Renteria v. The State Of Tex.

MANUEL MORENO RENTERIA, Appellant

v.THE STATE OF TEXAS, Appellee

No. 05-09-00736-CR

Court of Appeals Fifth District of Texas at Dallas

AFFIRM; Opinion issued January 5, 2011

File Date: 01/05/2011

On Appeal from the 199th Judicial District Court

Collin County, Texas

Trial Court Cause No. 199-82785-06

OPINION

Before Justices FitzGerald, Lang-Miers, and Fillmore

Opinion By Justice Fillmore

After the jury found Manuel Moreno Renteria guilty of felony driving while intoxicated (DWI), the trial court assessed punishment, enhanced by two prior convictions, at forty years' imprisonment. In three issues on appeal, Renteria argues the evidence is legally and factually insufficient to support the conviction and the judgment is void because the sentence was not authorized by statute. We affirm the trial court's judgment.

Background

During the early morning hours of June 20, 2006, Sergeant Jon Britton, at the time a patrol officer with the Plano Police Department, was working traffic enforcement and patrolling businesses along Interstate 75 for possible burglaries. Britton was on the service road adjacent to Interstate 75 completing paperwork for a traffic stop when he noticed a car turn into a Texaco station. Britton knew the service station was closed at that hour and had been the target of a number of burglaries. Britton decided to investigate, turned off the lights on his car so that he would not be seen, and drove to the Texaco station.

Britton lost sight of the car for fifteen or twenty seconds after it pulled into the station. However, as Britton drove by the station, he saw the car moving from the gas pumps to the air and water station. After this point in time, Britton never lost sight of the car and did not see the driver and the passenger switch places in the car. The passenger got out of the car, and the driver “popped” the hood. Britton identified Renteria as the driver of the car.

As Britton approached the car, he saw Renteria drinking a twenty-ounce beer. Renteria put the beer over towards the passenger side of the car, as if trying to hide it. Britton told the passenger to sit down on the curb and returned to his car to turn on the video recorder. Britton also requested an additional officer be sent to the scene. As he walked back towards the car, Britton saw that Renteria had the door of the car open and was trying to start the car.

Britton asked Renteria to step out of the car. Renteria's pants were unzipped, and he appeared to have urinated on himself. Britton could smell a strong odor of urine and alcohol on Renteria. Renteria was swaying and stumbling and his speech was slurred. Britton asked Renteria where he was going. Renteria responded he was going to Garland from Richardson when he began having car trouble. Britton told Renteria that he was going the wrong way to get to Garland. Renteria stated he was trying to “get” his friend home. Britton asked Renteria why he did not let the passenger drive, and Renteria repeated that he was taking the passenger home. Renteria never said the passenger was driving the car.

Britton noticed what appeared to be a crack pipe screen in the door panel. Renteria denied the screen was his and said it belonged to a friend who smoked crack. Renteria gave Britton permission to search the car. Officer Antonio Arredondo, who had responded to Britton's call for assistance, was watching the passenger. Renteria went over to Arredondo's location while Britton searched the car. Arredondo smelled a strong odor of alcohol and urine on Renteria and noted that Renteria was slurring his words. Renteria's pants were partially unzipped, and Arredondo believed Renteria might have urinated on himself.

Renteria told Britton that he had drunk two twenty-ounce Budweiser beers. He then admitted that he had drunk four twenty-ounce Budweiser Light beers. Britton performed the horizontal gaze nystangmus (HGN) test on Renteria. According to Britton, the HGN test is used to detect whether alcohol has been introduced into the person's system. In Britton's opinion, Renteria exhibited six out of six clues that he was intoxicated.

Renteria told Britton that he had a disability that prevented him from performing other field sobriety tests. Britton noted that one of Renteria's shoes was larger than the other and took Renteria's disability into account in determining whether Renteria was intoxicated. Britton requested that Renteria say the alphabet beginning with “C” and ending with “X.” Renteria failed to correctly state the alphabet. Britton then requested that Renteria perform a finger touch and count test. Renteria could not successfully perform the test. In Britton's opinion, these tests demonstrated Renteria lacked the normal use of his mental and physical faculties. Renteria took a portable breath test that indicated the presence of alcohol. Britton arrested Renteria for DWI.

At the jail, Britton placed Renteria into an intoxilyzer room and offered him an opportunity to provide a breath or blood sample. Renteria refused both tests and refused to sign the paperwork indicating he declined to take the tests. Renteria stated that Britton did not see Renteria driving the car. Renteria then became belligerent, accused Britton of “roughing him up, ” and made racial comments about Britton's daughter.

According to Mary Wirt, Renteria's sister, Renteria had polio when he was eighteen months old. Renteria's left leg is three or four inches shorter than his right leg and is very weak. Renteria needs a brace on his left leg in order to walk. In 2006, Wirt owned a Nissan Stanza with a standard transmission. On June 19, 2006, she loaned the car to Jose Hernandez, a family friend. Renteria was with Hernandez. At the time, Hernandez lived in Princeton and Renteria lived in Richardson. Hernandez was driving the car when he and Renteria left Wirt's house. According to Wirt, Renteria had never driven the Nissan and could not drive a car with a standard transmission due to the weakness in his left leg. Wirt did not know where Hernandez was at the time of trial and admitted she had not previously told the police about Hernandez.

Renteria was indicted for DWI, enhanced to a third degree felony because he had two prior DWI convictions. See Tex. Penal Code Ann. § 49.04(a) (West 2003), § 49.09(b)(2) (West Supp. 2009). In addition, the indictment alleged habitual offender status, based on prior felony convictions for burglary of a motor vehicle and burglary of a habitation, for purposes of punishment enhancement. See id. § 12.42(d) (West Supp. 2009). Renteria pleaded not guilty to the indictment, but stipulated true to the two prior DWIs that were alleged for purposes of jurisdictional enhancement. He pleaded not true to the burglary of a motor vehicle and burglary of a habitation convictions that were alleged in the indictment for purposes of punishment enhancement. The jury found appellant guilty of felony DWI, and the trial court, upon finding the habitual offender punishment enhancements true, assessed punishment at forty years' imprisonment.

Sufficiency of the Evidence

In his first two issues, Renteria asserts the evidence is legally and factually insufficient to establish he was intoxicated or was driving the car. The Texas Court of Criminal Appeals has overruled its opinion in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), that had adopted a factual sufficiency standard in criminal cases. The court held that the legal sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979) is now “the only standard that a reviewing court should apply in determining whether evidence is sufficient to support each element of a criminal offense.” Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). Therefore, we will address Renteria's first two issues under the Jackson v. Virginia standard.

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 894 We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).

To obtain a conviction for DWI, the State was required to prove beyond a reasonable doubt that Renteria was intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code Ann. § 49.04(a). Renteria asserts the evidence was insufficient to establish he was either intoxicated or the driver of the car.

A person is intoxicated if he does not have the normal use of his mental or physical faculties due to the introduction of alcohol into the body. See id. § 49.01(2) (West 2003). Among other things, evidence of intoxication may include: (1) slurred speech; (2) bloodshot eyes; (3) the odor of alcohol on the person or on the breath; (4) an unsteady balance; and (5) a staggered gait. See Cotton v. State, 686 S.W.2d 140, 142 & n.3 (Tex. Crim. App. 1985); Tex. Dept. of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 880 (Tex. App.-Fort Worth 2009, no pet.) (en banc) (op. on reh'g); see also Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (evidence that logically raises inference of intoxication includes, among other things, stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, and any admissions concerning what, when, and how much defendant had been drinking). Further, a person's refusal to submit to a breath test implies that he believed he would fail it because h...