COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00437-CR
EUGENE THOMAS MCLAMORE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE COUNTY COURT AT LAW OF WISE COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
In three points, Appellant Eugene Thomas McLamore appeals his
conviction and sentence for driving with an invalid license. We will affirm.
1
See Tex. R. App. P. 47.4.
II. BACKGROUND
On October 2, 2009, a Boyd police officer stopped the vehicle that
McLamore was driving. The officer arrested McLamore after contacting dispatch
and learning that McLamore’s driver’s license had been suspended for refusing
to provide a breath specimen in the context of a prior DWI. A jury convicted
McLamore of driving with an invalid license and sentenced him to thirty days’
confinement and a $1,000 fine.
III. MOTION TO QUASH
In his first point, McLamore argues that the trial court erred by denying his
pretrial motion to quash the information. He contends that the information did not
give him sufficient notice of the State’s theory against which he had to defend
and did not meet the code of criminal procedure’s sufficiency requirements
because it did not allege that his driver’s license had been suspended under
Texas law.
An accused is guaranteed the right to be informed of the nature and cause
of the accusations against him in all criminal actions. U.S. Const. amend. VI;
Tex. Const. art. I, § 10; see State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App.
2004). This constitutional mandate requires that the charging instrument convey
adequate notice from which the accused may prepare his defense. Moff, 154
S.W.3d at 601. The code of criminal procedure also contains guidelines relating
to the sufficiency of an information. See, e.g., Tex. Code Crim. Proc. Ann. art.
21.03 (―Everything should be stated in an indictment which is necessary to be
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proved.‖), art. 21.04 (―The certainty required in an indictment is such as will
enable the accused to plead the judgment that may be given upon it in bar of any
prosecution for the same offense.‖) (West 2009);2 see also id. § 21.21 (West
2009) (setting out requisites of information). Generally, a charging instrument
that tracks the language of a criminal statute possesses sufficient specificity to
provide a defendant with notice of a charged offense. State v. Edmond, 933
S.W.2d 120, 128 (Tex. Crim. App. 1996). A motion to quash should be granted
only when the language regarding the accused’s conduct is so vague or
indefinite that it fails to give the accused adequate notice of the acts he allegedly
committed. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988). We
review de novo a trial court’s ruling on a motion to quash an information. See
Moff, 154 S.W.3d at 601.
The transportation code provides that a person commits the offense of
driving with an invalid license if the person ―operates a motor vehicle on a
highway‖ ―during a period that the person’s driver’s license . . . is suspended . . .
under any law of this state.‖ See Tex. Transp. Code Ann. § 521.457(a)(2) (West
Supp. 2011). The information in this case states in relevant part as follows:
Eugene Thomas Mclamore, Defendant, did then and there
intentionally or knowingly operate a motor vehicle upon a public
highway during a period that the Texas Class C license of the
2
Articles 21.03 and 21.04 speak in terms of the specificity of an indictment,
but ―[t]he rules with respect to allegations in an indictment and the certainty
required apply also to an information.‖ Tex. Code Crim. Proc. Ann. art. 21.23
(West 2009).
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defendant was suspended or revoked under Chapter 724,
Transportation Code.
McLamore complains that the information is fundamentally defective for failing to
refer to chapter 724 of the Texas Transportation Code. We disagree. The
information closely tracked the language of section 521.457(a)(2) and was
sufficient to inform McLamore that he had allegedly committed the offense of
driving with an invalid license. As for the portion of the information that referred
to ―Chapter 724, Transportation Code,‖ it could have served dual purposes. One,
it identified the ―law of this state‖—as required by section 521.457(a)(2)—under
which McLamore’s license had been suspended. See id. McLamore’s argument
that the allegation could have referred to a suspension under the transportation
code of some other state ignores section 521.457(a)(2)’s unambiguous language
requiring that the suspension be performed under any law of ―this state.‖ Also,
as the State points out, the allegation addressed the requirement that if a statute
identifies more than one method by which it can be violated, the State is required
to specify the method or methods by which it intends to prove that the accused
violated the statute. See Sparkman v. State, 997 S.W.2d 660, 665 (Tex. App.—
Texarkana 1999, no pet.) (citing Drumm v. State, 560 S.W.2d 944, 946–47 (Tex.
Crim. App. 1977)). The State’s identification of chapter 724 of the transportation
code effectively alleged an offense implicating section 521.457(f-1) of the
transportation code, which elevates the offense from a class C misdemeanor to a
class B misdemeanor if the State shows at trial that the defendant’s driver’s
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license was suspended as a result of an offense involving the operation of a
motor vehicle while the defendant was intoxicated. See Tex. Transp. Code Ann.
§ 521.457(f-1).
We cannot conclude that the information was so vague or indefinite that it
failed to give McLamore adequate notice of the acts that he allegedly committed.
