Phi Van Do v. State

Reversed in part, Affirmed in part, Rendered, Remanded, and Opinion filed
April 2, 2020.

In the

Fourteenth Court of Appeals

NO. 14-18-00600-CR

PHI VAN DO, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 10
Harris County, Texas
Trial Court Cause No. 2130699

OPINION

Appellant Phi Van Do appeals his conviction of the Class A misdemeanor of
driving while intoxicated (DWI) with an alcohol concentration of 0.15 or more at
the time the analysis was performed. See Tex. Penal Code Ann. § 49.04(a), (d).
During punishment, the trial court made the finding that appellant’s breath showed
an alcohol concentration level of at least 0.15 at the time the analysis was performed.
See id. § 49.04(d). The trial court assessed punishment at a $250 fine and one-year
confinement in the Harris County Jail, but suspended the sentence, and placed
appellant on community supervision for one year and imposed a $250 fine. See id.
§ 12.21; Tex. Code Crim. Proc. Ann. art. 42A.053(a)(1).

Appellant raises five issues. In his first issue, he argues that there was no valid
charging instrument in his case because he was not indicted by a grand jury. In his
second issue, appellant contends that the complaint supporting the information was
invalid because the affiant only initialed and did not sign the complaint. In his third
issue, appellant argues that the trial court erred by treating an element of the offense
of Class A misdemeanor DWI as a punishment enhancement. In his fourth issue,
appellant argues the trial court’s determination that he had a heightened alcohol
concentration violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Finally, in his
fifth issue, appellant contends that the trial court failed to make a statutorily required
ability-to-pay determination at sentencing.

We overrule appellant’s first and second issues, sustain his third and fourth
issues, and do not reach his fifth issue. Therefore, we reverse the trial court’s
judgment in part, affirm the judgment in part, render judgment that appellant is
convicted of Class B misdemeanor DWI instead of Class A misdemeanor DWI, and
remand the case for further proceedings limited to a new punishment hearing. See
Tex. R. App. P. 43.2(a), (c), (d).

I. BACKGROUND

Appellant was charged by information with the offense of unlawfully
operating a motor vehicle on or about January 9, 2017, in a public place while
intoxicated. See Tex. Penal Code Ann. § 49.04(a). The information further alleged
that an analysis of a specimen of appellant’s breath showed an alcohol concentration
level of at least 0.15 at the time the analysis was performed. See id. § 49.04(d).

2
 During appellant’s arraignment, the State did not read the portion of
appellant’s information that alleged the at-least 0.15 alcohol concentration level.
Appellant pleaded not guilty.

Viewed in the light most favorable to the conviction, there was evidence that
appellant was speeding and caused a red-light collision at a busy intersection. At the
scene, he smelled like alcohol; used “slurred speech”; had red, glassy eyes; and
admitted he had been drinking beer.

Officer Guerra with the Houston Police Department (HPD) transported
appellant to the HPD Central Intoxilyzer station. At “Central Intox,” appellant
underwent the one-leg-stand and the walk-and-turn standardized field sobriety tests.
He failed both tests. Appellant consented to giving, and a DWI technician with the
City of Houston tested, a breath sample. According to the technician, appellant was
intoxicated.

A Department of Public Safety (DPS) technical supervisor responsible for
maintenance and monitoring reported that the Intoxilyzer used to test appellant’s
breath was functioning properly. The supervisor stated that appellant’s results of
0.194 grams per 210 liters of breath and 0.205 grams per 210 liters of breath were
within the allowed tolerance and were greater than Texas’s 0.08 grams per 210 liters
of breath legal limit of intoxication.

