No. 05-09-00736-CR
Opinion issued January 5, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-82785-06.
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 he thought he was intoxicated. Gaddis v. State, 753 S.W.2d 396, 399 (Tex. Crim. App. 1988); Thomas v. State, 990 S.W.2d 858, 860 (Tex. App.-Dallas 1999, no pet.); Russell v. State, 290 S.W.3d 387, 397 (Tex. App.-Beaumont 2009, no pet.); see also Tex. Transp. Code Ann. § 724.061 (West 1999) (refusal of request to submit to breath test admissible at trial); Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (evidence of refusal to submit to breath test "tends to show consciousness of guilt" and is relevant in DWI case). The uncorroborated testimony of an arresting officer can be sufficient to prove the elements of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979); Watkins v. State, 741 S.W.2d 546, 549 (Tex. App.-Dallas 1987, pet. ref'd); Hartman v. State, 198 S.W.3d 829, 835 (Tex. App.-Corpus Christi 2006, pet. struck). Britton testified that he believed Renteria had lost the normal use of his mental or physical faculties due to intoxication by alcohol because Renteria smelled strongly of alcohol, appeared to have urinated on himself, was swaying and stumbling, had slurred speech, displayed six out of six clues indicating intoxication on the HGN test, and was unable to successfully recite the alphabet or perform the finger touch and count test. Arredondo confirmed Renteria smelled strongly of alcohol and urine, appeared to have urinated on himself, and had slurred speech. A portable breath test performed on Renteria at the Texaco station indicated the presence of alcohol. After Renteria was transported to the police station, he refused to give either a breath or blood sample, indicating he believed he was intoxicated. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support the jury's finding Renteria was intoxicated. Renteria also asserts the evidence was insufficient to prove he was driving the vehicle. The State was required to prove beyond a reasonable doubt that Renteria operated the car. For the purposes of DWI, a person operates a vehicle when the totality of the circumstances demonstrates "that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995); see also Barton v. State, 882 S.W.2d 456, 459 (Tex. App.-Dallas 1994, no pet.); Tex. Dept. of Pub. Safety v. Allocca, 301 S.W.3d 364, 368 (Tex. App.-Austin 2009, pet. ref'd). The action need not be successful in causing the vehicle to function for the person to be operating it. Strong v. State, 87 S.W.3d 206, 215 (Tex. App.-Dallas 2002, no pet.). Renteria relies heavily on the undisputed testimony that his left leg was disabled and Wirt's testimony that Renteria had polio when he was eighteen months old and could not drive a car with a standard transmission and that Hernandez was driving the car when they left Wirt's house. However, Britton testified he saw the car moving from the gas pumps to the air and water station. Britton saw the car come to a stop and did not see anyone change places with the driver. Britton identified Renteria as the driver of the car. Britton also testified Renteria continued to attempt to start the car. Further, the video of the stop shows Renteria sitting in the driver's seat of the car. When asked where he was going, Renteria responded he was taking his friend home and never stated his friend was driving the car. The jury was the sole judge of the credibility of the evidence, and we must defer to its determination. We conclude there is sufficient evidence to support the jury's finding that Renteria was operating the car. We overrule Renteria's first and second issues. Void Sentence
In his third issue, Renteria argues the forty-year sentence is not authorized by statute and is void because the evidence is insufficient to prove one of the prior convictions alleged to enhance the punishment. The State sought to enhance the applicable punishment range based on two of Renteria's prior felony convictions, the burglary of a motor vehicle and the burglary of a habitation. The State alleged Renteria was convicted of burglary of a motor vehicle on March 20, 1978. However, the judgment for the prior conviction shows Renteria was placed on probation on March 20, 1978. Renteria's probation was revoked and he was sentenced on April 11, 1978. Renteria asserts the State failed to prove a final conviction on March 20, 1978 and, therefore, failed to establish Renteria's punishment should be enhanced. To enhance punishment under section 12.42(d) of the penal code, the State must prove a chronological sequence of events: (1) the first conviction becomes final; (2) the offense leading to a later conviction is committed; (3) the later conviction becomes final; and (4) the offense for which the defendant presently stands accused is committed. Jordan v. State, 256 S.W.3d 286, 290-91 (Tex. Crim. App. 2008) (quoting Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987)). Renteria complains the State failed to prove the first conviction, the burglary of a motor vehicle, became final on March 20, 1978. A prior conviction used for punishment enhancement need not be alleged with the same particularity as must be used in charging the original offense. Watson v. State, 605 S.W.2d 877, 883 (Tex. Crim. App. 1980) (op. on reh'g). The purpose of the enhancement allegation is to provide the accused with notice of the prior conviction relied upon by the State. Cole v. State, 611 S.W.2d 79, 82 (Tex. Crim. App. [Panel Op.] 1981). A mere or slight variance between the indictment's allegations and the proof at trial will not render evidence insufficient to sustain the conviction. Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988) (op. on reh'g). Rather, the variance between the indictment's allegations and the proof at trial must be material and prejudicial to the defendant. Hall v. State, 619 S.W.2d 156, 157 (Tex. Crim. App. 1980) (op. on reh'g); Rodriguez v. State, 31 S.W.3d 772, 776 (Tex. App.-Austin 2000), aff'd, 104 S.W.3d 87 (Tex. Crim. App. 2003). Without a showing of surprise or prejudice, a variance between the allegation and the proof of the date of a prior conviction for enhancement is not a fatal variance. Burton v. State, 493 S.W.2d 837, 839-40 (Tex. Crim. 1973) (record did not show defendant was misled by allegation in indictment that previous conviction was on date defendant was placed on probation rather than date probation was revoked and defendant was sentenced); Simmons v. State, 288 S.W.3d 72, 80 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd) ("A variance in dates of conviction is not fatal when there is no surprise or prejudice to the defendant."). The defendant has the burden of demonstrating surprise and prejudice. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001); Cole, 611 S.W.2d at 82. Here, the enhancement paragraph contained the cause number of the prior conviction, the court in which the conviction was obtained, and a description of the felony. Accordingly, it provided notice to Renteria of the conviction the State was relying on to enhance punishment. See Davis v. State, 684 S.W.2d 201, 209-10 (Tex. App.-Houston [1st Dist.] 1984, pet. ref'd) ("The enhancement paragraph contained the correct cause number and court number in which the alleged conviction for the prior offense occurred, as well as the correct name of the offense and description of it as a felony. The indictment's incorrect allegation of the date of final conviction for the prior offense would not have prevented the appellant from finding the record of it and presenting a defense. The variance was not fatal[.]"). Renteria has not alleged or shown how he was misled, surprised, or unable to determine what previous conviction the State sought to use to enhance punishment by the variance between the final conviction date alleged in the indictment and the date proved at trial. Thus, there is no fatal variance in this case. See Freda v. State, 704 S.W.2d 41, 43 (Tex. Crim. App. 1986) (variance not fatal when defendant failed to show surprise or prejudice); Burton, 493 S.W.2d at 840; Simmons, 288 S.W.3d at 80. The evidence was sufficient to prove the prior two convictions alleged for enhancement purposes. Accordingly, the forty-year sentence was authorized by section 12.42(d) of the penal code. We overrule Renteria's third issue. We affirm the trial court's judgment.