No. 05-03-01104-CR.
Opinion Filed February 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-55196-PQ. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice RICHTER.
William Eric Richardson appeals his conviction for felony driving while intoxicated (DWI). See Tex. Pen. Code Ann. § 49.04(a), 49.09(b)(2) (Vernon 2003 Supp. 2004). In two points of error, Richardson challenges the legal and factual sufficiency of the evidence to support the conviction. We modify the judgment and, as modified, affirm.
Background
Dallas police officer Joseph Allen was on routine patrol when he received a "random gunfire call." As he waited at an intersection, Allen saw Richardson on an adjacent street and noticed Richardson's car matched the description of the car involved in the gunfire. Allen also noticed Richardson's registration tags were expired and the "muffler was loud." Allen signaled Richardson to stop, and Richardson pulled over. When Allen approached Richardson, he smelled "the presence of alcohol." Richardson appeared "kind of excited and nervous," and his speech was slurred. After obtaining Richardson's driver's license and learning Richardson had three outstanding warrants for his arrest, Allen asked Richardson to exit the car. Richardson's eyes were bloodshot, and he had to lean on the car to maintain his balance. When Allen informed him that he was under arrest for the outstanding warrants, Richardson became belligerent. Based on Richardson's appearance and behavior, Allen believed Richardson was intoxicated. Allen did not administer any field sobriety tests, but Richardson was videotaped at the jail about an hour after the traffic stop. Richardson was subsequently charged with DWI, elevated to a felony by two prior DWI convictions, one in 1990 and one in 1991. Richardson's trial was before the bench, with Allen as the only witness testifying about the offense. Allen explained he did not administer any field sobriety tests because, at the time, he was not certified to administer them. Allen also testified he was present during the videotaping of Richardson at jail. According to Allen, Richardson's ability to maintain his balance had improved at the time of the taping. On the videotape, which was admitted into evidence, Richardson appeared steady on his feet and his speech normal. He stated he had "a few beers" and would submit to a blood test. Richardson also stated he had graduated from high school and had attended college for three years, but denied knowing the alphabet and refused to recite it. Subsequently, Richardson refused the blood test. To prove the prior convictions, the State offered certified copies of documents relating to the 1990 and 1991 DWI convictions. Included among these documents were the trial court's docket sheets, the charging instruments, and the 1990 judgment and 1991 probation order, all of which named William E. Richardson as the defendant. The defendant's address, gender, race, and date of birth listed in these documents also matched Richardson's address at the time he was arrested for the present offense and his gender, race, and date of birth. In addition, the driver's license number found among these documents matched the driver's license number Richardson gave Allen at the time of the traffic stop. The trial judge found Richardson guilty of felony DWI and, after finding an enhancement paragraph true, assessed punishment at ten years confinement and a $1,000 fine. Discussion
In his first two points of error, Richardson challenges the legal and factual sufficiency of the evidence to support the conviction. Specifically, in his first point, Richardson asserts the evidence is legally insufficient to show he is the same person convicted of the two prior DWIs. In his second point, Richardson asserts the evidence is factually insufficient to show he had lost the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body. We reject both contentions. In reviewing a legal sufficiency challenge, we view 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence viewed by the fact finder establishes that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). In both sufficiency reviews, the fact finder may draw reasonable inferences from the evidence before it and is the exclusive judge of the witnesses' credibility and the weight given to the testimony. Jones v. State, 944 S.W.2d 642, 647, 648 (Tex.Crim.App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). To establish a conviction in this case, the State had to prove Richardson was intoxicated-that he did not have the normal use of mental or physical faculties by reason of the introduction of alcohol and/or any substance into his body-while operating a motor vehicle in a public place. See Tex. Pen. Code Ann. §§ 49.01(2)(A), 49.04(a). Additionally, the State had to prove Richardson had been convicted of DWI in 1990 and 1991. See id. § 49.09(b)(2). The State could prove the prior convictions by offering certified copies of the judgments and sentences, along with independent evidence showing Richardson was the same person named in the previous convictions. See Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App. 1986). Such independent evidence could include expert testimony matching Richardson's fingerprints to the fingerprints on the judgments, testimony of a witness who knew Richardson and knew of the prior convictions, or a judicial stipulation. Id.; Zimmer v. State, 989 S.W.2d 48, 50 (Tex.App.-San Antonio 1998, pet. ref'd). It could also include photographs of the convicted individual for comparison with Richardson or identification information such as name, gender, height, eye color, hair color, and date of birth. Williams v. State, 946 S.W.2d 886, 895 (Tex.App.-Waco 1997, no pet.). In arguing in his first point that the State failed to offer legally sufficient evidence to link him to the prior convictions, Richardson notes the State did not offer any expert testimony as to fingerprints and did not introduce any photographs of the individual convicted of the 1990 and 1991 DWIs. Richardson also notes the State did not offer the testimony of a witness who personally knew him and knew of the convictions. Richardson maintains this type of evidence was necessary because the only evidence linking him to the previous convictions was the same name and date of birth. However, the documents offered to prove the prior convictions also contained the convicted individual's driver's license number, address, gender, and race. This identifying information matched Richardson's identifying information. Based on the record before us and viewing it in the light most favorable to the judgment, we conclude this evidence sufficiently linked Richardson to the prior convictions. See Dorsett v. State, 396 S.W.2d 115, 116 (Tex.Crim.App. 1965) (driver's license record sufficient to link defendant to prior conviction). We overrule Richardson's first point of error. We also overrule Richardson's second point in which he complains the evidence is factually insufficient to show he had lost the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body. In arguing this point, Richardson relies on the videotape in which he appears steady on his feet and his speech appears normal. Richardson maintains the testimony of Allen, who at the time of the arrest was not certified in field sobriety testing, was "uncertain and inconsistent enough to render the verdict improper." However, although Allen may not have been certified in field testing, his lack of experience went to his credibility and did not render his testimony insufficient to support the conviction. As the fact finder, the trial judge was free to believe Allen's testimony that, based on Richardson's appearance and behavior, he believed Richardson was intoxicated. See Jones, 944 S.W.2d at 648. The trial judge was also free to believe Richardson's own admission that he had "had a few beers" and conclude Richardson's appearance on the videotape, about an hour after the traffic stop, did not accurately reflect how he appeared at the time Allen stopped him. See Perkins v. State, 19 S.W.3d 854, 858 (Tex.App.-Waco 2000, pet. ref'd) (police station videotape showing DWI defendant cooperating with officers, speaking clearly, following directions, and performing sobriety tests with only one error, did not outweigh the evidence of his intoxication at the time of his arrest). Viewing the evidence in a neutral light, we conclude the proof of guilt is neither so obviously weak as to undermine confidence in the judge's determination nor greatly outweighed by contrary proof. Richardson notes, and the State agrees, that the judgment incorrectly reflects there were two enhancement paragraphs instead of one. Accordingly, we modify the judgment to reflect there was one enhancement paragraph. See Tex.R.App.P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.