The jury charge included the following abstract and application paragraphs:

THE LAW ON DRIVING WHILE INTOXICATED
A person commits an offense the offense of driving while
intoxicated if the person is intoxicated while operating a motor vehicle
in a public place.
To prove that the defendant is guilty of driving while intoxicated,
the State must prove, beyond a reasonable doubt, three elements:
1. The defendant operated a motor vehicle: and
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 2. The defendant did this in a public place; and
3. The defendant did this while intoxicated.
The State has alleged intoxication by not having the normal use
of mental or physical faculties by reason of the introduction of alcohol
or by having an alcohol concentration of .08 or more.
....
APPLYING THE LAW TO THIS CASE
You must determine whether the State has proved three elements
beyond a reasonable doubt which are as follows:
1. The defendant, PHI VAN DO, operated a motor vehicle in Harris
County, Texas, on or about JANUARY 9th, 2017:
2. in a public place;
3. while intoxicated by not having the normal use of his mental faculties
due to the introduction of alcohol; by not having the normal use of his
physical faculties due to the introduction of alcohol; or by having a[n]
alcohol concentration of .08 or higher.
You must all agree on elements 1, 2, and 3 listed above but you
do not have to agree on the method of intoxication listed above.
If you all agree the State has failed to prove, beyond a reasonable
doubt, one or more of elements 1, 2, and 3 listed above, you must find
the defendant “not guilty."
If you all agree the State has proved, beyond a reasonable doubt,
each of the three elements listed above then you must find the defendant
“guilty.”

In addition, the charge included the following pertinent definitions:

Intoxicated
“Intoxicated” means either (1) 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, a combination of two or more of
those substances, or any other substance into the body or having an
alcohol concentration of .08 or more.
Alcohol Concentration
“Alcohol Concentration” means the number of grams of alcohol per

4
 100 milliliters of blood.[1]

The jury returned a verdict of guilty.

Appellant elected to have the trial court assess his punishment. During
punishment proceedings, the following exchange took place:

[STATE]: At this time, the State would like to allege—further
allege the .15 allegation. So it is fair to allege that an analysis of a
specimen of the defendant’s breath showed an alcohol concentration
level of at least 0.15 at the time the analysis was performed.
THE COURT: Any objection from the defense?
[DEFENSE COUNSEL]: Your Honor, that element was not
presented to the jury for their consideration as part of deliberations. We
would object to the enhanced element at this time. They tried it as a loss
of use case.
THE COURT: Any response?
[STATE]: The response from the State is that it’s a punishment
element. It wasn’t a [sic] element of the actual offense. We did have
evidence that the analysis of the breath was above a .15. We tried it
as—all three were able to prove intoxication and the BAC actually
came out at trial.
THE COURT: The objection is overruled. The Court finds the
enhancement to be true.

No new evidence was offered during this phase.

The trial court sentenced appellant to one-year confinement in the Harris
County Jail and a $250 fine, suspended to one-year community supervision and the
imposition of a $250 fine.

1
A different definition applies when the alcohol concentration is based on breath, not
blood. See Tex. Penal Code Ann. § 49.01(1)(A). Appellant did not object at trial and does not raise
any instruction error on appeal.

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 II. ANALYSIS

A. Appellant’s charging instrument

In his first issue, appellant challenges whether he can be “held to answer for
the criminal offense of which he was convicted” (a Class A misdemeanor) and
sentenced to both punishment by fine and punishment by confinement in jail when
he was charged by information instead of being indicted by a grand jury. Appellant
relies on article I, section 10, of the Texas Constitution.2

As appellant acknowledges, there is binding precedent to the contrary. See
Peterson v. State, 204 S.W.2d 618, 618 (Tex. Crim. App. 1947) (op. on reh’g)
(rejecting appellant’s “contention that because both [fine and imprisonment] may be
assessed he can only be charged by indictment of a grand jury” based on language
of section 10 of article I of Texas Constitution).3

We overrule appellant’s first issue.

B. Appellant’s complaint

In his second issue, appellant argues that the complaint in his case is invalid
because, although it is signed, the signature consists of just initials. Accordingly, the
complaint does not reveal the identity of the signer. See Tex. Code Crim. Proc. Ann.

