Steven Wesley Barker v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00255-CR
___________________________
STEVEN WESLEY BARKER, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Court at Law
Hood County, Texas
Trial Court No. 53683
Before Sudderth, C.J.; Kerr and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Steven Wesley Barker appeals his conviction for driving while his
license was invalid (DWLI) and with a prior conviction for the same. See Tex. Transp.
Code Ann. §§ 521.021, .457(a)(2), (f)(1). His sole issue on appeal is the sufficiency of
the evidence to prove that his license was invalid at the time of the offense. Barker
claims that because his license revocation took effect a certain number of days after
the Texas Department of Public Safety (DPS) mailed him notice of the revocation,
the State was required to offer evidence—or more accurately, required to offer more
evidence than it did—to show if and when the notice of revocation was sent to
Barker. We disagree and, after modifying the judgment to correct a clerical error, we
will affirm.
I. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). The factfinder alone judges the evidence’s weight, determines its
credibility, and draws reasonable inferences from it. See Tex. Code Crim. Proc. Ann.
art. 38.04; Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Harrell v. State, 620 S.W.3d 910,
914 (Tex. Crim. App. 2021). “[T]he trier of fact may use common sense and apply
common knowledge, observation, and experience gained in ordinary affairs when
2
drawing inferences from the evidence.” See Garcia v. State, No. PD-0679-21, 2023 WL
151989, at *4 (Tex. Crim. App. Jan. 11, 2023) (quoting Acosta v. State, 429 S.W.3d 621,
625 (Tex. Crim. App. 2014)). We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict, and we must defer to that resolution as
long as the inferences are reasonable based on the evidence’s cumulative force.
Dunham v. State, No. PD-0831-18, 2023 WL 151346, at *3 (Tex. Crim. App. Jan. 11,
2023); Queeman, 520 S.W.3d at 622.
The essential elements of DWLI are (1) operating a motor vehicle (2) on a
highway (3) during a period in which the person’s driver’s license or privilege is
suspended or revoked under a law of this State. Tex. Transp. Code Ann.
§ 521.457(a)(2). Barker’s appeal focuses on the final element—whether his license
was suspended or revoked at the time of his arrest.
II. DWLI Statutes
The State presented evidence that Barker’s license was revoked under Texas
Transportation Code Chapter 521, Subchapter O. See Tex. Transp. Code Ann.
§§ 521.341–.351 (2012)1 (Subchapter O).
1
Because Barker’s license was revoked in 2012, we apply the DPS revocation
statutes in effect at that time. Citations to the 2012 provisions are indicated with a
parenthetical notation of the year. However, the relevant portions of the 2012
revocation statutes are substantially similar to those currently in effect. Compare Tex.
Transp. Code Ann. § 521.344(e), (g), (g-1), with id. at § 521.344(e), (g) (2012).
3
Within that Subchapter, Section 521.344 provides for the suspension of a
driver’s license if the driver is convicted of certain intoxication-related offenses. Id.
§ 521.344(a), (b) (2012). And “[a]fter the date has passed, according to [DPS] records,
for successful completion of the educational program designed to rehabilitate persons
who operated motor vehicles while intoxicated, the director [of DPS] shall revoke the
license of a person who does not successfully complete the program or, if the person
is a resident without a license to operate a motor vehicle in this state, shall issue an
order prohibiting the person from obtaining a license.” Id. § 521.344(e) (2012). DPS
is required to “promptly send notice of [the] revocation or prohibition order . . . by
first class mail to the person at the person’s most recent address as shown in the
records of [DPS].”2 Id. § 521.344(g) (2012). The revocation “takes effect on the 30th
day after the date the notice is mailed” and it “remains in effect until [DPS] receives
notice of successful completion of the educational program.” Id.
III. Sufficiency of the Evidence
Because Barker’s Subchapter O license revocation took effect 30 days after
DPS mailed him notice,3 Barker claims that, (1) to prove DWLI, the State was
2
The current statute also authorizes notice to be sent via “e-mail if the person
has provided an e-mail address to [DPS] and has elected to receive notice
electronically.” Id. § 521.344(g)(2). But the e-mail provision was added in 2017 and
was not in effect at the time of Barker’s suspension. See Act of May 24, 2017, 85th
Leg., R.S., ch. 1079, 2017 Tex. Gen. Laws 4225, 4225–28 (effective Sept. 1, 2017)
3
In his brief, Barker applies Subchapter N rather than Subchapter O, so he
argues that the revocation took effect 45 days after DPS mailed his notification letter.
