Donald Wayne Read v. State ( 2015 )


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  • Opinion filed October 15, 2015
    In The
    Eleventh Court of Appeals
    __________
    No. 11-13-00344-CR
    __________
    DONALD WAYNE READ, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the Criminal District Court No. 2
    Tarrant County, Texas
    Trial Court Cause No. 1315382D
    MEMORANDUM OPINION
    The jury found Donald Wayne Read guilty of driving while intoxicated—
    felony repetition.1 Appellant elected to have the trial court assess punishment, and
    he pleaded “not true” to the habitual offender enhancement. See PENAL § 12.42(d).
    The trial court found the habitual offender enhancement to be “true,” assessed
    1
    See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2014).
    punishment at confinement for twenty-five years, and sentenced Appellant.
    Appellant asserts two issues on appeal. We affirm.
    I. The Charged Offense
    The grand jury indicted Appellant for driving while intoxicated in a public
    place—felony repetition. The grand jury alleged in the indictment that Appellant had
    previously been convicted of driving while intoxicated in 1988 in Cause No. 0341322
    and convicted of driving while intoxicated, a misdemeanor with repetition, in 1995
    in Cause No. 0511960; both convictions occurred in Tarrant County. A person
    commits the offense of driving while intoxicated if the person is intoxicated while
    operating a motor vehicle in a public place. PENAL § 49.04(a). This offense is a
    felony of the third degree if it is shown at trial that the person has previously been
    convicted two times of any other offense related to the operation of a motor vehicle
    while intoxicated. Id. § 49.09(b)(2).
    The indictment also included a Habitual Offender Notice. In that notice, the
    grand jury alleged that Appellant had been convicted of two prior felony offenses of
    driving while intoxicated: one in 1996, Cause No. 12163 in Parker County, and a
    second in 2006, Cause No. 0992602R in Tarrant County. A person is a habitual
    offender if that person has been finally convicted of two felony offenses and the
    second previous felony conviction was for an offense that occurred subsequent to the
    time that the first previous conviction became final. Id. § 12.42(d). Once convicted
    as a habitual offender, the defendant shall be punished by imprisonment for life or
    for any term of not more than ninety-nine years or less than twenty-five years. Id.
    II. Evidence at Trial
    Timothy Verboski, an airline pilot, was on his way home from work late one
    February night when he noticed a vehicle in the ditch on the side of the road.
    Verboski stopped to see if everyone was “okay.” Appellant exited his vehicle and
    asked Verboski to pull Appellant’s vehicle out of the ditch. Verboski noticed that
    2
    Appellant’s speech was slurred and that he staggered. Appellant appeared intoxicated
    and was either “drunk” or “drugged up,” and Verboski refused to pull Appellant’s
    vehicle out of the ditch. Verboski drove down the road and called 9-1-1. Shortly
    thereafter, Becky LaCroix, a deputy with the Tarrant County Sheriff’s Office, arrived
    at the scene.
    Deputy LaCroix observed an older model sport utility vehicle, a Land Rover,
    in a ditch. The Land Rover was leaning against a barbed-wire fence. When she
    approached the Land Rover, Deputy LaCroix noticed that Appellant was in the
    driver’s seat, that the keys were in the ignition, and that the headlights were “on.”
    She observed that Appellant was in control of the Land Rover. Deputy LaCroix
    noticed blood on Appellant’s hand as well as on the steering wheel; she thought that
    he had been in an accident. Deputy LaCroix also noticed a strong odor of alcohol on
    Appellant’s breath. She described his speech as slow and slurred. Appellant told
    Deputy LaCroix that he was en route from his mother’s house to his girlfriend’s
    house. Appellant said that he was tired and accidentally ended up in the ditch.
    Deputy LaCroix also spoke to Verboski about what he had seen.
    Deputy LaCroix administered various field sobriety tests to Appellant, all of
    which he failed. She arrested him for driving while intoxicated. Deputy LaCroix
    then determined that Appellant had two prior felony convictions for driving while
    intoxicated, so she transported him to John Peter Smith Hospital for a mandatory
    blood draw. He refused to give a blood sample. Nevertheless, Roxanne Wine, a
    nurse at the hospital, took a blood sample from Appellant. Deputy LaCroix then took
    Appellant to the Tarrant County Jail. Joyce Ho, a toxicologist with the Tarrant
    County Medical Examiner’s Office, tested Appellant’s blood sample, and the sample
    contained a blood alcohol content of 0.16.
