Pаblo RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
No. 04-99-00722-CR.
Court of Appeals of Texas, San Antonio.
Sept. 27, 2000.
23 S.W.3d 359
Allison Lanty, Asst. Dist. Atty., Seguin, for appellee.
Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, SARAH B. DUNCAN, Justice.
Opinion by: TOM RICKHOFF, Justice.
Pablo Rodriguez was charged with driving while intoxicated, enhanced by two prior convictions for driving while intoxicated (DWI). A jury, finding the enhancement paragraphs true, found Rodriguez guilty of the felony offense of DWI. The trial court assessed punishment at 35 years confinement. We address whether: (1) the evidence was factually sufficient to support the conviction and (2) a 1991 DWI conviction was used both for the purpose of enhancing the offense and enhancing the punishment. We hold the evidence was sufficient to support the conviction, but we remand for re-sentencing.
SUFFICIENCY OF THE EVIDENCE
Rodriguez asserts the evidence is factually insufficient to support his conviction. In considering a factual sufficiency challenge, we do not view the evidence through the prism of “in the light most favorable to the prosecution.” Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Instead, we examine all of the evidence impartially, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 958 S.W.2d at 410; Clewis, 922 S.W.2d at 129. We must defer to the factfinder, and may find the evidence factually insufficient only where necessary to prevent manifest injustice. See Cain, 958 S.W.2d at 407.
After about four blocks, the truck finally сame to a stop, and Golla ordered Rodriguez to get out of the truck. Golla testified he handcuffed Rodriguez because Rodriguez had allegedly assaulted someone and was “possibly” driving while intoxicated. Golla thought Rodriguez was intoxicated because he was unsteady when he got out of the truck, there was a smell of аlcohol on his breath and person, and his eyes were glassy. Golla did not ask Rodriguez to perform any field sobriety tests because Rodriguez was belligerent. Golla admitted that if he had not been told by dispatch that the driver of the maroon truck might be intoxicated, he would not have suspected Rodriguez was driving while intoxicated based on how he was driving.
Shortly after Golla stopped Rodriguez, Officer Price arrived. Price also testified that no field sobriety tests were administered because of Rodriguez‘s belligerence. Price transported Rodriguez to the Sheriff‘s Office, and put him into a room with a videotape and an Intoxilizer. With the videotape1 on, Price read Rodriguez his DWI statutory warnings, and asked him to take the breath test. Rodriguez refused. Price then had Rodriguez perform three sobriety tests, after which Price concluded Rodriguez was intoxicated.
On appeal, Rodriguez asserts the State did not meet its burden of proof because Golla said he did not think Rodriguez was intoxicated bаsed on how he was driving the truck and because there was no opinion testimony that he lacked the normal use of his mental or physical faculties. We disagree. After examining all the evidence without viewing it in the light most favorable to the verdict, we find the verdict was not so contrary to the overwhelming weight of the evidence аs to be clearly wrong and manifestly unjust. We hold the evidence was factually sufficient to support the jury‘s verdict.
ENHANCEMENT OF OFFENSE AND PUNISHMENT
The indictment alleged Rodriguez was driving while intoxicated on November 7, 1998. The indictment contained four enhancement paragraphs, each alleging the following dates of DWI convictions: December 9, 1986, May 26, 1987, Septеmber 6, 1988, and August 2, 1991. At the arraignment, the State read only the 1986 and 1987 convictions to the jury.2 Although proof of the 1986 and 1987 convictions were admitted into evidence, the exhibits evidencing the convictions did not contain Rodriguez‘s fingerprints or other identifying information. The State introduced into evidence the 1991 conviction to prove Rodriguez was the same person named in the 1986 and 1987 convictions, and the trial court admitted the 1991 conviction for the limited purpose of identifying
During closing arguments, the State told the jury it needed to consider the 1986 and 1987 convictions for the purpose of finding Rodriguez guilty of a felony offense. The prosecutor explained that fingerprints were not included in the exhibits evidencing the 1986 and 1987 convictions; therefore, the jury should consider the exhibits evidencing the 1991 сonviction for the purpose of deciding whether Rodriguez was the same defendant convicted in 1986 and 1987. The jury found Rodriguez guilty of the felony offense of DWI.
