OPINION
Appellant Jose Oliva appeals his conviction for the Class A misdemeanor offense of driving while intoxicated (DWI). See Tex. Penal Code § 49.09(a) (West 2015). Appellant argues, .in two issues, that the evidence is legally insufficient to prove that he: (1) has a prior DWI conviction, and (2) operated a vehicle while intoxicated. We hold that a prior DWI conviction
I. Background
The 3400 block of Hadley Street is a two-lane public roadway in Houston, Harris County, Texas. The street runs east and west. The street has no lane markings. Located on either side of Hadley Street are homes. At about 1:00 in the morning on May 10,. 2015, Houston- police officers Aldana and Habukiha responded to a call regarding a suspicious person on Hadley Street. Within a few minutes of the call, officers arrived at the scene and saw a parked car. At trial, Habukiha, testified that the car was .not legally, parallel parked beside the street curb. Although Habukiha could not recall how far away from the curb the car was, he testified that the car was parked in a lane of moving traffic.
The officers approached the car. The engine was running and the key was in the ignition. The car’s emergency lights were not activated. The officers found appellant asleep, slouched, and in the driver’s seat. He was not wearing a seatbelt, a shirt, or shoes, Habukiha did not remember whether appellant’s feet were on the pedals. The car’s cup holder had one open container of beer.
The officers tried to wake appellant, but initially he was unresponsive. When the officers opened the car door, appellant woke-up and fell out onto the street. The officers detected a strdng odor of alcohol in the car and on appellant’s breath. Appellant slurred his speech and had glassy eyes and poor balance. Appellant showed six clues on the horizontal-gaze-nystagmus test. His breath-test results were - over the legal limit of intoxication (.08) at .184 and .183 at 2:18 a.m. and 2:21 a.m., respectively. The technical supervisor with the Texas Department of Public Safety’s Breath Alcohol Testing Program testified that “using the average of ,02 per standard drink,” it would take “roughly about nine drinks” for a person to reach appellant’s alcohol-concentration level.
Appellant was charged by information with driving while intoxicated. The information contained two paragraphs, the second of which alleged a prior DWI conviction. Appellant pleaded not guilty. During the guilt-innocence phase of trial, the State referred only to the DWI offense that occurred in May 2015 on Hadley Street. The State did not attempt to prove that appellant had a prior DWI conviction, and no evidence was offered of it. Additionally, the trial court’s charge to the jury made no mention of appellant’s prior DWI conviction.
II. Standard of Review
In reviewing legal sufficiency in a criminal case, we view all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
III. Analysis
Appellant’s first issue has two subparts. Appellant argues that a prior DWI conviction is not a punishment enhancement for a Class B misdemeanor; rather, it is an element of the offense of Class A misdemeanor DWI under subsection 49.09(a) that must be proven during the guilt-innocence phase of a jury trial. Next, appellant argues that because no evidence showed, during the guilt-innocence phase of the trial, that appellant had a prior DWI conviction, the evidence is legally insufficient to support appellant’s conviction. The State asserts that there is a conflict in authority
A. A prior DWI conviction is an element of a Class A misdemeanor DWI offense.
(i) Class A and B misdemeanors
A reviewing court must look to the plain language of the statute when discerning whether any given fact constitutes an element of the offense. Calton v. State,
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Tex. Penal Code § 49.04(a), (b). By contrast, a DWI offense under subsection 49.09(a) is a Class A misdemeanor. This subsection requires proof of one prior DWI conviction, stating:
an offense under 49.04, ... is a Class A misdemeanor, with a minimum confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated....
Id. § 49.09(a).
Generally, punishment for a Class A misdemeanor is: “(1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.” Tex, Penal Code § 12.21 (West 20Í5). Punishment for a Class B misdemeanor is: “(1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement.” Id. § 12.22 (West 2015).
(ii) Punishment enhancements
To determine whether the prior DWI conviction is an element of the offense or a punishment enhancement, we must examine the differences between the two concepts. A punishment enhancement is a fact that “increased] the punishment range to a certain range above what is ordinarily prescribed for the indicted crime. It does not change the offense, or the degree of the offense, of conviction.” Calton,
Under Chapter 12’s general punishment-enhancement scheme, a Class A misdemeanor offense enhanced with a prior conviction for a Class A misdemeanor or felony raises the minimum jail sentence to 90 days. Tex. Penal Code § 12.43(a) (West 2015). The maximum jail sentence is still one year. Id. A Class B misdemeanor enhanced with a prior conviction for a Class A or B misdemeanor or felony raises the minimum jail sentence to 30 days. Id. § 12.43(b). The maximum jail sentence is still 180 days. Id.
(iii) Elements of the offense and elements that enhance the degree of an offense
The Penal Code defines an “element” of an offense as: “(A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense.” Id. § 1.07(22) (West 2015);. see Schmutz v. State,
Proof of an additional element may “enhance” an offense to a greater degree. See Ex Parte Reinke,
In Gibson v. State, the Court of Criminal Appeals held that subsection 49.09(b), which concerns felony DWI, should not be viewed as a punishment-enhancement statute similar to Section 12.43.
Under the statute’s plain language, and applying Reinke,
The State directs us to cases in which a prior DWI conviction was treated as a punishment enhancement instead of an element of a separate offense.
Therefore, a prior DWI conviction is an element of the offense of Class A misdemeanor DWI under subsection 49.09(a).
