State v. Joe Anthony Cook

• Court: Court of Appeals of Texas
• Decided: January 19, 2006
• Docket: 13-04-00533-CR
• Status: Published

Opinion

                                    NUMBER 13-04-533-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

THE STATE OF TEXAS,                                                                   Appellant,

                                                             v.

JOE ANTHONY COOK,                                                                     Appellee.

                On appeal from the County Court at Law No. 4

                                        of Hidalgo County, Texas.

                                M E M O R A N D U M   O P I N I O N

     Before Chief Justice Valdez and Justices Rodriguez and Garza

      Opinion by Chief Justice Valdez

Following a jury trial, appellee, Joe Cook, was found guilty of driving while intoxicated (ADWI@); however, the trial court set aside the jury=s verdict by signing an AOrder on Instructed Verdict (J.N.O.V.).@  Instead, the trial court found appellee guilty of public intoxication and sentenced him to a fine of $175.00 plus court costs.  On appeal, the State raises three issues:  the trial court had no authority to (1) enter a post-conviction Ainstructed verdict@ in a criminal case, (2) find appellee guilty of public intoxication, and (3) grant a new trial.  We reverse and remand.   

I. BACKGROUND

Appellee was pulled over by Officer Yassar Hassan of the McAllen Police Department for speeding but was ultimately arrested for driving while intoxicated.  At trial, Officer Hassan identified appellee as the driver of the vehicle.  Officer Hassan testified that he smelled alcohol emitting from appellee and the vehicle.  He also noticed that appellee=s balance was unsteady, his speech was slurred, and his eyes were bloodshot.  Officer Hassan then administered a nystagmus test.^[1]  According to Officer Hassan, appellee failed five of six clues, which is indicative of intoxication.  Due to appellee having had operations on both his knees, Officer Hassan did not ask him to perform other field sobriety tests.  Officer Hassan arrested appellee for DWI based on (1) the smell of alcohol emitting from the car and appellee, (2) appellee=s slurred speech and bloodshot eyes, and (3) the results of the nystagmus test.  Appellee was transported to jail where he refused to provide a breath sample to police.

Officer Carlos Rodriguez testified that he arrived at the scene in order to assist Officer Hassan.  At trial, he also identified appellee as the driver of the vehicle.  Officer Rodriguez noticed that appellee had bloodshot eyes, smelled of alcohol, and slurred his speech.  He also saw that appellee=s balance was unsteady as he exited the vehicle.  Based on what he observed, Officer Rodriguez testified that he too would not have released appellee.

Officer Ricardo Guzman, an intoxilyzer operator, testified that he observed appellee at the jail; appellee had alcohol on his breath, bloodshot eyes, and refused to provide a breath sample.  Based on his twenty years= experience as a police officer during which time he arrested several hundred people for DWI, Officer Guzman believed appellee was intoxicated. 

Marsha Cook, appellee=s wife, testified that appellee had only one beer during dinner and was not intoxicated; otherwise, she would have driven home.  Marsha also stated that appellee had knee surgery eight weeks prior to his arrest.  Appellee was prescribed Vicodin and Vioxx, which he was supposed to take every four hours.  Appellee was allegedly not under the influence of either drug at the time of his arrest; however, Marsha testified that she did not know the last time appellee had taken his medication. 

Following the trial, the jury unanimously found appellee guilty of DWI.  The verdict was read into the record, the jury was discharged, and sentencing was set for a later date.          Appellee then filed a motion for instructed verdict, arguing that the State failed to prove all the elements of the offense, specifically, that the State Aproduced no evidence regarding [appellee=s] condition while driving nor did they ever identify [appellee] as driving the vehicle during the pursuit.@      

At the sentencing hearing, appellee asked the court for an instructed verdict of not guilty, or, in the alternative, a conviction of a lesser included offense such as public intoxication.  The State responded that the trial court had no authority to grant the instructed verdict. 

After this hearing, the trial court signed an order on instructed verdict whereby appellee was adjudged not guilty of DWI, and in the alternative, the trial court adjudged appellee guilty of public intoxication and fined him $175.00 plus costs.

II. JURISDICTION

As a threshold issue, appellee contends that this Court lacks jurisdiction to review the trial court=s granting of an instructed verdict.  The State argues that this Court has jurisdiction over this appeal under article 44.01 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 44.01(a)(2) (Vernon Supp. 2005).^[2]  Our duty is to construe article 44.01(a)(2) according to its plain textual meaning unless it is ambiguous or unless construing it according to its plain textual meaning will lead to "absurd consequences."  See Jordan v. State, 36 S.W.3d 871, 873 (Tex. Crim. App. 2001); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).  The "plain" language of Article 44.01(a)(2) is unambiguous, and it clearly allows the State to appeal from a trial court's order that reduces a defendant=s sentence.  State v. Gutierrez, 129 S.W.3d 113, 114 (Tex. Crim. App. 2004). 

