Shawn Gerriod Lewis v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00069-CR

Shawn Gerriod Lewis,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the County Court at Law

Ellis County, Texas

Trial Court No. 0612259 CR

MEMORANDUM  Opinion

            A jury convicted Shawn Gerriod Lewis of driving with a suspended license.  The trial court sentenced Lewis to 365 days in jail and a $1,000 fine, suspended imposition of sentence for one year, and placed him on community supervision.  In two issues, Lewis contends that the evidence is legally and factually insufficient to support his conviction. We affirm.

STANDARDS OF REVIEW

Under legal sufficiency review, we determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).  Inconsistencies in the evidence are resolved in favor of the verdict.  Curry, 30 S.W.3d at 406; Matson, 819 S.W.2d at 843.

Under factual sufficiency review, we ask whether a neutral review of all the evidence demonstrates that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury’s verdict clearly wrong and manifestly unjust.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact.  Johnson, 23 S.W.3d at 7.  We do not indulge in inferences or confine our view to evidence favoring one side.  Rather, we look at all the evidence on both sides and then make a predominantly intuitive judgment.  Id.

ANALYSIS

            In two issues, Lewis challenges the legal and factual sufficiency of the evidence to support his conviction, arguing that he was not operating a motor vehicle on a highway while his license was under suspension.  See Tex. Transp. Code Ann. § 521.457(a)(2) (Vernon 2007).

            Trooper Anthony Davis observed Lewis’s vehicle parked in a lane of traffic with the hazard lights turned on.  Davis stopped to conduct a “welfare check.”  Lewis was seated in the driver’s seat and a passenger was seated in the front passenger seat.  Lewis exited the driver side of the vehicle and walked towards Davis’s patrol car.  Lewis told Davis that another vehicle was following him and that he had pulled over when they became separated at a traffic light.  Lewis provided his driver’s license.  Dispatch informed Davis that Lewis’s license had been suspended.  Davis arrested Lewis.      

Davis did not see who drove the vehicle to its parked position and could not recall whether he specifically asked Lewis if he had been driving the vehicle.  He had not asked and did not know how long the vehicle had been parked prior to his arrival as the scene.  Neither Lewis’s passenger nor the occupants of the other vehicle informed Davis that Lewis had been driving.  Davis was certain that Lewis said he was operating the vehicle.  He would not have arrested Lewis had Lewis not admitted driving the vehicle or had he not believed that Lewis was driving.  Davis recorded the stop, but the copy of the video was blank, and the original had been erased.

Michael Lewis, Lewis’s brother, testified that he, Lewis, and two other individuals were driving from Dallas to Red Oak for a paint job.  Michael, who did not know how to get to the job site, was following Lewis in another vehicle.  According to Michael, someone named Erik was driving Lewis’s vehicle, and Lewis was the passenger.  At some point, Michael was caught by a traffic light.  Lewis called Michael on the cell phone and complained about having stereo problems.  Michael initially testified that Lewis pulled over, but corrected himself, stating that Lewis instructed Erik to pull over to check the stereo, probably because Michael got caught by the traffic light.  Michael pulled into a parking lot after catching up with Lewis.  He observed Lewis leaning into the driver side of the vehicle and adjusting the stereo.  Michael testified that Lewis was parked in the median, not the roadway.  Michael did not know Erik’s whereabouts and had not spoken to him about the case since Lewis’s arrest.

Lewis testified that he had a paint job earlier that day and was traveling to Red Oak for a moving job.  Lewis did not know how to get to the job site, so he was following another vehicle being driven by the woman whose things he was moving.  He had asked Erik to drive.  They pulled over because Michael was “lagging behind.”  Lewis testified that he “pulled over as far as I could to get out of the line of traffic.”  He then began “fumbling” with the stereo.  After Davis arrived, he never asked Lewis if he had been driving the vehicle.  Lewis believed that Davis presumed that he had been driving because he owned the vehicle.  Lewis denied driving the vehicle.  Lewis testified that Erik was afraid of going to jail and so did not tell Davis that he had been driving.  According to Lewis, Erik was in rehab at the time of trial.

            Lewis contends that Davis never actually saw Lewis operating the vehicle.  He argues that Davis’s testimony that he “believed” Lewis said he had been driving and that Lewis must have confessed to operating the vehicle or Davis would not have arrested him is insufficient to establish Lewis’s guilt.  We disagree.  Davis saw Lewis sitting in the driver’s seat, saw Lewis exit the driver side door, and was certain that Lewis said he had been driving.  See Hernandez v. State, 13 S.W.3d 78, 80-81 (Tex. App.—Texarkana 2000, no pet.) (in DWI case, evidence that defendant was seen walking away from the driver side of a vehicle that he owned was legally and factually sufficient to establish that he was operating a motor vehicle, even though he denied driving the vehicle, claimed the real driver fled the scene, and was not placed behind the wheel).

As the sole judge of the weight and credibility of witness testimony, the jury was entitled to disbelieve Lewis’s contrary testimony and to resolve any inconsistencies in the evidence.  See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).  Accordingly, the jury could reasonably conclude, beyond a reasonable doubt, that Lewis committed the offense of driving with a suspended license.  See Curry, 30 S.W.3d at 406. The proof of guilt is not so weak nor the conflicting evidence so strong as to render the jury’s verdict clearly wrong and manifestly unjust.  See Watson, 204 S.W.3d at 414-15; see also Johnson, 23 S.W.3d at 11. Because the evidence is legally and factually sufficient to support Lewis’s conviction for driving with a suspended license, we overrule his two issues and affirm the trial court’s judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed April 2, 2008

Do not publish

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