WESLEY RAY ROGERS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed; Opinion Filed August 30, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00567-CR
...........................
WESLEY RAY ROGERS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-81315-04        
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OPINION
Before Justices Whittington, Francis, and Lang
Opinion By Justice Francis
        A jury convicted Wesley Ray Rogers of felony driving while intoxicated, and, after finding two enhancement paragraphs true, assessed punishment at ninety-nine years in prison. In six issues, appellant contests the validity of the prior DWI convictions used to elevate the offense to a felony, the application of the elevating and enhancing prior DWI convictions, and argues the trial court erred in denying his motion to suppress, failing to submit an article 38.23 instruction to the jury, and in allowing the indictment to be amended. Finding no error, we affirm.
        Plano Police Officer Roger Smith first observed appellant's blue Ford Bronco weaving within the inside lane of the northbound service road of U.S. Highway 75 between Plano Parkway and East 15th Street. Smith followed appellant for three or four hundred yards. Smith continued to watch as appellant failed to signal a lane change and then weaved in and out of the lane of traffic. When appellant reached the 15th Street intersection, he crossed over the stop line before stopping. He then turned into the third lane over on 15th Street instead of the inside lane. Having already witnessed three traffic violations, Smith activated his overhead lights and in-car camera and followed appellant east on East 15th Street. Appellant made a u-turn and stopped on a side street.
        When Smith approached the vehicle, he noticed appellant was “frothing at the mouth.” Appellant explained that the froth was toothpaste and that he had been brushing his teeth as he drove. Smith immediately noticed the odor of alcoholic beverage coming from the vehicle and saw empty beer cans inside. Appellant told Smith he had “maybe one beer” to drink, later told the officer he had three or four beers, then finally settled on the one beer. Appellant had no trouble getting out of the truck and was cooperative. Smith described appellant's demeanor as “very afraid.” Smith asked appellant to perform three field sobriety tests--the horizontal gaze nystagmus, the walk- and-turn, and the one-leg stand. Smith testified he failed all three. Appellant's speech was slightly slurred and thick-tongued and his eyes were dilated. Smith then arrested appellant for DWI. Inside appellant's car, Smith found two empty beer cans, one half-full can still cold to the touch, and an open eighteen-pack of beer behind the passenger seat. Appellant agreed to take a breath test and scored 0.159 and 0.160.
        Appellant was charged by indictment with driving while intoxicated. The indictment further alleged that prior to the commission of that offense, appellant had been convicted of felony DWI on July 13, 1994 and on October 4, 1994. Enhancement paragraphs in the indictment alleged that appellant was previously convicted of felony DWI on August 15, 1988 and October 1, 1986. After appellant's counsel filed a motion to quash the indictment, the State was granted leave to amend the indictment. The amended indictment alleged that prior to the commission of the new offense, appellant had been convicted of felony DWI in two separate cases on October 1, 1986; the enhancement paragraphs in the amended indictment were identical to those alleged in the original indictment. Subsequent motions to quash focused primarily on appellant's contention that the jurisdictional priors could not be used to elevate the new DWI offense to a felony because the law in effect at the time he pled guilty to the prior offenses did not allow convictions older than 10 years from the date of the new offense to be used to elevate a subsequent DWI to a felony. The trial court denied appellant's motions and allowed the October 1, 1986 convictions to be used to elevate the offense to a felony.
        In his first issue, appellant argues the two jurisdictional priors were too remote to be used to elevate his DWI offense to a felony and, absent proof of intervening convictions, he should have been convicted of a Class B misdemeanor. The State contends appellant failed to preserve error on his remoteness issue and even if preserved, the indictment was proper and appellant's sentence legal.
        Regarding preservation of error, while the remoteness issue was not the focal point of appellant's motions to quash the indictment, the argument was presented to the trial court and even addressed by the State. We will, therefore, consider the issue in this appeal.
        Under section 49.09(b)(2) of the penal code, the offense of DWI is a third-degree felony if the person has two previous DWI convictions. See Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon Supp. 2006). The 2001 statute in effect at the time of appellant's indictment and conviction restricted the use of those convictions for enhancing a later DWI offense from a misdemeanor to a felony. See Getts v. State, 155 S.W.3d 153, 155 (Tex. Crim. App. 2005). The statute provided that a conviction for an offense committed more than ten years before the instant offense could not be used for enhancement unless the person had also been convicted of another intoxication offense within ten years of his conviction or release from confinement, community supervision, or parole. See Act of May 25, 2001, 77th Leg., R.S., ch. 648, § 2, 2001 Tex. Gen. Laws 1213, 1214, repealed by Act of May 27, 2005, 79th Leg., R.S., ch. 996, § 3, 2005 Tex. Gen. Laws 3363, 3364 (formerly codified at Tex. Pen. Code Ann. § 49.09(e) (Vernon 2006)); Getts, 155 S.W.3d at 155-157.