4
required to show if and when it mailed him notice and that (2) it failed to offer
sufficient evidence of those facts.
A. We need not decide whether evidence of notice was required.
First, Barker claims that, to prove DWLI, the State was required to offer
evidence “to show if or when the notice of suspension was sent to Barker.” To
support this contention, Barker heavily relies upon our sister court’s opinion in White
v. State. 458 S.W.3d 188 (Tex. App.—Texarkana 2015, no pet.). The State points out,
though, that White’s holding has been rejected by other courts of appeals. See Cantu v.
State, No. 07-17-00446-CR, 2019 WL 1285295, at *2–3 (Tex. App.—Amarillo Mar.
20, 2019, no pet.) (mem. op., not designated for publication).
In White v. State, the Texarkana Court of Appeals held that, “in order to show
that a suspension period was in effect at the time of the alleged violation, the State
must proffer competent evidence that it provided notice of the suspension to the
licensee as required by [Chapter 521, Subchapter N].”4 458 S.W.3d at 192; see Mondy v.
See Tex. Transp. Code Ann. §§ 521.295(b), .297(a) (2012). Because Subchapter O—
not Subchapter N—applies to the case, we construe Barker’s argument broadly and
extend its logic to Subchapter O. See Tex. R. App. P. 38.9.
4
In White, the driver was arrested on November 6, 2012, and the State offered a
copy of the driver’s license return—the officer’s in-car “computer report received in
response to a computer inquiry regarding the status of a driver’s license”—which
showed three suspensions, two of which began on October 29, 2012, and the third of
which began on November 5, 2012. White, 458 S.W.3d at 189–90 & n.2. White
refuted this evidence, though, by providing a copy of the order of suspension, which
was dated November 8, 2012. Id. at 190. White testified that he had received the
order on November 11 and knew of no other suspensions. Id. The applicable
5
State, No. 06-16-00100-CR, 2017 WL 359786, at *2–3 (Tex. App.—Texarkana Jan. 24,
2017, pet. ref’d) (mem. op., not designated for publication) (quoting and applying
White when driver testified he had no knowledge of suspension). The Amarillo Court
of Appeals “agree[d] with the court in White that [the mailing of a notice] is one way
to prove a period of suspension,” but it declined to “construe [S]ection 521.457 [i.e.,
the DWLI statute] as requiring proof of a period of suspension only by evidence of
the mailing of a notice” and instead “conclude[d] that [a] certified abstract of [the]
driving record indicating that [the driver’s] license was suspended [wa]s sufficient
evidence to support [a] conviction for DWLI.” Cantu, 2019 WL 1285295, at *2–3.
We need not weigh in on this split for two reasons.
First, White and Cantu discuss the application of Subchapter N of Chapter 521,
and Barker’s license was revoked under Subchapter O. See id.; White, 458 S.W.3d at191–93; compare Tex. Transp. Code Ann. §§ 521.291–.320 (Subchapter N), with id.§§ 521.341–.351 (Subchapter O). Although the relevant portions of Subchapter N
and Subchapter O contain similar language—both requiring DPS to mail notification
of a suspension or revocation, and both tying the effective date of the suspension or
license-suspension statute provided that the suspension “t[ook] effect on the 40th day
after the date the person [wa]s considered to have received notice of the suspension
or revocation under Section 521.295(b),” i.e., five days after the notice was mailed by
DPS. Tex. Transp. Code Ann. § 521.295(b), .297(a) (2012); see White, 458 S.W.3d at191–93. The only evidence of the license suspension came from the arresting
officer’s testimony and the license return, neither of which provided any indication
that an earlier notice of suspension had been mailed to White. White, 458 S.W.3d at
193.
6
revocation to the date of mailing, compare Tex. Transp. Code Ann. §§ 521.295, .297(a),
with id. § 521.344(g-1)—Barker’s brief does not compare the two statutes or enunciate
any reason why we should extend White’s non-binding Subchapter N holding to this
Subchapter O case.5
5
Although the two Court of Criminal Appeals cases relied upon in White—
Smith and Podany—would be binding on us if they were applicable, they are not. See
generally Podany v. State, 358 S.W.2d 118 (Tex. Crim. App. 1962); Smith v. State, 324
S.W.2d 207 (Tex. Crim. App. 1959). Smith and Podany discussed the predecessor to
Subchapter N—Article 6687b, Section 22—and both cases relied on a now-irrelevant
certified-mail statute, Article 29c. See Act of May 22, 1957, 55th Leg., R.S. ch. 424,
§ 1, 1957 Tex. Gen. Laws 1266 (effective June 6, 1957) [hereinafter Art. 29c] (then
codified at Tex. Rev. Civ. Stats. Ann. art. 29c); Act of Apr. 14, 1941, 47th Leg., R.S.,
ch. 173, 1941 Tex. Gen. Laws 245, 252–53 (effective Apr. 23, 1941), amended by Act of
July 16, 1959, 56th Leg., 2d C.S., ch. 41, § 1, 1959 Tex. Gen. Laws 161, 161–63
(effective Aug. 5, 1959) [hereinafter, Art. 6687b, § 22] (enacting and amending Tex.