2
Article I, section 10, in pertinent part provides:
[N]o person shall be held to answer for a criminal offense, unless on an indictment
of a grand jury, except in cases in which the punishment is by fine or imprisonment,
otherwise than in the penitentiary, in cases of impeachment, and in cases arising in
the army or navy, or in the militia, when in actual service in time of war or public
danger.
Tex. Const. art. I, § 10.
3
Cf. Tex. Code Crim. Proc. Ann. art. 12.02(a) (statute of limitations for presenting
indictment or information for any Class A or Class B misdemeanor is two years from date of
commission of offense); State v. Drummond, 501 S.W.3d 78, 82 (Tex. Crim. App. 2016)
(information “can be used to charge a defendant with any misdemeanor offense”).

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art. 21.22 (“No information may be presented until affidavit has been made by some
credible person charging the defendant with an offense.”). Appellant further argues
that because there is no evidence the complaint was signed by a credible person, the
presentment of the information was erroneous, the trial court never obtained
jurisdiction of the cause, and his conviction is void.

The Texas Constitution provides that “[t]he presentment of an indictment or
information to a court invests the court with jurisdiction of the cause.” Tex. Const.
art. V, § 12(b). That is, “under the explicit terms of the constitution itself, the mere
presentment of an information to a trial court invests that court with jurisdiction over
the person of the defendant, regardless of any defect that might exist in the
underlying complaint.” Aguilar v. State, 846 S.W.2d 318, 320 (Tex. Crim. App.
1993) (discussing 1985 amendment to Tex. Const. art. 5, § 12(b)). Because “they are
no longer jurisdictional in the traditional sense,” defects in an information or
underlying complaint, whether of form or substance, must be raised before trial in a
motion to set aside the information or else they are waived. Ramirez v. State, 105
S.W.3d 628, 630 (Tex. Crim. App. 2003) (defect in information (citing Aguilar, 846
S.W.2d at 318, 320)); Aguilar, 846 S.W.2d at 320 (defect in complaint (internal
quotation marks omitted)). Appellant does not dispute that the information was
presented to the trial court.

Code of Criminal Procedure article 1.14(b), entitled “Waiver of rights,”
provides:

If the defendant does not object to a defect, error, or irregularity of form
or substance in an indictment or information before the date on which
the trial on the merits commences, he waives and forfeits the right to
object to the defect, error, or irregularity and he may not raise the
objection on appeal or in any other postconviction proceeding. Nothing
in this article prohibits a trial court from requiring that an objection to
an indictment or information be made at an earlier time in compliance

7
 with Article 28.01 of this code.

Tex. Code Crim. Proc. Ann. art. 1.14(b); see also Tex. Code Crim. Proc. Ann. art.
28.10 (“Amendment of indictment or information”). The legislature intended the
constitutional provision and the statutes to work together. Teal v. State, 230 S.W.3d
172, 176–77 (Tex. Crim. App. 2007) (citing article V, section 12(b), and articles
1.14(b) and 28.10). In other words, an information once presented invokes the
jurisdiction of the trial court, regardless of any defect. See id. at 176. And the
defendant must object to any error in the information before trial and certainly before
the jury is empaneled, or else the complaint is waived. See id. at 177, 182; see also
Jenkins v. State, 592 S.W.3d 894, 902–03 (Tex. Crim. App. 2018) (discussing Teal).

Having been presented with the information, the trial court was vested with
jurisdiction of the cause and over appellant. See Tex. Const. art. V, § 12(b); Teal,
230 S.W.3d at 176; Aguilar, 846 S.W.2d at 320. Appellant acknowledges that he
raised no objection to the complaint or the information prior to trial. He therefore
failed to preserve any defect in the complaint or information. See Tex. Code Crim.
Proc. Ann. art. 1.14(b); Jenkins, 592 S.W.3d at 902–03; Teal, 230 S.W.3d at 182;
Ramirez, 105 S.W.3d at 630; Aguilar, 846 S.W.2d at 320.

We overrule appellant’s second issue.

