Charles Malveaux v. State ( 2018 )

Opinion issued December 6, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00639-CR
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CHARLES MALVEAUX, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1537925-R
MEMORANDUM OPINION
Appellant, Charles Malveaux, petitioned for an occupational driver’s license
under Texas Transportation Code section 521.244(e) following his conviction for
Driving While Intoxicated (DWI) as a third offense under Texas Penal Code
section 49.04 and punishment under Penal Code section 49.09, resulting in the
suspension of his driver’s license.1 The trial court denied his petition.2 In his sole
issue on appeal, Malveaux argues that the trial court erred in denying his petition
for an occupational driver’s license. Because Malveaux failed to prove his
compliance with Transportation Code section 521.244(e), we affirm.
Background
On March 31, 2017, Malveaux was convicted of DWI, third offense, a third-
degree felony, relating to an offense that occurred on March 5, 2017. The record
demonstrates that he had been previously convicted of DWI in 1993 and in July
2012 under Penal Code section 49.04. Malveaux conceded that the March 5, 2017
offense for which he was convicted was within five years of his 2012 DWI
conviction. Accordingly, he was necessarily convicted and punished under Penal
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See, e.g., TEX. PENAL CODE ANN. § 49.04 (West Supp. 2018) (governing DWI
generally) (West 2011), § 49.09 (West Supp. 2018) (providing enhanced
punishment if additional elements, such as two previous DWI convictions, are
met).
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The Texas Transportation Code provides that “[a] person whose license has been
suspended for a cause other than a physical or mental disability or impairment or a
conviction of an offense under Sections 49.04–49.08, Penal Code, may apply for
an occupational license. . . .” TEX. TRANSP. CODE ANN. § 521.242(a) (West
2018). An occupational driver’s license may contain restrictions regarding the
hours of the day and days of the week during which the person may operate a
motor vehicle, the reasons for which the person may operate a motor vehicle, and
the areas or routes of travel permitted, among others. Id. § 521.248(a) (West
2018); see also id. § 521.246 (West 2018) (providing that if person’s driver’s
license has been suspended after conviction of offense under Penal Code sections
49.04–49.08, judge shall restrict person to operation of motor vehicle equipped
with ignition interlock device).
2
Code sections 49.04 and 49.09(b), which provides that conviction for DWI is a
third degree felony for a person who had been convicted previously of two other
DWI offenses. See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2018) (setting out
elements for DWI offense), § 49.09 (West Supp. 2018) (setting out enhanced
offenses and penalties).
On June 14, 2017, Malveaux petitioned the trial court to grant him an
occupational driver’s license pursuant to Texas Transportation Code 521.244(e).
His verified petition asserted that on May 31, 2017, his “driver’s license was
automatically suspended for eighteen months following a conviction in this Court
for an offense under Section 49 of the Texas Penal Code.” Malveaux further
asserted that he had not been issued more than one occupational driver’s license in
the preceding ten years.
Malveaux further stated in his verified petition that he had “installed an
ignition interlock device on each vehicle owned or operated by [him].” He
attached a copy of a receipt from “Smart Start, Inc.” for a 1988 Chevrolet
Silverado, listing an “install date” of February 2, 2017, a “service date” of June 6,
2017, and a “next lockout date” of July 2, 2017. The receipt indicated that
Malveaux had paid a fee for “20/20 HU Service.” He alleged that the receipt
indicated that he had purchased and installed a deep-lung breath analysis
mechanism on his vehicle. Malveaux also alleged in his verified petition that he
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“has a valid policy of automobile liability insurance in accordance with the
provisions of Texas Transportation Code, Sections 601.701, et seq.” Malveaux
presented a photocopy of the “SR-22 Financial Responsibility Form” as proof of
automobile liability insurance.
At the hearing on July 27, 2017, Malveaux waived his right to appear and
his attorney presented argument on his behalf, based on the verified petition and its
attachments—the service receipt and the SR-22 Financial Responsibility Form—
and a certified copy of the judgment of conviction for Malveaux’s 2017 DWI
offense. The 2017 judgment indicated that Malveaux had pleaded guilty to the
offense of “DWI Third,” which was listed as a third-degree felony. The judgment
further stated that his punishment was assessed at ten years’ confinement, probated
to four years of community supervision, and that the trial court also had suspended
Malveaux’s driver’s license for eighteen months beginning May 31, 2017. The
certified copy of the judgment also contained the terms of Malveaux’s community
supervision, including the requirement that he place a deep-lung breath analysis
mechanism with photographic capabilities on any vehicle available to him in order
to render it inoperable in the event ethyl alcohol was detected. He was further
required to participate in an outpatient treatment program, and a DWI Intervention
Program for repeat offenders.
No other evidence was presented to the trial court.
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Malveaux argued that, because he had installed the ignition interlock device,
Transportation Code section 521.244(e) permitted him to proceed without making
a showing of his essential need for the occupational license. The State argued,
however, that while “[t]he petition mentions that the defendant was convicted
under [Penal Code section] 49.04,” Malveaux “was also convicted under [section]
49.09 because priors are the elements of the offense.” The State argued that the
petition did not meet all elements necessary to obtain the occupational driver’s
license and that there was “insufficient proof” that all elements had been complied
with. It observed that one receipt for service of an interlock device did not
sufficiently establish that Malveaux had complied with the statutory requirements.
