Read v. State, No. 2-06-065-CR (Tex. App. 3/29/2007)

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Unpublished Opinion

DONALD WAYNE READ, Appellant, v. THE STATE OF TEXAS, State.

No. 2-06-065-CR.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: March 29, 2007.

Do Not Publish. Tex.R.App.P. 47.2(b).

Appeal from Criminal District Court No. 4 of Tarrant County.

Panel A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.

MEMORANDUM OPINION¹

BOB McCOY, Justice.

I. Introduction

A jury convicted Appellant Donald Wayne Read of felony driving while intoxicated (DWI). The trial court sentenced Read to fifteen years' confinement. In four points, Read argues that the evidence is insufficient to support the guilty verdict, that the trial court abused its discretion by denying his motion to quash the indictment, that the trial court abused its discretion by denying his motion to suppress the test results of the Intoxilyzer 5000, and that the trial court erred by allowing State's Exhibit 6 into evidence. We affirm.

II. Background Facts

Just after 2:00 a.m. on August 7, 2004, Alicia King, a civilian, called the Azle Police Department to complain about a van driving in an unsafe and erratic manner. Shortly thereafter, Azle police officers Patrick Bovea and Bill Jones received a dispatch regarding a possible intoxicated driver in a brown van. Roughly one minute later, Officer Bovea spotted the brown van and, after activating his in-car camera, began to follow it.

Officer Bovea testified that while following the van he witnessed the van's right tires cross the broken white line and then return to the passing lane on four separate occasions. Following the fourth incident, Officer Bovea proceeded to stop the van. Officer Bovea approached the van and directed Read, the driver, to exit the vehicle. Officer Bovea testified that he smelled a strong odor of alcohol on Read's breath, that Read's voice was "slurred and soft," and that Read "didn't have a real good balance."

Officer Bovea commenced field sobriety tests, specifically the horizontal gaze nystagmus, the walk-and-turn, the one-leg stand, the nose touch, and alphabet and counting tests. The results of the horizontal gaze nystagmus test indicated that Read's eyes did not pursue smoothly and that nystagmus was present in both eyes. Officer Bovea testified that during the walk-and-turn test Read failed to touch heel to toe several times and used his arms for balance. Officer Bovea testified that during the one-leg stand Read swayed while he balanced, put his foot down for balance, and used his arms to regain his balance. During the nose touch, Read swayed while doing the evaluation and missed touching his nose with his right finger on one occasion. Additionally, Read was unable to properly state the sequence during both the alphabet and counting tests.

While Read was undergoing the field sobriety tests, Officer Robert Spohn arrived at the scene as a back-up. Officer Spohn testified that he also smelled the strong odor of alcohol on Read's breath. Officer Spohn testified that with the exception of the horizontal gaze nystagmus test, he was able to witness Read's performance on the field sobriety tests. Officer Spohn testified that at some point during the tests Read informed him that he had "a metal or steel rod in his leg." Following the tests, it was the opinion of the three officers on the scene that Read was intoxicated from alcohol.

Officer Bovea placed Read under arrest for investigation for driving while intoxicated. An inventory of the contents of Read's van was completed, and Read was transported to the station for further investigation. At the station, Read agreed to submit to a breath test. At 4:07 a.m. the first breath sample was taken which registered .136. A second breath sample was taken at 4:10 a.m. and registered .129.

Read was indicted for felony DWI. Prior to trial, both parties stipulated that Read had two prior final convictions for DWI. A trial on the merits commenced on January 24, 2006, and resulted in a hung jury. A second trial on the merits commenced on February 7, 2006, and resulted in a guilty verdict. Read was sentenced to fifteen years' confinement.

III. Legal Sufficiency

In his first point, Read challenges the legal sufficiency of the evidence to support his guilty verdict.

A. Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

B. Legally Sufficient Evidence of Felony DWI

Section 49.04 of the Texas Penal Code defines the offense of DWI. See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003). Under this provision, a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. See id. "Intoxicated" means (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol or (B) having an alcohol concentration of .08 or more. Id. § 49.01(2). Section 49.09 may elevate the offense to a felony if the person has previously been convicted at least twice for DWI. Id. § 49.09(b)(2).

Thus, to obtain a conviction for felony DWI, the State needed to prove that (1) Read was intoxicated, (2) while operating a motor vehicle, (3) in a public place, and (4) Read had twice previously been convicted of DWI. The only point of contention in this case was Read's intoxication. Read did not contest the fact that he was operating a van in a public place, and he stipulated prior to trial that he had previously been convicted of DWI on September 21, 1988, and again on June 27, 1995.

Here, the State introduced evidence from three officers that Read showed signs of impairment. Officer Bovea testified that he witnessed Read's van cross the broken white line and return to the passing lane on four separate occasions. Both Officers Bovea and Spohn testified that they smelled the odor of alcohol on Read. All three officers present at the scene testified that after witnessing Read's field sobriety test performance, it was their opinion that Read was intoxicated from alcohol. The testimony of an officer that a person is intoxicated may provide sufficient evidence to establish the element of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979).

Additionally, the jury viewed video of both Read's field sobriety tests and intoxilyzer room interview. Furthermore, the State presented evidence that Read's blood alcohol registered above the legal limit of .08. Breath test results might not be conclusive proof that a defendant was intoxicated at the time he was driving; however, evidence of breath test results, coupled with the arresting officer's testimony of his observations and the videotape of the stop, are probative evidence of the defendant's intoxication. See Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).

At trial, Read argued that the field sobriety test results were caused by a lack of sleep and that the video of Read's performance of the field sobriety tests differed from the officer's testimony. Read also challenged the validity of the Intoxilyzer results. The jury was in the best position to judge the credibility of the witnesses, and reconciliation of any conflict between the testimony and other evidence, such as the videotape, was a duty for the jury. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).

Viewed in the light most favorable to the verdict, the testimony was sufficient for a rational trier of fact to have found beyond a reasonable doubt the essential elements of felony driving while intoxicated. We conclude that the evidence was legally sufficient to prove the essential elements of the offense of felony DWI. We overrule Read's first point.

IV. Felony Repetition

In his second point, Read challenges the trial court's denial of his motion to quash the indictment. Specifically, Read argues that his prior DWI convictions were too remote to be utilized for felony enhancement.²

Chapter 49 of the Penal Code became effective on September 1, 1994.³ Prior to that date, DWI convictions were charged under article 67011-1.⁴ A conviction which occurred under article 67011-1 after January 1, 1984, but prior to September 1, 1994, may properly be used to enhance a sentence. See Ex parte Serrato, 3 S.W.3d 41, 42 (Tex. Crim. App. 1999); State v. Verhoeven, 151 S.W.3d 637, 642 (Tex. App.-Fort Worth 2004, pet. ref'd).

Former section 49.09(e) of the Texas Penal Code, in effect at the time of the charged offense, imposed a remoteness restriction on the use of the prior convictions.⁵ In order to exclude a prior conviction from use for jurisdictional enhancement, three conditions must be met: (1) the prior conviction must be final; (2) the current offense must have been committed more than ten years after the latest date determined under section...