NUMBER 13-11-00642-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DAVID RAY ATWOOD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 435th District Court
of Montgomery, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides, and Longoria
Memorandum Opinion by Justice Benavides
By one issue, appellant David Ray Atwood asserts that insufficient evidence links
him to two prior misdemeanor driving while intoxicated convictions for purposes of
making his current driving while intoxicated conviction a third-degree felony. See TEX.
PENAL CODE ANN. §§ 49.04 (West Supp. 2011); 49.09 (West Supp. 2011). We affirm.
I. BACKGROUND1
On February 26, 2010, police in Montgomery County arrested Atwood for driving
while intoxicated (DWI) after his vehicle came to a stop following four separate collisions
along a four-mile span of roads which included: crashing into another automobile,
running over two residential mailboxes, and ultimately, colliding into a tree.
The State indicted and re-indicted Atwood for DWI (third or more), a third-degree
felony. See id. In its indictment, the State alleged that Atwood had three prior
convictions for operating a motor vehicle while intoxicated, one dating back to 1991 and
the other two to 1983.
At trial, a Montgomery County jury found Atwood guilty of DWI (third or more).2
During the punishment phase, the jury found six separate enhancement paragraphs true
and sentenced Atwood to fifty years’ confinement in the Texas Department of Criminal
Justice, Institutional Division. This appeal ensued.
II. SECTION 49.09 DWI FELONY ENHANCEMENT
By his sole issue on appeal, Atwood contends that insufficient evidence links him
to two prior misdemeanor DWI convictions for purposes of making his current driving
while intoxicated conviction a third-degree felony under penal code section 49.09.
A. Standard of Review and Applicable Law
When reviewing the sufficiency of the evidence, we view the evidence in the light
most favorable to the verdict to determine whether “any rational trier of fact could have
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).
2
In addition to the underlying driving while intoxicated charge, the State presented evidence of a
1983 driving while intoxicated conviction from Harris County and a 1991 driving while intoxicated conviction
from Montgomery County.
2
found the essential elements of the crime beyond a reasonable doubt.” Montgomery v.
State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (citing Brooks v. State, 323 S.W.3d
893, 902 (plurality op.)); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is
the sole judge of the credibility of witnesses and the weight to be given to their
testimonies, and the reviewing court must not usurp this role by substituting its own
judgment for that of the jury. Montgomery, 369 S.W.3d at 192. Thus, our duty is
“simply to ensure that the evidence presented supports the jury's verdict and that the
state has presented a legally sufficient case of the offense charged.” Id. (internal
citations omitted). When faced with a record supporting contradicting inferences, we
must presume that the jury resolved such conflicts in favor of the verdict, even if not
explicitly stated in the record. Id. (citing Brooks, 323 S.W.3d at 899 n.13).
The elements of the offense are measured as defined by a hypothetically correct
jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge [is] one
that accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the defendant was
tried. Id.
To have a legally sufficient felony enhancement of a driving while intoxicated
charge, the State must show that the defendant has previously been convicted two times
of any other offense relating to the operating of a motor vehicle while intoxicated. See
TEX. PENAL CODE ANN. § 49.09(b)(1). To establish that a defendant has been convicted
of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior
3
conviction exists, and (2) the defendant is linked to that conviction. Flowers v. State,
220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
The Flowers Court noted that Texas law does not require “that the fact of a prior
conviction be proven in a specific manner,” and “any type of evidence, documentary or
testimonial, may suffice.” Id. In its decision, the court of criminal appeals likened the
process of proving up a prior conviction to evidentiary pieces to a jigsaw puzzle and left
the ultimate decision of whether these “pieces fit together sufficiently to complete the
puzzle” with the trier of fact under the totality of the evidence. See id. at 923. A
certified copy of a defendant’s driving record, standing alone, is insufficient to prove prior
convictions. See Gentile v. State, 848 S.W.2d 359, 360 (Tex. App.—Austin 1993, no
writ) (holding that a driving record is “only what it purports to prove: that the department
has received the listed notices of conviction.”); but see Flowers, 220 S.W.3d at 923–24
(holding that a driving record in combination with a matching computer printout from the
county clerk’s office that set out the prior DWI conviction was legally sufficient).
B. Discussion
In this case, the State offered several “pieces” to the jigsaw puzzle to prove prior
convictions including: (1) a copy of the DIC-24 post-arrest statutory warning form that
was read to Atwood which includes his Texas driver’s license number and date of birth;
(2) a certified copy of Atwood’s Texas Department of Public Safety driving record, with
matching driver’s license number and date of birth, that shows a 1991 and a 1983 driving
while intoxicated conviction with corresponding cause numbers; (3) judgments for each
corresponding conviction with matching cause numbers, courts, and conviction dates; 3
3
The 1983 judgment does not contain a fingerprint, date of birth, or any other identification except
4
(4) a certified copy of a “pen packet” from the Texas Department of Criminal Justice, with
Atwood’s photograph and fingerprints, listed under cause number 91-06-00756-CR that
is referenced in Atwood’s 1991 driving while intoxicated judgment; 4 and (5) testimony
from Texas Department of Public Safety Officer Jeremy McGilbery that a driver’s license
number is a unique number that is assigned to a person.
While it is conceivable here that there are two men named David Ray Atwood with
the same date of birth, living at the same address, with same personal descriptors, like
the court of criminal appeals succinctly articulated in Flowers: it is not likely. See 220
S.W.3d at 925. Accordingly, we conclude that a rational trier of fact could have found
beyond a reasonable doubt that two prior misdemeanor DWI charges existed and legally
sufficient evidence links Atwood to those charges. See Montgomery, 369 S.W.3d at
192.
Atwood’s sole issue is overruled.
III. CONCLUSION
We affirm the trial court’s judgment.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
4th day of April, 2013.
Atwood’s name, cause number, and date of conviction, all listed in the certified copy of Atwood’s driving
record.
4
The 1991 DWI judgment identifies Atwood only through a faded right index finger print. The
judgment does, however, reference the cause number listed in subsection four and states that Atwood’s
conviction for the 1991 DWI charge will “run concurrent to” the other charge.
5