The trial court denied Malveaux’s petition for an occupational driver’s
license in an order signed July 27, 2017. On the record, the trial court stated that
“in addition to the technical issues raised by the State,” the court believed that it
had discretion to determine whether to grant Malveaux an occupational driver’s
license. The trial court did not disagree with Malveaux’s contention that he was
not required to establish his essential need for the occupational license. The trial
court stated that the phrase “is entitled to” as used in Transportation Code section
521.244(e) created a right to proceed without proving his essential need; however,
the trial court did not believe that section 521.244(e) made granting of the
occupational driver’s license mandatory or otherwise deprived the court of its
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discretion in considering the petition as a whole. The trial court went on to express
concern with Malveaux’s having served only two months of his probation
following a DWI conviction that involved a “minor accident.” It also stated that the
ignition interlock mechanism only detected alcohol, but it would still allow the
vehicle to start if Malveaux were under the influence of drugs.
This appeal followed.
Analysis
Generally, Texas courts have reviewed a trial court’s ruling on a petition for
an occupational driver’s license for an abuse of discretion. See Wood v. Tex. Dep’t
of Pub. Safety, 331 S.W.3d 78, 81 (Tex. App.—Fort Worth 2010, no pet.); Deleon
v. State, 284 S.W.3d 894, 896 (Tex. App.—Dallas 2009, no pet.); see also TEX.
TRANSP. CODE ANN. § 521.244(a), (c) (West 2018) (requiring trial court
considering petition for occupational driver’s license to make findings regarding
essential need and to “determine the actual need of the petitioner to operate a
motor vehicle”), § 521.248 (West 2018) (requiring that trial court’s order granting
occupational driver’s license must specify limitations imposed on petitioner’s
operation of motor vehicle), § 521.252(a) (West 2018) (providing that “[t]he court
that signs an order granting an occupational license may issue at any time an order
revoking the license for good cause”). A trial court abuses its discretion when it
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acts in an arbitrary and unreasonable manner or when it acts without reference to
any guiding rules or principles. Deleon, 284 S.W.3d at 896.
Here, Malveaux relies on Transportation Code section 521.244(e), which
provides:
(e) A person convicted of an offense under Sections 49.04–49.08,
Penal Code, who is restricted to the operation of a motor vehicle
equipped with an ignition interlock device is entitled to receive an
occupational license without a finding that an essential need exists for
that person, provided that the person shows:
(1) evidence of financial responsibility under Chapter 601; and
(2) proof the person has had an ignition interlock device
installed on each motor vehicle owned or operated by the
person.
TEX. TRANSP. CODE. ANN. § 521.244(e). Malveaux argues that he established
financial responsibility and provided proof he had installed an interlock device on
his vehicle, and, thus, the trial court lacked discretion to refuse to grant him an
occupational driver’s license.
However, among its other arguments to the trial court, the State challenged
the adequacy of Malveaux’s proof that he had installed an adequate ignition
interlock device on “each motor vehicle owned or operated by” him, as required by
the statute. No evidence was presented to the trial court at the hearing. Rather,
Malveaux relied upon his verified pleading, in which he made conclusory
assertions that he had complied with the terms of section 521.244(e). He also
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attached to his petition a copy of a receipt from “Smart Start, Inc.” for a 1988
Chevrolet Silverado, listing an “install date” of February 2, 2017, a “service date”
of June 6, 2017, and a “next lockout date” of July 2, 2017. The receipt indicated
that Malveaux had paid a fee for “20/20 HU Service.”
The State argued in the trial court that there were inconsistencies in the dates
on the receipt provided by Malveaux. The date of installation on the receipt
predates Malveaux’s underlying conviction, and it indicates that the next “lockout
date”—a term that was never explained or defined to the trial court—was July 2,
2017, but the hearing occurred after that date on July 27, 2017.
The State also argued that the receipt did not prove that the Silverado
referenced in the receipt was Malveaux’s vehicle, nor did it prove that the
Silverado was the only vehicle to which Malveaux had regular access, and we
agree. See TEX. TRANSP. CODE. ANN. § 521.244(e)(2) (requiring proof that person
had interlock device installed on each motor vehicle owner and operated by
person). Malveaux’s attorney argued at the hearing that Malveaux’s verified
petition asserted that he had installed the required device on each motor vehicle
that he owned or operated, but conclusory statements, even in verified petitions, do
not constitute evidence. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904
S.W.2d 656, 660 (Tex. 1995) (noting that, generally, pleadings are not competent
evidence, even if sworn and verified); Padilla v. Metro. Transit Auth. of Harris
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Cty., 497 S.W.3d 78, 85–86 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(holding, in summary judgment context, that affidavits containing conclusory
statements that fail to provide underlying facts supporting those conclusions are
not proper evidence).
In stating its ruling on the record, the trial court recognized “the technical
issues raised by the State.” Because the trial court could have denied Malveaux’s
petition solely on the basis that he did not establish his compliance with section
521.244(e)(2), we overrule Malveaux’s sole issue on appeal.
Conclusion
We affirm the order of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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