        The DWI in this case occurred on May 18, 2004. Both jurisdictional priors alleged in the indictment in this case have the same date of conviction, October 1, 1986. The convictions occurred in Dallas County as a result of negotiated pleas of guilty; appellant was sentenced in each case, on the same day, to two-and-a-half years in prison. Appellant argues that because “both of appellant's October 1, 1986 convictions occurred more than ten years before he committed the charged offense on May 18, 2004,” under “the express language of the statute as amended September 1, 2001, both of appellant's 1986 convictions are too remote to be used to elevate the charged DWI offense to a felony.” He further contends that because the convictions occurred on the same day, one conviction cannot be used to revive the other.
        While appellant correctly argues that because the prior offenses were committed more than ten years before the instant offense, they were not available for enhancement, he erroneously contends the offenses cannot revive each other. The question of whether a prior DWI conviction can be used for enhancement depends upon whether the defendant was convicted of another DWI within ten years of the prior conviction or, in this case, prison release date. See Getts, 155 S.W.3d at 155-157. Because appellant's prior convictions occurred within ten years of one another, and because his prison release date on each offense occurred no later than two and one-half years after the other conviction,   See Footnote 1  under the plain meaning of section 49.09(e), appellant was convicted of an offense related to operating a motor vehicle while intoxicated within 10 years of having been convicted of the DWI offense sought to be used for enhancement. While his conviction under section (e)(3) occurred on the same day as the conviction sought to be used for the purposes of enhancement, applying the law to the prior convictions individually, renders both properly used for enhancement under the analysis provided by Getts. See id. at 156; see also State v. Celaya, 205 S.W.3d 736, 737-39 (Tex. App.-Amarillo, no pet.) (concluding State could not elevate 2005 DWI offense using conviction in which defendant was discharged from probation on July 20, 1992 because the enhancing conviction was not within ten years of April 29, 1982 conviction). But see Howard v. State, 137 S.W.3d 282, 288 (Tex. App.-Fort Worth 2004, pet. ref'd) (describing 49.09(e) as requiring court to “look forward” ten years).
         We conclude the 1986 convictions were not too remote for the purposes of enhancement and no error resulted from the trial court's denial of appellant's motion to quash the enhancement paragraphs. Therefore, we overrule appellant's first issue.
        In his second issue, appellant contends his sentence was unauthorized because the convictions used to enhance his punishment could not be used for that purpose. Appellant further contends that the other convictions the State proved during the punishment hearing were similarly unavailable for enhancement and his bail jumping conviction was void. The State denies the prior felony DWIs could not be used for enhancement and contends appellant did not prove his prior conviction for bail jumping was void.
        The indictment included three enhancement paragraphs. In “Count A,” the State alleged appellant was convicted of felony DWI in Dallas County on August 15, 1988 in cause no. F88- 82841-QK. In “Count B,” the State alleged he was convicted in Dallas County on June 29, 1994 of felony DWI in cause no. F91-34261-KT. “Count C” restated the Count A and Count B allegations together.
        In addition to the enhancement paragraphs, the State's punishment evidence included pen packets showing appellant had numerous other felony DWI convictions and convictions for aggravated assault and bail jumping.
        Appellant's felony DWI convictions arose prior to September 1, 1995 during a period when felony DWI convictions could not be used to enhance a subsequent DWI conviction. See Phillips v. State, 992 S.W.2d 491, 493 (Tex. Crim. App. 1999)(en banc) (explaining application of prior statute). The addition of section 49.09(f) to the penal code, effective September 1, 1995, allowed the State to begin using felony DWI convictions to enhance punishment for new DWI offenses. See id.; Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 21, 1995 Tex. Gen. Laws 2734, 2743, repealed by Act of May 27, 2005, 79th Leg., R.S., ch. 996, § 3, 2005 Tex. Gen. Laws 3363, 3364 (formerly codified at Tex. Pen. Code Ann. § 49.09(f) (Vernon 2006)) .