C. The trial court’s error in determining the at-least 0.15 element of Class A
misdemeanor DWI at punishment

Appellant argues that the trial court erred in convicting him of a Class A
misdemeanor DWI when the question of whether his alcohol concentration was 0.15
or higher was never submitted to the jury. We agree. Section 49.04(a) of the Penal
Code provides: “A person commits an offense if the person is intoxicated while
operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a). A
DWI offense is ordinarily a Class B misdemeanor. Id. § 49.04(b). However, section

8
49.04(d) provides: “If it is shown on the trial of an offense under this section that an
analysis of a specimen of the person’s blood, breath, or urine showed an alcohol
concentration level of 0.15 or more at the time the analysis was performed, the
offense is a Class A misdemeanor.” Id. § 49.04(d).

In Navarro v. State, our court held “that a person’s alcohol concentration level
is not a basis for enhancement” but “is instead an element of a separate offense
because it represents a specific type of forbidden conduct—operating a motor
vehicle while having an especially high concentration of alcohol in the body.” 469
S.W.3d 687, 696 (Tex. App.—Houston [14th Dist.] pet. ref’d); see Tex. Penal Code
Ann. § 49.04(a), (d); Castellanos v. State, 533 S.W.3d 414, 418–19 (Tex. App.—
Corpus Christi 2016, pet. ref’d) (discussing Navarro and holding same); cf. Taylor
v. State, 572 S.W.3d 816, 822 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d)
(affirming Class A misdemeanor DWI conviction when “jury found that appellant
drove with an alcohol concentration of more than 0.15”).

In his third issue, appellant argues that the trial court erred in convicting him
of Class A misdemeanor DWI when the question of whether his alcohol
concentration was 0.15 or higher was never submitted to the jury and the trial judge
instead made such finding during punishment. Appellant argues that “no person may
be convicted of an offense unless each element of the offense is proven beyond a
reasonable doubt.”4 Alternatively, in his fourth issue, appellant contends that the trial

4
See Tex. Code Crim. Proc. Ann. art. 38.03 (“Presumption of innocence”). “Even though
the presumption of innocence is guaranteed by a Texas statute, the statute itself arises from a
constitutional guarantee, that of a fair and impartial trial.” Miles v. State, 154 S.W.3d 679, 681
(Tex. App.—Houston [14th Dist.] 2004) (citing U.S. Const. amend. XIV and Tex. Code Crim.
Proc. Ann. art. 38.03), aff’d, 204 S.W.3d 822 (Tex. Crim. App. 2006); see Hurst v. Florida, 136
S. Ct. 616, 621 (2016) (“This [Sixth Amendment] right [to trial by impartial jury], in conjunction
with the Due Process Clause, requires that each element of a crime be proved to a jury beyond a
reasonable doubt.”); Coffin v. United States, 156 U.S. 432, 453 (1895) (presumption of innocence
is “axiomatic and elementary”).

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court’s finding of a heightened alcohol concentration violated his Sixth Amendment
right to a jury trial and Fourteenth Amendment right to due process as set out in
Apprendi, 530 U.S. at 494, because “the required finding expose[d him] to a greater
punishment than that authorized by the jury’s guilty verdict.”5 Appellant argues that
no harm analysis is required.

The State agrees that under Navarro the 0.15-or-greater alcohol-concentration
element in subsection (d) is an essential element of the Class A misdemeanor DWI
offense which must be proved to the jury at the guilt/innocence phase of trial. 469
S.W.3d at 696; see Tex. Penal Code Ann. § 49.04(d). The State acknowledges “[t]hat
procedure was not followed in this case” and that “the jury was charged on regular
Class B [misdemeanor] DWI, and the trial court and prosecutor treated the issue as
a punishment enhancement for the trial court to find during the punishment phase.”
The State also acknowledges that “the failure to submit an element to the jury is
constitutional” error but contends the error was harmless beyond a reasonable doubt.

