In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00335-CR
____________________
SAMUEL CHARLES VANNESS IV, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. 22367
________________________________________________________ _____________
MEMORANDUM OPINION
Appellant Samuel Charles Vanness IV (Vanness) was indicted by the Polk
County Grand Jury for “Driving While Intoxicated 3rd or More.” 1 See Tex. Penal
Code Ann. §§ 49.04, 49.09(b) (West Supp. 2013). A jury found Vanness guilty,
1
The indictment alleged that Vanness did “unlawfully while intoxicated,
namely not having the normal use of his mental and physical faculties by the
reason of the introduction of alcohol into his body, drive and operate a motor
vehicle in a public place[.]” The indictment also alleged two prior convictions for
driving while intoxicated.
1
and the trial court sentenced him to nine years in prison. Vanness timely filed a
notice of appeal.
Stipulations
Prior to the beginning of the trial, the defendant’s trial attorney filed a
motion to suppress any evidence relating to a mandatory blood draw. At the
suppression hearing, the State and Vanness stipulated “that the fact that the blood
was drawn, that it was tested or what the results were will not be offered or
admitted into evidence in the trial of this case.”
During the trial, defense counsel also announced another stipulation on the
record as follows:
[Defense Counsel]: Your Honor, in this case the State has pled
that the Defendant has two prior convictions
for DWI, same being Cause No. 2009-0039
in County Court at Law, dated June 29th,
2009; and Cause No. 2009-0920 in the
County Court at Law, dated March 1st of
2010.
Both the State and the Defendant stipulate as
to these prior convictions, and there is no
issue as to that. We’re stipulating they are
valid convictions at this point.
THE COURT: All right. Thank you very much. We ready
to bring the jury in?
2
Evidence Presented at Trial
At trial, the State did not offer any evidence of Vanness’s blood alcohol
level. The State submitted Exhibits 1 and 2 as evidence of the two prior
convictions alleged in the indictment. Exhibit 1 included a judgment, dated June
29, 2009, for driving while intoxicated, and Exhibit 2 included a judgment, dated
March 1, 2010, for driving while intoxicated. Defendant did not object to either
Exhibit 1 or 2, and the exhibits were admitted into evidence.
The State called Onalaska police officer, Josh Alexander, as its only witness
at trial. Alexander testified that on the evening of February 23, 2012, he observed a
red truck that appeared to be speeding on Navaho Trail. Alexander verified the
speed of the vehicle on his patrol car radar and stopped the truck for traveling 31
miles per hour in a 20 mile per hour speed zone. Alexander identified the
defendant, Vanness, as the driver of the truck. When Alexander first spoke to
Vanness, Alexander smelled alcohol coming from inside the vehicle. Alexander
asked Vanness to step out of his vehicle, and at that time, Alexander could also
smell the odor of alcohol coming from the defendant’s person. Alexander testified
that Vanness had red bloodshot eyes and slightly slurred speech. Vanness stated he
had “a little bit” to drink and had just left a bar that was identified as “Hookers on
the Lake.”
3
Officer Alexander testified that he administered three standardized field
sobriety tests and some non-standardized tests. When Alexander administered the
horizontal gaze nystagmus test to Vanness, and Alexander “observed lack of
smooth pursuit, sustained nystagmus, maximum deviation, the onset of nystagmus
prior to 45 degrees and also vertical nystagmus.” Next, Alexander administered the
“walk and turn” test. He observed Vanness “step off the line. . . [,] raise his arms
more than six inches away from his body,” make “an improper turn,” and miss
“heel to toe.” Alexander performed the “one legged stand” test during which
Vanness put his foot down several times, and, in the counting part of the test, kept
starting over while counting. Alexander also administered the “finger count” test
during which Vanness touched his fingers in the wrong order and miscounted.
