John Robert Cano v. The State of Texas--Appeal from County Court at Law No 1 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-94-197-CR

JOHN ROBERT CANO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

Brazos County, Texas

Trial Court # 967-92

O P I N I O N

John Robert Cano was charged with the misdemeanor offense of driving while intoxicated (DWI). See Tex. Penal Code Ann. 49.04 (Vernon 1994). // The offense occurred on February 1, 1992, when Cano was eighteen-years old. On March 22, 1994, a jury found Cano guilty. The court assessed punishment at 180 days, probated for one year, and a $200 fine. Cano was twenty-one-years old at the time of trial.

Cano appeals on three points. In his first point, he alleges that the court erred in failing to grant a directed verdict. In his second and third points, he complains of the suspension of his driver's license. We will affirm the judgment.

In his first point, Cano complains that the court erred in refusing to grant a directed verdict because the State failed to prove an essential element of the offense. A person commits the offense of DWI if the person is intoxicated while driving or operating a motor vehicle in a public place. See id. Cano argues that the State failed to adduce competent evidence of the "motor vehicle" element.

Morgan Harkrider, an officer with the Texas A&M University police department, testified that at approximately 1 a.m. on February 1, 1992, she observed a vehicle travelling without headlights. Harkrider followed the vehicle which was weaving between lanes and exceeding the speed limit. She stopped the vehicle, which she described as a maroon Ford Explorer, and asked Cano, the driver, to exit the vehicle and perform sobriety tests. Harkrider's patrol car was equipped with a mobile video system. Once Cano's vehicle was stopped, she videotaped the incident. The videotape was played before the jury. Harkrider testified that she also administered sobriety tests to the passenger and determined that the passenger was not too impaired to operate the "motor vehicle."

Contrary to Cano's brief, Harkrider did specifically refer to Cano's vehicle as a motor vehicle. We overrule point one.

In his third point, Cano asserts that the court "incorrectly applied the provisions of Vernon's Ann. Texas Civ. St. art. 6687b and improperly revoked [his] driver's license during a period of probation."

Article 6687b, section 24(a-1), provides in part:

The license of any person who was younger than 21 years of age at the time of the offense, other than a misdemeanor punishable by fine only, shall be automatically suspended on conviction of:

(1) an offense under Article 6701l-1, Revised Statutes, committed as a result of introduction of alcohol into the body.

Tex. Rev. Civ. Stat. Ann. art. 6687b, 24(a-1) (Vernon Supp. 1995).

Cano asserts in his brief that, initially, the court did not suspend his license at the time punishment was assessed. The Brazos County probation department determined that a driver's license suspension was mandatory because Cano was under the age of twenty-one at the time of the offense and the court then modified its original sentence and imposed a driver's license suspension. The State responds that the court did not order the suspension of Cano's license suspension is a ministerial act performed by the Texas Department of Public Safety.

Article 6687b, section 24(a-1), is self-operative the license is automatically suspended upon conviction. Stoker v. State, 886 S.W.2d 443, 444 (Tex. App. Eastland 1994, no pet.) The suspension is not within the discretion of the court. Id.; Lugo v. Tagle, 783 S.W.2d 815, 816 (Tex. App. Corpus Christi 1990, orig. proceeding). We find no order of the trial court suspending Cano's license. // Thus, we find no evidence that the court "incorrectly applied" the provisions of the statute. We overrule point three.

In his second point, Cano asserts that article 6687b is unconstitutional because it allows suspension of a defendant's driver's license based on his age. As part of Cano's probated sentence, he was required to "attend and complete an alcohol education program." He argues that, if he had been twenty-one or older at the time of the offense, his license would not have been suspended during the period of probation.

Section 24(g)(1) of article 6687b prevents the DPS from revoking a person's driver's license during the period of probation if the person has been ordered to attend and successfully complete an educational program designed to rehabilitate persons who have driven while intoxicated. Tex. Rev. Civ. Stat. Ann. art. 6687b, 24(g)(1) (Vernon Supp. 1995). However, section 24(g)(1) specifically states that section 24(j) is an exception. Section 24(j) states in part:

The Department shall suspend the license of a person who is younger than 21 years of age and is convicted of an offense under . . . Article 6701l-1, Revised Statutes, regardless of whether the person is required to attend an educational program designed to rehabilitate persons who have driven while intoxicated . . . .

Id. 24(j) (Vernon Supp. 1995).

A legislative classification based on age is constitutionally permissible if it is reasonable, not arbitrary, and rests upon some difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced are treated alike. Texas Women's Univ. v. Chayklintaste, 530 S.W.2d 927, 928 (Tex. 1975). When no suspect categories are involved, any rational basis may justify the classification. Id. A strong presumption exists that a valid legislative enactment is constitutional. Vinson v. Burgess, 773 S.W.2d 263, 266 (Tex. 1989). The burden to prove otherwise is on the party attacking the constitutionality of the enactment. Texas Pub. Bldg. Auth. v. Mattox, 686 S.W.2d 924, 927 (Tex. 1985).

An eighteen-year-old can marry, vote, and contract. An eighteen-year-old, however, cannot, except in limited circumstances, legally purchase, consume, or possess alcoholic beverages. Tex. Alco. Bev. Code Ann. 106.02, 106.04, 106.05 (Vernon 1995). The "drinking age" has slowly been restored from eighteen to twenty-one. See Boyd v. Fuel Distrib., Inc., 795 S.W.2d 266, 275 (Tex. App. Austin 1990, writ denied). Raising the age to twenty-one was done by the Legislature for the express purpose of avoiding a cut-off of federal highway maintenance funds. Id.

On the night of the offense, Cano was eighteen-years old. He and his roommate, also eighteen, had shared a six-pack of beer and then gone to a pool hall and shared a pitcher of beer. Neither was old enough to have legally purchased, consumed, or possessed the beer. Cano was stopped by Officer Harkrider on his way home from the pool hall.

The Legislature has seen fit to raise the drinking age to twenty one. Likewise, the Legislature has specifically stated that underage drunk drivers will automatically lose their driver's licenses. We believe that the age classification in article 6687b, section 24, is reasonable, not arbitrary, and rests upon some difference having a fair and substantial relation to the object of the legislation keeping underage drunk drivers off the road so that all persons similarly circumstanced are treated alike. See Texas Women's Univ., 530 S.W.2d at 928. Cano fails to show that the age classification is constitutionally impermissible. We overrule point two and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 26, 1995

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