Appeal from the County Criminal Ct at Law No 1 Harris County,
Texas Trial Court Cause No. 2025101
consists of Chief Justice Frost and Justices Brown and
W. Brown Justice
Jose Oliva appeals his conviction for the Class A misdemeanor
offense of driving while intoxicated (DWI). See Tex.
Penal Code § 49.09(a) (West 2015). Appellant argues, in
two issues, that the evidence is legally insufficient to
prove that he: (1) has a prior DWI conviction, and (2)
operated a vehicle while intoxicated. We hold that a prior
DWI conviction is an element of the charged offense.
Because there is sufficient evidence that appellant operated
a vehicle while intoxicated, but no evidence during the
guilt-innocence phase of the trial that appellant has a prior
DWI conviction, we reverse the conviction and remand to the
trial court with instructions to reform the judgment to
reflect a conviction for the lesser-included offense of Class
B misdemeanor DWI, and to conduct a new punishment hearing
for the Class B misdemeanor conviction. See id.
§ 49.04(a), (b) (West 2015).
3400 block of Hadley Street is a two-lane public roadway in
Houston, Harris County, Texas. The street runs east and west.
The street has no lane markings. Located on either side of
Hadley Street are homes. At about 1:00 in the morning on May
10, 2015, Houston police officers Aldana and Habukiha
responded to a call regarding a suspicious person on Hadley
Street. Within a few minutes of the call, officers arrived at
the scene and saw a parked car. At trial, Habukiha testified
that the car was not legally, parallel parked beside the
street curb. Although Habukiha could not recall how far away
from the curb the car was, he testified that the car was
parked in a lane of moving traffic.
officers approached the car. The engine was running and the
key was in the ignition. The car's emergency lights were
not activated. The officers found appellant asleep, slouched,
and in the driver's seat. He was not wearing a seatbelt,
a shirt, or shoes. Habukiha did not remember whether
appellant's feet were on the pedals. The car's cup
holder had one open container of beer.
officers tried to wake appellant, but initially he was
unresponsive. When the officers opened the car door,
appellant woke up and fell out onto the street. The officers
detected a strong odor of alcohol in the car and on
appellant's breath. Appellant slurred his speech and had
glassy eyes and poor balance. Appellant showed six clues on
the horizontal-gaze-nystagmus test. His breath-test results
were over the legal limit of intoxication (.08) at .184 and
.183 at 2:18 a.m. and 2:21 a.m., respectively. The technical
supervisor with the Texas Department of Public Safety's
Breath Alcohol Testing Program testified that "using the
average of .02 per standard drink, " it would take
"roughly about nine drinks" for a person to reach
appellant's alcohol-concentration level.
was charged by information with driving while intoxicated.
The information contained two paragraphs, the second of which
alleged a prior DWI conviction. Appellant pleaded not guilty.
During the guilt-innocence phase of trial, the State referred
only to the DWI offense that occurred in May 2015 on Hadley
Street. The State did not attempt to prove that appellant had
a prior DWI conviction, and no evidence was offered of it.
Additionally, the trial court's charge to the jury made
no mention of appellant's prior DWI
conviction. The jury convicted appellant of DWI.
During the punishment phase of the trial, the state
introduced evidence that appellant previously had been
convicted of DWI. The jury found that the appellant had a
prior DWI conviction and assessed his punishment at 180
days' confinement. The trial court's written judgment
reflected that appellant was convicted of "DWI 2ND"
and the degree of offense was labeled as a "Class A
Standard of Review
reviewing legal sufficiency in a criminal case, we view all
the evidence in the light most favorable to the prosecution
and 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
(1979). "This standard tasks the factfinder with
resolving conflicts in the testimony, weighing the evidence,
and drawing reasonable inferences from basic facts."
Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim.
App. 2015), cert. denied, 136 S.Ct. 198 (2015). We
consider direct and circumstantial, as well as properly and
improperly admitted, evidence. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial
evidence alone may be sufficient to establish guilt.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). Each fact need not point directly and independently to
a defendant's guilt, as long as the cumulative force of
all the incriminating circumstances is sufficient to support
the conviction. Id. The State is not required to
disprove every conceivable alternative to a defendant's
guilt. Ramsey v. State, 473 S.W.3d 805, 808 (Tex.
Crim. App. 2015). When the record supports conflicting
inferences, appellate courts presume the factfinder resolved
the conflicts in favor of the verdict, and defer to that
determination. Murray, 457 S.W.3d at 449.
first issue has two subparts. Appellant argues that a prior
DWI conviction is not a punishment enhancement for a Class B
misdemeanor; rather, it is an element of the offense of Class
A misdemeanor DWI under subsection 49.09(a) that must be
proven during the guilt-innocence phase of a jury trial.
Next, appellant argues that because no evidence showed,
during the guilt-innocence phase of the trial, that appellant
had a prior DWI conviction, the evidence is legally
insufficient to support appellant's conviction. The State
asserts that there is a conflict in authority regarding
appellant's first subpart but concedes that during the
guilt-innocence phase of the trial, the State presented no
evidence proving appellant had a prior DWI conviction.
A prior DWI conviction is an element of a Class A misdemeanor
Class A and B misdemeanors
reviewing court must look to the plain language of the
statute when discerning whether any given fact constitutes an
element of the offense. Calton v. State, 176 S.W.3d
231, 234 (Tex. Crim. App. 2005). Sections 49.04 and 49.09 of
the Texas Penal Code are at issue. Under subsection 49.04(b),
a DWI is a Class B misdemeanor. This Section requires no
prior DWI convictions, stating, in part:
(a) A person commits an offense if the person is intoxicated
while operating a motor vehicle in a public place.
(b) Except as provided by Subsections (c) and (d) and Section
49.09, an offense under this section is a Class B
misdemeanor, with a ...