Opinion
Nos. 05-04-01518-CR, 05-04-01519-CR
Opinion issued February 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause Nos. 002-82136-03; 002-83408-03. Affirmed.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
OPINION
Ronnie Dale Welch appeals his driving while intoxicated (DWI) conviction in cause number 05-04-01518-CR and his unlawful carrying of a handgun by a license holder while intoxicated conviction in cause number 05-04-01519-CR. In two issues in cause number 05-04-01518-CR, appellant challenges the legal and factual sufficiency of the evidence to support his DWI conviction. In three issues in cause number 05-04-01519-CR, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for unlawfully carrying a handgun by a license holder while intoxicated and argues the trial court committed fundamental error in its charge to the jury. We affirm the trial court's judgments. On April 9, 2003, Texas Department of Public Safety trooper Margarito Lopez was traveling south on a highway in McKinney when he saw a black Mercedes-Benz sport-utility vehicle speeding north. Using radar, Lopez confirmed the SUV was going seventy-two miles per hour in a fifty-five mile-per-hour zone. Lopez turned around and followed the SUV and saw that a minivan was behind the SUV. Lopez activated his lights, but the SUV had already pulled into a parking lot. The minivan also pulled into the parking lot, and Lopez drove around the minivan and continued over to the SUV where it had come to an "abrupt stop" at the end of a building. Lopez got out and tapped on the SUV's driver's side window and identified appellant as the driver and only occupant of the SUV. At Lopez' request, appellant handed Lopez his driver's license and also began to hand over a concealed handgun license. However, as Lopez reached for the handgun license, appellant pulled it away. Lopez asked appellant if he "was carrying," and appellant made a reaching movement. Lopez told appellant not to reach for any weapons and to just tell him where the weapons were. Appellant said he had one "in the center console or under the seat." Lopez smelled the odor of an alcoholic beverage and asked if appellant had been drinking. Appellant said he had consumed three beers, but Lopez thought appellant had consumed more alcohol than that based on the way appellant was talking and the odor coming from the SUV. Appellant complied with Lopez' request to step out of the SUV, and Lopez saw that appellant had problems speaking as well as slurred speech. Lopez tried to get appellant into position for the horizontal gaze nystagmus test by asking him to put his feet together and his hands at his sides, but appellant said he was not going to do any tests. At that point, Lopez decided to arrest appellant for DWI. Lopez told appellant to turn around, but appellant refused, telling Lopez he "needed to call for backup" and Lopez "needed to pull [his] gun." Lopez called for backup, and appellant remained uncooperative, expressing his desire to go into the building or into his car and speaking incoherently. Lopez waited until his backup arrived, and one of the deputies transported appellant to the police station. Lopez then searched appellant's vehicle and found one handgun in the center console and another under the driver's seat. At appellant's subsequent trial, a jury convicted appellant of DWI in cause number 05-04-01518-CR and unlawful carrying of a handgun by a license holder while intoxicated in cause number 05-04-01519-CR. These appeals followed. In two issues in cause number 05-04-01518-CR, appellant challenges the legal and factual sufficiency of the evidence to support his DWI conviction. In his first two issues in cause number 05-04-01519-CR, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for unlawfully carrying a handgun by a license holder while intoxicated. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). A person commits the offense of DWI if he is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). A person commits an offense if, while intoxicated, he carries a handgun for which he has a license. See Tex. Pen. Code Ann. § 46.035(d) (Vernon Supp. 2005). Here, the record shows Lopez saw appellant speeding on the public highway and followed him into a parking lot where appellant had stopped his vehicle. Appellant, the vehicle's sole occupant, was sitting in the driver's seat and offered Lopez a concealed handgun license. Lopez asked appellant if he "was carrying," and appellant made a reaching movement. Lopez told appellant not to reach for any weapons and to just tell him where the weapons were. Appellant said he had one "in the center console or under the seat." Lopez smelled the odor of an alcoholic beverage and asked if appellant had been drinking. Appellant said he had consumed three beers, but Lopez thought appellant had consumed more alcohol than that based on the way appellant was talking and the odor coming from the SUV. Lopez got appellant out of the vehicle and determined appellant was intoxicated by the way he spoke and the way he smelled. After appellant's arrest for DWI, Lopez found two handguns in the vehicle. We conclude this evidence is sufficient to establish that appellant operated his vehicle in a public place while intoxicated and possessed a handgun which he was carrying under the authority of his concealed handgun license at the time. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's two issues in cause number 05-04-01518-CR and his first and second issues in cause number 05-04-01519-CR. In his third issue in cause number 05-04-01519-CR, appellant argues the court's charge to the jury contained the incorrect crime. Specifically, appellant complains that the verdict form referred to the offense of "Unlawfully Carrying a Weapon" and therefore allowed the jury to convict appellant of a crime with which he was never charged. Because appellant did not object to the verdict form's reference to "Unlawfully Carrying a Weapon," appellant's conviction will be reversed only if the record shows that the error was so egregiously harmful that appellant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Fails v. State, 999 S.W.2d 144, 148 (Tex.App.-Dallas 1999, pet. ref'd). Here, the record shows the trial court and the prosecutor explained the elements of the crime of carrying a weapon as a license holder while intoxicated, as charged in the information. The court's charge to the jury laid out the elements of carrying a handgun as a license holder while intoxicated. The application paragraph required the jury, if it found that appellant "did carry a handgun on or about his person when he was a license holder under the authority of Subchapter H, Chapter 411 of the Government Code and while he was intoxicated, then you will convict him by saying by your verdict, `Guilty of Unlawfully Carrying a Weapon, as charged.'" Thus, the application paragraph itself expressly laid out the correct offense and spelled out the abbreviated reference to the charged offense referred to by the verdict form. Under these circumstances, we conclude the court's charge correctly set forth the charge of carrying a weapon as a license holder while intoxicated and required the jury to find appellant committed that offense beyond a reasonable doubt before convicting him. We conclude this record does not show appellant was egregiously harmed by the reference to "Unlawfully Carrying a Weapon" in the verdict form. See Almanza, 686 S.W.2d at 171; Fails, 999 S.W.2d at 148. We overrule appellant's third issue in cause number 05-04-01519-CR. We affirm the trial court's judgments.