In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-17-00446-CR
MELISSA CANTU, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court at Law No. 1 Lubbock County, Texas Trial Court No. 2017-488,824, Honorable Mark Hocker, Presiding
March 20, 2019
MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Following a jury trial, Melissa Cantu, appellant, was found guilty of the offense of
driving while license invalid (DWLI1) which was enhanced to a class B misdemeanor by
a previous conviction for DWLI.2 The trial court sentenced appellant to confinement in
1 See TEX. TRANSP. CODE ANN. § 521.457(a)(2). During the 2017 legislative session, the Texas Legislature amended subsection (d) of section 521.457 of the Transportation Code, which relates to an affirmative defense to DWLI. See Act of May 24, 2017, 85th Leg., R.S., ch. 1079, § 4, 2017 Tex. Gen. Laws 4225, 4226 (current version at TEX. TRANSP. CODE. ANN. § 521.457 (West 2018)). This amendment does not substantively affect our analysis in this case. We will note other 2017 amendments in our discussion of the pertinent statutes.
2 Id § 521.457(f)(1). the Lubbock County Jail for 180 days, suspended the sentence for eighteen months, and
placed appellant on community supervision. In her sole issue, appellant contends that
the evidence was insufficient to establish that her license was suspended. We affirm the
judgment of the trial court.
Background
On September 10, 2016, Lubbock Police Sergeant Tim Seeley observed appellant
driving her automobile with an unrestrained child inside. Seeley initiated a traffic stop and
asked appellant for her driver’s license and insurance. After learning that appellant’s
license was suspended, Seeley arrested appellant for DWLI. Seeley allowed appellant
to use her phone to call a relative to pick up the child.
At trial, the State introduced portions of the police dashcam video. In the video,
appellant is talking on the phone and states, “they’re fixing to impound the car, because I
don’t have no license and they’re taking me to jail.” The State also introduced a heavily
redacted, certified copy of appellant’s driving record through Kimberlee Hughes, a
custodian of records for the Texas Department of Public Safety (DPS). Appellant’s driving
record revealed two suspensions in effect on September 10, 2016. The first suspension
had a begin date of August 22, 2016, and a lift date of September 14, 2016. The second
suspension had a begin date of June 20, 2016, and a lift date of September 14, 2016.
Hughes further testified that appellant’s driver’s license was suspended on September
10, 2016. The State also introduced a certified copy of appellant’s prior conviction for
DWLI.
2 After the State rested, appellant moved for a directed verdict contending that the
State failed to prove that notice of the suspension was sent to appellant. The directed
verdict was denied and appellant rested. The jury found appellant guilty of the class B
misdemeanor offense of DWLI. The trial court sentenced appellant to confinement for
180 days but suspended the sentence and placed appellant on community supervision
for eighteen months. Appellant timely appealed from the resulting judgment.
By her appeal, appellant contends that the evidence was insufficient to support her
conviction for DWLI.
Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict to determine whether any rational factfinder could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010). We consider both direct and circumstantial
evidence as well as all reasonable inferences that may be drawn from that evidence.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Law and Analysis
Under Texas law, a person “may not operate a motor vehicle on a highway in this
state unless the person holds a driver’s license under [Chapter 521 of the Texas
Transportation Code].” TEX. TRANSP. CODE ANN. § 521.021 (Wes 2018).3 To support a
3 Further references to provisions of the Texas Transportation Code will be by reference to “section __” or “§ __.”
3 conviction for DWLI, the evidence had to establish beyond a reasonable doubt that
appellant (1) operated a motor vehicle, (2) on a highway, (3) during a period that
appellant’s driver’s license was suspended or revoked. § 521.457(a)(2). On appeal,
appellant challenges only the sufficiency of the evidence to support the third element—
that her act of operating a motor vehicle on September 10, 2016, occurred during a period
that her driver’s license had been suspended.
Relying on White v. State, 458 S.W.3d 188, 193 (Tex. App.—Texarkana 2015, no
pet.), appellant argues that the State did not provide evidence of when the DPS mailed a
notice of suspension to appellant and, without such evidence, the State did not prove that
an actual suspension was in effect. See §§ 521.295, .297(a). In response, the State
contends that White is distinguishable and that, by introducing a certified copy of
appellant’s driving record along with testimony from the DPS records custodian that
appellant’s license was suspended on September 10, 2016, the State presented sufficient
evidence to prove the period of suspension on the date in question. See § 521.457(a)(2);
Stautzenberger v. State, 232 S.W.3d 323, 326-27 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (certified copy of driving record sufficient to support conviction for DWLI). We
agree with the State.
