Fowler, Rustin Lee v. The State of Texas--Appeal from County Court at Law No 2 of Collin County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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RUSTIN LEE FOWLER, ) No. 08-01-00408-CR

)

Appellant, ) Appeal from

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v. ) County Court at Law No. 2

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THE STATE OF TEXAS, ) of Collin County, Texas

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Appellee. ) (TC# 002-86207-00)

O P I N I O N

Rustin Lee Fowler appeals from his conviction for the offense of driving while license suspended. Following a bench trial, the court found Appellant guilty and assessed his punishment at a fine of $300 and confinement in the county jail for ninety days. We affirm.

FACTUAL SUMMARY

On October 6, 2000 at approximately 9:30 p.m., Officer James Forsythe of the Plano Police Department observed Appellant commit a traffic offense by failing to signal a lane change. Forsythe stopped the vehicle and soon discovered that Appellant=s driver=s license had been suspended from May 17, 2000 through November 12, 2000 as the result of his conviction for a drug offense in Williamson County. Additionally, Appellant=s license had been suspended from May 22, 2000 through May 21, 2001 as the result of a driving while intoxicated conviction and conviction for a Controlled Substance Act offense, both out of Dallas County.[1] All three of these offenses were committed when Appellant was younger than twenty-one years of age. Appellant did not inform Forsythe that he had an occupational driver=s license and the officers did not find such a license in the vehicle. Forsythe placed Appellant under arrest and secured him in the patrol car. Another officer, Mark Speaker, conducted a search incident to arrest and found a baggie of marihuana hidden inside of a cup. The cup, which contained saliva and tobacco juice, was inside of a cupholder in the center console of the vehicle and within Appellant=s reach. A smaller cup had been placed inside of the first cup in an effort to conceal the marihuana. After seizing the evidence, the officers, at Appellant=s request, released the vehicle to the lone passenger in Appellant=s vehicle.

The State charged Appellant with driving while license suspended and possession of marihuana. At trial, the evidence showed that the county court of Denton County signed a written order on September 28, 2000, granting Appellant an occupational driver=s license. The order restricted Appellant to operating his motor vehicle between his residence in Carrollton and his place of employment in Dallas, a community college in Plano, and AA meetings. Typical of an occupational license, the order required Appellant to take the most direct route to each of these locations and he was allowed to drive no more than four hours per day. The county court also ordered Appellant to have an interlock device placed on his vehicle immediately and prohibited him from operating any motor vehicle without such a device. The occupational license is also subject to the requirement that Appellant maintain a logbook documenting the date, time, destination location, mileage, and purpose of each trip. It is undisputed that Appellant did not have the interlock device on his vehicle nor had he kept the logbook as ordered by the court. The trial court found Appellant guilty of both driving while license suspended and possession of marihuana.[2]

LEGAL SUFFICIENCY

In his sole point of error, Appellant challenges the legal sufficiency of the evidence to support his conviction for driving while license suspended in violation of Section 521.342 of the Texas Transportation Code.[3] Appellant argues that since he had an occupational driver=s license, he may be prosecuted under Section 521.253 of the Transportation Code for failing to comply with the occupational driver=s license order, but the State cannot prosecute him under Section 521.347.

Standard of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

Occupational Driver=s License

Pursuant to Section 521.242 of the Transportation Code, a person whose license has been suspended may apply for an occupational license by following the procedures outlined in this section. Tex.Transp.Code Ann. ' 521.242 (Vernon Supp. 2002). The applicant must plead and prove essential need for the occupational license. Tex.Transp.Code Ann. '' 521.242, 521.244 (Vernon 1999 and Vernon Supp. 2002). Once it has been determined that essential need has been established and the other requirements for granting an occupational license have been met, the court must issue an order granting the occupational license. Tex.Transp.CodeAnn. ' 521.244. The order must specify the hours of the day and days of the week during which the person may operate a motor vehicle, the reasons for which the person may operate a motor vehicle, and the areas or routes of travel permitted. Tex.Transp.Code Ann. ' 521.248. The court may impose several additional restrictions. These include requiring attendance of a program designed to provide counseling and rehabilitation services for alcohol dependence, Tex.Transp.Code Ann. ' 521.245, and restricting the person to the operation of a motor vehicle equipped with an ignition interlock device. Tex.Transp.Code Ann. ' 521.246. Appellant=s occupational license contains both of these additional restrictions.

