Antonetti Jesse Galvan v. The State of Texas--Appeal from County Criminal Court at Law No 6 of Harris County

No. 04-98-00313-CR
Antonetti Jesse GALVAN,
Appellant
v.
The STATE of Texas,
Appellee
From County Court at Law No. 6, Harris County, Texas(1)
Trial Court No. 97-48881
Honorable Jim Larkin, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 18, 1998

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

The trial court found Antonetti Galvan guilty of driving while intoxicated (DWI) and assessed punishment at one year in jail, probated for two years, plus a $500 fine. On appeal, Galvan complains about the sufficiency of the evidence and the trial court's denial of his motion to suppress. Because we find no merit in Galvan's complaints, we affirm his conviction. However, because Galvan's punishment exceeds the legal maximum, we reverse his sentence and remand the cause for a new punishment hearing.

Background

Officer Calabro testified he saw a black Suburban and a blue Mercedes Benz drive at a high rate of speed, spin their wheels, and cross into the oncoming lane of traffic while making a turn. He followed the vehicles into an apartment complex, where the driver of the Suburban, Galvan, got into the passenger seat of the Mercedes. At that time, Officer Calabro thought he was witnessing a narcotics transaction. The Mercedes then left the apartment complex, but it was stopped two blocks later by the police.

Officer Calabro said Galvan swayed and smelled of alcohol. Galvan failed the field sobriety tests, and he was arrested. He refused to provide a breath sample.

Galvan testified in his own defense, indicating he drank three beers at a nightclub over a three-hour period. He also ate a steak. He admitted driving a Suburban, but he denied spinning its wheels.

Motion to Suppress

In his third point of error, Galvan asserts the trial court erred in denying his motion to suppress because there was no reason to stop the Mercedes. We disagree.(2)

To determine the propriety of a temporary detention, the trial court evaluates whether the detaining officer had specific, articulable facts from which to conclude the person detained was or would be engaged in criminal activity. See Woods v. State, 956 S.W.2d 33, 39 (Tex. Crim. App. 1997). We review the trial court's decision with the abuse of discretion standard, affording "almost total deference" to questions of credibility and demeanor.Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In this case, Officer Calabro testified he saw both the Suburban and the Mercedes engage in minor traffic violations--speeding and spinning their wheels. These facts were sufficient to support the temporary detention, without the additional activity that led Officer Calabro to suspect a drug transaction. See Goodwin v. State, 799 S.W.2d 719, 726 (Tex. Crim. App. 1990); State v. McCall, 929 S.W.2d 601, 603 (Tex. App.--San Antonio 1996, no pet.). Thus, the trial court did not abuse its discretion in denying Galvan's motion to suppress. Accordingly, we overrule Galvan's third point of error.

Sufficiency of the Evidence

In his first and second points of error, Galvan contends the evidence was legally and factually insufficient to prove he was intoxicated at the time he was driving. In rebuttal, the State contends that appellant's demeanor shortly after driving suggests he had driven without the normal use of his mental and physical facilities. We agree with the State.(3)

When reviewing legal sufficiency of the evidence, we examine the entire body of evidence in the light most favorable to the judgment and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.(4) Jackson v. Virginia, 443 U.S. 307, 319 (1979). When reviewing factual sufficiency of the evidence, we examine all the evidence, without deference to the prosecution, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

Here, the arresting officers described Galvan as physically and mentally impaired a short time after driving his vehicle. When we examine all the evidence, we hold it is both legally and factually sufficient to support Galvan's conviction. See Lopez v. State, 936 S.W.2d 332, 335 (Tex. App.--San Antonio 1996, no pet.). Accordingly, we overrule his first and second points of error.

Galvan's Sentence

Galvan was charged with a Class B misdemeanor, punishable by confinement in jail up to 180 days and a fine up to $2,000. Tex. Penal Code Ann. 49.04(b) (Vernon 1994); id. 12.22. Galvan was sentenced, however, to one year in jail, probated for two years, plus a $500 fine. As the State acknowledges, the jail sentence exceeds the statutory limit. This error cannot be waived, and the proper remedy is to reverse the sentence and remand the cause for sentencing within the proper range. See Ex parte Sims, 868 S.W.2d 803, 804 (Tex. Crim. App. 1993); Releford v. State, 683 S.W.2d 385, 387 (Tex. Crim. App. 1984); State v. Rowan, 927 S.W.2d 116, (Tex. App.--Houston [1st Dist.] 1996, no pet.).

Conclusion

We affirm the trial court's judgment of conviction but reverse its sentence. We remand the cause for a new punishment hearing.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. This appeal was transferred from the Fourteenth Court of Appeals by order of the Texas Supreme Court. The applicable law is the same in both appellate districts.

2. Galvan also argues there was no probable cause to support the stop. Probable cause is relevant only to arrests. See Francis v. State, 896 S.W.2d 406, 409 (Tex. App.--Houston [1st Dist.] 1995) (distinguishing stops from arrests), pet. dism'd, 922 S.W.2d 176 (Tex. Crim. App. 1996).

3. Galvan was charged with intoxication by means of mental or physical impairment. See Tex. Penal Code Ann. 49.01(2) (Vernon 1994) (defining "intoxication" as "having an alcohol concentration of 0.10 or more" or mental/physical impairment). As evidence he was not intoxicated, Galvan asserts there was no alcohol found in his Suburban and no evidence as to when he consumed alcohol. Whether alcohol was found in the Suburban is irrelevant, especially in light of Galvan's own testimony that he had consumed three beers before driving.

4. To support a conviction for driving while intoxicated, the evidence must show that the appellant drove a motor vehicle while intoxicated in a public place. Tex. Penal Code Ann. 49.04 (Vernon 1994).

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