Ismael Alejandre v. State ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00082-CR

Ismael Alejandre,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 26464CR

MEMORANDUM Opinion

          Ismael Alejandre was convicted of felony driving while intoxicated (DWI).  He argues that the evidence is legally and factually insufficient to prove a prior DWI conviction and the current offense.  He also argues that his trial counsel was ineffective.  We affirm.

Background

          Billie Fuller was driving on FM 877 when she noticed a vehicle ahead of her that was driving slowly.  When she tried to pass, the vehicle crossed the center stripe of the road.  Unable to pass, Fuller followed the vehicle for seven or eight miles, watching it cross the center stripe three times.  At one point a vehicle coming the opposite direction was forced off the road to avoid the meandering vehicle.  Fuller called 9-1-1 and informed the police about a possibly intoxicated driver.

          As the suspect vehicle approached Waxahachie, Officer Keith Putman observed the vehicle cross the center stripe while making a turn and pulled the vehicle over.  As he approached the vehicle, he could smell the odor of alcohol.  In response to Putman's questions, the driver, Alejandre, stated that he was returning from a day on the lake and did not have a driver's license with him.  He also admitted to drinking five or six beers.

          Putman administered three field sobriety tests to Alejandre and concluded that he was intoxicated.  Putman arrested Alejandre and escorted him to jail where Alejandre refused a breathalyzer test and refused to sign the statutory and Miranda warnings.

          At Alejandre's jury trial, the trial court admitted two prior DWI convictions from 1985 and 1998.  A jury found him guilty of felony DWI and sentenced him to six years' confinement and a $1000 fine.

          In this appeal, Alejandre argues that (1) the evidence is legally insufficient to prove the prior 1985 DWI conviction; (2) the evidence is factually insufficient to prove the prior 1985 DWI conviction and his current conviction; and (3) his trial counsel was ineffective.

Legal and Factual Insufficiency

          Alejandre argues in his first two issues that the evidence is legally and factually insufficient to prove the prior 1985 DWI conviction, and factually insufficient to prove the offense charged.      

          In reviewing the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000).  The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Id.; McDuff, 939 S.W.2d at 614.

          In conducting a factual sufficiency review, we "consider[ ] all of the evidence in a neutral light" and determine whether the factfinder was "rationally justified in finding guilt beyond a reasonable doubt."  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004); Davis v. State, No. 10-02-00230-CR, 2004 WL 1903298, *2 (Tex. App.—Waco Aug. 25, 2004, no pet.).

          [T]here are two ways in which the evidence may be [factually] insufficient.  First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Second, there may be both evidence supporting the verdict and evidence contrary to the verdict.  Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.

Zuniga, 144 S.W.3d at 484-85.

The 1985 DWI Conviction

          Alejandre argues that the evidence is legally and factually insufficient to prove his 1985 DWI conviction because there is no evidence directly linking him to the conviction.

          Proof of two prior convictions are jurisdictional elements that are necessary to obtain a conviction for the offense of felony DWI.  Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003).  The fact of the prior conviction, including the identity of the accused, must be proven beyond a reasonable doubt.  Zimmer v. State, 989 S.W.2d 48, 51 (Tex. App.—San Antonio 1998, pet. ref'd).  A prior conviction is usually established by admitting certified copies of the judgment and authenticated copies of the prison records, including fingerprints that are supported by expert testimony matching them to the known prints of the defendant. Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986).  Although a common method of proving prior convictions, it is not the exclusive method of doing so.  See Littles v. State, 726 S.W.2d 26, 31 (Tex. Crim. App. 1984).  For instance, it is not unusual to use a driving record to link a defendant to a prior conviction.  Williams v. State, 946 S.W.2d 886, 895 (Tex. App.—Waco 1997, no pet.); Spaulding v. State, 896 S.W.2d 587, 591 (Tex. App.—Houston [1st Dist.] 1995, no pet.).

          The 1985 judgment does not bear a fingerprint or other identifying elements other than bearing the same name as Alejandre. The State offered Alejandre's driving record from the Texas Department of Public Safety which contained information on both the 1985 and 1998 convictions as evidence linking Alejandre to the 1985 judgment.  Alejandre argues that his driving record is not sufficient to connect Alejandre to the 1985 conviction.