Elements of Driving While License Suspended

A person commits an offense if the person operates a motor vehicle on a highway during a period that the person=s driver=s license or privilege is suspended or revoked under Chapters 521, 524, and 724 of the Transportation Code, or Article 42.12 of the Code of Criminal Procedure. Tex.Transp.CodeAnn. ' 521.457(a)(2). The information alleged that Appellant committed an offense by driving while his license had been suspended pursuant to Sections 521.342, 521.372, 521.374, 601.341, and 601.056. The trial court found Appellant guilty at the conclusion of trial without specifying the particular sections violated, but in the judgment, the court indicated that it found Appellant guilty of driving while his license was suspended pursuant to Section 521.342 of the Texas Transportation Code. This section provides that:

(a) Except as provided by Section 521.344, the license of a person who was under 21 years of age at the time of the offense, other than an offense classified as a misdemeanor punishable by fine only, is automatically suspended on conviction of:

(1) an offense under Section 49.04 or 49.07, Penal Code, committed as a result of the introduction of alcohol into the body;

(2) an offense under the Alcoholic Beverage Code, other than an offense to which Section 106.071 of that code applies, involving the manufacture, delivery, possession, transportation, or use of an alcoholic beverage;

(3) a misdemeanor offense under Chapter 481, Health and Safety Code, for which Subchapter P does not require the automatic suspension of the license;

(4) an offense under Chapter 483, Health and Safety Code, involving the manufacture, delivery, possession, transportation, or use of a dangerous drug; or

(5) an offense under Chapter 484, Health and Safety Code, involving the manufacture, delivery, possession, transportation, or use of a volatile chemical.

Tex.Transp.Code Ann. ' 521.342(a).

Section 521.253 provides that a person who holds an occupational license commits an offense if the person operates a motor vehicle in violation of a restriction imposed on the license or fails to have in the person=s possession a certified copy of the court order as required under Section 521.250. Tex.Transp.Code Ann. ' 521.253(a).

Prosecution of Appellant Under Section 521.457

Appellant argues that since he had an occupational driver=s license, he may be prosecuted under Section 521.253 of the Transportation Code for failing to comply with the occupational driver=s license order, but the State cannot prosecute him under Section 521.457 for driving with license suspended. The Amarillo Court of Appeals addressed this same argument in a case involving similar facts. See Herald v. State, 67 S.W.3d 292 (Tex.App.--Amarillo 2001, no pet.). Herald=s license was suspended as the result of a drug offense but he subsequently obtained an occupational license. A police officer stopped Herald for speeding at 1 a.m. on a Saturday, a time not authorized by his occupational license for his operation of a motor vehicle. This offense was used by the State as a basis to revoke an order granting community supervision to Herald in another case. Herald argued that he could not be prosecuted for driving while license suspended since he had an occupational license, but could only be prosecuted for violating the conditions of his occupational license. The court of appeals determined that Section 521.457 does not preclude prosecution of a person with an occupational license where the regular license has been suspended and the person operated the vehicle outside of the restrictions imposed by the occupational license. Herald, 67 S.W.3d at 293. We agree with the court of appeals but add the following analysis.

The granting of an occupational license does not have the effect of reinstating a person=s regular license. An occupational license is a separate and restrictive license granted only in exceptional circumstances. In other words, it provides a limited exception to the suspension, but otherwise the suspension remains in effect. It follows that if a person operates a motor vehicle outside of the restrictions imposed in the occupational license, he may be prosecuted for driving while his license is suspended. It is undisputed that Appellant=s operation of the motor vehicle in this case was not authorized by his occupational license.[4] Therefore, the State proved beyond a reasonable doubt that Appellant drove while his license was suspended. We overrule Point of Error No. Three and affirm the judgment of the trial court.

July 25, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] Appellant=s license had also been suspended for other reasons not set in the opinion.

[2] Appellant was charged with possession of marihuana in cause number 002-86208-00. Appellant has also appealed that conviction which we have decided by separate unpublished opinion in Fowler v. State, No. 08-00-00409-CR (Tex.App.--El Paso, July 25, 2002, no pet. h.).

[3] The point of error addressed in this opinion is denominated by Appellant as Point of Error No. Three. Appellant filed a single brief which consists of points of error pertinent to the individual appeals. The other two points of error are irrelevant to this appeal and will not be addressed here.

[4] In its brief, the State questions the validity of the order granting Appellant=s occupational license signed by the Denton County Court on September 28, 2000 since Appellant=s driving record shows that an occupational license was issued on October 31, 2000. The trial court is required to send to the Department of Public Safety a certified copy of the petition and the court order granting the occupational license. Tex.Transp.Code Ann. ' 521.249(a). A person who has been granted an occupation license may use a copy of the written order as a restricted license until the thirty-first day after the date on which the order takes effect. Id. After DPS receives the copy, it issues an occupational license to the person. Tex.Transp.Code Ann. ' 521.249(b). The record reflects that the occupational license issued by DPS on October 31, 2000, is based upon the September 28, 2000 order.