Opinion
No. 12-05-00341-CR
Opinion delivered July 31, 2006. DO NOT PUBLISH.
Appeal from the 294th Judicial District Court of Van Zandt County, Texas.
Panel consisted of WORTHEN, C.J. and GRIFFITH, J.
MEMORANDUM OPINION
Jesse Edward Bass was convicted of felony driving while intoxicated, a third degree felony. In two issues, Appellant challenges the factual sufficiency of the evidence to support his conviction and the trial court's failure to order a presentence report. We affirm.
Background
On September 1, 2004, Appellant was arrested for driving while intoxicated in Van Zandt County, Texas and was indicted on January 19, 2005. The charge was enhanced to a felony because Appellant had two prior convictions for driving while intoxicated. See TEX. PEN. CODE ANN. § 49.09(b) (Vernon Supp. 2005). Appellant pleaded "not guilty" and elected to have a jury decide his guilt or innocence. Appellant stipulated to his two prior convictions. At trial, the State first called Aaron Shull, a City of Van police officer, to testify. Officer Shull said that he received a dispatch to look for a possible hit and run and was given a color, make, and license number of a vehicle. He saw a vehicle matching that description on the service road to Interstate 20 and pulled behind it, initiating his siren and flashing lights. As he followed the vehicle, he witnessed it driving through an intersection without stopping at a stop sign. Officer Shull continued to follow the car, which alternately went fast, then very slowly (three miles per hour), and was weaving. After following the vehicle for approximately two miles, the vehicle stopped on the service road. Officer Shull pulled in behind the vehicle and instructed Appellant to turn off the ignition, throw the keys out the window, and put his hands out the window. At first, Appellant did not obey the officer's instructions. Eventually, he turned off the ignition. The officer then instructed Appellant multiple times to exit the vehicle, but Appellant did not comply. Officer Shull pulled him from the vehicle, and he smelled a "very strong" odor of alcohol emanating from Appellant. Appellant's speech was slurred, and he was having trouble walking, stumbling slightly. Officer Shull testified that he believed Appellant had lost the normal use of his mental and physical faculties and had been driving while intoxicated. Because the officer was out of the city limits, he phoned the sheriff's office to send a deputy or state trooper to the location. The State next called Mike King, a police officer for the City of Canton, to testify about the events he witnessed. Officer King was requested to assist in locating an alleged hit and run driver. After being notified that the suspected vehicle had exited from the interstate, Officer King saw Officer Shull attempting to stop it. When he caught up with them, they were headed eastbound, traveling at a very slow speed. Officer King pulled to the left of Officer Shull with his overhead lights and siren going. Appellant continued driving for approximately fifty yards, then pulled to the right shoulder and stopped. Officer King's testimony was essentially the same as Officer Shull's — Appellant smelled very strongly of alcohol, had glassy and bloodshot eyes, and had slurred speech. Appellant admitted that he had been drinking. He had difficulty following the officers' instructions and seemed oblivious to the lights and sirens. Officer King believed that Appellant was intoxicated and had lost the normal use of his mental and physical faculties.Brady Lunceford, a trooper with the Texas Department of Public Safety, who testified for the State. After receiving a dispatch from Van Zandt County about a possible hit and run accident and intoxicated driver, he drove to the location where Officers Shull and King had stopped and detained Appellant. Appellant was sitting in the back seat of one of the squad cars. After the other officers informed him of what had happened, Trooper Lunceford approached Appellant. As he opened the squad car door, he "was basically knocked over by the smell of just the strong odor of alcoholic beverage." He noticed that Appellant was very unsteady on his feet and was having problems standing. Appellant told Trooper Lunceford that he had been drinking and that he had struck a vehicle, but was driving around trying to find it. Appellant's eyes were red and bloodshot. He stumbled several times while walking, and he almost fell once while standing still. When Trooper Lunceford asked him to perform field sobriety tests, Appellant asked "if it mattered." After Appellant refused to perform the field sobriety tests and the breathalyzer test, Trooper Lunceford concluded that Appellant was intoxicated based on the other information available to him and arrested him.After the trial court admitted Appellant's written stipulation to two prior DWI convictions, the State rested. Appellant called Peggy Shinabarger, his girlfriend of six years, to testify. She said that after working on September 1, she came home around 5:00 p.m. to find Appellant cleaning up after doing yard work. He had been mowing the yard and working on his car that day. She testified that Appellant had not been drinking when she got home. Appellant left at 6:30 p.m. to drive to Shreveport to visit his mother. At approximately 8:15 p.m., Appellant stopped and called Shinabarger to let her know he was okay. At that time, Appellant did not sound intoxicated to Shinabarger. She conceded that Appellant had a history of alcohol abuse, but said he had been "working on it." Shinabarger testified that Appellant had never come home intoxicated in the six years they had been together and that they did not keep alcohol in their house. Appellant told her that he had been in a "little small wreck, bump, but there was no damage." She did not find any dents or scratches on the vehicle Appellant was driving that night. At the conclusion of the guilt/innocence phase, the jury found Appellant guilty as charged. Because Appellant had elected for the court to assess punishment if convicted, the trial court released the jury. During the punishment phase, neither the State nor Appellant produced any evidence, but Appellant's counsel made a closing argument. Without ordering a presentence investigation report, the trial court sentenced Appellant to ten years of imprisonment and assessed a $10,000.00 fine. This appeal followed.