        Appellant now contends that because his DWI convictions arose from plea bargains and a plea bargain is a contractual agreement, the plea bargains necessarily included application of the then existing law into the agreement. Without citing any relevant authority, appellant asserts the prior law restricting the use of DWI convictions for enhancement purposes was part of his plea bargain agreements. Thus, appellant surmises, the prior convictions are unavailable to serve as enhancements in the present case.
        In addition to pointing out the lack of authority for appellant's novel argument, the State also responds that the applicable law to consider in determining whether appellant's present offense may be enhanced is the current law and nothing in the prior plea bargain agreeements shows that the application of the convictions to future cases was part of the parties' plea bargains. We agree with the State's latter argument.
        A plea bargain agreement is contractual in nature and its terms are left to the parties' agreement. See Ex parte Williams, 758 S.W.2d 785, 786 (Tex. Crim. App. 1988) (en banc). The document reflects the terms of the agreement, and neither party may enforce specific performance of terms not appearing in the document or the record. Id. Our record does not include the plea bargain agreements appellant entered nor the records from the earlier convictions. Appellant has not shown that his plea bargain agreements included any restrictions on the future use of his convictions for enhancing subsequent DWI offenses nor that such restrictions would be enforceable in the current proceeding. During oral argument, appellant stated that he was not contending the restrictions he advocates are expressly reflected in the plea bargain agreements. Thus, appellant has not shown error. See Ex parte Moussazadeh, 64 S.W.3d 404, 410-14 (Tex. Crim. App. 2001) (rejecting contention that applicant's negotiated guilty plea was involuntary on ground plea agreement implicitly incorporated mistaken understanding of recently revised parole law where applicant did not show parole eligibility was term of plea bargain); see also Uriega v. State, 136 S.W.3d 258, 259-60 (Tex. App.-San Antonio 2004, pet. ref'd) (stating there is “no question” that 2001 amendment to section 49.09(e) applied in determining whether prior convictions may be used to elevate 2002 DWI offense to felony).
        Appellant also contends under his second issue that his 1994 bail jumping conviction in Hunt County, introduced into evidence during the punishment phase, is void because excessive punishment was assessed after the offense was enhanced improperly with pre-1995 felony DWI offenses and an aggravated assault conviction that was not a final conviction.
        We need not decide the merits of appellant's complaint about the bail jumping case. The State did not use the bail jumping conviction to enhance the present offense and, as we have already determined, there was no error regarding the enhancements the State did use. Thus, in reviewing the propriety of the enhancements, it is immaterial whether the bail jumping conviction is void. We overrule appellant's second issue.         In his third issue, appellant contends his punishment is unauthorized and the sentence void because his 1986 felony DWI convictions are no longer final convictions. Before trial, appellant filed documents to withdraw his guilty pleas in the 1986 cases in the convicting trial court. Appellant asserted that by using the 1986 convictions to elevate his current offense to a felony, the State breached its plea bargain agreements with him, thus justifying his unilateral decision to withdraw from the agreements. Because he has withdrawn his pleas, appellant concludes, the 1986 cases are no longer final convictions, and there is no basis for convicting him in the current case of anything more than a misdemeanor.
        A defendant may withdraw his guilty plea at any time before the trial court takes the case under advisement or pronounces judgment. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979). However, once the defendant has entered an open guilty plea and judgment has been pronounced or the case has been taken under advisement, the defendant may not withdraw his plea without first securing the trial court's permission. Id. In this case, the trial court no longer has jurisdiction to give such permission. See Ex parte Hoang, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993) (en banc) (concluding only court of criminal appeals has power to release individuals after final conviction).
        There are situations in which a guilty plea may be withdrawn following a defendant's conviction. See, e.g., Ex parte Rich, 194 S.W.3d 508, 514 (Tex. Crim. App. 2006) (allowing imprisoned defendant to withdraw negotiated guilty plea during habeas proceeding upon discovery that sentence negotiated exceeded statutory punishment range). The present case, however, does not fit within one of these rare exceptions. See Brunelle v. State, 113 S.W.3d 788, 790 (Tex. App.-Tyler 2003, no pet.) (concluding only court of criminal appeals may set aside breached plea agreements).         Because appellant's effort to withdraw his pleas two decades after his convictions is untimely and the trial court has no jurisdiction to consider his request, appellant's purported withdrawal of his guilty pleas was without legal effect. Accordingly, we overrule appellant's third issue.
