Randall Allen Davis v. The State of Texas--Appeal from 368th District Court of Williamson County

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00145-CR
Randall Allen Davis, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 97-483-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

Appellant Randall Allen Davis appeals his conviction for driving or operating a motor vehicle while intoxicated, a second degree felony.

The indictment alleged the primary offense of operating while intoxicated a motor vehicle on July 26, 1996. See Tex. Penal Code Ann. 49.04 (West 1994 & Supp. 1999). Two prior driving while intoxicated convictions were alleged, thus charging a third-degree felony. See Tex. Penal Code Ann. 49.09(b) (West Supp. 1999). In addition, there were two "penalty paragraphs" alleging other felony driving while intoxicated convictions for the enhancement of punishment. See Act of May 29, 1995, 74th Leg., R.S., ch. 318, 1, 1995 Tex. Gen. Laws 2734, 2735 (Tex. Penal Code Ann. 12.42(d), since amended). Prior to trial, the State abandoned the second "penalty paragraph," leaving the allegation that appellant was a repeat felony offender. See Act of May 29, 1995, 74th Leg., R.S. ch. 318, 1, 1995 Tex. Gen. Laws 2734, 2735 (Tex. Penal Code Ann. 12.42(a)(3), since amended).

The jury found appellant guilty of a felony driving while intoxicated as alleged, and that appellant had used a deadly weapon, a motor vehicle, as alleged in the indictment. At the penalty stage of the trial, the jury found appellant had been previously convicted of a felony and assessed his punishment at 10 years' imprisonment and a fine of $500.

Points of Error

Appellant advances six points of error. In the first three points of error, appellant argues that the trial court erred in (1) admitting at the guilt-innocence stage of the trial evidence of the two prior DWI convictions in 1983 and 1990 alleged to enhance or elevate the primary offense to a third-degree felony, (2) allowing the prosecutor to read to the jury that portion of the indictment alleging these two prior convictions, and (3) allowing the prosecutor to mention or refer to, "prior to the punishment stage of the trial," these same DWI convictions. In points of error four and five, appellant claims the trial court abused its discretion in permitting the prosecutor to use the 1984 and 1986 DWI convictions to impeach appellant's credibility as a witness. In the last point of error, appellant challenges the legal sufficiency of the evidence to support the finding that he used his motor vehicle as a deadly weapon. Otherwise, appellant does not challenge the legal or factual sufficiency of the evidence to sustain the conviction.

The First Three Points of Error Consolidated

The two prior convictions used to elevate the primary DWI offense to a third-degree felony (1) were a misdemeanor DWI conviction in cause no. 63156 in the County Court at Law of Tom Green County on July 7, 1983, and a felony DWI conviction in cause no. 90-016-K277 in the 277th District Court of Williamson County on April 16, 1990. It is these two prior convictions alleged in the indictment that appellant contends should not have been read to the jury at the guilt-innocence stage of the trial, should not have been admitted into evidence at that stage of the trial, and should not have been mentioned or referred to by the prosecutor "prior to the punishment stage of the trial."

To preserve a complaint for appellate review, a party must have presented to the trial court a timely objection stating the specific grounds for the desired ruling, and a ruling must be obtained from the trial court or an additional objection on the failure of the court to rule must be made. See Tex. R. App. P. 33.1(a)(2). If the party fails to do this, error is not preserved and the complaint is waived. See Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996).

We do not find that appellant timely objected to preserve any complaint for appellate review of the first three points of error. Appellant directs us only to the overruling of his pretrial motion in limine. A motion in limine will not preserve error; a defendant must object at the time the subject matter is raised during trial. See Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985); see also Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988); Maynard v. State, 685 S.W.2d 60, 64 (Tex. Crim. App. 1985); 43 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure, 42.52 at 67 (Texas Practice 1995). Appellant has not preserved for review the first three points of error.

