




NO








NO. 12-08-00448-CR
 
                         IN
THE COURT OF APPEALS
 
            TWELFTH
COURT OF APPEALS DISTRICT
 
                                      TYLER, TEXAS
 
ROGER DALE GUESS,
APPELLANT                                                     '     APPEAL
FROM THE 241ST
 
V.                                                                         '     JUDICIAL
DISTRICT COURT OF
 
THE STATE OF TEXAS,                                 '     SMITH COUNTY,
TEXAS
APPELLEE
 


                                                      MEMORANDUM
OPINION
            Roger
Dale Guess appeals his conviction for driving while intoxicated, a felony.  In
three issues, Appellant argues that the evidence was insufficient to prove that
he operated a vehicle or that he was intoxicated when he did so, that the trial
court erred by instructing the jury on the issue of Appellant’s refusal to take
a breath test, and that the trial court erred by not instructing the jury on
the lesser included offense of misdemeanor driving while intoxicated.  We
affirm.
 
Background
            While
on routine patrol on US Highway 20 early one morning, a Texas Department of
Public Safety trooper came upon a blue van on the grassy portion of the
shoulder of an off ramp.  When the trooper approached the van, he found
Appellant in the driver’s seat.  Appellant told the trooper that he had driven
“off the road and [gotten] stuck.”  The trooper noticed an odor he associated
with an alcoholic beverage emanating from Appellant.
            As
he walked around the vehicle, he noticed that, as Appellant reported, the
vehicle appeared to be stuck in a dirt embankment.  There were markings in the
dirt and mud that caused him to conclude that someone had been attempting,
unsuccessfully to that point, to extricate the van from the embankment by
spinning the tires.  He also noticed that the marks in the mud or dirt appeared
to be fresh and that the hood of the van was warm.  
            The
trooper asked Appellant to step from the van and to perform several field
sobriety tests.  Appellant did not pass the tests, and the trooper arrested
Appellant.  Appellant asked the trooper to give him a break and told him that
he was working on getting his driver’s license back.  He said he was not
driving.  He said that his “helper” had been driving, but admitted that he had
tried to get the vehicle out of the ditch.  When the trooper tried to read
Appellant the implied consent warning, Appellant became agitated and said he
would not sign anything.  When the trooper read the portion of the warning that
pertains to breath specimens, Appellant said, “No, Sir” and that “[n]othing
would be happening.”  Later, while the trooper was completing his paperwork,
Appellant said, “I did try to get it out of the ditch, I ain’t going to deny
that.”  
            A
Smith County grand jury indicted Appellant for the felony offense of driving
while intoxicated.  The indictment alleged that Appellant had two prior driving
while intoxicated convictions and two prior felony convictions.[1] 
Appellant pleaded not guilty at the trial.  The jury found him guilty, found
the enhancements to be true, and assessed punishment at imprisonment for ninety-nine
years.  This appeal followed.
 
Sufficiency of the Evidence
In
his first issue, Appellant argues that the evidence is insufficient to prove
that he operated a motor vehicle while he was intoxicated.  
Standard of Review
The
due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence.  See Jackson v. Virginia,
443 U.S. 307, 315B16,
99 S. Ct. 2781, 2786B87,
61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.
Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.BTyler 2006, pet. ref’d). 
Evidence is not legally sufficient if, when viewing the evidence in a light
most favorable to the verdict, no rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.  See Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; see also Rollerson v. State,
227 S.W.3d 718, 724 (Tex. Crim. App. 2007).
While
legal sufficiency review is all that is required by the U.S. Constitution, the
Texas Court of Criminal Appeals has determined that the Texas Constitution
requires further review of the factual sufficiency of the evidence.  Clewis
v. State, 922 S.W.2d 126, 129B30
(Tex. Crim. App. 1996).  Factual sufficiency review differs from legal
sufficiency review only slightly.  See Marshall v. State, 210
S.W.3d 618, 625 (Tex. Crim. App. 2006).  In a factual sufficiency review, we
review the evidence without the light most favorable to the verdict and we are
authorized, “albeit to a very limited degree,” to disagree with the fact
finder’s resolution of contested factual issues.  See id.;
Watson v. State, 204 S.W.3d 404, 414, 417 (Tex. Crim. App. 2006).  In a
review of the factual sufficiency of the evidence, we will conclude that the
evidence is insufficient only if the great weight and preponderance of the
evidence contradicts the jury’s verdict or the verdict is clearly wrong and
manifestly unjust.  See Rollerson, 227 S.W.3d at 724;
Watson, 204 S.W.3d at 417.
Under
either standard, our role is that of appellate review, and the fact finder is
the principal judge of the weight and credibility of a witness’s testimony. 
Wesbrook v. State, 29 S.W.3d 103, 111B12
(Tex. Crim. App. 2000).  The fact finder may choose to believe all, some, or
none of a witness=s
testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986). 
As
relevant to Appellant’s argument, the State was required to show that Appellant
was intoxicated while operating a motor vehicle in a public place.  Tex. Penal Code Ann. § 49.04(a) (Vernon
2003).
Analysis
Appellant
argues that there was insufficient evidence to show that he operated a motor
vehicle or that he did so while intoxicated.  As he points out, the trooper who
arrested him did not see him operate the vehicle, and the trooper could not
find the key used to start the vehicle.  Appellant told the trooper that
another person had been driving the vehicle, although he did not say where the
key could be located.[2] 

