TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00218-CR
German Rodriguez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 10-1136-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found German Rodriguez guilty of driving while intoxicated, third offense, and
the trial court sentenced him to sixty years’ imprisonment. See Tex. Penal Code §§ 12.42(d)(1),
49.04, 49.09(b). Evidence at trial showed that Rodriguez caused a collision when his truck made
an unprotected left turn from Parmer Lane onto Dallas Drive and in front of Charles Pawluck’s car,
which was traveling straight through a green signal light at the intersection of Parmer Lane
and Dallas Drive. Testing revealed that Rodriguez had a blood alcohol concentration of more than
double the legal limit.
Rodriguez’s court-appointed attorney filed a motion to withdraw supported by a
brief concluding that this appeal is frivolous and without merit. The brief meets the requirements
of Anders v. California, 386 U.S. 738, 744 (1967), by presenting a professional evaluation of the
record demonstrating why there are no arguable grounds to be advanced. See id.; see also Penson
v. Ohio, 488 U.S. 75, 80 (1988); High v. State, 573 S.W.2d 807, 811-13 (Tex. Crim. App. 1978);
Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553,
553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969).
Rodriguez received a copy of counsel’s brief and was advised of his right to examine the appellate
record and to file a pro se brief. See Anders, 386 U.S. at 744. Rodriguez filed a pro se brief, arguing
that there was insufficient evidence supporting his conviction and the three prior DWIs that were
alleged in the indictment. He also contends that the trial court erred by denying his motions to
suppress, by using his felony DWI conviction to both enhance his current DWI offense to the level
of a third-degree felony and to enhance his punishment, and by considering an extraneous offense
during punishment. We will briefly explain why Rodriguez’s contentions lack arguable merit. See
Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009); Bledsoe v. State, 178 S.W.3d 824,
826-27 (Tex. Crim. App. 2005).
Legal sufficiency
A person commits an offense if the person is intoxicated while operating a motor
vehicle in a public place, and the offense is a third-degree felony if the person commits DWI and
has had two prior DWI convictions. Tex. Penal Code §§ 49.04, .09(b)(2). “Intoxicated” means not
having the normal use of mental or physical faculties because of the introduction of alcohol or any
other substance into the body, or having an alcohol concentration of 0.08 or more. Id. § 49.01(2).
The evidence at Rodriguez’s DWI trial included testimony from the other driver
involved in the collision, officers with the Williamson County Sheriff’s Office, a Williamson County
Emergency Medical Services paramedic, a Texas Department of Public Safety forensic scientist,
and a Williamson County Sheriff’s Office crime scene specialist. Charles Pawluk, who was driving
the car that Rodriguez’s truck hit, identified Rodriguez as the driver of the truck at the scene
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and in court. Pawluck testified that no one except Rodriguez exited from the truck and after
doing so, Rodriguez walked over to Pawluck and asked if he “wanted to forget about it.” Officer
Brian Etzkorn, who responded to the scene of the collision, testified that Rodriguez indicated he was
turning from Parmer onto Dallas before the collision. Officer Etzkorn noted a strong odor of alcohol
emanating from Rodriguez and from Rodriguez’s vehicle, along with Rodriguez’s bloodshot eyes,
and his unsteadiness while standing, but Rodriguez denied he had been drinking. Officer Etzkorn
also heard a police radio dispatch stating that Rodriguez had at least two prior DWI convictions.
Before going off-duty, Officer Etzkorn shared the information he obtained about Rodriguez
with Officer Anthony Lovato, who was at the scene of the collision and subsequently met
with Rodriguez at the hospital. While at the scene, Officer Lovato detected a strong odor of alcohol
inside Rodriguez’s truck and heard the dispatch report about Rodriguez’s prior DWI convictions.
Rodriguez was evaluated at the scene by EMS paramedic Donna Tisdell, who testified
that Rodriguez exhibited slurred speech, admitted he had been drinking, and was “very intoxicated.”
Tisdell stated that she transported Rodriguez to the Round Rock Medical Center emergency room
and it was her regular practice to speak with officers that she saw at the hospital. After giving a
report at the ER and returning to the ambulance, Tisdell noticed that it still smelled of alcohol.
At the hospital, Officer Lovato noted Rodriguez had a moderate smell of alcohol on
his breath. After Rodriguez denied that there was anything wrong with him physically, and after a
nurse confirmed that Rodriguez did not have head trauma that would interfere with a HGN test,
Officer Lovato administered an HGN test to Rodriguez, which he failed. Officer Lovato then
arrested Rodriguez, gave him a statutory warning about the blood draw, and began the process of
obtaining a blood draw from Rodriguez. See Tex. Transp. Code §§ 724.012(b)(3), .015.
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DPS forensic scientist Renee Hawkins testified that a test of a blood sample drawn
at Officer Lovato’s request two hours after the collision showed Rodriguez had a blood alcohol
concentration (BAC) of .25, which for a 160-pound man was the equivalent of almost nine beers.
A routine hospital test of Rodriguez’s blood serum, which Hawkins described as having more water
than the test of whole-blood performed by DPS, revealed Rodriguez had a BAC of .22. Hawkins
opined that Rodriguez’s BAC exceeded the legal limit of .08 at the time of the collision.
