Daniel Basurto v. State

Affirmed and Memorandum Opinion filed September 7, 2006

Affirmed and Memorandum Opinion filed September 7, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00419-CR

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DANIEL BASURTO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1019586

M E M O R A N D U M   O P I N I O N

Daniel Basurto appeals a conviction for felony driving while intoxicated^[1] (ADWI@) on the grounds that: (1) the evidence is legally and factually insufficient to support his conviction; and (2) he was denied effective assistance of counsel.  We affirm.

Sufficiency of the Evidence

Appellant=s first and second issues contend that the evidence is legally and factually insufficient to support his conviction because the State failed to prove that he had lost the normal use of his mental and physical faculties while operating a motor vehicle.

In reviewing legal sufficiency, we view all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App. 2005), cert. denied, ___ U.S. ___, 126 S. Ct. 481 (2005) (No. 05-5773).  In reviewing factual sufficiency, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, while adequate if taken alone, is greatly outweighed by contrary proof.  Id. at 730-31.

In this case, the jury was authorized to convict appellant of DWI if it found that, while operating a motor vehicle in a public place, he did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body. See Tex. Pen. Code Ann. '' 49.01(2), 49.04(a) (Vernon 2003).  Thus, in evaluating the sufficiency of the evidence in a DWI conviction, there must be evidence that shows appellant was intoxicated at the time he was driving.  Johnson v. State, 517 S.W.2d 536, 538 (Tex. Crim. App. 1975); see also Stoutner v. State, 36 S.W.3d 716, 721 (Tex.App.BHouston [1st Dist.] 2001, pet. ref=d).

In this case, appellant was involved in a minor traffic accident with James Schwett.  Schwett testified that appellant was driving the vehicle that hit his car from behind after Schwett had stopped at a red light, and that appellant appeared to be drunk immediately after the collision, when Schwett asked appellant for his insurance information.  Because an altercation developed at the scene, Schwett called 911, and the police arrived about three or four minutes later.  Additionally, Officer Currie and Officer Skinner (a second officer who arrived at the scene in response to Currie=s call for back-up) both testified that appellant was then intoxicated to the point of losing his physical faculties.  Viewed in the light most favorable to the verdict, a rational jury could have found from this evidence that appellant had been intoxicated while he was driving.  Moreover, viewing this evidence in a neutral light, it is not so obviously weak as to undermine confidence in the jury=s determination; and appellant points to no contrary proof.  See Prible, 175 S.W.3d at 730-31.  Because appellant=s first and second issues therefore fail to demonstrate legal or factual insufficiency of the evidence of intoxication, they are overruled.

Appellant=s third issue argues that the evidence is legally insufficient to enhance his conviction to felony DWI because the State failed to prove that his date of release from confinement for one of the prior DWI convictions used for enhancement occurred less than ten years prior to the commission of the charged offense.

As is relevant here, a  person commits felony DWI where he has two prior DWI convictions.  Tex. Pen. Code Ann. ' 49.09(b)(2) (Vernon Supp. 2006).  A conviction may not be used for enhancement purposes if, among other things:

(2)       the offense for which the person is being tried was committed more than 10 years after the latest of:

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(D)      the date on which the person completed serving any term for which the person was confined or imprisoned for the previous conviction; and

(3)       the person has not been convicted of . . . any offense related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2).

Act of May 25, 2001, 77th Leg., R.S., ch. 648, ' 2, 2001 Tex. Gen. Laws 1213, 1214, repealed by Act of May 27, 2005, Leg., R.S., ch. 996, ' 3, 2005 Tex. Gen. Laws 3363, 3364.^[2] Thus, because both of the foregoing conditions must be met for a prior conviction to be unavailable for enhancement purposes, where the relevant dates of prior convictions are within ten years of each other, they are appropriate for enhancement, regardless of their remoteness from the charged offense.  Getts v. State, 155 S.W.3d 153, 157, 167, app. (Tex. Crim. App. 2005).

Here, appellant was charged by indictment with DWI committed on March 7, 2004, with allegations that appellant had previously been convicted of DWI on August 30, 1979 and October 4, 1985, and was sentenced to six days and 30 days confinement respectively.  Because these prior convictions had discharge dates within 10 years of each other, they are appropriate for enhancement of DWI.  See id.  Accordingly, appellant=s issue fails to demonstrate the legal insufficiency of the evidence of enhancement and is overruled.

Effectiveness of Counsel

Appellant=s fourth issue asserts that he was denied effective assistance of counsel because his trial counsel failed to fully investigate and object to the use of his 1979 misdemeanor conviction for DWI to elevate the charged offense to a felony because that judgment is void for failing to reflect an affirmative waiver of the right to a jury trial.^[3]

A defendant=s right to effective assistance of counsel is denied when a defense attorney=s performance falls below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different.  Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003); Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004), cert. denied, 543 U.S. 1059 (2005).  To show ineffective assistance of counsel for the failure to object during trial, an appellant must show that the trial judge would have committed error in overruling the objection.  Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004).

Appellant cites no authority indicating that the failure of a judgment to reflect waiver of a jury trial renders it void.  Rather, where the trial record (not the judgment, as appellant contends) is silent, waiver of trial by jury cannot be presumed on direct appeal.  Samudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App. 1983).  However, appellant has not argued or provided evidence^[4] that the record from his 1979 conviction is silent regarding waiver, nor has he otherwise established that the 1979 conviction is void.  Thus, he has not shown that the trial court would have committed error in overruling an objection to that conviction on that ground.  See White, 160 S.W.3d at 53. Accordingly, because appellant=s fourth issue does not demonstrate that he was denied effective assistance of counsel, it is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed September 7, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           A jury convicted appellant, and the trial court assessed punishment at 28 years confinement.

^[2]           Although repealed on September 1, 2005, this law remains in effect for offenses, like appellant=s, committed before that date.  See Act of May 27, 2005, 79th Leg. R.S., ch. 996, ' 4, 2005 Tex. Gen. Laws 3363, 3364.

^[3]           Appellant=s brief refers to waiver of the right to counsel, but the authority it cites pertains to  waiver of the right to jury trial.

^[4]           When an appellant attempts to collaterally attack a prior judgment, he has the burden to bring forward the entire record to show that it is silent regarding jury waiver.  West v. State, 720 S.W.2d 511, 519 (Tex. Crim. App. 1986).  Appellant has not done so in this case.