Darla Sue Barrett v. State ( 2006 )

                NO. 12-05-00224-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DARLA SUE BARRETT,     §          APPEAL FROM THE

APPELLANT

V.        §          COUNTY COURT AT LAW OF

THE STATE OF TEXAS,

APPELLEE   §          CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

            Darla Sue Barrett appeals her conviction for driving while intoxicated.  In four issues, she complains that the trial court erred when it corrected the jury charge after it had been read to the jury, the jury charge in the guilt/innocence portion of the trial was defective, and there was insufficient evidence of a prior conviction.  We affirm.

Background

            A Department of Public Safety Trooper stopped Appellant’s vehicle early in the morning of September 1, 2002 in Cherokee County, Texas.  The trooper observed Appellant’s vehicle make a wide turn and overshoot a stop sign. Upon stopping the vehicle, the trooper observed that Appellant appeared to be intoxicated and smelled of the odor of an alcoholic beverage.  The trooper administered three standardized field sobriety tests and offered to allow Appellant to provide a specimen of her breath.  Appellant refused the breath test, and the trooper arrested her for driving while intoxicated. 

            The State charged Appellant by information with driving while intoxicated and further alleged that she had a prior conviction for driving while intoxicated.  The charging information alleged that the present offense occurred “on or about the 2nd day of September, A.D., 2002.”  Appellant pleaded not guilty and the case was tried to a jury.  The trial court prepared a jury charge at the conclusion of the presentation of evidence. The court gave each side an opportunity to object to the charge and neither did.  Moments after the charge was read, and before closing argument began, the State realized that the charge did not include the “on or about” language from the charging information.  The State asked that the error be corrected.  Over Appellant’s objection, the trial court prepared and read a corrected jury charge and instructed the jury to disregard the first charge. 

            The jury found Appellant guilty, and she elected to have the trial court assess her punishment.  The State abandoned the enhancement allegation at the punishment hearing.  The trial court assessed punishment at one hundred eighty days, suspended the sentence, and placed Appellant on community supervision for eighteen months with a fine of $1,500.00.  This appeal followed. 

Correcting the Jury Charge

            In her first issue, Appellant argues that the trial court erred when it corrected the jury charge after it had been read to the jury.

            While the first charge is not included in the record, it appears that the trial court read a charge that authorized the jury to find Appellant guilty if it found that she operated a vehicle while intoxicated on September 2, 2002.  Appellant was arrested on September 1, 2002, and the State alleged that the offense had occurred “on or about” September 2, 2002.  After realizing the error, and before argument began, the State asked the trial court to correct the charge to reflect the “on or about” language from the charging information. 

            Appellant objected, and on appeal she claims that this correction violates Articles 36.14 and 36.15 of the Texas Code of Criminal Procedure.  In addition, Appellant cites Rojas v. State, 662 S.W.2d 466, 469 (Tex. App.–Corpus Christi 1983, pet ref’d) and Sockwell v. State, 429 S.W.2d 460 (Tex. Crim. App. 1968) to support her argument.  But these authorities stand for the proposition that a complaint about a charge is preserved only if made before the charge is read to the jury. They do not address the correction of a typographical error in the charge.

            This issue is not about preservation of error. The court of criminal appeals has interpreted Article 36.16 of the Texas Code of Criminal Procedure to permit a trial court to withdraw and correct a jury charge if convinced an erroneous charge has been given.  Smith v. State, 898 S.W.2d 838, 854 (Tex. Crim. App. 1995) (citing Bustillos v. State, 464 S.W.2d 118, 125–26 (Tex. Crim. App. 1964)). Furthermore, Article 36.19 of the Code of Criminal Procedure holds that a case “shall not be reversed” for failure to follow Articles 36.14 or 36.15 unless the error was calculated to injure the rights of the defendant or unless it appears that the defendant did not receive a fair and impartial trial.

            The trial court corrected a typographical error in the jury charge.  The correction was made before argument began and did not injure Appellant’s rights or deny her a fair and impartial trial.  We overrule Appellant’s first issue.

Defective Jury Charge

            In her second issue, Appellant complains that the jury charge was defective because it did not contain the allegation that she had been previously convicted of driving while intoxicated.       When a case is tried to a jury, a trial court must submit the question of guilt or innocence on the principal charge to the jury before it conducts a punishment hearing to consider enhancement allegations. Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon 2005); Frausto v. State, 642 S.W.2d 506, 508 (Tex. Crim. App. 1982).  The trial court followed this procedure.  The court instructed the jury to determine whether Appellant was guilty of driving while intoxicated.  The jury was not asked, at that time, whether the enhancement allegation was true.

            Appellant could have requested the jury to consider, in a single proceeding, whether she was guilty of the present offense and whether she had previously been convicted of driving while intoxicated.  Although it is not clear why any person would wish to do this, this complaint is waived because Appellant did not request a unitary trial or object to the procedure employed by the trial court.  See Tex. R. App. P. 33.1(a)(1)(A).  We overrule Appellant’s second issue.

Sufficiency of the Evidence

            In her third and fourth issues, Appellant complains that the evidence is insufficient to prove that she had previously been convicted of driving while intoxicated as alleged in the charging information.  The State abandoned the enhancement allegation at the punishment hearing. The written judgment of the trial court shows that Appellant was convicted of driving while intoxicated as a class B misdemeanor, the unenhanced offense.  The punishment is within the range provided for a class B misdemeanor. We overrule Appellant’s third and fourth issues.

Disposition

            We affirm the judgment of the trial court.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered June 7, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)