No. 14-08-00662-CR
Memorandum Opinion filed August 11, 2009. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 263rd District Court Harris County, Texas, Trial Court Cause No. 1171837.
Panel consists of Justices ANDERSON, GUZMAN, and BOYCE.
EVA M. GUZMAN, Justice.
Appellant Michael E. Carter challenges his conviction for felony driving while intoxicated on the grounds that (1) his right to a unanimous jury was violated because the jury charge alleged multiple methods of intoxication, and (2) he was harmed by the trial court's failure to include in the jury charge the lesser-included offense of misdemeanor driving while intoxicated. We affirm.
I. BACKGROUND
On December 30, 2006, Houston Police Department Officer Farokh Deyhim stopped appellant for driving with an expired inspection sticker. As Deyhim approached appellant's vehicle, he saw empty beer cans and an open bottle of a "cheap malt liquor" on the backseat floorboard. Deyhim also saw what he believed to be a crack cocaine pipe resting on the divider between the driver and passenger seat of appellant's car. Deyhim smelled a strong odor of beer emanating from appellant's car; appellant spoke in a slurred manner and smelled of alcohol. Deyhim requested that appellant get out of the car. Deyhim saw a "fresh stain of urine around the crotch area" of appellant's pants. When Deyhim asked appellant if he had been drinking, appellant replied that he had drunk three beers earlier in the day. Appellant became belligerent when Deyhim initiated sobriety testing; Deyhim was unable to complete any field sobriety testing because of appellant's lack of cooperation. Deyhim arrested appellant and transported him to the station for an intoxilyzer test. At the station, appellant refused to provide a breath specimen. As is relevant to this appeal, appellant was indicted for driving while intoxicated ("DWI") by the following means: (a) introduction of alcohol into his body, (b) introduction of an unknown drug into his body, (c) introduction of an unknown controlled substance into his body, (d) introduction of alcohol and an unknown drug into his body, or (e) introduction of alcohol and an unknown controlled substance into his body. Two prior DWI convictions were alleged: one on November 14, 1986 and another on January 10, 1985. At his trial, in addition to the facts surrounding his arrest detailed above, the State introduced certified copies of judgments and sentences from two prior DWI convictions. Harris County Sheriff's Department Deputy Sheri Grounds testified that she compared appellant's fingerprints to those on the November 14, 1986 judgment and sentence and concluded they were made by the same person. The January 10, 1985 judgment and sentence did not contain fingerprints. Grounds testified that the "spin number" from both judgments and sentences matched, and that this number is a unique tracking number assigned to each individual when he or she is booked into the Harris County jail. In addition, both judgments and sentences reflect the same date of birth, and appellant's full name is included on the January 1985 judgment and sentence. Appellant also testified and admitted that he had consumed alcohol and the prescription medications hydrocodone and naproxen on the day of his arrest. When questioned about his prior convictions, he stated, "Well, I had, em, D.W.I. in 85 and — 85. I had a — I had a possession, possession of controlled substance." He clarified that he had two prior convictions for possession of controlled substances. After both sides rested and closed, the trial court instructed the jury that it should find appellant guilty of DWI if it found beyond a reasonable doubt that appellant operated a motor vehicle in a public place while intoxicated by: (1) not having the normal use of his mental or physical faculties by the introduction of alcohol into his body;
(2) not having the normal use of his mental or physical faculties by the introduction of an unknown drug into his body;
(3) not having the normal use of his mental or physical faculties by the introduction of an unknown controlled substance into his body; or
(4) not having the normal use of his mental or physical faculties by the introduction of a combination of an unknown drug and alcohol into his body.