Moreover, in order to elevate the primary misdemeanor offense to a third-degree felony as provided by section 49.09(b) of the Penal Code, at least two prior DWI convictions must be alleged in the indictment because they are jurisdictional and not enhancement allegations only. See Maibauer v. State, 968 S.W.2d 502, 507 (Tex. App.--Waco 1998, pet. ref'd); Pope v. State, 802 S.W.2d 418, 421 (Tex. App.--Austin 1991, no pet.). (2)

Article 36.01(a)(1) of the Code of Criminal Procedure provides:

The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for the purpose of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as is provided in article 37.07.

Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (West Supp. 1999).

The reading of the indictment under article 36.01(a)(1) is mandatory. See Warren v. State, 693 S.W.2d 414, 415 (Tex. Crim. App. 1985). The jurisdictional allegations as in the instant indictment are required by article 36.01(a)(1) to be read to the jury to commence the guilt-innocence stage of a felony DWI trial. See Maibauer, 968 S.W.2d at 507. In the instant case, the State had the burden of proving the two prior DWI convictions as a part of its case in chief. See Hampton v. State, 977 S.W.2d 467, 469 (Tex. App.--Texarkana 1998, pet. ref'd). Further, the prior convictions when proved had to be included in the jury charge at the guilt-innocence stage of the trial and found to be true before the jury could find appellant guilty of the offense of a third-degree felony. See Pope, 802 S.W.2d at 421.

Under these circumstances, it was proper for the State to mention and refer to the prior convictions alleged for jurisdictional purposes at the voir dire examination, and during its opening statement to the jury, to read the indictment to the jury, to offer proof to sustain the allegations during the guilt-innocence phase of the proceedings, and to make jury argument concerning evidence in the record. If appellant had timely objected, the objections would have been without merit.

Appellant's plea for "fairness" is eloquent, but his argument based on Old Chief v. United States, 519 U.S. 172 (1997), and Rule 403 of the Texas Rules of Evidence has been rejected. See Tamez, 980 S.W.2d of 847-48; Hampton, 977 S.W.2d at 468-69; Maibauer, 968 S.W.2d at 505-07. For the reasons set forth in Maibauer, we agree. Points of error one, two, and three are overruled.

Impeachment

In points of error four and five, appellant claims that the trial court abused its discretion by allowing the prosecutor to impeach appellant's credibility with evidence of prior felony DWI convictions, one on March 27, 1986 in the 277th District Court of Williamson County (cause no. 86-094-K), and another on June 21, 1984 in the 26th District Court of Williamson County (cause no. 84-022K).

Appellant denied being intoxicated at the time of his arrest, sharply challenging the arresting officer's testimony. Appellant admitted that he had two beers earlier in the evening but was drinking coffee the rest of the evening. He explained that he had a bad back and poor speech patterns which would account for his condition at the time of the arrest.

On cross-examination, appellant admitted, without objection, that he had been convicted of DWI offenses in 1983 and 1990, which convictions had been alleged for jurisdictional purposes and not for enhancement only. Then the record reflects: "Q. And are you the same Randall Allen Davis that was convicted of felony driving while intoxicated in cause no. 86 --." Appellant's counsel interrupted and the parties approached the bench. Outside the hearing of the jury, appellant's counsel objected to "going into this at this time." The record then reflects:

The Court: If it's a felony, it's proper impeachment.

Mr. Bass [appellant's counsel]: But it's not been within the last ten years.

Mr. Aylor [prosecutor]: But he's had all these others.

The Court: The objection is overruled.

Mr. Bass: Excuse me, Your Honor, so our record is clear, I would also object that this evidence for impeachment purposes -- the probative value is substantially outweighed by its prejudicial effect, and it should not be used for impeachment at this time.

The Court: The objection is overruled.