In this case, the trial court=s order effectively modified the jury verdict from guilty of DWI to not guilty of DWI; therefore, we have jurisdiction to review the trial court=s granting of the instructed verdict.  

III. INSTRUCTED VERDICT  

By its first issue and third issues, the State contends that the trial court had no authority to enter a post-conviction instructed verdict in a criminal trial.  More specifically, the State argues,  the trial court failed to abide by the jury=s guilty verdict.^[3] 

A. Applicable Law

AA trial court may not receive a verdict . . . and enter another and different judgment from that called for by the verdict.@  State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996) (citing Combes v. State, 286 S.W.2d 949, 950 (Tex. Crim. App. 1956)); see State v. Meyer, 953 S.W.2d 822, 824 n.2 (Tex. App.BCorpus Christi 1997, no pet).  When the jury agrees upon a verdict, it shall be brought into court by the proper officer; and if it states that it has agreed, the verdict shall be read aloud by the judge, the foreman, or the clerk.  Tex. Code Crim. Proc. Ann. art. 37.04 (Vernon Supp. 2005).  If in proper form and no juror dissents therefrom, and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court.  Id.  On a verdict of guilty, the proper judgment must be entered immediately.  See id. art. 37.12.  A trial court=s judgment must reflect the verdict of the jury in a jury trial.  See id. art. 42.01 ' 1(7).    

     B. Analysis

In this case, the trial court received the jury=s verdict of guilty of DWI, read it into the record, discharged the jury, and set a date for the punishment hearing.  By finding appellee guilty of public intoxication and not guilty of DWI, the trial court=s judgment failed to reflect the jury=s verdict. The trial court thus erred by entering the instructed verdict of public intoxication, which served as both a functional acquittal and grant of a new trial.   See Savage, 933 S.W.2d at 499.  We sustain the State=s first and third issues.

IV. LESSER-INCLUDED OFFENSE

By its second issue, the State contends that the trial court had no authority to find appellee guilty of public intoxication.  More specifically, the State argues that public intoxication is not a lesser-included offense of DWI.

A person commits an offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.  Tex. Pen. Code Ann. ' 49.04(a) (Vernon Supp. 2005).  A person is intoxicated if he does not have normal use of his 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.  See id. ' 49.01(2)(A).  A person commits the offense of public intoxication if he appears in a public place while intoxicated to the degree that the person may endanger the person or another.  Id. ' 49.02(a).  An offense of public intoxication is not a lesser-included offense of DWI.  Id. ' 49.02(d); see Strong v. State, 87 S.W.3d 206, 217-18 (Tex. App.BDallas 2002, pet. ref=d). 

The trial court had no authority to find appellee guilty of public intoxication because, by statute, this offense is not a lesser-included offense of DWI.  See Strong, 87 S.W.3d at 217-18.  Furthermore, as the offense of public intoxication was not included in the indictment, the trial court could not find appellee guilty of this offense.  See Tex. Code Crim. Proc. Ann. arts. 21.02, 21.11 (Vernon 1989); see also Reed v. State, 117 S.W.3d 260, 265 (Tex. Crim. App. 2003).  We sustain the State=s second issue.

V. CONCLUSION

We reverse the trial court's order and remand to the trial court with instructions to enter a judgment of conviction in accordance with the jury verdict and to proceed with sentencing. 

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 19th day of January, 2006.

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^[1] This is one of three procedures that make up the Standardized Field Sobriety Test (ASFST@).  ANystagmus@ means an involuntary jerking of the eyes.  During the test, an officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes.  The examiner looks for three indicators of impairment in each eye:  (1) whether the eye can follow a moving object Asmoothly,@ (2) if jerking is distinct when the eye is at maximum deviation, and (3) if the angle of onset of jerking is within 45 degrees of center.  See generally  Emerson v. State, 880 S.W.2d 759, 763‑770 (Tex. Crim. App. 1994).

^[2] The State is entitled to appeal an order in a criminal action if the order arrests or modifies a judgment.  Tex. Code Crim. Proc. Ann. art. 44.01(a)(2) (Vernon Supp. 2005).

^[3]The State argues the trial court=s actions had the effect of both granting a JNOV and a motion for new trial.  The trial court is without power to grant a JNOV in a criminal proceeding.  See State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996).   However, when an order is the functional equivalent of granting a motion for new trial, the reviewing court can look past the label assigned to the order by the trial court and treat the order as a motion for new trial.  See id.  Therefore, the State had the right to appeal the trial court's JNOV ruling as the functional equivalent of an order granting a new trial for insufficient evidence.  See id.  We will accordingly review the effect of the trial court=s actions under the standard outlined in State v. Savage.