The jury also was instructed that if it concluded beyond a reasonable doubt that appellant had previously been twice convicted of DWI, then it should find him guilty of DWI "third offender, as charged in the indictment." The jury returned a guilty verdict; appellant pleaded "true" to two enhancement paragraphs, and the jury sentenced him to forty years' confinement in the Texas Department of Criminal Justice, Institutional Division. The trial court entered judgment on the jury's verdict, and this appeal timely ensued. II. ISSUES AND ANALYSIS
A. Standard of Review — Charge Error
When reviewing allegations of charge error, an appellate court must first determine whether error actually exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If error is found, the court must determine whether it caused sufficient harm to require reversal. Id. at 744. The degree of harm required for reversal depends on whether the error was preserved. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (en banc). If no proper objection was made at trial, the error requires reversal only if it is so egregious and created such harm that the appellant has not had a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc) (op. on reh'g). When there has been a timely objection to an improper jury charge, the error requires reversal unless it is harmless. Id. Here, appellant did not object to the jury charge submitted. B. Jury Unanimity
In his first issue, appellant asserts that his right to a unanimous verdict was violated because the charge authorized the jury to convict him based on multiple methods of intoxication. As noted above, the jury charge authorized the jury to convict appellant of DWI if it concluded he was operating a motor vehicle while intoxicated by alcohol, an unknown drug, an unknown controlled substance, or the combination of alcohol and an unknown drug. Texas law provides that it is a criminal offense to operate a motor vehicle in a public place while intoxicated. TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003). In turn, as is relevant here, intoxication is defined as "not having the normal use of [one's] mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body." Id. § 49.01(2)(A). "[T]he substance that causes intoxication is not an element of the offense," but instead is "an evidentiary matter." Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004); see also State v. Barbernell, 257 S.W.3d 248, 254 (Tex. Crim. App. 2008); Fulenwider v. State, 176 S.W.3d 290, 298-99 (Tex. App.-Houston [1st Dist.] 2004 pet. ref'd) (concluding there was no error in jury charge when defendant was alleged to be intoxicated by any of four separate means). A jury may properly return a general verdict of guilty when alternate theories of committing the same offense are submitted to the jury in the disjunctive. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). Because appellant was charged with a single offense of DWI, the trial court did not err by charging the jury on alternate means of intoxication. See Fulenwider, 176 S.W.3d at 299. The jury was not required to return a verdict indicating which intoxicant or combination of intoxicants caused appellant's intoxication. Thus, there is no error in the charge and appellant's right to a unanimous verdict was not violated. See id. We overrule appellant's first issue. C. Lesser-Included Offense
In his second issue, appellant asserts that he was harmed because the trial court stated it would include the lesser-included offense of misdemeanor DWI in the jury charge, but failed to do so. As noted above, appellant did not object to the charge submitted to the jury. We employ a two-part test to determine whether a charge on a lesser-included offense was required. Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). First, we must decide whether the offense is actually a lesser-included offense of the offense charged. Id. Second, we must conclude there is some evidence in the record that would permit a rational jury to find the defendant guilty only of the lesser offense. Id. Here, it is undisputed that a Class A misdemeanor DWI is a lesser-included offense of felony DWI; thus, we focus our analysis on the second factor. DWI is a third-degree felony offense if, as is relevant here, it is shown at trial that the person previously has been twice convicted of DWI. See TEX. PENAL CODE ANN. § 49.09(b)(2) (Vernon Supp. 2008). To prove a prior conviction of an offense, the State must establish beyond a reasonable doubt that a prior conviction exists and the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). "While evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means, the State may prove both of these elements in a number of different ways. . . ." Id. at 921-22. At appellant's trial, certified copies of judgments and sentences from two prior DWI convictions linked to appellant were entered into evidence. See id. A lesser-included-offense instruction is not required solely because "the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (en banc) (citing Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)). Appellant has provided no argument or authority that these certified copies of judgments and sentences were inadequate to establish his prior convictions beyond a reasonable doubt. Under these circumstances, we conclude that there is no evidence from which a jury could rationally conclude that, if appellant was guilty, he was only guilty of the lesser offense. See Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001). Thus, the trial court did not err in failing to include the lesser-included-offense instruction in the jury charge. We overrule appellant's second issue. III. CONCLUSION
Having overruled both of appellant's issues, we affirm the trial court's judgment.