Gordon Lee Mallett v. The State of Texas--Appeal from 115th District Court of Upshur County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00125-CR
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GORDON LEE MALLETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 12,949
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION

Gordon Lee Mallett appeals his conviction by a jury for driving while intoxicated (third offense), a third degree felony. See Tex. Pen. Code Ann. 49.04, 49.09(b)(2) (Vernon Supp. 2003). The jury assessed his punishment at four years' imprisonment.

On appeal, Mallett's attorney has filed an appellate brief in which he concludes that, after a review of the record and the related law, the appeal is frivolous and without merit. He has evaluated the record and has found no error that arguably supports an appeal. The brief thus meets the requirements of Anders v. California, 386 U.S. 738 (1967), and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Mallett did not file a response pro se.

In his Anders brief, Mallett's attorney raises the arguable issue that the evidence is factually insufficient, but concludes the issue is without merit. Deputy Sheriff Marty Massoletti testified he stopped Mallett after observing three times, over the course of several minutes, that Mallett failed to maintain a single lane of traffic while driving. When Massoletti activated his police warning lights, Mallett did not pull over immediately, prompting Massoletti to activate his siren. Mallett again did not immediately stop, traveling an additional mile or so.

As Massoletti approached Mallett's truck, he noticed a strong odor of alcohol coming from the driver's side. He requested Mallett's license, but Mallett handed him a blue credit card instead. He asked Mallett to get out of his truck and noticed Mallett "was very unsteady on his feet and also while walking to the back of the vehicle." Massoletti then administered several field sobriety tests, each of which he testified Mallett failed. He testified Mallett did not indicate he had any physical limitations that would impair his performance on the field sobriety tests.

Massoletti testified Mallett admitted he had "about a six pack" to drink that evening. Mallett also refused to submit to a breathalyzer test. A search incident to Mallett's arrest revealed a "24-pack" of beer. Fifteen of the twelve-ounce beer cans were full, but "[t]here were a couple empties" in the truck as well. Officer Rex Haynes, who was also at the scene, testified Mallett's passenger, who is Mallett's son-in-law, told him he and Mallett had been drinking beer the entire day.

The State also presented evidence Mallett had two previous convictions for driving while intoxicated, one in 1986 and the other in 1990. (1)

Mallett's evidence tended to contradict the State's evidence. Mallett and his son-in-law, who was with Mallett all day on the day Mallett was arrested, both testified Mallett did not drink anything that day. Mallett's son-in-law denied telling anyone Mallett had been drinking and testified it was he, not Mallett, who purchased the case of beer and drank the beer in the truck. Mallett, his wife, his son, and his son-in-law each testified Mallett had not drunk alcohol since 1997 because his doctors ordered him to stop after his heart attack and multiple by-pass surgery.

Mallett and his wife both testified regarding several impairments from which Mallett suffered in addition to his heart condition, including a deformed arm, severe leg problems, and deteriorated disks in his back. Mallett testified he had five surgeries on his legs and was taking medication that causes muscle pain and weakness in his legs, feet, and back.

Mallett admitted he did not immediately pull over when he saw Massoletti's warning lights, but testified he did not realize Massoletti was chasing him, believing instead that Massoletti was pursuing another motorist who was behind him and in front of Massoletti. He denied telling Massoletti he had consumed a six pack of beer. He blamed his inability to perform the field sobriety tests on his physical condition and testified he told Massoletti of his condition several times.

Mallett testified that he did not think he crossed the dividing lines in the road, but that he might have driven on the lines because he can only use one arm to steer. Mallett's son testified his father's truck had a serious problem in the steering column that made it hard to control.

Under a factual sufficiency analysis, we examine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Accordingly, we reverse the fact-finder's determination only to arrest the occurrence of a manifest injustice. Johnson, 23 S.W.3d at 12. Otherwise, we must give due deference to the fact-finder's determinations concerning the weight and credibility of the evidence. Id. at 9.

The State had to prove Mallett (1) was operating a motor vehicle, (2) in a public place, (3) while intoxicated, and (4) had been twice convicted of any other offense relating to the operating of a motor vehicle while intoxicated. Tex. Pen. Code Ann. 49.04, 49.09(b)(2). Intoxicated means not having the normal use of one's mental or physical faculties by reason of the introduction of alcohol or having alcohol concentration of 0.08 or more. Tex. Pen. Code Ann. 49.01(2) (Vernon Supp. 2003).

After reviewing the record, we conclude the evidence supports the jury's verdict. Mallett essentially disputed all of the testimony of the State's witnesses. As the finder of fact, the jury was the sole judge of the credibility and demeanor of the witnesses. The jury's decision to give greater weight to the State's witnesses does not present a manifest injustice that would require reversal of Mallett's conviction. We have also conducted our own review of the record and determined there are no other arguable issues for appeal.

We affirm the trial court's judgment.

 

Donald R. Ross

Justice

 

Date Submitted: February 3, 2003

Date Decided: February 4, 2003

 

Do Not Publish

 

1. The record shows Mallett's 1986 conviction was set aside when he successfully completed community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, 20 (Vernon Supp. 2003). However, it appears the trial court was without authority to set aside that conviction under the version of Article 42.12 then in effect (and under the present version) because the statute did not allow setting aside a conviction for DWI. See Act of May 27, 1983, 68th Leg., R.S., ch. 303, 1983 Tex. Gen. Laws 1568, 1592 (current version at Tex. Code Crim. Proc. Ann. art. 42.12, 20 (Vernon Supp. 2003)). One court has held a similar order was void. See Mahaffey v. State, 937 S.W.2d 51, 54-55 (Tex. App.-Houston [1st Dist.] 1996, no pet.). There are several unpublished opinions making the same holding.