These are the objections upon which appellant relies to support both points of error. Because the question was interrupted, it is not clear from the cold record to which prior conviction the objections were addressed. If it could be argued that the specific conviction was apparent from the context, see Tex. R. App. P. 33.1(a)(1)(A), and that it was the 1986 conviction in cause no. 86-094-K in the 277th District Court to which the interrupted question meant to refer, the error, if any, was preserved only as to the 1986 conviction. No objection was addressed to the 1984 conviction in cause no. 84-022K in the 26th District Court. Thus, no error was preserved as to the 1984 conviction.

In later cross-examination, appellant admitted, without objection, that he had been convicted in 1983 and 1990 for the DWI offenses and also convicted in cause no. 84-022K in 1984 and in cause no. 86-094-K in 1986 also for DWI. Appellant acknowledged that this was a true and correct list or representation of his driving while intoxicated record. When State's exhibit no. 7 (apparently a copy of the record) was offered, appellant had no additional objections "other than the ones I previously made to the court, Your Honor." The objection was overruled.

Subsequently in cross-examination, appellant, without objection, acknowledged that in cause no. 84-022K in 1984 that he was placed on probation, but that in 1986 his probation was revoked and he was convicted in cause no. 86-094-K and given a two-year prison sentence.

Still later on cross-examination, appellant identified the judgments and sentences in the 1984 and 1986 convictions which were marked for identification State's exhibit no. 8. There was no objection to this testimony. When the exhibit itself was offered, appellant objected: "Other than the objections I've already made, I re-urge those objections, Your Honor." These objections were overruled. (3)

The overruling of an objection to evidence will generally not result in reversal when other evidence of that same fact was received without objection, either before or after the complained-of ruling, regardless of whether the other evidence was introduced by the defendant or the State. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Marles v. State, 919 S.W.2d 669, 672 (Tex. App.--San Antonio 1996, pet. ref'd). A defendant may not complain on appeal about evidence admitted elsewhere without objection. See Roy v. State, 891 S.W.2d 315, 325 (Tex. App.--Fort Worth 1994, no pet.). A specific objection must be made each time an offer of inadmissible evidence is made in order to preserve any error for review. See Ybarra v. State, 890 S.W.2d 98, 114-15 (Tex. App.--San Antonio 1994, pet. ref'd). The error, if any, is not before us for appellate review. We need not explore the application of Rule 609 as urged by appellant. Points of error four and five are overruled.

In the last point of error, appellant challenges the sufficiency of the evidence to support a finding that appellant used a deadly weapon in the commission of the offense. From the cases cited, it appears that this is a challenge to the legal sufficiency of the evidence. Appellant has not briefed the point of error on a factual sufficiency basis.

The indictment alleged that appellant had used a deadly weapon, namely, a motor vehicle, during the commission of the felony offense. Appellant was thus given notice of the State's intention to seek a deadly weapon finding. The issue was submitted to the jury at the guilt-innocence stage of the trial over appellant's objection that the submission was not supported by the evidence. The jury found appellant guilty and further found that a deadly weapon, a motor vehicle had been used or exhibited "during the commission of a felony."

All felonies are susceptible of an affirmative deadly weapon finding for the purposes of denial of community supervision and limitation of parole eligibility pursuant to article 42.12, 3g(a)(2) of the Code of Criminal Procedure (4) and section 508.145(d) of the Government Code. (5) See Morgan v. State, 775 S.W.2d 403, 406 (Tex. App.--Houston [14th Dist.] 1989, no pet.).

Misdemeanors are not susceptible of an affirmative deadly weapon finding by virtue of the statutes. This includes misdemeanor DWI offenses. It is only when the misdemeanor DWI offense is elevated to a third-degree felony by allegation and proof of two or more prior DWI convictions (6) that the affirmative finding of a deadly weapon statutory provisions become applicable to a DWI prosecution.

A "deadly weapon" means: "(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. 1.07(a)(17)(A) & (B) (West 1994).

