Gandee v. State
| Decision Date | 31 October 2019 |
| Docket Number | NUMBER 13-18-00343-CR,NUMBER 13-18-00344-CR |
| Parties | JACKIE LEE GANDEE JR., Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the County Court of Matagorda County, Texas.
Before Chief Justice Contreras and Justices Longoria and Hinojosa
Appellant Jackie Lee Gandee Jr. appeals his convictions, following a jury trial, for driving while intoxicated (DWI) with a breath alcohol concentration level of 0.15 or more, see TEX. PENAL CODE ANN. § 49.04(d), and unlawful carrying of a weapon, see id. § 46.02, each a Class A misdemeanor.1 For both counts, the jury assessed punishment at sixty days in the county jail and recommended that the sentences be probated for twelve months. The trial court sentenced Gandee accordingly and ordered the sentences to run concurrently. In four issues, Gandee argues that: (1 and 2) there is legally insufficient evidence that he committed either of the charged offenses; (3) the jury charge was erroneous; and (4) his trial counsel was ineffective. We affirm.
The State charged Gandee by information with operating a motor vehicle in a public place while intoxicated by reason of the introduction of alcohol, a controlled substance, a drug, or a dangerous drug into the body, and having an alcohol concentration level of 0.152 or more when a breath analysis was performed. See id. § 49.04. By separate information, the State alleged that Gandee intentionally and knowingly carried on or about his person a handgun while Gandee was engaged in criminal activity. See id. § 46.02.
The State's sole witness at trial was Brian Robbins, a Texas Department of Public Safety State Trooper. Officer Robbins testified that he was dispatched to the site of a one-vehicle accident on FM 1862 in Matagorda County, Texas. Upon arrival, he observed a vehicle that had left the roadway before striking a culvert and a private fence.Officer Robbins approached the vehicle's driver, whom he identified as Gandee, and immediately noticed "a very strong smell of an alcoholic beverage on him." Gandee told Officer Robbins that his service dog jumped onto his lap while he was driving, which caused him to swerve and leave the roadway. When asked about his alcohol consumption, Gandee admitted to having two shots of Fireball Whiskey earlier that day. Officer Robbins then administered standardized field sobriety tests. He first administered the horizontal gaze nystagmus test which yielded six out of six clues for intoxication. Officer Robbins did not conduct the walk-and-turn or one-leg-stand tests because Gandee indicated that he was physically unable to perform the tests. He observed Gandee standing "very unbalanced" and "uneasy on his feet." At that point, Officer Robbins determined that Gandee was intoxicated.
Officer Robbins arrested Gandee for DWI and placed him in the front seat of his patrol car. He then conducted an inventory of Gandee's vehicle and discovered a loaded handgun engraved with Gandee's name behind the front seat. The trial court admitted the handgun into evidence, which Officer Robbins identified as a 9-millimenter pistol.
A Matagorda County Sheriff's deputy transported Gandee to the county jail, where Officer Robbins twice administered a breathalyzer test showing alcohol concentration levels of 0.164 and 0.165, which is more than twice the legal limit. See id. § 49.01(2)(B). The trial court admitted a dash-cam video recording of Officer Robbins's DWI investigation at the accident site, which was published to the jury.
Gandee testified in his defense. He explained that he was visiting family in Houston on the date in question for a Christmas gift exchange. It was during this eventthat he received the pistol found in his vehicle. While Gandee was travelling, he stated that there was a "blow-out or something broke under the truck" which scared his service dog, causing her to jump on Gandee. As a result, Gandee lost control of his vehicle, which left the roadway into a ditch. Gandee attempted to drive his truck back onto the road, but he was unsuccessful. He then called his father and requested that he bring a flatbed truck. While he was waiting, "big oil field equipment, three or four trucks went by," which scared him. Gandee testified that he had post-traumatic stress disorder from an incident that occurred when he was in the Navy. He called his wife who advised him to drink the Fireball Whiskey that he had in his back seat. Gandee said he "gulped it in two drinks." He denied drinking any alcohol prior to driving. Gandee claimed he was confused when talking to Officer Robbins because he had stopped taking his Cymbalta medication.
The jury returned a guilty verdict. This appeal followed.
By his first two issues, Gandee argues that the evidence is legally insufficient to support both of his convictions.3
The Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution requires that a criminal conviction be supported by a rational trier offact's findings that the accused is guilty of every essential element of a crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (citing Jackson v. Virginia, 443 U.S. 307, 316 (1979)). This due process guarantee is safeguarded when a court reviews the legal sufficiency of the evidence. Id. To determine whether the evidence is legally sufficient, we consider all of the evidence in the light most favorable to the verdict and determine whether a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt based on the evidence and reasonable inferences from that evidence. Jackson, 443 U.S. at 319; Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014). Because the jury is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony, we resolve any conflicts or inconsistencies in the evidence in favor of the verdict. Ramsey v. State, 473 S.W.3d 805, 808 (Tex. Crim. App. 2015); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc).
We measure the legal sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge for the case. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the offense for which the defendant was tried. Id.
By his first issue, Gandee challenges the legal sufficiency of the evidence supporting his conviction for DWI with an alcohol concentration level of 0.15 or more.
A person commits a Class B misdemeanor DWI if the person is intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a), (b). As pertinent here, "intoxicated" means either "not having the normal use of mental or physical faculties" by reason of "the introduction of alcohol" or "any other substance" into the body, or "having an alcohol concentration of 0.08 or more." Id. § 49.01(2)(A), (B). A Class A misdemeanor DWI offense requires additional proof that the defendant had an alcohol concentration level of at least 0.15 at the time the analysis was performed. Id. § 49.04(d). The State, however, is not required to prove an alcohol concentration level of 0.15 at the time of the commission of the offense. Ramjattansingh v. State, 548 S.W.3d 540, 548 (Tex. Crim. App. 2018). Accordingly, the hypothetically correct jury charge for a Class A misdemeanor DWI offense requires proof of: (1) Class B misdemeanor DWI; and (2) an alcohol concentration level of 0.15 or more at the time the analysis was performed. Id.
Gandee first argues that there is no evidence establishing his alcohol concentration level at the time the accident occurred. This argument rests on the premise that the State was required to prove that his alcohol concentration level was 0.15 or more at the time of the accident, an argument expressly rejected by the Texas Court of Criminal Appeals in Ramjattansingh. See id. Here, the State presented evidence of Gandee's alcohol concentration level at the time the test was administered at the jail. This evidence was sufficient to establish the aggravating element for a Class A misdemeanor DWI. See id.
Next, Gandee argues that "[t]here was legally . . . insufficient evidence in this case to prove, beyond a reasonable doubt, that Gandee was driving while he was intoxicated" (emphasis in Gandee's brief). Gandee's argument in this regard emphasizes his own testimony that he did not drink alcohol until after the accident. However, our standard of review requires that we resolve any conflicts or inconsistencies in the evidence in favor of the verdict. See Ramsey, 473 S.W.3d at 808; Wesbrook, 29 S.W.3d at 111. In that regard, we presume that the jury, as the sole judge of the credibility of the witnesses, determined that Gandee's trial testimony was not credible and relied on Gandee's admission to Officer Robbins that he consumed alcohol prior to the accident in reaching its verdict. We further conclude that a rational fact finder could have found beyond a reasonable doubt that Gandee was intoxicated at the time of the accident based on the following factors: Gandee's vehicle left the roadway; he smelled strongly of alcohol; his balance was unsteady, he failed the field sobriety tests, and he admitted to drinking alcohol prior to driving. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (...
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