Opinion
No. 01-08-00160-CR
Opinion issued December 31, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the County Court at Law Number 1, Fort Bend County, Texas, Trial Court Cause No. 128949.
Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.
MEMORANDUM OPINION
On November 5, 2009, we issued an opinion and judgment reversing the trial court's judgment. The State filed a motion for rehearing. We deny the motion but withdraw our November 5, 2009 opinion and issue this opinion in its place. See TEX. R. APP. P. 19.1(b). Our November 5, 2009 judgment remains unchanged.
The trial court convicted appellant, Michelle Yvette Johnlewis, of driving while her license was invalid and sentenced her to a $500 fine and 180 days' confinement in jail, probated for 12 months. See TEX. TRANSP. CODE ANN. § 521.457 (Vernon 2007). On appeal, Johnlewis argues that the evidence was legally and factually insufficient, that the punishment is void because it was not within the statutory range, and that the trial court erred in denying her motion for acquittal. Because the evidence was legally insufficient to prove the offense as alleged in the information, we reverse and render a judgment of acquittal.
Background
On January 19, 2007, Sugar Land Police Officer C. Krachala stopped Johnlewis for speeding. He had observed her speeding and, using a radar gun, he detected her driving 56 miles per hour where the posted speed limit was 35 miles per hour. Johnlewis did not have her driver's license with her, but she provided a school identification card. Officer Krachala testified that the police records showed that Johnlewis's license was "invalid" and that she had an outstanding arrest warrant issued by the Missouri City Police Department. Officer Krachala arrested Johnlewis. The State charged Johnlewis by information, which alleged that Johnlewis "heretofore on or about January 19, 2007, did then and there drive and operate a motor vehicle upon the public highway during a period when the Texas operator's license or the driving privilege of the said Defendant was suspended or revoked under 521.457 of the Texas Transportation Code." In January 2008, the trial court held a bench trial in this case. In addition to Officer Krachala's testimony that the police records showed Johnlewis's license to be "invalid," the State presented Veronica Jackson Shelton, the custodian of the business records for the Texas Department of Public Safety. Through her testimony, the State introduced the sole trial exhibit, an affidavit regarding Johnlewis's driving record. This record showed that Johnlewis had one prior speeding offense. In addition, the driving record stated: On 08-26-06 a notice to deny renewal letter was mailed concerning failure to appear in court for traffic violation(s). Date of action 12-24-06 for DENY LICENSE RENEWAL — FTA. Date of action 02-05-07 for DENIAL LIFTED — FTA. Shelton explained, "Basically, it means Ms. Johnlewis received a violation and there was sometime [sic] there passed she had not taken care of that violation. So, subsequently her license was non-valid. . . . It was invalid." On cross-examination, Shelton testified unequivocally that Johnlewis's license had neither been suspended nor revoked. She agreed that Johnlewis's license had expired by its own terms on October 24, 2006. Johnlewis presented no evidence. The trial court found Johnlewis guilty, saying:I have heard the testimony of the State and I have got the document, State's Exhibit Number 1 showing that the license was reinstated the fifth of `07 which was after the date of the offense which it shows also that on 12/24/06, there was a denial of license renewal. She was operating a vehicle without a valid license and at this time, the Court is going to find Michelle Yvette Johnlewis guilty of driving while license invalid.The trial court sentenced Johnlewis to 180 days' confinement in jail, probated for 12 months, and a $500 fine.