It is clear that a motor vehicle is not designed, made or adapted for the purpose of inflicting death or serious bodily injury, so it is not a deadly weapon per se as defined in section 1.07(a)(17)(A). See Ray v. State, 880 S.W.2d 795, 796 (Tex. App.--Houston [1st Dist.] 1994, no pet.). Items that are not deadly weapons per se have been found to be deadly weapons by nature of their use or intended use under section 1.07(a)(17)(B). See Hill v. State, 913 S.W.2d 581, 582-83 (Tex. Crim. App. 1996). The use or intended use must be capable of causing death or serious bodily injury. (7) Hill, 913 S.W.2d at 582-83. Thus, a motor vehicle is not a deadly weapon unless the felony record compels the conclusion that the vehicle was used in a manner that made it a deadly weapon. See Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995); Ex parte McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992).

Mere possession of a weapon without putting it to any use or purpose whatsoever is not the same as using the weapon. Tyra, 897 S.W.2d at 798. Driving a motor vehicle, however, is using it, and driving it in a manner capable of causing death or serious bodily injury is using it as a deadly weapon. Id.; see also Williams v. State, 946 S.W.2d 432, 435 (Tex. App.--Fort Worth 1997), pet dism'd improvidently granted in part, reformed in part, and affirmed, 970 S.W.2d 566 (Tex. Crim. App. 1998).

As in Williams, the evidence is clear that appellant possessed the truck and also used the truck during the felony offense of driving while intoxicated. Here, appellant both used and actively employed the truck while committing the felony involved. The threshold question is whether, upon the evidence in the record, the truck that appellant drove should be classified as a deadly weapon because of the manner in which he used or actively employed it while committing the felony. An affirmative answer to that question requires proof that in the manner of its use or intended use during the felony, the truck was capable of causing death or serious bodily injury. See Williams, 946 S.W.2d at 435. That "capability" must be evaluated in light of the facts that actually existed while the felony DWI was committed rather than the conjecture about what might have happened if the facts had been different than they were. Id.

Appellant relies upon Williams. There the court of appeals wrote:

We conclude that to find the truck "capable" of causing death or serious bodily injury requires evidence that when the DWI offense occurred, there was someone present who was placed in danger of serious bodily injury or death. Testimony in the record includes details of Williams' DWI offense and conduct from the time the trooper first observed Williams driving the truck until Williams stopped it in the highway; during the time the truck was parked in the highway; and until the truck was moved off the road and Williams was taken to jail in a patrol car. Yet, there is no evidence that any other motorist was on the highway at the time and place that Williams drove in an intoxicated condition or that any other motorist (besides other troopers the arresting officer called for assistance) ever came upon the scene or encountered danger form Williams' truck or from other traffic because the truck was parked in the highway.

We do not foreclose the possibility that despite the absence of death or serious bodily injury, a case may arise with facts that, if shown by admissible evidence, would support a finding in conjunction with a felony DWI conviction that a motor vehicle used was a deadly weapon. But, on the facts in evidence in this case, the State did not prove that in the manner of its use, or intended use, Williams' truck was capable of causing death or serious bodily injury and therefore was a deadly weapon. Accordingly, there should not have been a deadly weapon issue in the jury charge on punishment. Williams' sole point of error is sustained. The conviction for felony driving while intoxicated and felony repetition is affirmed, and we reverse and remand for a new trial on punishment only.

Id. at 435-36.

In Davis v. State, 964 S.W.2d 352, 354 (Tex. App.--Fort Worth 1998, no pet.), the court distinguished its earlier opinion in Williams on the facts by pointing to the testimony of the arresting officer that the defendant weaved and drove in the oncoming lane of traffic four or five times, and had to take "evasive action" to avoid hitting another car in the oncoming lane.

