Pope v. State, 3-90-044-CR

• Decision Date: 16 January 1991
• Docket Number: No. 3-90-044-CR,3-90-044-CR
• Citation: 802 S.W.2d 418
• Parties: Byron Wheeler POPE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 418

802 S.W.2d 418

Byron Wheeler POPE, Appellant, v. The STATE of Texas, Appellee.

No. 3-90-044-CR.

Court of Appeals of Texas Austin.

Jan. 16, 1991.

Ray Bass, Austin, for appellant.

Jeffrey Van Horn, Criminal Dist. Atty., Lockhart, for appellee.

Before CARROLL, C.J., and ABOUSSIE and JONES, JJ.

PER CURIAM.

A jury found appellant guilty of driving while intoxicated, third offense. Tex.Rev.Civ.Stat.Ann. art. 6701l-1(e) (Supp.1991). The district court assessed punishment at imprisonment for five years and a $750 fine, probated.

Around 1:00 a.m. on February 12, 1989, a sheriff's deputy found appellant's pickup truck stopped on Farm Road 1322 four miles outside Luling. The truck was sitting in the roadway with its engine running and its lights on. The driver's door was open. Appellant was slumped behind the steering wheel, asleep. An open can of beer sat beside appellant. Apparently, appellant was alone, as there is no evidence of another person in or near the pickup. The deputy was able to awaken appellant with some difficulty and, after determining that he was intoxicated, placed him under arrest. A subsequent breath test indicated that appellant had an alcohol concentration of 0.19.

Appellant's first point of error is a challenge to the sufficiency of the evidence. In determining the sufficiency of the evidence to support a judgment of conviction, the question is whether, after viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1974); Carlsen v. State, 654 S.W.2d 444, 448 (Tex.Cr.App.1983) (opinion on rehearing). In Carlsen, the court also stated that when the evidence of guilt is circumstantial, a finding of guilt beyond a reasonable doubt is not a rational finding if the evidence supports a reasonable inference other than appellant's guilt. Id. at 449.

Appellant concedes that he was shown to be intoxicated at the time and place in question, and he does not deny that Farm Road 1322 is a public place. However, appellant argues that the State failed to prove beyond a reasonable doubt that he drove the pickup, or that he drove the pickup while intoxicated. ¹

The jury could reasonably infer that appellant had been driving the truck from the evidence that the truck was stopped in the roadway with its engine running and its lights on; that the truck belonged to appellant; and that appellant was sitting behind the steering wheel. These facts, plus the evidence that appellant had an open can of beer beside him and was obviously intoxicated when discovered by the officer, reasonably support the inference that appellant was intoxicated when he drove to the spot where he was found. Appellant urges, however, that this evidence does not exclude the hypotheses that someone else drove the truck to the location at which it was found and left appellant sitting in it or, alternatively, that appellant did not become intoxicated until after he stopped his truck on Farm Road 1322.

We are unpersuaded by this contention. A reviewing court, when faced with facts that support conflicting inferences, must presume that the trier of fact resolved these conflicts in favor of the prosecution, and must defer to that resolution. Jackson v. Virginia, 443 U.S. at 326, 99 S.Ct. at 2792; Farris v. State, No. 69,659, Tex.Cr.App., November 28, 1990 (not yet reported). See Moone v. State, 802 S.W.2d 101 (Tex.App.--Austin, 1990). Moreover, the alternative hypotheses advanced by appellant are not reasonable, in part because they are based on pure speculation. Appellant does not cite a shred of evidence that supports the hypothesis that someone else drove him to this spot in rural Caldwell County and walked away. The suggestion that a sober appellant parked his truck in the middle of the road and then drank himself into intoxication (or then became intoxicated as a result of the earlier consumption of alcoholic beverages) is incredible, is without evidentiary support, and is contradicted by the fact that only one half-consumed can of beer was found in the truck.

We find that the evidence in this cause is sufficient to support the jury's verdict. The first point of error is overruled.

In points of error two, three, and four, appellant urges that the district court erred by permitting the State to refer to his two previous DWI convictions during voir dire, to read that portion of the indictment alleging the previous convictions at the start of the guilt stage of trial, and to introduce evidence of the previous convictions at the guilt stage. Appellant argues that art. 6701l-1 creates a single offense of driving while intoxicated, and that subsection (e) merely prescribes an enhanced punishment for that offense; that his previous DWI convictions were relevant only to enhance punishment upon conviction; and that bringing the previous convictions to the attention of the jury prior to the punishment stage of trial only served to prejudice the jury with respect to the question of guilt. The State counters by arguing that subsection (e) creates a separate felony offense of which the previous convictions are an essential element, and that it was not only proper but necessary to prove the previous convictions in order to sustain a finding of guilt.

In Bucek v. State, 724 S.W.2d 129 (Tex.App.1987, no pet.), the Fort Worth Court of Appeals construed art. 6701l-1 as follows:

When compared to the rest of the Penal Code, it is obvious that subsections (c), (d), (e), and (f) [of art. 6701l-1] are merely punishment provisions.... The language used to define each offense enumerated in the Penal Code begins with the statement, "a person commits an offense if...." Likewise, the language prescribing extraordinary punishment for an offense because of aggravating factors consistently begins with the phrase, "if it be shown on the trial...." As a result, the conclusion is inescapable that subsection (b) defines the offense of driving while intoxicated. Subsection (c) prescribes the ordinary punishment for that offense and subsections (d), (e) and (f) prescribe extraordinary punishment which is applicable in the event of certain aggravating factors.

724 S.W.2d at 131 (footnote omitted). This analysis has been approved by the Court of Criminal Appeals as being "both persuasive and sound." Wilson v. State, 772 S.W.2d 118, 121 (Tex.Cr.App.1989). In Wilson, the court went...