          Alejandre's driving record contained the correct docket numbers for the 1985 and 1998 convictions.  Furthermore, it contained identifying information such as a physical description, a photograph, and fingerprints that matched the fingerprints in the 1995 DWI judgment.  Therefore, we find that the evidence is legally and factually sufficient to prove that Alejandre is the person convicted in 1985 of DWI as alleged.  Williams, 946 S.W.2d at 895 (finding driver's record and license sufficient to uphold jury's finding of prior conviction); Spaulding, 896 S.W.2d at 591 (finding photograph and physical description in driver's record legally sufficient to prove identity).

The Current Conviction

          In his second issue, Alejandre argues that the evidence is factually insufficient to support his conviction of the current DWI offense.  Specifically, Alejandre contends that the evidence is factually insufficient to prove identity and intoxication, both elements of felony DWI.  See Tex. Pen. Code Ann. §§ 49.04, 49.09(b) (Vernon  Supp. 2004-2005).

          Pedro Alejandre, Alejandre's brother, was in the vehicle on the night of the offense.  Pedro testified that Alejandre had been allowing Alejandre's twelve-year-old daughter to drive from the lake to Waxahachie.  Pedro also admitted to drinking about four beers that day, and when asked if his own ability to drive had been impaired, he stated, "Could be."

          Fuller and her husband testified concerning the erratic driving of the vehicle and their belief that the driver was either drunk or sick.  Putman testified concerning the three field sobriety tests given to Alejandre.  He testified that in the horizontal gaze nystagmus test Alejandre exhibited all six clues, indicating that he was intoxicated. Alejandre attempted the one-leg stand test four times, but was unable to complete it.  When asked to perform the walk and turn test, he had difficulty remembering the instructions, miscounted, did not walk heel to toe, made an improper turn, and stopped to catch himself.  A second officer who observed the field test, Dennis Hickman, testified that he smelled the presence of alcohol and noticed Alejandre's difficulty in completing the sobriety tests.

          Alejandre argues that the videotape of the field sobriety tests admitted in evidence and published to the jury constitutes proof that Alejandre was not intoxicated.  It is true that some of the failings of the sobriety tests are not visible on the videotape, such as the horizontal gaze nystagmus test and the walk and turn test.  Nonetheless, the Fullers' and the officers' testimony supports the proposition that Alejandre was intoxicated.  The jury was presented with conflicting evidence and could accept or reject reasonably competing theories of a case.  Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001).  Therefore, looking at the evidence in a neutral viewpoint, we find that the factfinder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484.  Accordingly, we overrule Alejandre's first and second issues.

Ineffective Assistance of Counsel

          Alejandre argues in his third issue that he was denied his Sixth Amendment right to an attorney because his trial counsel was ineffective.  When reviewing ineffective assistance of counsel we apply a two-pronged test.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see Hervey v. State, 131 S.W.3d 561, 563-64 (Tex. App.—Waco 2004, no pet.). We must review whether appellant has proven (1) that appellant's counsel was deficient; and (2) if deficient, whether counsel's performance prejudiced the defense.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. 

          In evaluating whether counsel was deficient, we look to the totality of the representation and the particular circumstances of each case to determine whether counsel's representation fell below an objective standard of reasonableness.  Id., 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  The appellant must prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission.  Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).  We apply a strong presumption that trial counsel was competent, and we presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy.  Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

          Alejandre argues that his trial counsel was deficient (1) by failing to adequately conduct voir dire because counsel asked only a few questions of the panel and did not strike or challenge a specific juror for cause; (2) by failing to call any witnesses to support the defensive theory that Alejandre was not the same person that was the subject of the 1985 prior DWI conviction; and (3) by failing to object to the driver's record as hearsay and the testimony of the prosecution's fingerprint expert regarding the driver's record.

