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Oliva v. State

Court of Appeals of Texas, Fourteenth District

March 28, 2017

JOSE OLIVA, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the County Criminal Ct at Law No 1 Harris County, Texas Trial Court Cause No. 2025101

          Panel consists of Chief Justice Frost and Justices Brown and Jewell.

          OPINION

          Marc W. Brown Justice

         Appellant 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[1] 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).

         I. Background

         The 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.

         The 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.

         The 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.

         Appellant 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.[2] 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 Misdemeanor."

         II. Standard of Review

         In 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.

         III. Analysis

         Appellant's 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[3] 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. A prior DWI conviction is an element of a Class A misdemeanor DWI offense.

         (i) Class A and B misdemeanors

         A 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 ...

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