Rev. Civ. Stat. Ann. art. 6687b, § 22; repealed and recodified 1995); see also Act of May
1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1563–68 (recodifying
transportation statutes).
Article 6687b, Section 22 authorized DPS to suspend a driver’s license after a
hearing, and the driver was entitled to 10 days’ notice of the hearing. Art. 6687b,
§ 22(a). “Notice by registered mail . . . constitute[d] service,” id., but under Article
29c, “certified mail with return receipt requested [could be used] in lieu of registered
mail” and would “have the same legal effect as if sent by registered mail, provided receipt
for such certified mail [wa]s validated by official post office postmark.” Art. 29c (emphasis
added).
In Smith, the driver had no actual notice of the hearing or suspension until he
was charged with DWLI. 324 S.W.2d at 207. Notice of the hearing was attempted by
certified mail, but the post office did not validate receipt; instead, the post office
marked the notification letter as unclaimed. Id. at 208. Moreover, even after the
hearing, “the record show[ed] that appellant was not notified that [DPS]
had . . . ordered his operator’s license suspended.” Id. Notice of the suspension was
mailed to the driver’s address, but the letter was returned to DPS, and “[s]o far as
th[e] record reveal[ed], th[e] letter was not sent by registered mail or by certified mail.”
7
And second, even if we were to extend White to this case, it would not be
dispositive. White, Cantu, Barker, and the State all agree that evidence of mailing a
statutory notice is at least one method of proving that a license has been revoked, and
here, the State chose to present such evidence—whether it was required to do so or
not. See Cantu, 2019 WL 1285295, at *2–3; White, 458 S.W.3d at 191–93.
Id. Because the driver was not provided with notice of the hearing or suspension, the
court reversed his conviction. Id.In Podany, DPS again relied on certified mail (as a substitute for registered mail)
to send notice of the license suspension, but again the post office marked the certified
letter as unclaimed rather than “validat[ing]” receipt “by official post office
postmark.” 358 S.W.2d at 119. The driver had no actual notice of the suspension
prior to his DWLI. Id. And the driver had retained possession of his driver’s license
even though the relevant statutory provisions required DPS to confiscate the
suspended license. Id. at 118–19. Citing Smith, the court reversed the DWLI
conviction, id., noting that the legislature required official validation of receipt for
certified mail to “have the same legal effect as if sent by registered mail,” id. at 120(overruling motion for rehearing).
Smith and Podany thus turned on the statutory validation requirements for
DPS’s use of certified mail, and the records in those cases affirmatively demonstrated
that (1) DPS had not provided notice in compliance with the relevant statutes and
(2) the drivers lacked actual notice. See Podany, 358 S.W.2d at 118–19; Smith, 324
S.W.2d at 207–08; cf. Simmons v. State, 443 S.W.2d 852, 853–54 (Tex. Crim. App. 1969)
(quoting Podany’s discussion of Article 29c and reversing DWLI conviction when DPS
sent notice of hearing via certified mail and notice was returned to sender).
But by 2012, when Barker’s license was revoked, DPS was no longer required
to send Subchapter N or Subchapter O revocation notices via registered mail or
validated certified mail. Instead, DPS was required to send notification of a
suspension or revocation via first-class mail. See Tex. Transp. Code Ann.
§§ 521.295(a), .344(g) (2012); Act of May 30, 1999, 76th Leg., R.S., ch. 1409, § 2, 1999
Tex. Gen. Laws 4758, 4758 (amending Section 521.344, Subchapter O to provide for
notice via first-class mail); Act of May 26, 1999, 76th Leg., R.S., ch. 1117, § 1, 1999
Tex. Gen. Laws 3988, 3989 (amending Section 521.295, Subchapter N to provide for
notice via first-class mail). Thus, Smith and Podany do not control.
8
B. The State offered sufficient evidence of Barker’s license revocation,
including evidence that it mailed Barker a Subchapter O notice.
