Van Do v. State, 14-18-00600-CR

• Court: Court of Appeals of Texas
• Citation: 629 S.W.3d 307
• Docket Number: NO. 14-18-00600-CR,14-18-00600-CR
• Parties: PHI VAN DO, Appellant v. The STATE of Texas, Appellee
• Decision Date: 02 April 2020

629 S.W.3d 307

PHI VAN DO, Appellant
v.
The STATE of Texas, Appellee

NO. 14-18-00600-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed April 2, 2020
Discretionary Review Granted September 30, 2020
Rehearing Denied December 02, 2021

Clinton Morgan, Kim K. Ogg, Houston, Eric Kugler, for Appellee.

Theodore Lee Wood, Austin, for Appellant.

Panel consists of Justices Christopher, Spain, and Poissant.

OPINION

Charles A. Spain, Justice

629 S.W.3d 309

Appellant Phi Van Do appeals his conviction of the Class A misdemeanor of driving while intoxicated (DWI) with an alcohol concentration of 0.15 or more at the time the analysis was performed. See Tex. Penal Code Ann. § 49.04(a), (d). During punishment, the trial court made the finding that appellant's breath showed an alcohol concentration level of at least 0.15 at the time the analysis was performed. See id. § 49.04(d). The trial court assessed punishment at a $250 fine and one-year confinement in the Harris County Jail, but suspended the sentence, and placed appellant on community supervision for one year and imposed a $250 fine. See id. § 12.21; Tex. Code Crim. Proc. Ann. art. 42A.053(a)(1).

Appellant raises five issues. In his first issue, he argues that there was no valid charging instrument in his case because he was not indicted by a grand jury. In his second issue, appellant contends that the complaint supporting the information was invalid because the affiant only initialed and did not sign the complaint. In his third issue, appellant argues that the trial court erred by treating an element of the offense of Class A misdemeanor DWI as a punishment enhancement. In his fourth issue, appellant argues the trial court's determination that he had a heightened alcohol concentration violated Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Finally, in his fifth issue, appellant contends that the trial court failed to make a statutorily required ability-to-pay determination at sentencing.

We overrule appellant's first and second issues, sustain his third and fourth issues, and do not reach his fifth issue. Therefore, we reverse the trial court's judgment in part, affirm the judgment in part, render judgment that appellant is convicted of Class B misdemeanor DWI instead of Class A misdemeanor DWI, and remand the case for further proceedings limited to a new punishment hearing. See Tex. R. App. P. 43.2(a), (c), (d).

I. BACKGROUND

Appellant was charged by information with the offense of unlawfully operating a motor vehicle on or about January 9, 2017, in a public place while intoxicated. See Tex. Penal Code Ann. § 49.04(a). The information further alleged that an analysis of a specimen of appellant's breath showed an alcohol concentration level of at least 0.15 at the time the analysis was performed. See id. § 49.04(d).

During appellant's arraignment, the State did not read the portion of appellant's information that alleged the at-least 0.15 alcohol concentration level. Appellant pleaded not guilty.

Viewed in the light most favorable to the conviction, there was evidence that appellant was speeding and caused a red-light collision at a busy intersection. At the scene, he smelled like alcohol; used "slurred speech"; had red, glassy eyes; and admitted he had been drinking beer.

Officer Guerra with the Houston Police Department (HPD) transported appellant to the HPD Central Intoxilyzer station. At

629 S.W.3d 310

"Central Intox," appellant underwent the one-leg-stand and the walk-and-turn standardized field sobriety tests. He failed both tests. Appellant consented to giving, and a DWI technician with the City of Houston tested, a breath sample. According to the technician, appellant was intoxicated.

A Department of Public Safety (DPS) technical supervisor responsible for maintenance and monitoring reported that the Intoxilyzer used to test appellant's breath was functioning properly. The supervisor stated that appellant's results of 0.194 grams per 210 liters of breath and 0.205 grams per 210 liters of breath were within the allowed tolerance and were greater than Texas's 0.08 grams per 210 liters of breath legal limit of intoxication.

