Summary
holding it was not error for the charge in a DWI trial to describe the offense as a third-degree felony because "a general definition and description of the offense in the jury charge is proper and does not constitute a comment on the weight of the evidence"
Summary of this case from Jackson v. StateOpinion
No. 10-02-00264-CR
Opinion delivered and filed August 25, 2004. DO NOT PUBLISH.
Appeal from the 18th District Court, Johnson County, Texas, Trial Court # F35159. Affirmed.
Keith Bradley, Bradley Bradley, Cleburne, TX, for appellant/relator. Dale S. Hanna, Johnson County District Attorney, and David W. Vernon and Abigail Placke, Johnson County Assts. District Attorney, Cleburne, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
A jury found Richard Penrose guilty of felony driving while intoxicated (DWI) and sentenced him to 18 years of confinement. Penrose argues in one issue that an instruction in the charge constitutes a comment on the weight of the evidence. We affirm.
Comment on the Weight of the Evidence
Penrose argues that paragraph one of the trial court's charge is a comment on the weight of the evidence because it destroys the presumption of innocence. The pertinent language reads:Our law provides that any person who is intoxicated while driving or operating a motor vehicle in a public place, and who has previously been convicted two times of being intoxicated while operating or driving a motor vehicle in a public place shall be guilty of a felony of the third degree.Penrose argues that this language ignores the presumption of innocence because a person is not guilty of a third degree felony until he has been convicted. However, a general definition and description of the offense in the jury charge is proper and does not constitute a comment on the weight of the evidence. Hawkins v. State, 99 S.W.3d 890, 899-900 (Tex. App.-Corpus Christi 2003), rev'd on other grounds, 135 S.W.3d 72 (Tex.Crim.App. 2004); Posey v. State, 840 S.W.2d 34, 40 (Tex. App.-Dallas 1992, pet. ref'd); Smith v. State, 761 S.W.2d 546, 549 (Tex. App.-Corpus Christi 1988, no writ). The elements of a felony DWI are as follows: 1) a person is intoxicated; (2) while driving a motor vehicle; (3) in a public place; and (4) it is shown on the trial of the offense that the person has previously been convicted two times of any other offense relating to the operation of a motor vehicle while intoxicated. TEX. PENAL CODE ANN. § 49.04; 49.09 (Vernon 2004). The language of the charge closely follows the statutory elements. Thus, the charge was only relating the general definition and description of the offense and was therefore proper. We overrule Penrose's sole issue.