Janak v. State

826 S.W.2d 803, 1992 Tex. App. LEXIS 754, 1992 WL 56697

• Court: Court of Appeals of Texas
• Decided: March 24, 1992
• Docket: 6-91-091-CR
• Status: Published

Opinions

OPINION

CORNELIUS, Chief Justice.

John Pratt Janak appeals from a conviction for driving while intoxicated. He challenges the sufficiency of the evidence and alleges errors in jurisdiction, arraignment, admission of evidence, and pretrial rulings. Because we find that evidence was improperly admitted, we reverse the judgment and remand the case for a new trial.

Officer Jerry Farmer testified that on July 29, 1988, he stopped Janak’s speeding vehicle in Camp County. Janak smelled of beer and swayed when he walked. Farmer arrested him for DWI and also issued him a speeding ticket. Janak refused to take a blood test. On being charged with DWI, he pleaded not guilty and was tried before a jury. Janak did not testify. He was found guilty, sentenced to one year’s probation, fined $500.00 plus court costs, and required to attend DWI school.

Janak’s first two points of error challenge the sufficiency of the evidence. In these points, he contends that the trial court erred in overruling his motion for instructed verdict and that the conviction cannot stand because the State did not present any evidence identifying him as the person committing the offense.¹

When ruling on a motion for instructed verdict, the trial court applies the same standard of review that an appellate court uses to review the sufficiency of the evidence. Chase v. State, 573 S.W.2d 247, 249 n. 1 (Tex.Crim.App. [Panel Op.] 1978); Rogers v. State, 550 S.W.2d 78, 81 (Tex.Crim.App.1977); Harris v. State, 783 S.W.2d 253, 255 (Tex.App. — Dallas 1989, no pet.). The standard requires the court to view the evidence in the light most favorable to the judgment. Dickey v. State, 693 S.W.2d 386, 387 (Tex.Crim.App.1984); Harris v. State, 783 S.W.2d at 255. If any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt, the evidence is sufficient to support a conviction, and an instructed verdict is not proper. See Harris v. State, 783 S.W.2d at 255. If the evidence is insufficient, the defendant is entitled to an acquittal. See, e.g., Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, 14 (1978); Chase v. State, 573 S.W.2d at 248.

Officer Farmer testified at trial that he did not recognize Janak in the courtroom, but assumed that it was he who was sitting at the counsel table next to his attorney. In other testimony, however, Farmer said that he took the defendant out of his car at the scene when he stopped him, that he talked to the defendant, that he placed the defendant under arrest, that the defendant said he had been drinking and told him how much, that the defendant refused to take a blood test, and that from his observation of the defendant’s driving, speech, action, and odor of breath, he was of the opinion that the defendant was intoxicated. It was stipulated and Janak identified himself at trial as the defendant.² This is sufficient evidence that Janak was the person who drove under the influence of intoxicants on the occasion in question and was arrested for the offense. See Oliver v. State, 613 S.W.2d 270 (Tex.Crim. App. [Panel Op.] 1979); McDonald v. State, 513 S.W.2d 44 (Tex.Crim.App.1974); Hatfield v. State, 161 Tex.Crim. 362, 276 S.W.2d 829 (1955); Hobson v. State, 627 S.W.2d 532, 535 (Tex.App. — Corpus Christi 1982), affd, 644 S.W.2d 473 (Tex.Crim.App. 1983).

Although at one point in his testimony Farmer said he did not recognize Janak, that is no more than a conflict in his testimony which the jury had the right to resolve. Wilson v. State, 581 S.W.2d 661, 665 (Tex.Crim.App. [Panel Op.] 1979); Banks v. State, 510 S.W.2d 592, 595 (Tex. Crim.App.1974); Clawson v. State, 440 S.W.2d 638, 640 (Tex.Crim.App.1969); O’Conner v. State, 129 Tex.Crim. 509, 88 S.W.2d 1048, 1051 (1935); Purkey v. State, 656 S.W.2d 519 (Tex.App. — Beaumont 1983, pet. ref d).

Janak also asserts that the trial court erred in allowing Officer Farmer to testify, over objection, that Janak refused to take a blood test. Janak contends that evidence of a statutory warning, as required by Tex.Rev.Civ.Stat.Ann. art. 6701/-5 (Vernon Supp.1992), is a predicate for admission of this evidence, and since no evidence of the warning was offered, the refusal evidence should not have been admitted. We agree. Hogue v. State, 752 S.W.2d 585, 589 (Tex.App — Tyler 1987, pet. ref d). As the refusal to take a blood test is in the nature of an incriminating act or statement, evidence of it is not admissible unless the statutory warning was given. Evidence that the warning was given is a necessary predicate to the refusal’s admissibility. Hogue v. State, supra.

There was no scientific evidence of Janak’s intoxication. The only evidence of it was from Officer Farmer, who testified about his conclusions based on Janak’s condition and actions. Evidence that Janak refused to take a blood test was thus, in those circumstances, harmful.

In view of our disposition of the foregoing point, it is not necessary that we discuss the remaining points. Since we have found the evidence sufficient to support the conviction, the trial error in admitting the refusal evidence requires a reversal of the judgment and a remand for a new trial.

The judgment is reversed and the cause is remanded to the trial court for a new trial.

BLEIL, J., filed a concurring opinion. GRANT, J., filed a dissenting opinion.

1 . The information alleged, and the State was required to prove, that John Janak knowingly and intentionally operated a motor vehicle in a public place while intoxicated.

2 . We do not, as the dissent asserts, consider a plea of not guilty as any evidence of guilt. Where, however, a person in response to the court's question at arraignment, identifies himself as the defendant, he does just that. Indeed, a plea of not guilty establishes the personal identity of the accused, and no further proof of identity is necessary. Hendrick v. State, 6 Tex. 341 (1851); 22 TExJuR.3d Criminal Law § 2404 (1982). Admitting that he is the defendant, however, does not constitute evidence that he is guilty.

The stipulation was not at a pretrial hearing. It was in the form of a motion, in the jury panel’s presence, just before voir dire began, in which Janak’s counsel said, "Now comes the Defendant, Mr. Janak_’’