The jury charge included the following abstract and application paragraphs:

THE LAW ON DRIVING WHILE INTOXICATED

A person commits an offense the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.

To prove that the defendant is guilty of driving while intoxicated, the State must prove, beyond a reasonable doubt, three elements:

1. The defendant operated a motor vehicle: and

2. The defendant did this in a public place; and

3. The defendant did this while intoxicated.

The State has alleged intoxication by not having the normal use of mental or physical faculties by reason of the introduction of alcohol or by having an alcohol concentration of .08 or more.

....

APPLYING THE LAW TO THIS CASE

You must determine whether the State has proved three elements beyond a reasonable doubt which are as follows:

1. The defendant, PHI VAN DO, operated a motor vehicle in Harris County, Texas, on or about JANUARY 9th, 2017:

2. in a public place;

3. while intoxicated by not having the normal use of his mental faculties due to the introduction of alcohol; by not having the normal use of his physical faculties due to the introduction of alcohol; or by having a[n] alcohol concentration of .08 or higher.

You must all agree on elements 1, 2, and 3 listed above but you do not have to agree on the method of intoxication listed above.

If you all agree the State has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the defendant "not guilty."

If you all agree the State has proved, beyond a reasonable doubt, each of the three elements listed above then you must find the defendant "guilty."

In addition, the charge included the following pertinent definitions:

Intoxicated

"Intoxicated" means either (1) not having the normal use of 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 or having an alcohol concentration of .08 or more.

Alcohol Concentration

"Alcohol Concentration" means the number of grams of alcohol per 100 milliliters

629 S.W.3d 311

of blood.^{[1 ]}

The jury returned a verdict of guilty.

Appellant elected to have the trial court assess his punishment. During punishment proceedings, the following exchange took place:

[STATE]: At this time, the State would like to allege—further allege the .15 allegation. So it is fair to allege that an analysis of a specimen of the defendant's breath showed an alcohol concentration level of at least 0.15 at the time the analysis was performed.

THE COURT: Any objection from the defense?

[DEFENSE COUNSEL]: Your Honor, that element was not presented to the jury for their consideration as part of deliberations. We would object to the enhanced element at this time. They tried it as a loss of use case.

THE COURT: Any response?

[STATE]: The response from the State is that it's a punishment element. It wasn't a [sic] element of the actual offense. We did have evidence that the analysis of the breath was above a .15. We tried it as—all three were able to prove intoxication and the BAC actually came out at trial.

THE COURT: The objection is overruled. The Court finds the enhancement to be true.

No new evidence was offered during this phase.

The trial court sentenced appellant to one-year confinement in the Harris County Jail and a $250 fine, suspended to one-year community supervision and the imposition of a $250 fine.

II. ANALYSIS

A. Appellant's charging instrument

In his first issue, appellant challenges whether he can be "held to answer for the criminal offense of which he was convicted" (a Class A misdemeanor) and sentenced to both punishment by fine and punishment by confinement in jail when he was charged by information instead of being indicted by a grand jury. Appellant relies on article I, section 10, of the Texas Constitution.²

As appellant acknowledges, there is binding precedent to the contrary. See Peterson v. State , 151 Tex.Crim. 65, 204 S.W.2d 618, 618 (Tex. Crim. App. 1947) (op. on reh'g) (rejecting appellant's "contention that because both [fine and imprisonment] may be assessed he can only be charged by indictment of a grand jury" based on language of section 10 of article I of Texas Constitution ).³

We overrule appellant's first issue.

629 S.W.3d 312

B. Appellant's complaint

In his second issue, appellant argues that the complaint in his case is invalid because, although it is signed, the signature consists of just initials. Accordingly, the complaint does not reveal the identity of the signer. See Tex. Code Crim. Proc. Ann. art. 21.22 ("No information may be presented until affidavit has been made...