Alexander administered the “handclap test,” the Rhomberg evaluation, and the
“nose touch” test. The only test that Vanness performed satisfactorily was the
“nose touch” test. Based on his experience as an officer in the field, and on
Vanness’s performance on the tests, Alexander determined that Vanness “had lost
the use of his mental or physical faculties due to the introduction of alcohol into his
body,” and that he was intoxicated. The State also introduced the edited dash video
of the traffic stop without objection from the defendant. At the time of the arrest,
Vanness was very belligerent and vulgar.
4
The defense called two witnesses, Karen Dardin and Vanness. Dardin,
Vanness’s mother, testified that Vanness has had anger management or temper
problems since he was very young and that his cursing at the officers and his acting
out in the patrol car had nothing to do with the alleged intoxication. Vanness told
the jury that he only drank two beers before he left the bar and that he was not
intoxicated when he left the bar.
Issues on Appeal
Vanness raises two issues on appeal. In his first issue, he argues the evidence
adduced at trial was legally insufficient to support the jury’s verdict. In his second
issue, he contends the evidence at trial was legally insufficient to support his
conviction because there was insufficient evidence to identify him as the same
person who committed the two prior DWI offenses. We conclude that both issues
are without merit and we affirm the judgment.
Standard of Review
The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S.
307, 319 (1979), is the standard we apply in determining whether the evidence is
sufficient to support a conviction. Winfrey v. State, 393 S.W.3d 763, 768 (Tex.
Crim. App. 2013); Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)
(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). “[A]
5
reviewing court must consider all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable inferences
therefrom, a rational fact finder could have found the essential elements of the
crime beyond a reasonable doubt.” Winfrey, 393 S.W.3d at 768 (citing Gear v.
State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)). The jury is the sole judge of
the witnesses’ credibility and the weight to be given their testimony. Winfrey, 393
S.W.3d at 768. In making a legal sufficiency review, we may not reexamine the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford
almost complete deference to the jury’s credibility determinations. See Lancon v.
State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
Legally Sufficient Evidence Supports the Verdict
In his first issue, Vanness argues the evidence adduced at trial was legally
insufficient to support the jury’s verdict. He points out that the State did not
introduce any evidence of his blood alcohol level, implies that the testimony of
Alexander about the field sobriety tests was insufficient, and references testimony
from Vanness who denied being intoxicated.
In a prosecution for driving while intoxicated, the State may prove
intoxication by reason of a loss of faculties (a subjective definition) or by reason of
6
blood alcohol concentration (per se definition). See Tex. Penal Code Ann. §
49.01(2) (West 2011); Crenshaw v. State, 378 S.W.3d 460 (Tex. Crim. App. 2012).
A person commits the offense of DWI “if the person is intoxicated
while operating a motor vehicle in a public place.” TEX. PENAL CODE
§ 49.04(a). Intoxication is an element of DWI, and the Texas Penal
Code sets out two definitions of “intoxicated.” The subjective
definition of intoxicated is “not having the normal use of mental or
physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, or a combination of
two or more of these substances, or any other substance into the
body.” Id. § 49.01(2)(A). The per se definition of intoxicated is
“having an alcohol concentration of 0.08 or more.” Id. § 49.01(2)(B).
These definitions overlap and are not mutually exclusive. Kirsch v.
State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010).
Crenshaw, 378 S.W.3d at 466.
The State presented evidence of intoxication under the subjective definition
of intoxication—i.e., a person’s loss of his faculties by reason of the introduction
of alcohol into the body. Having reviewed the record and the evidence presented at
trial, and considering all of the evidence in a light most favorable to the verdict, we
conclude that there is legally sufficient evidence to support the jury verdict. More
specifically, the evidence presented to the jury from which the jury could have
concluded Vanness was legally intoxicated included the following: At the time of
the initial stop, Alexander smelled alcohol coming from inside the vehicle and
from Vanness; Vanness had blood shot eyes and slurred speech; Vanness told
Alexander that he (Vanness) had “a little bit” to drink and that he just left a bar;
7
Alexander administered standardized field sobriety tests and non-standardized tests
that indicated Vanness was intoxicated; Alexander was an experienced officer, and
based upon his training and observations, he concluded that Vanness was driving
while “intoxicated” and “had lost the use of his mental or physical faculties due to
the introduction of alcohol into his body.” Without objection from the defendant,
the State also introduced the edited traffic-stop video. According to the record, the
video confirms that Vanness was belligerent and vulgar. Furthermore, the State
introduced Exhibits 1 and 2 containing records of the two prior convictions, as
alleged in the indictment, and the defense attorney stipulated to the prior DWI
convictions.