See Edmond, 933 S.W.2d at 128; DeVaughn, 749 S.W.2d at 67. Accordingly,
we hold that the trial court did not err by denying McLamore’s motion to quash
the information. We overrule McLamore’s first point.
IV. ADMISSION OF DRIVING RECORD
In his second point, McLamore argues that the trial court abused its
discretion by admitting in evidence a certified copy of his Texas Department of
Public Safety (TDPS) driving record. McLamore contends that the evidence
(1) violated his Sixth Amendment right to confrontation, (2) is hearsay, and (3) is
insufficient to show that his driver’s license was suspended.
In addition to objecting that the State did not lay the proper predicate for
admitting his driving record, McLamore objected that the exhibit was hearsay,
contained irrelevant extraneous information, and was more prejudicial than
probative.3 McLamore did not assert an objection on the confrontation or
insufficiency grounds that he now raises on appeal. Consequently, he did not
preserve those arguments for appellate review. See Tex. R. App. P. 33.1(a)(1),
3
The State agreed to redact the exhibit.
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(2); Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (stating that
hearsay objection does not preserve error on Confrontation Clause grounds).
Regarding McLamore’s hearsay argument, this court has previously held
that a certified copy of a person’s TDPS driving record is admissible as an
exception to the hearsay rule under rule of evidence 803(8)(B) and is self-
authenticating under rule 902(4). See Tex. R. Evid. 803(8)(B), 902(4); Abbring v.
State, 882 S.W.2d 914, 916–17 (Tex. App.—Fort Worth 1994, no writ); see also
Gibson v. State, 952 S.W.2d 569, 572 (Tex. App.—Fort Worth 1997, pet. ref’d).
Accordingly, we hold that the trial court did not abuse its discretion by admitting
the certified copy of McLamore’s driving record. We overrule McLamore’s
second point.
V. PUNISHMENT CHARGE
In his third point, McLamore argues that the trial court erred by instructing
the jury to assess his punishment within the range of a class B misdemeanor.
He contends that he could not have been convicted of a class B misdemeanor
because there was no evidence that his driver’s license was suspended for an
offense involving the operation of a motor vehicle while he was intoxicated. See
Tex. Transp. Code Ann. § 521.457(f-1).
In our review of a jury charge, we first determine whether error occurred; if
error did not occur, our analysis ends. See Abdnor v. State, 871 S.W.2d 726,
731–32 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26
(Tex. Crim. App. 2009).
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As already explained, driving with an invalid license is a class C
misdemeanor unless ―it is shown [at] . . . trial . . . that the license of the person
has previously been suspended as the result of an offense involving the
operation of a motor vehicle while intoxicated.‖ Tex. Transp. Code Ann.
§ 521.457(f-1). If the State makes that showing, the offense is a class B
misdemeanor. Id.
Here, the State sought to convict McLamore of the class B misdemeanor
of driving with an invalid license by alleging that he operated a motor vehicle on a
public highway when his license was suspended under chapter 724 of the
transportation code. Chapter 724 of the transportation code contains Texas’s
implied consent statutes that control suspension of a driver’s license when a
driver who is arrested for DWI refuses to provide a breath sample. See Tex.
Transp. Code Ann. §§ 724.011(a), 724.035(a) (West 2011). Indeed, under
section 724.011(a)’s plain and unambiguous language, a person is deemed to
have consented to submit to the taking of a breath or blood specimen if the
person ―is arrested for an offense arising out of acts alleged to have been
committed while the person was operating a motor vehicle in a public place . . .
while intoxicated.‖ Compare id. § 724.011(a) (emphasis added) with id.
§ 521.457(f-1). If a person refuses the request to submit a specimen, TDPS shall
―suspend the person’s license to operate a motor vehicle.‖ Id. § 724.035(a)(1).
At trial, the State showed that McLamore’s driver’s license was suspended
under chapter 724 because he had refused to provide a specimen for testing in
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the context of a prior DWI. In other words, the State showed that McLamore’s
driver’s license was suspended for refusing a request to submit to the taking of a
specimen (section 724.035(a)(1)), which under chapter 724’s framework,
occurred in the context of an arrest for an offense arising out of acts alleged to
have been committed while he was operating a motor vehicle while intoxicated
(section 724.011(a)). Consequently, the State made the required showing under
transportation code section 521.457(f-1), and McLamore was convicted of a
class B misdemeanor, not a class C misdemeanor. We decline McLamore’s
implied invitation to consider the facts demonstrating his section 724.035(a)(1)
suspension in a vacuum, mutually exclusive from the statutory context in which
the suspension occurred—an arrest for operating a motor vehicle while
intoxicated. We hold that the trial court did not err in its punishment charge to the
jury, and we overrule McLamore’s third point.
VI. CONCLUSION
Having overruled all of McLamore’s points, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 12, 2012
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