    3
    John Pauley, an error resolution detective2 with the Tarrant County Sheriff’s
    Office, testified that he took Appellant’s fingerprints so that he could compare those
    prints against other fingerprints on documents that the State had asked him to review.
    Detective Pauley compared the fingerprints that he had taken from Appellant to
    State’s Exhibit No. 7A, a print card from the Tarrant County Sheriff’s Office, and
    determined that both sets of fingerprints belonged to Appellant. Detective Pauley
    also pointed out that Exhibit No. 7A contained Appellant’s county identification
    number (CID) and his date of birth.
    Detective Pauley also reviewed State’s Exhibit No. 8, a “case/booking”
    summary from the Tarrant County Jail; the CID number and the date of birth on
    State’s Exhibit No. 8 matched Appellant’s CID number and date of birth. Further,
    Detective Pauley pointed out that the booking summary referenced Cause
    No. 0341322 and Cause No. 0511960. Both of those cases involved misdemeanor
    offenses for driving while intoxicated.
    Detective Pauley also reviewed State’s Exhibit No. 4, a criminal docket sheet
    and judgment from Tarrant County Cause No. 0511960, both of which reflected a
    conviction in 1995 for driving while intoxicated.                      The docket sheet showed
    Appellant’s CID number, which was the same as the number in State’s Exhibit No. 8.
    Detective Pauley also reviewed State’s Exhibit No. 5, a criminal docket sheet and
    judgment in Cause No. 0341322, which reflected a 1988 conviction for misdemeanor
    driving while intoxicated. State’s Exhibit No. 5 had the same CID number as State’s
    Exhibit No. 8.
    Detective Pauley was unable to determine whether the fingerprints on State’s
    Exhibit Nos. 4 and 5 matched Appellant’s fingerprints. Detective Pauley was not
    able to match the fingerprints he took with the fingerprints on State’s Exhibit No. 9,
    2
    An error resolution detective is a person tasked with the responsibility to ensure accuracy in the
    criminal records of Tarrant County.
    4
    which was Appellant’s redacted Driver’s License Record from the Texas Department
    of Public Safety, because the latter were of insufficient quality. However, State’s
    Exhibit No. 9 did include a photograph of Appellant and his date of birth.
    Appellant testified on his own behalf. Appellant denied that he had operated
    the vehicle while he was intoxicated; he asserted that his son, Matthew, had driven
    the vehicle into the ditch earlier that day. With respect to his prior convictions,
    Appellant admitted that he had two prior felony convictions for driving while
    intoxicated. One of Appellant’s prior convictions was in 1996 in Parker County;
    another was in Tarrant County in 2006. At the time of trial for the instant offense,
    Appellant was on parole for the 2006 conviction. Appellant conceded that he had
    pleaded guilty to another conviction for driving while intoxicated, a misdemeanor
    with repetition, in 1995.
    Detective Pauley testified during the punishment phase of the trial with respect
    to the habitual offender allegations. He stated that the fingerprints on the penitentiary
    packets from the felony convictions for driving while intoxicated in 1996 in Parker
    County and in 2006 in Tarrant County matched the fingerprints that Detective Pauley
    had taken from Appellant.
    III. Analysis
    Appellant first argues that the evidence was insufficient to support his
    conviction. In his second issue on appeal, he claims that the trial court erred when it
    admitted evidence of the 1996 and 2006 convictions because the State had incorrectly
    pleaded the dates of the judgments.
    A. Issue One: Sufficiency of the Evidence
    We review the sufficiency of the evidence under the standard set forth in
    Jackson v. Virginia, 
    443 U.S. 307
    , 318 (1979). Brooks v. State, 
    323 S.W.3d 893
    , 912
    (Tex. Crim. App. 2010). Under this standard, we review all of the evidence in the
    light most favorable to the jury’s verdict and decide whether any rational jury could
    5
    have found the essential elements of the offense beyond a reasonable doubt. Jackson,
    
    443 U.S. at 319
    . As the factfinder, the jury determines the weight and credibility of
    the witnesses’ testimony. Sharp v. State, 
    707 S.W.2d 611
    , 614 (Tex. Crim. App.
    1986); Isham v. State, 
    258 S.W.3d 244
    , 248 (Tex. App.—Eastland 2008, pet. ref’d).
    If the evidence raises any conflicting inferences, we presume that the trier of fact
    resolved such conflicts in favor of the verdict. Jackson, 
    443 U.S. at 318
    ; Brooks, 
    323 S.W.3d at 894
    .