Sufficiency of the Evidence
In his first issue, Appellant challenges the factual sufficiency of the evidence supporting his conviction. Standard of Review In conducting a factual sufficiency review, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State , 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We then review all of the evidence, but not in the light most favorable to the prosecution. Johnson v. State , 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We must determine whether a neutral review of all the evidence, both for and against the challenged finding, demonstrates that a rational juror could find guilt beyond a reasonable doubt. Zuniga v. State , 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilty beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt burden of proof could not have been met. Id. at 484-85. In performing a factual sufficiency review, we defer to the fact finder's determinations, including those involving the credibility and demeanor of witnesses. Id. at 481. The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. Discussion A person commits felony driving while intoxicated if he operates a motor vehicle in a public place while intoxicated and has been previously convicted at least twice for driving while intoxicated. See TEX. PEN. CODE ANN. 49.04, 49.09(b)(2) (Vernon Supp. 2005). In addition to the evidence previously recounted, the record includes some evidence that is favorable to Appellant. Officer Shull's report did not include notations about Appellant "having the strong odor of alcohol" or that Appellant refused to stop his vehicle for approximately two miles after the officer initiated his sirens and lights. Officer Shull did not find alcohol in Appellant's vehicle. Officer King did not see Appellant run the stop sign. He said that Appellant pulled his vehicle over to the shoulder of the road when he stopped. He did not see anything illegal in Appellant's vehicle. Officer King conceded that having the strong odor of alcohol does not necessarily mean that Appellant was intoxicated. Trooper Lunceford admitted that slurred speech, the strong smell of alcohol, and red, bloodshot eyes do not necessarily indicate intoxication. He did not have to assist Appellant out of the squad car when he first arrived on the scene even though Appellant was handcuffed. Trooper Lunceford did not find the driver of the automobile that Appellant allegedly struck. Appellant's girlfriend testified that Appellant had not been drinking when she arrived home at 5:00 p.m., nor did he sound intoxicated at 8:15 when he phoned her. She said that the vehicle Appellant was driving that night had no visible damage to it. She testified that in the six years of their relationship, Appellant had never come home intoxicated. The jury accepted the State's version of the facts and found against Appellant. In our evaluation, we should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See Santellan v. State , 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). We have conducted a neutral review of all the evidence, both for and against the finding. The record does not reveal any evidence that causes us to conclude that the proof of guilt is too weak to support the finding of guilt beyond a reasonable doubt. Nor does the record reveal contrary evidence so strong that guilt cannot be proven beyond a reasonable doubt. Therefore, we hold that the evidence is factually sufficient to support the jury's verdict. Consequently, we overrule Appellant's first issue.Presentencing Investigation Report
On appeal, Appellant contends the trial court erred in failing to order preparation of a presentence investigation (PSI) report. Applicable Law The Texas Code of Criminal Procedure provides as follows:Except as provided by Subsection (g) of this section, before the imposition of sentence by a judge in a felony case . . the judge shall direct a supervision officer to report to the judge in writing on the circumstances of the offenses with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge.TEX. CODE CRIM. PROC. ANN. art. 42.12 § 9(a) (Vernon Supp. 2005). Section 9(g) provides that
[a] judge is not required to direct an officer to prepare a presentence report in a felony case under this section if: (1) punishment is to be assessed by a jury; (2) the defendant is convicted of or enters a plea of guilty or nolo contendere to capital murder; (3) the only available punishment is imprisonment or (4) the judge is informed that a plea bargain agreement exists, under which the defendant agrees to a punishment of imprisonment, and the judge intends to follow the agreement.Id. art. 42.12 § 9(g). In Whitelaw v. State , 29 S.W.3d 129, 134 (Tex.Crim.App. 2000), the court unanimously held that the trial court must order preparation of a PSI report in a felony case when the defendant requests one. By its holding, the court disapproved of cases holding that the trial court has discretion in such cases to order preparation of a PSI report. Id. Whitelaw and the language of Article 42.12, section 9 make it clear that the trial court must order a PSI report unless the exceptions in section 9(g) apply. Even then, if the defendant requests a PSI report, the trial court must order that one be prepared. Id. at 132. Analysis Initially, we note that Appellant did not object to the trial court's failure to order a PSI report or bring it to the trial court's attention either at the punishment hearing or in his motion for new trial. Error in failing to order a PSI report is waived if the defendant fails to object to the failure or bring the failure to the trial court's attention. See Buchanan v. State , 68 S.W.3d 136, 140 (Tex.App.-Texarkana 2001, no pet.). However, even absent waiver, we conclude that the result would not change. In the instant case, none of the exceptions in section 9(g) apply to Appellant. The trial court, not the jury, sentenced Appellant; the defendant was convicted of a felony DWI, not capital murder; probation was available to Appellant; and there was no plea bargain. Thus, the trial court was required to order preparation of a PSI report. Error in failing to order the preparation of a PSI report is subject to a review for harm. See Whitelaw , 29 S.W.3d at 132. Nonconstitutional error is harmless if it did not affect the defendant's substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the verdict. King v. State , 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). If, on the record as a whole, it appears the error did not influence the verdict, or had but a slight effect, we must consider the error harmless and allow the conviction to stand. Johnson v. State , 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). The same judge that assessed punishment presided at Appellant's jury trial. Thus, the trial court was familiar with Appellant and the circumstances of the offense. On appeal, Appellant does not point to any information unavailable to the trial court that would have been included in a PSI report. Under these circumstances, we conclude that the trial court's error in failing to order the preparation of a PSI report had no effect on the punishment assessed and is harmless. Accordingly, we overrule Appellant's second issue.