Henry Sevilla Garza v. State

                                   NUMBER 13-01-511-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

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HENRY SEVILLA GARZA,                                                       Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

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                        On appeal from the 156th District Court

                                 of Live Oak County, Texas.

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                                   O P I N I O N

        Before Chief Justice Valdez and Justices Dorsey and Rodriguez

                                Opinion by Justice Rodriguez

Appellant, Henry Garza, brings this appeal following a conviction for driving while intoxicated (DWI). By three points of error, appellant contends: (1) the trial court erred in failing to suppress all evidence obtained as a result of the stop; (2) the trial court erred in failing to suppress one or both of the prior DWI convictions alleged in the indictment; and (3) the evidence is legally and factually insufficient to support the conviction.  We affirm.

I. FACTS

On May 21, 2000, around 12:50 a.m., DPS Officer Robert Mack Driggers  was in a patrol car traveling north on U.S. 281 near George West, Texas. Appellant and his passenger, Luis Canales, were traveling on the same road in the opposite direction. Appellant failed to dim his high beams as he approached and passed the patrol car.  Officer Driggers thereupon reversed direction, pursued, and stopped appellant for a traffic violation. 

Before Officer Driggers got out of his patrol car, Canales opened the passenger door and stepped out. Officer Driggers yelled at him to get back in the car, but not before appellant, the driver of the vehicle, moved over to the passenger side and exited the passenger door.  Canales then re-entered the car through the passenger door and slid over to the driver=s seat.  Appellant followed, now taking a position in the  passenger seat.

Because of the odor of alcohol from appellant and the condition of appellant=s eyes, which Officer Driggers observed to be Abloodshot, kind of glazed over,@ he conducted a series of field sobriety tests.  After the third field sobriety test, Officer Driggers=s concluded appellant was intoxicated, and placed him under arrest.

Appellant subsequently pled not guilty to the charged offense of DWI.  A jury found appellant guilty, and the court sentenced appellant to twenty-five years of incarceration.^[1]  This appeal ensued. 

II. MOTION TO SUPPRESS

A. Standard of Review

The typical motion to suppress case will be reviewed with a bifurcated standard of review giving almost total deference to a trial court=s express or implied determinations of fact, and review de novo the court=s application of the law of search and seizure to those facts.  Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).  We afford almost total deference to a trial court=s findings of facts that the record supports, especially when the findings are based on an evaluation of credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d).

B. Reasonableness of Stop

By his first point of error, appellant contends the trial court erred in failing to grant his motion to suppress all evidence obtained as a result of the stop because the State failed to prove there was any reasonable suspicion to stop his vehicle.

When a police officer stops a defendant without a warrant and without the defendant=s consent, the State has the burden at a suppression hearing of proving the reasonableness of the stop.  Russell v. State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986); Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.BAustin 1998, pet. ref=d).  If an actual violation of law is observed, there is probable cause for the traffic stop, and law enforcement officials are free to enforce the laws and detain a person for that violation.  Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).

The failure to dim the headlights of an automobile to oncoming traffic is a violation of section 547.333 of the Texas Transportation Code.  Tex. Transp. Code Ann. ' 547.333(c)(1)(B) (Vernon Supp. 2002).  Appellant is correct in stating that if the driver aims his lights so that no part of the high-intensity portion of the headlamp projects into the eyes of the approaching vehicle operator, he complies with the law.  However, Officer Driggers=s testified that appellant=s brights were in his eyes and the eyes of his passenger. Because this is an issue involving a disagreement about the facts and the credibility of the witness, we afford almost total deference to the trial court.  See Guzman, 955 S.W.2d at 89; see also State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999) (trial judge is sole trier of fact and judge of credibility of witnesses and weight given to their testimony). Thus, we find Officer Driggers=s testimony sufficient to establish that probable cause existed to justify his initial stop of appellant=s vehicle.  See Garcia, 827 S.W.2d at 944.  Appellant=s first point of error is overruled.

C. Prior DWI Convictions

By his second point of error, appellant contends the trial court erred in failing to suppress one or both of the prior DWI convictions because appellant did not knowingly, intelligently, and voluntarily waive counsel for those proceedings.