        In his fourth issue, appellant contends the trial court erred in denying his motion to suppress evidence brought on the ground Officer Smith lacked probable cause to arrest him because Smith improperly administered the field sobriety tests. On cross-examination, Smith testified that he had only reasonable suspicion to detain appellant until he performed the standardized field sobriety tests on appellant. Appellant contends Smith's determination of his probable cause to arrest appellant was based solely upon his administration of the field sobriety tests. Appellant points out that Smith admitted that the one-legged stand test he administered to appellant would be invalid if appellant performed the test while standing on an injured leg. Smith admitted that appellant informed him that his right leg was bad but Smith asked him to raise his good leg while performing the test. Smith further agreed with appellant's counsel that the standard for evaluating maximum deviation on the horizontal gaze nystagmus test required a minimum of four seconds' observation. Appellant asserted Smith used less than four seconds to conduct his evaluation. Appellant further contends Smith counted an excessive number of clues on the walk-and-turn test. Because the field sobriety testing was not conducted properly, appellant concludes, his arrest was unlawful, and all subsequent evidence should have been suppressed.
        In reviewing the trial court's ruling on a motion to suppress, we give great deference to the trial court's determination of historical facts while reviewing de novo the trial court's application of search and seizure law to those historical facts. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006).
        An officer may conduct a warrantless arrest if a suspect commits an offense within the officer's presence or view. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). An officer has probable cause to arrest a suspect when facts and circumstances within his knowledge or about which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense was or is being committed. Torres, 182 S.W.3d at 901-02. We examine the totality of the circumstances in determining whether probable cause exists. Id. at 902. We scrutinize the objective facts existing at the time of the arrest rather than the arresting officer's subjective conclusions. Amores v. State, 816 S.W.2d 407, 415 (Tex. Crim. App. 1991). We are searching for evidence creating more than a mere suspicion, but less evidence than would be required to convict the arrested person at trial. See Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000).
        Assuming, without deciding, that Smith did not perform the field tests properly, we conclude Smith had probable cause to arrest appellant because of the other common signs of intoxication appellant exhibited. Smith observed appellant weaving within his own traffic lane and committing three traffic infractions within the space of four hundred yards. After Smith pulled appellant over, he discovered empty beer cans on the floor of the truck. Both appellant and the truck exuded the odor of alcohol. Appellant's effort to cover his alcohol odor with toothpaste, admission that he had been drinking, and changing answers regarding how many beers he had consumed further manifests that he was driving while intoxicated. From the objective facts presented, a person of reasonable caution, even without evidence of the field sobriety testing, would be warranted in concluding that appellant was driving while intoxicated. See Learning v. State, 227 S.W.3d 245 (Tex. App.-San Antonio 2007, no pet.) (concluding officer had probable cause to arrest driver who veered into adjacent traffic lane four times, exuded strong odor of alcohol, and admitted he had been drinking); see also Dyar v. State, 125 S.W.3d 460, 464 (Tex. Crim. App. 2003) (upholding warrantless arrest for driving while intoxicated where accused was involved in single-car accident, accused exhibited slurred speech, red glassy eyes, a strong alcohol odor, and gave unintelligible answers, and accused admitted to officer that he had been drinking and driving). We overrule appellant's fourth issue.
        In his fifth issue, appellant contends the trial court erred in denying his request for a jury instruction to disregard evidence the jury believes was obtained in violation of law. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). Article 38.23 provides that evidence obtained in violation of the Constitution or laws of either the State of Texas or the United States of America is inadmissible. Id. In the event the evidence raises a fact issue regarding whether evidence was obtained illegally, the trial court must instruct the jury to disregard any such evidence “if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article.” Id.
        Building upon his contention in his fourth issue, appellant contends there is a fact issue regarding Smith's improper field sobriety testing and, because the field sobriety test results were necessary to establish probable cause, he contends the intoxilyzer results would be inadmissible. The State responds that there was no factual dispute to submit to the jury. We agree with the State.
        The trial court must include the article 38.23 instruction in the jury charge only if appellant raises a factual dispute regarding how evidence was obtained. Balentine v. State, 71 S.W.3d 763, 773 (Tex. Crim. App. 2002). In the absence of conflicting testimony or evidence, the trial court does not err in omitting the instruction. See Lackey v. State, 638 S.W.2d 439, 454 (Tex. Crim. App. 1982).