DPS crime scene specialist Carlos Cardona testified without objection about the
fingerprint analysis he performed using an inked set collected from Rodriguez at trial and using it
to conclude that thumbprints shown on the judgments of prior DWI convictions in Harris County
in 1994 and 1995 belonged to Rodriguez.1 Cardona also testified without objection about a
judgment on a third prior DWI conviction in Harris County in 1983, which did not have a fingerprint
but had Rodriguez’s name, correct date of birth, and was listed as one of two DWI convictions
on Rodriguez’s DPS driving record.2 Cardona further confirmed that Rodriguez occasionally used
an alias, testifying without objection that a thumbprint on a redacted judgment of conviction in
1996 for “German Rodriguez aka Alex Garcia,” was Rodriguez’s thumbprint.
Viewing the entirety of the evidence in this record in the light most favorable to the
verdict, a rational trier of fact could have found the essential elements of the DWI third offense
1
The 1995 judgment identified the defendant as “Alex Garcia,” Rodriguez’s occasionally
used alias. This alias also appears on a 1996 redacted judgment with a thumbprint that the State
introduced at trial for the limited purpose of showing that “Alex Garcia” is Rodriguez. See
Rodriguez v. State, No. 14-96-00366-CR, 1999 WL 274663 (Tex. App.—Houston [14th Dist.]
May 6, 1999, pet. ref’d) (mem. op., not designated for publication).
2
Rodriguez’s DPS driving record reflected his 1983 and 1994 DWI convictions but not the
1995 DWI conviction under his “Alex Garcia” alias.
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beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Because the evidence at trial was sufficient to sustain
Rodriguez’s conviction and because his argument fails to view the evidence in the light most
favorable to the verdict, this issue lacks arguable merit.
Motions to suppress
Rodriguez’s trial counsel and Rodriguez’s initial attorney filed two separate motions
to suppress, the first seeking suppression of all evidence based on lack of probable cause to arrest
and the second seeking suppression of Rodriguez’s horizontal gaze nystagmus (HGN) test results.
At the suppression hearing, Rodriguez’s trial counsel argued a lack of probable cause to arrest
Rodriguez and asked only that “the arrest be suppressed.” The trial court ruled the arrest was valid.
But the trial court did not rule on suppression of the HGN test results, and counsel did not pursue
a suppression ruling or object to the lack of one. In any event, the court found that “even without
the HGN test, the undisputed evidence establishes probable cause,” and our review of the record
supports this finding. Although Rodriguez was not arrested until after he failed the HGN test, the
totality of the information known to Officer Lovato—including the alcoholic odor in Rodriguez’s
truck, Rodriguez’s bloodshot eyes, his unsteadiness while standing, his alcoholic odor, and his poor
driving causing the collision—provided probable cause for Rodriguez’s DWI arrest independent of
his HGN test failure. Accordingly, this issue lacks arguable merit.
Admission and use of 1996 felony DWI conviction
Rodriguez further argues that the trial court erred by admitting and using his
1996 felony DWI conviction for dual purposes—to enhance the present DWI to the level of a third-
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degree felony and then again to enhance his punishment as a habitual felony offender. See
Tex. Penal Code §§ 12.42(d) (permitting enhancement of punishment for defendant being tried for
felony who is shown to have had two prior felony convictions, and second one is for offense that
occurred after first one became final), 49.09(b) (permitting enhancement of DWI offense). However,
the record disproves this argument. During the guilt/innocence phase of trial, the State referenced
the redacted 1996 judgment for the limited purpose of showing that “Alex Garcia” was Rodriguez’s
alias. See Rodriguez v. State, No. 14-96-00366-CR, 1999 WL 274663 (Tex. App.—Houston
[14th Dist.] May 6, 1999, pet. ref’d) (mem. op., not designated for publication) (reflecting
defendant’s name as “German Rodriguez aka Alex Garcia.”). The jury was not informed about the
offense made the basis of the 1996 conviction, nor did the State use this 1996 conviction as proof of
Rodriguez’s three prior DWI convictions in Harris County (relying instead on his DWI convictions
from 1983, 1994, and 1995). The 1996 felony DWI conviction was properly admitted and used by
the trial court during the punishment phase to establish that Rodriguez was a habitual offender. See
Tex. Penal Code § 12.42(d). As such, this contention lacks arguable merit.
Admission and consideration of 1986 extraneous offense
Finally, Rodriguez argues that the trial court erred during the punishment phase by
admitting and considering a 1986 aggravated assault judgment without evidence that Rodriguez
was the same person (because the aggravated assault judgment does not include a thumbprint). Here
again, the record disproves Rodriguez’s argument. Rodriguez’s 1986 aggravated assault conviction
is referenced as a prior offense in Rodriguez’s 1995 felony DWI indictment (the charging instrument
for his 1996 felony DWI conviction). Rodriguez does not dispute that he is the defendant referenced
in the 1995 felony DWI indictment. That 1995 felony DWI indictment links Rodriguez to the
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aggravated assault judgment by correctly referencing the same name (“German Rodriguez”), date
of birth, cause number, and date of conviction that appear on the1986 aggravated assault indictment.
Because the trial court had evidence that Rodriguez was the same person who committed the
1986 aggravated assault, Rodriguez’s contention otherwise lacks arguable merit.
Having reviewed the record and all filed briefs, we find no reversible error. See
Garner, 300 S.W.3d at 766; Bledsoe, 178 S.W.3d at 826-27. We agree with appointed counsel that
this appeal is frivolous and grant his motion to withdraw.
The judgment of conviction is affirmed.
Jeff Rose, Justice
Before Justices Puryear, Rose and Goodwin
Affirmed
Filed: August 14, 2013
Do Not Publish
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German Rodriguez v. State
Combined Opinion