The State was required to prove that, at the time of Barker’s offense—April 25,
2022—his license had been suspended or revoked under a law of this State. Tex.
Transp. Code Ann. § 521.457(a)(2). The State chose to prove this by, among other
things, offering multiple pieces of evidence from which a reasonable jury could
conclude that Barker had been provided a Subchapter O notice of revocation more
than a decade before his 2022 offense.
First, the State offered a certified copy of Barker’s driving record.6 See
Stautzenberger v. State, 232 S.W.3d 323, 326–27 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (holding evidence of DWLI sufficient when State offered certified driving
record); cf. White, 458 S.W.3d at 193 (holding evidence insufficient when driving
record came in the form of a “license return printed out from [the arresting officer’s]
in-car computer”). The driving record is divided into sections, including (1) an
“Event History” section, which “displays information relating to convictions, crash
involvement, safety courses completed, out-of-state surrendered license history and
education program certificates”; (2) an “Enforcement Action History” section, which
states that it “displays enforcement actions that may affect a person’s eligibility to
6
Much of the driving record is printed in all capital letters, as are portions of the
certified notification letter discussed below. To improve readability, we have altered
the capitalization of all-capitals excerpts by capitalizing only the first letter of each
word.
9
drive” with “[a]dditional information pertaining to any event related to the
enforcement action . . . in the Event Section”; and (3) a “Status Information” section,
which “reflects a person’s eligibility to drive at the time th[e] document was
requested” in July 2022.
The “Status Information” section summarizes Barker’s “Driver Eligibility” by
stating that he is “Not Eligible” to drive. Barker’s “Event History” provides
background for his ineligible status by showing that he was convicted of driving while
intoxicated in June 2011, that his sentence was probated, and that a “DWI Education
Program [was] Required.” This conviction is listed as “Event 8” in Barker’s “Event
History,” and it is cross-referenced in the “Enforcement Action History.”
Specifically, the “Enforcement Action History,” referencing “Event 8,” shows
that Barker’s license was revoked in February 2012:
ACTION 19 ACTIVE REVOKED - FAILURE TO
COMPLETE DWI
EDUCATION PROGRAM
Begin Date: 02/18/2012 End Date: INDEFINITE
Notice Date: 01/21/2012
State: TX
Related Event(s): EVENT 8
Notably, “Action 19” is marked as “Active” while the other 23 enforcement
actions listed in Barker’s driving record are marked as “Expired” or “Lifted.” The
“Active” notation is contextualized by the “Indefinite” end date of Barker’s “Action
10
19” revocation, and both notations corroborate Barker’s “Status Information” that he
is “Not Eligible” to drive.
Moreover, the “Notice Date” listed on Barker’s certified driving record reflects
that he was provided notice of his revocation on “1/21/2012,” more than ten years
before his April 2022 offense. Cf. White, 458 S.W.3d at 193 (holding evidence
insufficient when license return contained no evidence that the notice of suspension
had been mailed). The jury was even provided a certified copy of the 2012 letter
notifying Barker of the revocation. See Tex. Transp. Code Ann. § 521.344(g) (2012).
This notice is entitled “Notice of Revocation,” it is addressed to Barker, and it bears
the “Notice Date” listed on Barker’s driving record—January 21, 2012. Cf. White, 458
S.W.3d at 193 (holding evidence insufficient when DPS notification was dated two
days after offense). The letter informs Barker that his “driver[’s] license . . . will be
revoked because [he] failed to complete an Education Program that was duly imposed
as a condition of probation[,]” that unless he “request[s] a hearing, [his] license will be
revoked indefinitely effective 02/18/2012,” and that “[t]o prevent or lift the
revocation[, DPS] must receive proof that the Education Program was completed.”
[Emphasis omitted.] At the bottom of the notification letter, it lists DPS’s “Statutory
Authority” as “Texas Transportation Code Section 521.344; 522.089,” confirming that
the letter is intended to be the “prompt[]” notice required under Section 521.344 of
Subchapter O. Tex. Transp. Code Ann. § 521.344(g) (2012).
11
Although Barker questions whether this letter was ever placed in the mail, the
certified copy of the letter, “Notice Date” notation, and DPS record of an “Active”
revocation are all evidence that it was, as is Barker’s admission that he received actual
notice that his license was invalid. See White, 458 S.W.3d at 193–94 (acknowledging
that the dated notification from DPS was “evidence showing a notice of suspension
was mailed to White regarding the August 28 conviction” but holding evidence
insufficient when notice was dated and received after commission of DWLI). But cf.
