial
counsel. The trial court heard Zanes’s testimony regarding her dental surgery,
prescribed medication, and interactions with school personnel. The trial court also
heard Zanes’s trial counsel’s testimony explaining his strategies and decisions. We
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cannot speculate about appellate counsel’s reasoning for calling some witnesses and
not others. See Martinez, 330 S.W.3d at 901.
Zanes has not met her burden to rebut the presumption that her counsel’s
decisions at the motion for new trial hearing were reasonable. We overrule Zanes’s
issue related to ineffectiveness of her appellate counsel.
Conclusion3
We affirm the trial court’s judgment.
Susanna Dokupil
Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.
Do not publish. TEX. R. APP. P. 47.2(b).
3
This opinion will not prevent appellant from raising ineffective assistance of counsel
claims in an application for writ of habeas corpus, should she choose to pursue that
avenue of relief. Ex parte Varelas, 45 S.W.3d 627, 629–30 (Tex. Crim. App. 2001)
(stating claims of ineffective assistance of counsel are cognizable through
application for writ of habeas corpus, even if the claim was raised and rejected on
direct appeal).
14