When preserved, the harmless-error standard we apply “for most erroneous
charges is that ‘the judgment shall not be reversed unless the error appearing from
the record was calculated to injure the rights of defendant’; in other words, unless
the appellant suffered ‘some harm.’” Jimenez v. State, 32 S.W.3d 233, 237 (Tex.
Crim. App. 2000) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985)). However, as here, when the charge error concerns “a violation of the federal
constitution that did not amount to a structural defect, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt.” Id.; see Neder v.
United States, 527 U.S. 1, 15 (1999) (test for determining whether constitutional
error is harmless is whether it appears “beyond a reasonable doubt that the error

5
In a footnote, appellant also argues that he was the recipient of an illegal sentence.

10
complained of did not contribute to the verdict obtained” (citing Chapman v.
California, 386 U.S. 18, 24 (1967)); Williams v. State, 273 S.W.3d 200, 225 (Tex.
Crim. App. 2008) (“Preserved jury charge error is evaluated under Almanza’s ‘some
harm’ standard unless we determine that the error is constitutional in nature, in which
case the ‘beyond a reasonable doubt harmless’ standard would apply.”); see also
Tex. R. App. P. 44.2(a) (reversible constitutional error in criminal cases).

D. Not harmless beyond a reasonable doubt

“There is no set formula for conducting a harm analysis that necessarily
applies across the board, to every case and every type of constitutional error.”
Snowden v. State, 353 S.W.3d 815, 822 n.31 (Tex. Crim. App. 2011). However, the
Texas Court of Criminal Appeals in Niles v. State, 555 S.W.3d 562 (Tex. Crim. App.
2018), provided certain guidelines for our analysis. The Niles court specifically
pointed to the harmless-error analysis in Neder. See 555 S.W.3d at 572. The Neder
Court stated: “[W]here a reviewing court concludes beyond a reasonable doubt that
the omitted element was uncontested and supported by overwhelming evidence,
such that the jury verdict would have been the same absent the error, the erroneous
instruction is properly found to be harmless.” 527 U.S. at 17. The Neder Court
further stated:

Of course, safeguarding the jury guarantee will often require that a
reviewing court conduct a thorough examination of the record. If, at the
end of that examination, the court cannot conclude beyond a reasonable
doubt that the jury verdict would have been the same absent the error—
for example, where the defendant contested the omitted element and
raised evidence sufficient to support a contrary finding—it should not
find the error harmless. A reviewing court making this harmless-error
inquiry does not, as Justice Traynor put it, “become in effect a second
jury to determine whether the defendant is guilty.” [R.] Traynor, [The
Riddle of Harmless Error] 21 [(1970)]. Rather a court, in typical
appellate-court fashion, asks whether the record contains evidence that
could rationally lead to a contrary finding with respect to the omitted
11
 element.

Id. at 19. In addition, the Niles court noted that other state appellate courts “ask[]
whether the element not included in the instructions was inherent in the elements
that the jury did find.” 555 S.W.3d at 572. The Niles court also stated: “If the missing
element was logically encompassed by the guilty verdict and was not in fact
contested, the error was considered harmless.” Id. (citing United States v. Stanford,
823 F.3d 814, 832 (5th Cir.) (discussing Neder), cert. denied, 137 S. Ct. 453 (2016)).

Regardless of which formulation of harmless error we use, we cannot
conclude that the error here was harmless beyond a reasonable doubt. The State
contends the error was harmless because “[o]ther than the breath test, the State’s
evidence of intoxication was weak” and “the verdict shows that the jury believed the
breath test results.” However, considering all the trial evidence, there was certainly
other evidence tending to show appellant was intoxicated aside from his breath-test
results. For example, the driver and passenger of the vehicle appellant hit testified
regarding how appellant was driving “really fast” behind them when they were
stopped at a red light and “pushed [them] far” into the intersection. The passenger
testified that appellant “had a smell of alcohol.” According to the officer who
responded to the scene, appellant had “slurred speech,” smelled like alcohol, had
red, glassy eyes, and said he previously drank (at least) two alcoholic beverages or
beers. There was evidence that appellant failed both standardized field sobriety tests
administered to him at Central Intox and that such tests are reliable ways to test for
physical or mental impairment.