No Evidence Johnlewis Drove While License Suspended or Revoked
In her third issue, Johnlewis challenges the legal sufficiency of the evidence to support her conviction for driving while her license was suspended or revoked.Standard of Review
We measure the sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge. Wooley v. State, 273 S.W.3d 260, 261, 266-67 (Tex. Crim. App. 2008) (factual sufficiency); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (legal sufficiency). A hypothetically correct jury charge "sets out the law, is authorized by the [charging instrument], does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Malik, 953 S.W.2d at 240. This standard ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Id. We use this standard for appeals from both jury trials and bench trials. Id. When evaluating the legal sufficiency of the evidence, we 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).Driving While License Invalid
Under the Transportation Code, a person commits an offense if the person operates a motor vehicle on a highway:(1) after the person's driver's license has been canceled under this chapter if the person does not have a license that was subsequently issued under this chapter;
(2) during a period that the person's driver's license or privilege is suspended or revoked under any law of this state;
(3) while the person's driver's license is expired if the license expired during a period of suspension; or
(4) after renewal of the person's driver's license has been denied under any law of this state, if the person does not have a driver's license subsequently issued under this chapter.TEX. TRANSP. CODE ANN. § 521.457(a) (Vernon Supp. 2009). Although the statute provides four ways in which a person could commit the offense of "driving while license invalid," in the information the State alleged only that Johnlewis drove "a motor vehicle upon the public highway during a period when [Johnlewis's] Texas operator's license or . . . driving privilege . . . was suspended or revoked." Therefore, we must determine if any rational trier of fact could have found beyond a reasonable doubt that Johnlewis operated a motor vehicle on the public highway during a time when her operator's license was suspended or revoked. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Drichas, 175 S.W.3d at 798. The State presented two witnesses and one exhibit. Neither Officer Krachala nor Veronica Shelton testified that Johnlewis's driver's license had been suspended or revoked. To the contrary, Shelton testified that Johnlewis's license had expired and that it had not been suspended or revoked. Officer Krachala testified that Johnlewis's license was invalid. On cross examination, he said that it had expired and renewal was denied. Finally, the sole trial exhibit showed that Johnlewis had been denied renewal of her driver's license on December 24, 2006, and that the denial was lifted on February 5, 2007. The State did not introduce any evidence that Johnlewis's license had been suspended or revoked. Johnlewis did not introduce any evidence. The State reframes Johnlewis's second issue, regarding her motion for acquittal based on insufficient evidence, as a complaint that in the information the State "did not properly allege the manner and means of committing the offense of driving while license invalid." (Johnlewis's legal insufficiency argument is essentially the same as her argument on her second issue, that the trial court erred by denying her motion to acquit.) The State contends that Johnlewis waived that issue by failing to move to quash the charging instrument. See TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon 2005) ("If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal. . . ."). Ordinarily a motion to quash an indictment or information would be the procedural mechanism with which to complain that the allegations in the charging instrument are too general to give an accused notice of what offense the State is charging. See DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988) ("A motion to quash should be granted only where the language concerning the defendant's conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed."). The State charged Johnlewis specifically with only one manner and means, i.e., that her license was suspended or revoked. The State relies upon Jones v. State, 672 S.W.2d 798 (Tex. Crim. App. 1984), for the proposition that failure to object to an error in an information waives an appellant's right to complain about a defect in the charging instrument on appeal. In Jones, a theft-of-currency case, the indictment was not specific, and Jones moved to quash the indictment. Jones v. State, 672 S.W.2d 812, 814-15 (Tex. App.-San Antonio 1983), rev'd, 672 S.W.2d 798 (Tex. Crim. App. 1984). In reversing the trial court's judgment, the San Antonio Court of Appeals wrote,
[I]n this case appellant requested, by his motion to dismiss the indictment for uncertainty, a description of sufficient particularity of which check or transaction the State would rely upon to prove theft of currency. The State relied upon one check among several others and that information was known by the State. This information should have been disclosed since appellant had authority to and did sign and draw checks upon the company.Id. at 815. The Court of Criminal Appeals reversed the San Antonio Court of Appeals, holding that Jones's motion to quash was itself inadequately vague and failed to state in what way the indictment was deficient. Jones, 672 S.W.2d at 799-800. Johnlewis did not move to quash the information. At the close of evidence, Johnlewis moved for an acquittal, arguing that the State did not prove the manner and means alleged in the information. On appeal, Johnlewis challenges the trial court's denial of her motion to acquit, not, as the State contends, the sufficiency of the charging instrument. Johnlewis does not complain about an error in the information; rather, Johnlewis complains about a failure of proof. The State argues that the evidence is legally sufficient to prove that Johnlewis was driving while her license was invalid because Johnlewis had been notified that her license would not be renewed due to outstanding traffic tickets and her failure to appear in court in 2006. However, the State did not choose to include this manner and means in the information against Johnlewis. We cannot affirm a conviction when the trial evidence does not comport with the allegations in the charging instrument. See Planter v. State, 9 S.W.3d 156, 159 (Tex. Crim. App. 1999) (reversing conviction for solicitation of capital murder because evidence at trial did not comport with conduct alleged in indictment); Castillo v. State, 7 S.W.3d 253, 261 (Tex. App.-Austin 1999, pet. ref'd) (reversing conviction for reckless injury to child because there was no evidence to support charged offense). Accordingly, we hold that no rational trier of fact could have found beyond a reasonable doubt that Johnlewis operated a motor vehicle on the public highway during a time when her operator's license was suspended or revoked. See Allen v. State, 681 S.W.2d 38, 39-41 (Tex. Crim. App. 1984) (reversing, for legal insufficiency, conviction for driving while license suspended when evidence showed that license had expired); Arteaga v. State, No. 04-04-00413-CR, 2005 WL 2012336, at *1-2 (Tex. App.-San Antonio Aug. 24, 2005, pet. ref'd) (not designated for publication) (same). We sustain appellant's third issue. Because we reverse and render judgment of acquittal, we do not reach Johnlewis's other issues.