Independent of the videotape, the testimony in the instant case was meager as to the position of other cars or individuals on the highway where the offense occurred. Round Rock Police Officer Mike Kincaid testified that about 11:30 p.m. on July 22, 1996, he was positioned on IH 35 watching southbound traffic when he saw a 1986 Ford pickup truck pass without its tail lights operating. Kincaid followed the truck for that reason. As he did, the truck in the far right southbound lane crossed once over the white line separating the right lane and the paved shoulder of the highway. Thereafter, Kincaid observed the truck "weaving" within the right lane. Mark Ruby, the civilian, riding with Officer Kincaid, confirmed the truck's movements. Kincaid followed the truck for two miles because of the condition of the road's shoulder. When Kincaid turned on the overhead light of his patrol vehicle, the truck activated its turn signal or blinker, exited the highway at the next ramp, and stopped on the frontage road. Kincaid acknowledged that there "wasn't many" vehicles on the highway at the time, and in a conclusory fashion stated that appellant was "a danger to other people on that highway" and could have caused death or serious bodily injury "if he had run into somebody." (8)

The videotape produced by a video camera on the police vehicle revealed that appellant's truck momentarily crossed the white line separating the right lane of traffic and the paved shoulder and moved left back into the right lane where it remained until the truck exited the highway. The videotape showed that no other vehicle intervened between the police vehicle and the truck in the two miles that the truck was followed. One car did pass the police car and the truck in the far left lane of the southbound portion of the highway during the time in question. Tail lights on other vehicles far ahead of the truck indicated other vehicles traveling southbound on IH 35. A few cars and their headlights traveling in a northerly direction are revealed by the videotape. These vehicles were left of the far left lane of the southbound traffic and across the median of the divided highway.

Although clearly not essential to an affirmative finding that a motor vehicle was a deadly weapon, in the instant case there was no accident, no collision, no "evasive action," no property damage, and no injury actual or threatened to any person. The capability of the truck to cause death or serious bodily injury must be evaluated in the light of the facts that actually existed while the offense was being committed rather than by conjecture. See Williams. 946 S.W.2d at 435.

We conclude, even viewing the evidence in the light most favorable to the jury's finding, that a rational trier of fact could not have found beyond a reasonable doubt that appellant's truck, from the manner of its use or intended use, was capable of causing death or serious bodily injury and was a deadly weapon used in the commission of a felony. The sixth point of error is sustained. The judgment of conviction is reformed to strike and eliminate the deadly weapon finding.

As reformed, the judgment is affirmed.

John F. Onion, Jr., Justice

Before Justices Kidd, Patterson and Onion*

Reformed and, as Reformed, Affirmed

Filed: September 10, 1999

Do Not Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1998).

1. Section 49.09(b) of the Penal Code provides:

(b) If it is shown on the trial of an offense under Section [sic] 49.04, 49.05 or 49.06 that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, or an offense of operating a watercraft while intoxicated, the offense is a felony of the third degree.

Tex. Penal Code Ann. 49.09(b) (West Supp. 1999).

2. See also Tamez v. State, 980 S.W.2d 845, 847 (Tex. App.--San Antonio 1998, pet. granted on other grounds, pending).

3. There were other objections to the exhibit about extraneous matters in the judgments and sentences. These matters were redacted and the exhibits admitted.

4. Section 3g(a)(2) provides that the provisions of section 3 of article 42.12 (judge-ordered community supervision) do not apply to:

(2) to a defendant when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court. On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment.

Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(2) (West Supp. 1999).

5. With regard to eligibility for release on parole, the Government Code provides in part:

An inmate serving a sentence for an offense described by Section 3g(a)(1)(A), (C), (D), (E), (F), (G), or (H), Article 42.12, Code of Criminal Procedure, or for an offense for which the judgment contains an affirmative finding under Section 3g(a)(2) of that article, is not eligible for release on parole until the inmate's actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on parole in less than two calendar years.

Tex. Gov't. Code Ann. 508.145(d) (West 1998).

6. See Tex. Penal Code Ann. 49.09(b) (West Supp. 1999).

7. "'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the functions of any bodily member or organ." Tex. Penal Code Ann. 1.07(a)(46) (West 1994).

8. These statements fall within the conjecture about what might have happened if the facts had been different than they were as discussed in Williams, 946 S.W.2d at 435.

ormed, the judgment is affirmed.