We consider that the State did not solely rely on the objective, or “per se,”
theory of intoxication based on appellant’s having an alcohol concentration of 0.08
or more. The jury charge also included the subjective, or “impairment,” theory of
intoxication. The abstract and application paragraphs stated that the State alleged

12
and the jury was to determine whether the State proved the element of intoxication
by way of appellant’s not having the normal use of his mental or physical faculties
due to the introduction of alcohol. See Kirsch v. State, 306 S.W.3d 738, 743 (Tex.
Crim. App. 2010) (per se and impairment intoxication theories are not mutually
exclusive and can be submitted to jury if there is some evidence that would support
both definitions).

We also consider that jury unanimity is not required as to one or the other
theory (per se or impairment) for the State to prove intoxication. See Tex. Penal
Code Ann. § 49.01(2) (“Intoxication”); Bagheri v. State, 119 S.W.3d 755, 762 (Tex.
Crim. App. 2003) (“[T]he definitions contained in § 49.01 set forth alternate means
by which the State may prove intoxication, rather than alternate means of committing
the offense.”); Bradford v. State, 230 S.W.3d 719, 722 (Tex. App.—Houston [14th
Dist.] 2007, no pet.) (“[J]ury unanimity on one or the other theory, impairment or
per se, is not required for the State to prove intoxication.”). In other words, the jury
could convict appellant based on either the per se theory, the impairment theory, or
some combination of both theories. The jury did not have to believe the breath-test
results in order to convict appellant of DWI. The jury instead could have believed
the evidence tending to show appellant’s loss of normal mental or physical faculties.
We therefore disagree with the State’s contention that “[i]f the jury had disbelieved
the test result, it would have acquitted” and “[t]he jury’s finding of guilt is a finding
it believed the test result.”

Nor do we agree with the State that “[t]he jury’s finding of intoxication
renders a positive finding on the .15 element a foregone conclusion.” Appellant’s
breath-test results did not go uncontested. Appellant’s defense counsel elicited
testimony from the DWI technician that during the 15-minute observation period
before the breath test, appellant was speaking clearly and coherently. The technician

13
expressly agreed that highly intoxicated people would not present mannerisms and
speech patterns like appellant did in the video. Defense counsel also elicited
testimony from the DPS supervisor regarding how she provided two sworn
statements concerning appellant’s breath test that were factually inconsistent and
stated different starting times for the “operational systems check”6 for appellant’s
test. The supervisor agreed with defense counsel that such tests are “highly
scientific”; she is “really concerned about how the machines are operated and the
timeliness”; and that “if anything is incorrect or erroneous, it would make the test
invalid.”

During closing arguments, defense counsel first submitted to the jury that the
breath-test results were inadmissible. In addition, however, he argued:

But I will submit to you, you saw how they were skewed. I asked the—
when she came in to testify, I said, okay, when was the test was taken?
The test was taken at midnight, 000. Well, why did you swear off this
other affidavit that said it was taken at 11:55? Makes the test erroneous.
That’s a reasonable doubt. The pieces of the puzzle, you remember the
State used a puzzle. They don’t fit, ladies and gentlemen. So that’s
reasonable doubt. . . . So there’s also this disconnect. Y’all heard him
talking to the officers and his speech wasn’t slurred. He was in tune
with time and place. He talked about how the store next to his store got
robbed and everything was clean and clear and that’s evidence that
there’s something wrong with this test. You don’t get a 19 or a 2-0 and
then have somebody evidence clear speech. That’s an undisputable
conflict. That’s reasonable doubt.

We also consider what was (or was not) before the jury regarding the 0.15
alcohol-concentration element of Class A misdemeanor DWI. See Tex. Penal Code
Ann. § 49.04(d). According to appellant, the State effectively abandoned the Class
A misdemeanor DWI offense during trial. Voir dire included no discussion of the

