Opinion
No. 05-01-01800-CR.
Opinion Issued January 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-82864-00. AFFIRMED.
Before Justices MORRIS, JAMES, and FITZGERALD.
MEMORANDUM OPINION
Julian Marquez appeals his conviction for driving while license suspended. Appellant was tried before the court and found guilty. The court assessed punishment at confinement for ninety days and a $500 fine. In two points of error, appellant contends the evidence was both legally and factually insufficient to sustain his conviction. We affirm the trial court's judgment. We apply the appropriate standards of review for a legal sufficiency claim. See Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984); Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). We likewise apply the appropriate factual sufficiency review. See Johnson v. State, 23 S.W.3d 1, 10 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The transportation code provides that it is an offense for a person to (1) operate a motor vehicle on a highway while (2) his license is suspended under Chapter 724. Tex. Transp. Code Ann. § 521.457(a)(2)(C) (Vernon 1999). A suspension under chapter 724 for refusal to provide a breath or blood specimen for determining determine alcohol concentration or any presence of a controlled substance takes effect on the fortieth day after the person is "considered to have received notice of suspension or denial" under section 724.032(a) or 724.033. Tex. Transp. Code Ann. §§ 724.035(a)(1), (2) (Vernon Supp. 2003). Section 724.032 provides for the officer to serve notice upon a person who refuses to provide a specimen. Tex. Transp. Code Ann. § 724.032(1)(a) (Vernon 1999). Appellant does not contest he was operating a motor vehicle on a highway. He does, however, contend the suspension was not "in effect" at the time he was stopped. According to the evidence admitted in the record, appellant's driver's license packet clearly states the suspension notice for an administrative license revocation was served on April 29, 2002. DPS mailed an extra notice to appellant on June 3, 1998, informing him the dates of the license suspension would be June 8, 1998 through September 8, 1998. June 8 is the fortieth day after April 29. Appellant testified he was unconscious on April 29 and never received the notice. As fact finder, the court was free to reject appellant's testimony stating he had not received notice on April 29 and accept the State's evidence showing notice was served on April 29. See Dumas, 812 S.W.2d at 615. Because we conclude the court reached a rational conclusion, we likewise conclude the evidence is legally sufficient to sustain appellant's conviction. See Wicker, 667 S.W.2d at 143. Furthermore, the court's judgment is not so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. See Clewis, 922 S.W.2d at 135. Having viewed all the evidence while giving deference to the court's determination, we conclude the evidence is factually sufficient. See id. We overrule appellant's two points of error. We affirm the trial court's judgment.
Appellant also argues the original suspension was not the result of a lawful act by DPS. However, the trial in which a defendant is charged with driving while license suspended is not the proper venue for challenging the suspension itself. See Sparkman v. State, 997 S.W.2d 660, 668 (Tex.App.-Texarkana 1999, no pet.); Lohmuller v. State, 921 S.W.2d 457, 461 (Tex.App.-Waco 1996, pet. ref'd). Accordingly, we only address appellant's argument concerning the legal and factual sufficiency of the notice of the suspension.
Contrary to appellant's assertions in his brief, appellant made no objection to the admission of this evidence. The record shows the following:
[PROSECUTOR]: Your Honor, at this time I'd like to offer State's Exhibit No. 1, a certified copy of the Defendant's driver's license packet.
[APPELLANT'S COUNSEL]: I have no objection, Your Honor.
[THE COURT]: State's Exhibit 1 is admitted. Thank You.