B. The evidence is insufficient to support appellant’s conviction under subsection 49.09(a).
No evidence of appellant’s prior DWI conviction was presented to the jury during the guilt-innocence phase. See Tex. Code Crim. Proc. Ann. art. 38.03 (West 2015) (requiring every element to be proven beyond a reasonable doubt to convict a
C. The proper disposition is to reverse and remand to the trial court to reform the judgment to delete the conviction for the Class A DWI offense and instead to reflect a conviction for the lesser-included offense of Class B misdemeanor DWI, and to conduct a new punishment hearing.
Having determined that the evidence is legally insufficient to support a conviction for the Class A DWI offense, we turn now to the proper disposition. We are guided by Thornton v. State,
First, the charge of the court instructed the jury to determine whether appellant, while intoxicated, operated a motor vehicle in a public place. In the course of convicting appellant of Class A misdemeanor DWI, the jury necessarily must have found every essential element necessary to convict appellant of a Class B misdemeanor. See Tex. Penal Code §§ 49.04(a), 49.09(a). Therefore, a Class B misdemeanor DWI is a lesser-included offense of Class A misdemeanor DWI. Second, the evidence is sufficient to convict appellant of a Class B misdemeanor DWI. Appellant disagrees, arguing in his second issue that the evidence is insufficient to prove appellant operated his car while intoxicated.
A person commits a Class B misdemean- or DWI if that person: (1) is intoxicated; (2) while operating a motor vehicle; (3) in a public place. Tex. Penal Code § 49.04(a). Appellant does not contest, and the evidence is sufficient to prove, the public-place element. We next examine the first two elements together.
There must be a temporal link between defendant’s intoxication and operation of the vehicle. Kuciemba v. State,
The facts of this case are similar to those in Hearne v. State,
In Murray, unlike Heame, the evidence was sufficient prove that Murray operated his car while intoxicated before the arresting officer found him parked and asleep in a private driveway. Compare Murray,
From the totality of the circumstance and viewing the evidence in the light most favorable to the State, a jury reasonably could have found that appellant operated a vehicle while intoxicated like the appellants in Murray and Heame. Similar to Hearne, the jury could have inferred that appellant was operating the vehicle at the time he was found intoxicated and asleep, based on these facts: appellant’s car was parked in a lane of moving traffic; the key was in the ignition; the car was running; appellant was in the driver’s seat; no other person was in the car; no evidence suggested that another person operated the car; and appellant does not contest, and the breathalyzer and Habukiha’s testimony show, that appellant was intoxicated when the arresting officers found him.
Additionally, as in Murray, the jury could have inferred that appellant drove his vehicle to the location at which he was found asleep after drinking to intoxication based on the above-recited facts, in addition to these two facts: there was one open container of beer in the car, and appellant’s blood-alcohol concentration level, which was more than twice the legal limit, indicated he had consumed more alcohol than one beer contains. See Kuciemba,
Appellant argues that because he was found in a residential area, he could have consumed alcohol at a nearby residence after parking his car. However, there is no evidence suggesting appellant had a reason to be in the neighborhood. Further, the State is not required to disprove every conceivable alternative to ap
Appellant also attempts to compare the circumstances of his case to those in Texas Department of Public Safety v. Allocca,
Supporting the- Allocca court’s second finding was this evidence: a caller reported a suspicious vehicle; the car had no signs of being involved in a collision; no bystanders reported seeing Allocca driving; and the car was not blocking traffic. The Alloc-ca court reasoned that the evidence suggested Allocca’s car was parked in a public parking space “long enough to arouse suspicion.” Additionally, the circumstances under which the car was parked, that is, the legality and location, were insufficient to indicate Allocca had driven there while intoxicated. Again, unlike in Allocca, appellant was illegally parked in a moving lane of traffic. Therefore, Allocca is not persuasive.
Having found the evidence legally sufficient. to support appellant’s conviction of a Glass B misdemeanor DWI, we overrule appellant’s second issue. Following Thornton, we reverse the judgment and remand the case to the trial, court with instructions to reform appellant’s judgment to reflect a conviction for Class B misdemeanor DWI and to conduct a new punishment hearing for the Class B misdemeanor DWI conviction. See Thornton,
We reverse the judgment of the trial court and remand to the trial court to reform the judgment -as set forth above. After reforming the judgment to reflect a conviction of a Class B misdemeanor DWI under subsection 49.04(b) of the Texas Penal Code, the trial court shall hold a new punishment hearing for the Class B misdemeanor DWI conviction. See Thornton,
Notes
. Although Section 49.09 includes several intoxication-related offenses in addition to DWI, we will refer only to DWI for the sake of brevity and because DWI is the only intoxication-related offense applicable to this case.
. The relevant portion of the charge reads:
Therefore, if you believe from the evidence beyond a reasonable doubt that the Defendant, JOSE OLIVA, on or about the 10th day of May, 2015, in Harris County, Texas, did while intoxicated,. namely, not having the normal use of the Defendant’s mental or physical faculties by the reason of the introduction of alcohol into the Defendant's body, operate a motor vehicle in a public place, or if you believe from the evidence beyond, a reasonable doubt that the Defendant, JOSE OLIVA, on or about the 10th day of May, 2015, in Harris County, Texas, did then and there unlawfully while intoxicated, namely, having an alcohol concentration of at least 0.08 in the Defendant’s breath, operate a motor vehicle in a public place, you will find the Defendant guilty.
. The conflict is among intermediate courts of appeals. For instance, the State asserts that these cases treated prior DWI convictions as punishment enhancements: Prihoda v. State,
. The Gibson court also recognized that the two prior convictions are required to establish jurisdiction, i.e„ that the offense is a felony triable in district court. Id. at 696 & n.2.
. Reinke,
. Calton,
. Gibson,
. Mapes,
. See, e.g., Prihoda,
. Appellant cites Hudson v. State,