6
The supervisor explained that this check involves “testing temperatures, voltages, internal
standards.”

14
0.15 element. During appellant’s arraignment, the State did not read the portion of
the information alleging the 0.15 element. Although the DPS supervisor testified that
appellant’s breath-test results were “greater” than the 0.08 “legal limit of
intoxication,” no testimony highlighted or explained that a 0.15 alcohol
concentration is a requisite threshold reading for purposes of meeting the higher
level of Class A misdemeanor DWI offense. Nor did the State include in its closing
any discussion of the 0.15 element. When discussing the test results, the State argued
that appellant’s valid test results of 0.194 and 0.205 were “over double the legal
limit,” referring of course to the 0.08 alcohol-concentration level of regular Class B
misdemeanor DWI. See Tex. Penal Code Ann. §§ 49.01(2)(B), 49.04(a), (b). As
discussed above, the guilt/innocence charge did not instruct the jury regarding the
0.15 element or request a finding on the 0.15 element; the State acknowledges that
it instead treated the issue as a potential enhancement for the trial court to determine
at the punishment phase of the trial.

Finally, we consider appellant’s sentence. The record indicates that appellant
elected to have the trial court assess his punishment. The trial court erred by
sentencing appellant to one-year county-jail confinement, after considering the 0.15
element as an enhancement during the punishment phase, without allowing the jury
to consider the 0.15 element during the guilt/innocence phase of the trial. In other
words, based on the enhancement finding, the trial court applied a range of
punishment applicable to a Class A misdemeanor, instead of a Class B misdemeanor.
Compare id. §§ 12.22 (Class B misdemeanor punishable by fine not to exceed
$2,000, jail confinement not to exceed 180 days, or both), 49.04(a), (b) (Class B
misdemeanor DWI), with id. §§ 12.21 (Class A misdemeanor punishable by fine not
to exceed $4,000, jail confinement not to exceed one year, or both), 49.04(d) (Class
A misdemeanor DWI). Indeed, the trial court assessed the maximum jail

15
confinement for a Class A misdemeanor DWI.

Lacking knowledge beyond a reasonable doubt that the jury unanimously
found the intoxication element based on the per se theory, we cannot conclude that
the additional 0.15 element of Class A misdemeanor DWI was either inherent in the
elements the jury found or logically encompassed by its guilty verdict. See Niles,
555 S.W.3d at 572. Under these circumstances, we cannot conclude beyond a
reasonable doubt that the jury verdict would have been the same absent the
constitutional error. See Neder, 527 U.S. at 19; Niles, 555 S.W.3d at 572.

We sustain appellant’s third and fourth issues.

E. Remedy

Here, appellant was convicted of and sentenced under the punishment range
for a Class A misdemeanor DWI, but the jury was charged and returned a guilty
verdict based on the elements of a Class B misdemeanor DWI. See Tex. Penal Code
Ann. §§ 12.21, 12.22, 49.04(a), (b), (d). Appellant does not dispute that the State
proved the offense of DWI under subsection (a), a Class B misdemeanor. See id.
§ 49.04(a), (b); Ex parte Navarro, 523 S.W.3d 777, 780 (Tex. App.—Houston [14th
Dist.] 2017, pet. ref’d) (Class B misdemeanor is lesser-included offense of Class A
misdemeanor DWI); see also Britain v. State, 412 S.W.3d 518, 521 (Tex. Crim. App.
2013) (appellate court may render judgment of conviction for lesser-included
offense when there is proof beyond reasonable doubt of all elements of
lesser-included offense).

III. CONCLUSION

Accordingly, we reverse the trial court’s judgment in part as to the third and
fourth issues, affirm the judgment in part as to the first and second issues, render
judgment that appellant is convicted of Class B misdemeanor DWI instead of Class

16
A misdemeanor DWI, and remand the case for further proceedings limited to a new
punishment hearing.7 See Tex. R. App. P. 43.2(a), (c), (d).

/s/ Charles A. Spain
Justice

Panel consists of Justices Christopher, Spain, and Poissant.
Publish — Tex. R. App. P. 47.2(b).

7
Because we remand for the trial court to reassess punishment and resentence appellant in
accordance with the judgment as rendered by this court, we need not reach appellant’s fifth issue,
which concerns whether the trial court failed to follow certain articles in chapter 42 of the Code of
Criminal Procedure in conjunction with appellant’s sentencing. See Tex. R. App. P. 47.1.

17