In White, the State alleged that White had three active suspensions. White, 458
S.W.3d at 189. However, the only evidence that the State proffered to show that White’s
driver’s license had been suspended was the testimony of the arresting officer and the
license return printed out from the officer’s in-car computer. Id. White introduced
evidence that disputed the State’s assertion that White’s license was suspended on the
date in question. Specifically, White introduced an order of suspension informing him that
4 his driver’s license had been suspended which he testified to receiving five days after the
date in question. Id. at 190. Further, White testified that he knew of no other suspensions.
Id. “Without any evidence that a notice of suspension was mailed or the date that any
such notice was mailed, there was insufficient evidence presented by the State to support
a finding that a valid suspension period was in effect at the time White was operating his
vehicle.” Id. at 193. The Texarkana court of appeals determined that the State had the
burden of showing the date the notice was mailed to White and “absent the evidence of
the date the mailing took place, the State fails to show that the alleged violation occurred
during a period that the person’s driver’s license or privilege had been suspended or
revoked.” Id. at 192.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-17-00446-CR
MELISSA CANTU, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court at Law No. 1 Lubbock County, Texas Trial Court No. 2017-488,824, Honorable Mark Hocker, Presiding
March 20, 2019
MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Following a jury trial, Melissa Cantu, appellant, was found guilty of the offense of
driving while license invalid (DWLI1) which was enhanced to a class B misdemeanor by
a previous conviction for DWLI.2 The trial court sentenced appellant to confinement in
1 See TEX. TRANSP. CODE ANN. § 521.457(a)(2). During the 2017 legislative session, the Texas Legislature amended subsection (d) of section 521.457 of the Transportation Code, which relates to an affirmative defense to DWLI. See Act of May 24, 2017, 85th Leg., R.S., ch. 1079, § 4, 2017 Tex. Gen. Laws 4225, 4226 (current version at TEX. TRANSP. CODE. ANN. § 521.457 (West 2018)). This amendment does not substantively affect our analysis in this case. We will note other 2017 amendments in our discussion of the pertinent statutes.
2 Id § 521.457(f)(1). the Lubbock County Jail for 180 days, suspended the sentence for eighteen months, and
placed appellant on community supervision. In her sole issue, appellant contends that
the evidence was insufficient to establish that her license was suspended. We affirm the
judgment of the trial court.
Background
On September 10, 2016, Lubbock Police Sergeant Tim Seeley observed appellant
driving her automobile with an unrestrained child inside. Seeley initiated a traffic stop and
asked appellant for her driver’s license and insurance. After learning that appellant’s
license was suspended, Seeley arrested appellant for DWLI. Seeley allowed appellant
to use her phone to call a relative to pick up the child.
At trial, the State introduced portions of the police dashcam video. In the video,
appellant is talking on the phone and states, “they’re fixing to impound the car, because I
don’t have no license and they’re taking me to jail.” The State also introduced a heavily
redacted, certified copy of appellant’s driving record through Kimberlee Hughes, a
custodian of records for the Texas Department of Public Safety (DPS). Appellant’s driving
record revealed two suspensions in effect on September 10, 2016. The first suspension
had a begin date of August 22, 2016, and a lift date of September 14, 2016. The second
suspension had a begin date of June 20, 2016, and a lift date of September 14, 2016.
Hughes further testified that appellant’s driver’s license was suspended on September
10, 2016. The State also introduced a certified copy of appellant’s prior conviction for
DWLI.
2 After the State rested, appellant moved for a directed verdict contending that the
State failed to prove that notice of the suspension was sent to appellant. The directed
verdict was denied and appellant rested. The jury found appellant guilty of the class B
misdemeanor offense of DWLI. The trial court sentenced appellant to confinement for
180 days but suspended the sentence and placed appellant on community supervision
for eighteen months. Appellant timely appealed from the resulting judgment.
By her appeal, appellant contends that the evidence was insufficient to support her
conviction for DWLI.
Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict to determine whether any rational factfinder could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010). We consider both direct and circumstantial
evidence as well as all reasonable inferences that may be drawn from that evidence.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Law and Analysis
Under Texas law, a person “may not operate a motor vehicle on a highway in this
state unless the person holds a driver’s license under [Chapter 521 of the Texas
Transportation Code].” TEX. TRANSP. CODE ANN. § 521.021 (Wes 2018).3 To support a
3 Further references to provisions of the Texas Transportation Code will be by reference to “section __” or “§ __.”
3 conviction for DWLI, the evidence had to establish beyond a reasonable doubt that
appellant (1) operated a motor vehicle, (2) on a highway, (3) during a period that
appellant’s driver’s license was suspended or revoked. § 521.457(a)(2). On appeal,
appellant challenges only the sufficiency of the evidence to support the third element—
that her act of operating a motor vehicle on September 10, 2016, occurred during a period
that her driver’s license had been suspended.
Relying on White v. State, 458 S.W.3d 188, 193 (Tex. App.—Texarkana 2015, no
pet.), appellant argues that the State did not provide evidence of when the DPS mailed a
notice of suspension to appellant and, without such evidence, the State did not prove that
an actual suspension was in effect. See §§ 521.295, .297(a). In response, the State
contends that White is distinguishable and that, by introducing a certified copy of
appellant’s driving record along with testimony from the DPS records custodian that
appellant’s license was suspended on September 10, 2016, the State presented sufficient
evidence to prove the period of suspension on the date in question. See § 521.457(a)(2);
Stautzenberger v. State, 232 S.W.3d 323, 326-27 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (certified copy of driving record sufficient to support conviction for DWLI). We
agree with the State.
In White, the State alleged that White had three active suspensions. White, 458
S.W.3d at 189. However, the only evidence that the State proffered to show that White’s
driver’s license had been suspended was the testimony of the arresting officer and the
license return printed out from the officer’s in-car computer. Id. White introduced
evidence that disputed the State’s assertion that White’s license was suspended on the
date in question. Specifically, White introduced an order of suspension informing him that
4 his driver’s license had been suspended which he testified to receiving five days after the
date in question. Id. at 190. Further, White testified that he knew of no other suspensions.
Id. “Without any evidence that a notice of suspension was mailed or the date that any
such notice was mailed, there was insufficient evidence presented by the State to support
a finding that a valid suspension period was in effect at the time White was operating his
vehicle.” Id. at 193. The Texarkana court of appeals determined that the State had the
burden of showing the date the notice was mailed to White and “absent the evidence of
the date the mailing took place, the State fails to show that the alleged violation occurred
during a period that the person’s driver’s license or privilege had been suspended or
revoked.” Id. at 192.
In the instant case, the State introduced a certified abstract of appellant’s driving
record maintained by DPS outlining appellant’s enforcement action history. That record
showed two separate suspensions that were in effect at the time appellant was arrested
on September 10, 2016. The first period of suspension commenced on June 20, 2016,
and the second period of suspension commenced on August 22, 2016. Moreover, in
addition to the testimony from the arresting officer, a DPS records custodian testified that,
based on appellant’s driving record, a suspension was in effect on September 10, 2016.
We do not construe section 521.457 as requiring proof of a period of suspension
only by evidence of the mailing of a notice, although we agree with the court in White that
is one way to prove a period of suspension. We conclude that the certified abstract of
appellant’s driving record indicating that appellant’s license was suspended is sufficient
evidence to support appellant’s conviction for DWLI. See Gensollen v. State, No. 05-17-
00704-CR, 2018 Tex. App. LEXIS 801, at *2 (Tex. App.—Dallas Jan. 29, 2018, no pet.)
5 (mem. op., not designated for publication) (certified copy of defendant’s driving record in
a prosecution for DWLI was highly probative because it proved defendant’s license was
suspended on the date of the charged offense); Perkins v. State, No. 03-14-00733-CV,
2016 Tex. App. LEXIS 1730, at *12 (Tex. App.—Austin Feb. 19, 2016, pet. denied) (mem.
op., not designated for publication) (DPS driving record showing defendant’s license was
suspended was relevant evidence in DWLI prosecution); Stautzenberger, 232 S.W.3d at
326-27 (certified copy of defendant’s driving record showing that he was driving after his
license had been revoked sufficient to prove DWLI).
Viewing the evidence in the light most favorable to the jury’s verdict, the evidence
is sufficient to support the jury’s finding that appellant operated the vehicle during a period
that appellant’s license was suspended.
Conclusion
We overrule appellant’s sole issue on appeal and affirm the trial court’s judgment.
Judy C. Parker Justice
Do not publish.