    Appellant asserts that the State failed to prove beyond a reasonable doubt that
    he was the same Donald Wayne Read that was convicted in 1988 and 1995 for driving
    while intoxicated. Appellant claims that the State failed to prove that he was the
    “Read” referred to in the misdemeanor docket sheets from Tarrant County for those
    cases. The State must prove that a defendant has been convicted of a prior offense
    by proof beyond a reasonable doubt that (1) a prior conviction exists and (2) the
    defendant is linked to that conviction. Flowers v. State, 
    220 S.W.3d 919
    , 921 (Tex.
    Crim. App. 2007). The State may prove the prior conviction in a number of ways
    that include (1) the defendant’s admission or stipulation, (2) testimony by a person
    who was present when the person was convicted of the specified crime and can
    identify the defendant as that person, or (3) documentary proof (such as a judgment)
    that contains sufficient information to establish both the existence of a prior
    conviction and the defendant’s identity as the person convicted. 
    Id.
     at 921–22.
    Detective Pauley testified that the booking summary, State’s Exhibit No. 8,
    referenced Cause No. 0341322 and Cause No. 0511960. Both of those causes
    involved driving-while-intoxicated offenses. In addition, certified copies of both
    judgments were entered into evidence. The first conviction was in 1988, and the
    second was a misdemeanor conviction with repetition in 1995.
    Appellant admitted at trial that he was the person who had committed the
    offense as reflected in State’s Exhibit No. 4, Cause No. 0511960, and that he had
    6
    pleaded guilty in 1995 to that offense: the misdemeanor offense of driving while
    intoxicated with repetition. State’s Exhibit No. 4 includes, as the prior offense
    alleged for repetition purposes, the conviction that is reflected in State’s Exhibit
    No. 5, Cause No. 0341322. The jury is the sole judge of the facts, the credibility of
    the witnesses, and the weight to be given the evidence. Sharp, 
    707 S.W.2d at 614
    ;
    Beckham v. State, 
    29 S.W.3d 148
    , 152 (Tex. App.—Houston [14th Dist.] 2000, pet.
    ref’d). The jury may believe or disbelieve all or part of any witness’s testimony.
    Jones v. State, 
    984 S.W.2d 254
    , 258 (Tex. Crim. App. 1998). The jury chose to
    believe that Appellant had committed the prior offenses in Cause No. 0511960 and
    Cause No. 0341322. After a review of the record, we hold that the evidence was
    sufficient for a rational jury to conclude beyond a reasonable doubt that Appellant
    was the person who was convicted in Cause No. 0511960 and Cause No. 0341322
    and that, in the instant case, he was guilty of driving while intoxicated—felony
    repetition. We overrule Appellant’s first issue.
    B. Issue Two: Objection to Habitual Offender Notice
    Appellant argues that the trial court erred when it admitted the judgments of
    conviction for Appellant’s felony convictions in 1996 and 2006 because the State had
    alleged the wrong judgment dates for the convictions. Appellant cites Beal v. State
    in support of his position. Beal v. State, 
    91 S.W.3d 794
    , 795 (Tex. Crim. App. 2002).
    We note that it is not necessary to allege a defendant’s prior conviction for
    enhancement purposes with the same particularity that is necessary to allege the
    primary offense. Freda v. State, 
    704 S.W.2d 41
    , 42 (Tex. Crim. App. 1986) (citing
    Cole v. State, 
    611 S.W.2d 79
    , 80 (Tex. Crim. App. [Panel Op.] 1981)). We note that
    the State offered into evidence the mandate for Cause No. 0992602R, dated
    September 24, 2007, which is when that judgment became final. Appellant did not
    object to the introduction of that mandate, which was for the felony conviction in
    2006; he also admitted that it was his conviction. Appellant also admitted to the 1996
    7
    felony conviction in Parker County. We note that there was no evidence adduced
    that the 1996 conviction in Parker County had been appealed. After a review of the
    record, we hold that the State proved, in compliance with the habitual offender
    statute, that both convictions had become final well before Appellant was sentenced
    in this case and that the 1996 Parker County conviction became final prior to the
    commission of the offense for which Appellant was convicted in 2006. See PENAL
    § 12.42(d). We overrule Appellant’s second issue.
    IV. This Court’s Ruling
    We affirm the judgment of the trial court.
    MIKE WILLSON
    JUSTICE
    October 15, 2015
    Do not publish. See TEX. R. APP. P. 47.2(b).
    Panel consists of: Wright, C.J.,
    Willson, J., and Bailey, J.
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