At the sentencing hearing, the State read the 1988 and 1991 convictions into the record for the purpose of enhancing the punishment. Defense counsel objected to the usе of the 1991 conviction, arguing that it could not be used to enhance punishment because the State had already used it to enhance the offense.3
If it is shown during a DWI trial that the defendant has been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated, the offense is a felony of the third degree.
On appeal, Rodriguez asserts that the 1991 conviction was used both to enhance the primary offense of DWI under
Prior intoxication-related offenses, whether they are felonies or misdemeanors, serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated. See Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). The prior intoxication-
Because Rodriguez‘s 1986 and 1987 convictions were too remote in time, the State was required to prove an intervening conviction. See
The parties do not direct our attention to, and our own research does not reveal, any cases addressing this issue. However, we note that a prior conviction for felony DWI may be used in a subsequent felony DWI prosecution to show that a defendant is a habitual felony offender. See Phillips v. State, 992 S.W.2d 491, 493 (Tex. Crim. App. 1999); see also Guinn v. State, 696 S.W.2d 436, 438 (Tex. App.-Houston [14th Dist.] 1985, pet. ref‘d) (upholding defendant‘s felony conviction upon his third DWI offense effected will of Legislature to punish repeat offenders more severely, to discourage offenders from drinking and driving, and to physically remove drunk drivers from public streets); Square v. State, 142 Tex. Crim. 493, 154 S.W.2d 852, 852-53 (1941) (enhanced penalty statutes are reformatory in nature). Thus,
Generally, when a defendant testifies, prior convictions for felonies or misdemeanors involving moral turpitude may be admitted in evidence as impeachment.
The Court of Criminal Aрpeals has carved out an exception to the general rule. If more than ten years has elapsed, a prior conviction will not be held remote if the witness’ lack of reformation is shown by evidence of an intervening conviction for a felony or a misdemeanor involving moral turpitude. See Lucas, 791 S.W.2d at 51; McClendon v. Statе, 509 S.W.2d 851, 855-57 (Tex. Crim. App. 1974); Crisp v. State, 470 S.W.2d 58, 59 (Tex. Crim. App. 1971); Sinegal v. State, 789 S.W.2d 383, 388 (Tex. App.-Houston [1st Dist.] 1990,
In Lucas, the State was allowed to impeach a defense witness with evidence of the witness‘s almost 20-year-old forgery convictions. The State argued that the witness had not reformed in the intervening years because he had fled the jurisdiction of another state rather than face drunken driving charges and he allegedly participated in a kick-back scheme to take part of a worker‘s pay in return for showing the worker present at a jobsite even if the worker was absent. The Court of Criminal Appeals held that while the trial court properly considered uncontroverted evidence of the witness‘s flight to avoid prosecution in making its decision to admit the remоte prior convictions, the court erroneously considered evidence of the highly contested issue regarding the witness‘s participation in an illegal kick-back scheme. 791 S.W.2d at 52. The court concluded that, without any other intervening acts of misconduct, evidence of flight ten years before trial was not enough to show unrefоrmed character at the time of trial. Id.
In Sinegal, the State was allowed to impeach the defendant‘s credibility with five prior convictions. The defendant had been released from prison ten and one-half years before trial, he did not have any intervening convictions, and he was between 16 and 19 years old when he committed thе prior offenses. The court of appeals held that the trial court abused its discretion in allowing evidence of the remote convictions because there was no evidence of lack of reformation. 789 S.W.2d at 388.
We interpret these cases as requiring proof of intervening convictions before a remotе conviction may be admitted into evidence. Similarly, we hold that proof of an intervening conviction under
Rodriguez was found guilty of felony DWI, a third degree felony.
In this case, Rodriguez was sentenced to thirty-five years in prison. Without proof of two previous felony convictions, he could have only been sentenced to imprisonment for not more than ten years or less than two years.
We affirm the trial court‘s judgment as to the finding of guilt and reverse that portion of the judgment imposing sentence
Dissenting opinion by: SARAH B. DUNCAN, Justice.
SARAH B. DUNCAN, Justice, dissenting.
I concur in the court‘s judgment affirming the conviction but not in its reversal of the punishment assessed. In my view, the 1991 conviction was used as a predicate to the admissibility of the 1986 and 1987 convictions; it was not used to enhance the level of offense.