Even though Vanness denied he was intoxicated and gave testimony
contrary to the evidence and testimony of Officer Alexander, the jury, as the sole
fact finder and judge of witness credibility, was well within its province to believe
the testimony of Officer Alexander, disbelieve the opposing testimony offered by
Vanness, and thereby rationally determine that Vanness was legally intoxicated
because he did not have the normal use of his mental or physical faculties by
reason of the introduction of alcohol. See Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986). We conclude that based on the evidence and reasonable
8
inferences therefrom, a rational fact finder could have found the essential elements
of the crime for which Vanness was indicted beyond a reasonable doubt.
Vanness is Precluded from Raising a Legal Sufficiency Challenge
Relating to the Stipulation as to the Prior Offenses
In his supplemental appellate brief, Vanness argues there was insufficient
evidence presented at trial of the two prior DWI convictions. He admits that
defense counsel stipulated on the record during the trial to both prior convictions,
but Vanness contends that the State should not be allowed to rely upon the
stipulation because Vanness “did not personally agree to that stipulation and . . .
that, without his agreement on the record to this stipulation, it was not valid and
cannot be used as proof” that he was the person referred to in the prior convictions
in the indictment. We disagree.
Defense counsel can make a stipulation on the record as to the evidence or
some element of the case on behalf of his client, and the defendant’s silent
acquiescence to a stipulation made in open court by the defense attorney in front of
the defendant is binding on the defendant. Matthews v. State, 414 S.W.2d 938, 939
(Tex. Crim. App. 1967); Genzel v. State, 415 S.W.2d 919, 921-22 (Tex. Crim.
App. 1967).
With respect to proof related to the two prior offenses, the State must prove
beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant
9
is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921–22 (Tex. Crim.
App. 2007). No specific document or mode of proof is required to prove a prior
conviction. Id. The State may use various methods of proof, including but not
limited to, documentary evidence, a defendant’s admission, or a stipulation. Id.;
Bryant v. State, 187 S.W.3d 397, 401 (Tex. Crim. App. 2005). Once defense
counsel makes a stipulation regarding prior offenses, the stipulation effectively
withdraws the facts from issue and dispenses with the need for the State to
introduce further proof thereof. Bryant, 187 S.W.3d at 401-02. The stipulation is “a
kind of judicial admission.” Id. at 402. Accordingly, Vanness is precluded from
making a legal sufficiency challenge to the stipulation that his attorney made to the
two prior DWI offenses. See id. at 401-02 (A stipulation waives a defendant’s right
to challenge the absence of proof on the stipulated elements.); see also Smith v.
State, 158 S.W.3d 463, 464-65 (Tex. Crim. App. 2005) (Even a stipulation to a
conviction that was otherwise too remote to serve as a jurisdictional predicate for a
felony DWI will be enforced.).
The stipulation wholly dispensed with the need of any further proof
regarding the prior offenses. See Bryant, 187 S.W.3d at 402. Accordingly, we hold
10
the evidence was legally sufficient to establish the prior convictions, and we
overrule issue two. 3
The trial court’s judgment is affirmed.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on June 27, 2014
Opinion Delivered July 9, 2014
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
3
In addition to the stipulation made by Vanness’s attorney during the trial,
the State introduced Exhibits 1 and 2 which contained copies of documents
purporting to establish Vanness’s prior convictions, and the record reflects that he
did not object to those exhibits.
11
Samuel Charles Vanness IV v. State
Combined Opinion