Barfield v. State

999 S.W.2d 23, 1999 Tex. App. LEXIS 4474, 1999 WL 393688

• Court: Court of Appeals of Texas
• Decided: June 17, 1999
• Docket: 14-96-01204-CR
• Status: Published

Opinions

MAJORITY OPINION

ANDERSON, Justice.

Appellant, Lonnie Ray Barfield, appeals his felony conviction for driving while intoxicated. On appeal, appellant brings one point of error. Appellant argues the evidence is legally insufficient to support a felony driving while intoxicated conviction. We reverse and render judgment of acquittal.

Background

Appellant was charged by indictment with the primary offense of misdemeanor driving while intoxicated, on January 22, 1996, enhanced to a third degree felony with two prior driving while intoxicated convictions.¹ In addition, the indictment contained two punishment enhancement paragraphs alleging appellant had prior felony convictions for aggravated robbery and burglary of a motor vehicle. After finding appellant guilty, the trial court also found all the enhancement paragraphs to be true and thereafter sentenced him to thirty-five years confinement in the Texas Department of Criminal Justice. At trial, the State did not offer evidence of appellant’s prior driving while intoxicated convictions until the punishment phase.²

Analysis

On appeal, appellant contends the evidence is legally insufficient to support a conviction for felony driving while intoxicated. In a legal sufficiency review, an appellate court must 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 crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clewis v. State, 922 S.W.2d 126, 132 (Tex.Crim.App.1996); Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993). The appellate court reviews the evidence, as a matter of law, to determine whether the case should have been submitted to the trier of fact. See Clewis, 922 S.W.2d at 133. The appellate court is not to reevaluate the weight and credibility of the evidence, but acts only to ensure the trier of fact reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim. App.1993). The trial court, when acting as the trier of fact, is the sole judge of the credibility of the witnesses. See Soto v. State, 864 S.W.2d 687, 691 (Tex.App.—Houston [14th Dist.] 1993, pet. ref'd). Furthermore, if upon review an appellate court finds the evidence is legally insufficient, it must render a judgment of acquittal. See Clewis, 922 S.W.2d at 133 (citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)). This result is mandated when the evidence is legally insufficient because the case should have never been submitted to the factfinder. See id.

Appellant argues that two prior DWI convictions are elements of felony DWI. Thus, appellant ai'gues the State was required to introduce evidence of his two prior DWI convictions during the guilt stage of his trial instead of during the punishment stage. The State failed to offer his prior DWI convictions until the punishment stage. Thus, appellant argues his felony conviction is not legally supported by the evidence. The State responds by asserting that because the driving while intoxicated statute has been recodified and changed, the rationale requiring proof of the prior convictions during guilt/innocence no longer applies. Therefore, the State argues the prosecutor was not required to introduce evidence of appellant’s prior DWI convictions until the punishment phase of trial. We disagree.

According to section 49.09(b) of the Penal Code, the prior offenses must be proven in the guilt stage of trial. Section 49.09(b) reads as follows:

(b) If it is shown on the trial of an offense under Section 49.04, 49.05, or 49.06 that the person has previously been convicted two times of an offense relating to the driving or operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, or an offense of operating a watercraft while intoxicated, the offense is a felony of the third degree.

Tex. Pen.Code Ann. § 49.09(b) (Vernon Supp.1999) (effective Sept. 1, 1995). Under section 49.09, proof of two prior convictions is an element of felony DWI. See Will v. State, 794 S.W.2d 948, 952 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd); Jimenez v. State, 981 S.W.2d 393, 396 (Tex.App.—San Antonio 1998, pet. ref'd); Hampton v. State, 977 S.W.2d 467, 469 (Tex.App.—Texarkana 1998, pet. ref'd); Williams v. State, 946 S.W.2d 886, 899 (Tex.App.—Waco 1997, no pet.). The pri- or DWI convictions are not enhancements reserved for the punishment stage, but are part of the proof at the guilt/innocence stage for felony DWI.³ Cf. Luedke v. State, 711 S.W.2d 657, 659 (Tex.Crim.App. 1986) (construing Art. 6701l-2, V.A.C.S., which established one prior conviction as an element of felony DWI, to require proof of the prior conviction at the guilt/innocence stage of trial in order to authorize a conviction). Because the State failed to put on evidence of appellant’s two prior convictions in the guilt-innocence phase of trial, it did not prove the essential elements of the offense of felony DWI. Thus, the evidence is legally insufficient to support appellant’s conviction. Accordingly, we are required to reverse the judgment of the trial court and order Lonnie Ray Barfield acquitted of the crime for which he was convicted. See Clewis, 922 S.W.2d at 133.

The judgment of the trial court is reversed, and a judgment of acquittal is rendered.

1 . In order to elevate the misdemeanor offense of DWI to a third degree felony, thus giving the district court jurisdiction, the two prior DWI convictions must be included in the indictment because they are jurisdictional. See Williams v. State, 946 S.W.2d 886, 898-99 (Tex.App. — Waco 1997, no pet.) Criminal jurisdiction over the person of the defendant requires the due return of a felony indictment. See Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim.App.1980). If the court lacks jurisdiction, any judicial action is void; where the court is without jurisdiction it has no authority to render any judgment other than one of dismissal. See id. at 528 n. 5.

2 . After both sides rested the trial court asked when the State intended to prove up the enhancement paragraphs concerning appellant’s prior driving while intoxicated convictions. The prosecutor informed the trial court such evidence would be presented only if the court found appellant guilty.

3 . The Legislature’s use of words in Penal Code section 49.04(b) eliminates any doubt that section 49.09 is only a punishment provision and not a separate offense because of its failure to utilize the words at the beginning, "a person commits an offense.” Section 49.04(b) establishes felony DWI as a separate offense, thus dictating the phase of the trial where the prior convictions are offered, by utilization of the phrase "Except as provided by ... Section 49.09, an offense under this section is a Class B misdemeanor....” We conclude that the two prior convictions described in section 49.09(b) elevate a new misdemeanor DWI offense to a felony, a separate offense from that new misdemeanor offense.

Moreover, if, as the dissent suggests, the two prior DWI convictions are merely for punishment enhancement, the district court loses jurisdiction over the new section 49.04 misdemeanor DWI. Criminal district courts have jurisdiction in criminal cases of the grade of felony. See TexCode Crim. Proc. Ann. art. 4.05 (Vernon Supp.1999). Because a single offense under section 49.04 is a misdemeanor if not enhanced to a felony offense with evidence of prior convictions under section 49.09(b), that misdemeanor is not triable in the district court. Cf. Greenwood v. State, 76 Tex.Crim. 364, 174 S.W. 1049, 1050 (1915) (holding theft of automobile, as a misdemean- or, was not triable in district court).