 The Sixth Amendment provides that Ain all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.@  U.S. Const. amend. VI; see Green v. State, 872 S.W.2d 717, 719 (Tex. Crim. App. 1994).  Likewise, article 1.051 of the Texas Code of Criminal Procedure provides that an accused in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding.  Tex. Code Crim. Proc. Ann. art. 1.051(a) (Vernon Supp. 2002); Williams v. State, 946 S.W.2d 886, 900 (Tex. App.BWaco 1997, no pet.).

However, the right to counsel may be waived if such waiver is made voluntarily and with knowledge of the consequences thereof.  Jordan v. State, 571 S.W.2d 883, 884 (Tex. Crim. App. 1978) (citing Faretta v. California, 422 U.S. 806, 835 (1975)).  When an appellant collaterally attacks enhancing misdemeanor convictions, as the appellant is doing in this case, the appellant has the burden to prove that, with respect to the enhancing misdemeanor convictions, he did not voluntarily, knowingly, and intelligently waive his right to counsel.  Garcia v. State, 909 S.W.2d 563, 566 (Tex. App.BCorpus Christi 1995, pet. ref=d); see Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985); Robledo v. State, 717 S.W.2d 647, 649 (Tex. App.BAmarillo 1986, no pet.).

Appellant did not offer any evidence showing that he did not voluntarily, knowingly, and intelligently waive his right to counsel.  Thus, appellant did not meet his burden.  See Garcia, 909 S.W.2d at 566.

Furthermore, in assessing the evidence, the trial judge, sitting as the trier of fact, can properly consider the interest and bias of any witness and is not required to accept as true the testimony of the accused simply because it was not contradicted.  See Messer v. State, 757 S.W.2d 820, 824 (Tex. App.BHouston [1st Dist.] 1988, pet. ref=d).  In this case, the trial court had the opportunity to observe appellant=s demeanor when ascertaining whether appellant voluntarily, knowingly, and intelligently waived his right to counsel.  We are not afforded this same opportunity on appellate review.  Therefore, giving great deference to the trial court=s decision regarding this matter, see Guzman, 955 S.W.2d at 89, we conclude the trial court did not abuse its discretion in determining appellant voluntarily, knowingly, and intelligently waived his right to counsel, and in refusing to suppress appellant=s prior DWI convictions.  Appellant=s second point of error is overruled.

III. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

By his third point of error, appellant contends the evidence is legally and factually insufficient to support the conviction.

A. Legal Sufficiency

In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). 

A person commits DWI if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. ' 49.04(a) (Vernon Supp. 2002). 

In this case, three officers testified that, in their opinion, appellant was intoxicated.  Appellant had a strong odor of alcohol on his breath, and his eyes were blood shot.  There was alcohol in the car, and appellant refused to take a breath test.  Appellant also tried to hide the fact that he was driving by switching positions with the passenger.

These facts provide evidence that appellant was intoxicated at the time he was stopped.  Thus, viewing the evidence in the light most favorable to the verdict, we hold the jury could have found the essential elements of the crime beyond a reasonable doubt.  See Jackson, 443 U.S. at 318.

B. Factual Sufficiency

In evaluating the factual sufficiency of the evidence, this Court must complete a neutral review of all the evidence.  King, 29 S.W.3d at 563; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Weighing all of the evidence, we must then determine whether the proof of guilt is so weak as to undermine confidence in the fact finder=s determination or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  King, 29 S.W.3d at 563.  However, we are not free to reweigh the evidence and set aside a jury verdict merely because we feel a different result is more reasonable.  See id.  Only when this Court determines that the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust can we set aside a verdict for factual insufficiency.  Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  A clearly wrong and unjust verdict is Amanifestly unjust,@ Ashocks the conscience,@ or Aclearly demonstrates bias.@  Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998); Santellan, 939 S.W.2d at 165.

Based on the evidence above, and after impartially reviewing all of the evidence and giving proper deference to the verdict, we conclude that the verdict is not so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred.  King, 29 S.W.2d at 565; Rojas, 986 S.W.2d at 247.  Appellant failed to show that the evidence is factually insufficient to support a finding that appellant was intoxicated.  Thus, appellant=s third point of error is overruled.

Accordingly, the judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3

Opinion delivered and filed this

29th day of August, 2002.       

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^[1]Two previous convictions alleged in the indictment made appellant subject to punishment as a habitual felony offender. See Tex. Pen. Code Ann. ' 12.42(d) (Vernon 1994 & Supp. 2002).