        As we have already determined in connection with appellant's fourth issue, other undisputed evidence provided Smith with probable cause to arrest appellant. Thus, the intoxilyzer results were not obtained in violation of law requiring probable cause as appellant alleges.
        Moreover, even if we view the sobriety field testing in isolation, there is no factual dispute raised in the evidence. Appellant did not put on any evidence. Smith admitted during cross examination that his one-legged test would be invalid if appellant performed it on his bad leg as counsel suggested. Smith further admitted that the standard for evaluating maximum deviation on the HGN test required a minimum four-second evaluation. The jury was required only to view the videotape and observe whether Smith met the criteria both parties agreed would determine whether his tests were valid. Thus, there is no factual dispute for the jury to resolve. See McRae v. State, 152 S.W.3d 739, 747-48 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (concluding no article 38.23 instruction necessary where officer admitted mistakes in administering sobriety tests thus rendering probable cause determination as legal question for trial court). Because the field sobriety testing was not necessary to establish probable cause and there was no factual dispute regarding performance of the tests, we conclude the trial court did not err in denying appellant's request for an article 38.23(a) instruction. See id. We overrule appellant's fifth issue.
        In his sixth issue, appellant contends the State's amended indictment prejudiced his substantial rights because it was not screened by the grand jury. To elevate appellant's offense to a felony, the original indictment charged appellant was convicted of felony DWI on July 13, 1994 in Dallas County in cause no. F91-34261-KT and on October 4, 1994 in Hunt County in cause no. 17,594. After appellant filed a motion to quash the indictment alleging technical problems with the Hunt County conviction, the State prepared an amended indictment, naming two other predicate felony DWI convictions. When the State moved to amend the indictment, appellant objected, claiming the amendment would have to be rescreened by the grand jury. The trial court granted the State's motion on October 27, 2005.
        Appellant contends the prior convictions, as elements of the offense, must be screened by the grand jury. Appellant cites no specific authority for his contention. Appellant does, however, cite article 28.10(c) of the code of criminal procedure for the proposition that the indictment cannot be amended over his objection if the amended indictment alleges an additional or different offense or if the amendment prejudices the defendant's substantial rights. Citing Sodipo v. State, 815 S.W.2d 551, 555 (Tex. Crim. App. 1990) (en banc)(op. on reh'g), appellant contends the amended indictment in this case affects the substance of the indictment and is not valid.
        After notice to the defendant, the State may amend an indictment as to substance or form at any time before trial. See Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 2006). An indictment may not be amended over the defendant's objection as to form or substance if the amendment would charge the defendant with an additional or different offense or if it would prejudice his substantial rights. See id. at 28.10(c).
        An amended indictment charges a different offense if it charges a different statutory offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991) (per curiam). Changing an element of the offense, the proof, or the complainant does not change the statutory offense. Id.; Nichols v. State, 52 S.W.3d 501, 502 (Tex. App.-Dallas 2001, no pet.). In this case, appellant was charged with committing felony DWI on a certain date in Collin County. The amendment to the indictment does not change the statutory offense committed. Therefore, we conclude the amendment does not charge a different or additional offense. See Flowers, 815 S.W.2d at 728.
        Although appellant contends the amendment affected his substantial rights, he does not explain how he was prejudiced. In Sodipo, the State sought to amend the indictment on the day of trial to change the number of an enhancement paragraph conviction. See Sodipo, 815 S.W.2d at 555. In the present case, the State moved to amend the indictment on October 5, 2005. Trial did not commence until February 6, 2006. Therefore, appellant, unlike the defendant in Sodipo, had ample notice of the amendment. Appellant has a constitutional right to be indicted by a grand jury which assesses whether probable cause exists that he committed the charged offense. See Tex. Const. Art. I, § 10; Duron v. State, 956 S.W.2d 547, 550 (Tex. Crim. App.1997). Appellant cites no authority holding that he is entitled to another grand jury screening when the State amends the indictment and the amendment does not otherwise run afoul of the requirements of article 28.10(c). We conclude appellant has not shown error. We overrule appellant's sixth issue.
 
 
We affirm the trial court's judgment.
 
 
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
MOLLY FRANCIS
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
 
Do Not Publish
Tex. R. App. P. 47
060657f.u05
 
 
Footnote 1 During oral argument, appellant suggested the latest date for a Getts analysis would be April 1, 1989.