Mondy, 2017 WL 359786, at *2 (holding evidence of notice insufficient when
notification letters were offered into evidence but driver testified that he did not
receive them). The arresting officer testified that, when he walked up to Barker’s
vehicle to speak with him, Barker “told him that [his license] was suspended.”7 Cf.
White, 458 S.W.3d at 190, 193–94 (holding evidence insufficient when evidence
showed, among other things, that driver was not aware of his suspension). The
officer confirmed this information by entering Barker’s name and date of birth in his
computer system, where he saw that Barker’s driving record reflected an active license
revocation since 2012. See Sutton v. State, No. 12-19-00210-CR, 2020 WL 1697434, at
*4–5 (Tex. App.—Tyler Apr. 8, 2020, no pet.) (mem. op., not designated for
7
The jury was also provided with documentation showing Barker’s conviction
for DWLI in 2013, which had been enhanced by yet another DWLI conviction in
August 2012. Barker pleaded nolo contendere to the 2013 DWLI. But that DWLI
conviction was based on a different license suspension or revocation than the “Action
19” revocation discussed here.
12
publication) (holding evidence of DWLI sufficient when State offered certified driving
record showing indefinite suspension and testimony from arresting officer that license
was suspended).
Given this evidence—the certified driving record reflecting that Barker was
“Ineligible” to drive due to an “Active” and “Indefinite” revocation, the “Notice
Date” entry on the driving record, the certified copy of the notification letter bearing
the same date, the arresting officer’s testimony that Barker’s license had been revoked,
and Barker’s admission that he knew his license was invalid—a reasonable jury could
have inferred that DPS mailed Barker notice of his revocation on or about January 21,
2012 and that the “Indefinite” revocation—which took effect on “the 30th day after
the date the notice [wa]s mailed,”8 Tex. Transp. Code Ann. § 521.344(g) (2012)—
began more than a decade before Barker committed his DWLI in April 2022.
We overrule Barker’s sole issue.
8
Barker emphasizes that the February 18, 2012 “Begin Date” listed on his
driving record was the 28th day after the “Notice Date” even though, under
Subchapter O, the revocation did not take effect until “the 30th day after the date the
notice [wa]s mailed.” Tex. Transp. Code Ann. § 521.344(g) (2012). But a reasonable
jury could have taken this discrepancy into account in assessing the credibility of the
driving record; the jury was not required to throw out the exhibit in its entirety. Cf.
Garcia, 2023 WL 151989, at *4 (reiterating that “[t]he jury acts as the sole judge of the
credibility of the witnesses and may choose to believe all, some, or none of the
testimony presented”). Moreover, Barker was not arrested on the 28th or 29th day
after the notice was mailed—he was arrested more than ten years later. Cf. White, 458
S.W.3d at 189–90, 193 (holding evidence insufficient when DPS notification was in
close proximity to and dated two days after offense).
13
IV. Reformation
But on our own motion, we reform the judgment to correct a clerical error.
“We have the power to sua sponte correct and reform the trial court’s
judgment ‘to make the record speak the truth’ when we have the necessary data and
information to do so.” Criado v. State, No. 02-21-00104-CR, 2022 WL 2071791, at *4
(Tex. App.—Fort Worth June 9, 2022, no pet.) (mem. op., not designated for
publication) (quoting Munguia v. State, 636 S.W.3d 750, 756 (Tex. App.—Houston
[14th Dist.] 2021, pet. ref’d)); see Arent v. State, No. 02-20-00023-CR, 2020 WL
6326151, at *2 (Tex. App.—Fort Worth Oct. 29, 2020, no pet.) (mem. op., not
designated for publication) (“We may modify a trial court’s judgment to correct errors
that contradict the record.”). Here, a jury determined Barker’s punishment, but the
judgment erroneously states that the trial court “fixed” and “assessed” Barker’s
punishment.9 [Capitalization altered.] We reform the judgment to reflect that the
jury—not the trial court—“fixed” and “assessed” Barker’s punishment.
[Capitalization altered.]
The judgment is entitled “JUDGMENT ON VERDICT OF GUILTY
9
PUNISHMENT FIXED BY COURT” and it contains an entry reiterating,
“PUNISHMENT ASSESSED BY: COURT.”
14
V. Conclusion
Having overruled Barker’s sole issue and reformed the judgment to correct a
clerical error, we affirm the judgment as modified. Tex. R. App. P. 43.2(a), (b).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 16, 2023
15