          Because Alejandre's ineffective assistance claim is raised on direct appeal, Alejandre's trial counsel has not had an opportunity to respond to these allegations.  The Court of Criminal Appeals has held that the record on appeal is generally "not . . . sufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard" because "[t]he reasonableness of counsel's choices often involves facts that do not appear in the appellate record."  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); see also Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Thus the more appropriate vehicle to raise ineffective assistance of counsel claims is the application for a writ of habeas corpus.  Rylander, 101 S.W.3d at 110.

          The record in the instant case does not reflect the motives behind Alejandre's trial counsel's actions.  Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.  Rylander, 101 S.W.3d at 110; Bone, 77 S.W.3d at 836.  For these reasons, we conclude that Alejandre has not met his burden in proving that his counsel's representation fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.  Accordingly, we overrule his third issue.

Conclusion

          Having overruled all of Alejandre's issues, we affirm the judgment of the trial court.

                                                                   FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Affirmed

Opinion delivered and filed November 24, 2004

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•Federal law provides relief from intentional violations of constitutional rights. 42 U.S.C. § 1983 (1994).

      We conclude that the operation of the nursing home by the Health Care Authority in violation of statute does not remove the Health Care Authority from the protection afforded by sovereign immunity. Now we turn to whether Appellants’ pleadings allege facts which show a waiver of immunity under the Tort Claims Act.

Pleadings:

      As a “governmental unit,” the Health Care Authority cannot be liable for negligence unless one of the types of events listed in section 101.021 has occurred. Tex. Civ. Prac. & Rem. Code Ann. § 101.021. Applicable here, Appellants must prove that Ms. Bowman’s death was “caused by a condition or use of tangible personal or real property.” Id. § 101.021(2). To determine whether the trial court has jurisdiction, we examine the pleadings for allegations of “a condition or use of tangible personal or real property” which caused her death. Id.; Miller, 51 S.W.3d at 587 (examining pleadings to find allegations sufficient under the Tort Claims Act); Air Control Bd., 852 S.W.2d at 446; Jansen, 14 S.W.3d at 431; Pearce, 16 S.W.3d at 460.

      Over a span of fourteen pages, Appellants’ Original Petition makes numerous accusations about negligence by the defendants. The following are representative:

•Ms. Bowman fell from her wheelchair while at the nursing home and sustained a head injury. She was taken to the hospital and treated.

•Back at the nursing home, “[n]othing had been done to properly attend to Ms. Bowman following the incident.”

•Two days later Ms. Bowman was again taken to the hospital; she died two weeks later. The cause of death was listed as “Alzheimer’s Disease with a contributing factor as non-insulin dependent diabetes mellitus,” “concussion,” and “congestive heart failure.”

•There were numerous negligent acts and omissions of the defendants—fourteen pages in the original petition.

      Critical to the question of immunity from liability, none of the allegations contained in the fourteen pages is about a negligent “condition or use of tangible personal or real property” which caused the death. Rather, the allegations are for “failure to” perform a wide variety of acts, e.g., failure to diagnosis and treat Ms. Bowman’s condition, failure to properly report the injuries to her relatives and to State authorities, and failure of management to properly supervise employees. Other allegations are for physical assault on Ms. Bowman by nursing-home staff, ignored by management. Appellants’ pleadings do not allege facts which would bring their claim under the waiver of immunity from liability in section 101.021(2). Pearce, 16 S.W.3d at 460-61. Consequently, there is no waiver of immunity from suit, and the trial court lacks subject matter jurisdiction of the claims against the Health Care Authority. Tex. Civ. Prac. & Rem. Code Ann. § 101.025.

Result

      Finding that their claims against the Health Care Authority are barred by sovereign immunity, we overrule Appellants’ issue.

Conclusion

      We sever the claims of Appellants against all individual Appellees, i.e., Appellees other than the Health Care Authority, reverse the order of dismissal as to them, and remand the severed cause to the trial court for further proceedings. We affirm the order granting the plea to the jurisdiction regarding the Health Care Authority.

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

      (Justice Gray dissenting and concurring)

Severed and reversed and remanded in part; Affirmed in part

Opinion delivered and filed December 31, 2002

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