If
that were all the evidence, a reasonable hypothesis would be that the other
driver drove the van into the embankment and left Appellant stranded in a
vehicle that he could not operate.  There was more evidence, however.  First,
the trooper observed evidence that the van had been operated recently–fresh mud
thrown up by the tires and a hood that was warm to the touch–and Appellant said
that he had attempted to drive the van out of the embankment.  Therefore, he
had possessed the key to operate the van at some point after the vehicle became
stuck in the embankment.  The jury was entitled to credit Appellant’s repeated
statements, captured on video, that he was the one who had attempted to drive
the van out of the ditch.  The jury was also entitled to believe Appellant’s
initial statement to the trooper that he was the one who drove off the road. 
Appellant does not argue that the embankment in which he was stuck was not a
public place or that trying to drive the van out of the ditch was not an
operation of the motor vehicle. 
A
closer question is presented with respect to whether there was sufficient
evidence that Appellant was intoxicated when he operated the van.  The jury was
able to observe a video of Appellant attempting to perform the field sobriety
tests and to hear him, at some length, discuss the matter of his arrest with
the trooper.  Given Appellant’s performance on the video, this evidence, along
with the trooper’s testimony, would allow the conclusion that Appellant was
intoxicated.  However, as Appellant points out, there must be evidence that
shows that he was intoxicated while he was operating the vehicle.  See, e.g.,
Stoutner v. State, 36 S.W.3d 716, 721 (Tex. App.–Houston [1st
Dist.] 2001, pet. ref’d).
Evidence
that supports the jury’s conclusion that Appellant was intoxicated when he
operated the vehicle includes the fact that he was intoxicated when the trooper
arrived.  Furthermore, he told the trooper that he had been on the side of the
road for about an hour.  Additionally, there were no opened containers of
alcohol in the vehicle, and so he did not drink alcohol after becoming stuck in
the embankment.  Finally, the hood of the vehicle was warm and the appearance
of the thrown or disturbed mud convinced the trooper that efforts to extricate
the vehicle from the embankment had been recent.  Last, Appellant apparently
disposed of the key to the van in an effort to avoid responsibility for
operating the vehicle.
After
considering all of the evidence, we hold that a rational jury could conclude
that Appellant operated a motor vehicle that morning and that he was
intoxicated when he did so.  Accordingly, the evidence is legally sufficient to
support the verdict.  
We
reach the same conclusion with respect to the factual sufficiency of the
evidence.  There was evidence that supports Appellant’s assertion that he was
not operating the van.  For example, his son testified that there was an
individual named Josh who worked as his father’s helper.  This was the name
Appellant gave to the trooper to identify the person who had driven the van
into the embankment.  Additionally, the trooper did not see Appellant operate
the vehicle, and the key to operate the vehicle was not present when the
trooper arrived.  This evidence, and these circumstances, lead to conclusions
contrary to the verdict.  Nevertheless, in light of Appellant’s repeated
assertion that he did operate the vehicle, his apparent intoxication, and his
statements about how long he had been at the roadside, the jury’s verdict is
neither against the great weight of the evidence nor does it represent a
manifest injustice.  Accordingly, we hold that the evidence is factually
sufficient to support the verdict.  
We overrule
Appellant’s first issue.
 
Lesser Included Offense
In
his second issue, Appellant argues that the trial court erred by overruling his
request that the jury be instructed that it could find him guilty of the lesser
included offense of driving while intoxicated, a misdemeanor, if it did not
find that he had been twice before convicted of driving while intoxicated.
Applicable Law and Standard
of Review
Article
36.14 of the code of criminal procedure requires the trial court to deliver to
the jury “a written charge distinctly setting forth the law applicable to the
case. . . .”  Tex. Code Crim. Proc. Ann.
art. 36.14 (Vernon 2007). 
Upon the defendant’s request, a trial court must include a lesser included
offense instruction in the jury charge if the lesser offense is a lesser
included offense and if there is some evidence that, if the defendant is
guilty, he is guilty only of the lesser offense.  See Guzman v.
State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). 
            An
offense is a lesser included offense if (1) it is established by proof of the
same or less than all the facts required to establish the commission of the
offense charged, (2) it differs from the offense charged only in the respect
that a less serious injury or risk of injury to the same person, property, or
public interest suffices to establish its commission, (3) it differs from the
offense charged only in the respect that a less culpable mental state suffices
to establish its commission, or (4) it consists of an attempt to commit the
offense charged or an otherwise included offense.  See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); see also Hall
v. State, 225 S.W.3d 524, 527 (Tex. Crim. App. 2007).
Anything
more than a scintilla of evidence may be sufficient to entitle a defendant to a
charge on the lesser offense.  Hall, 225 S.W.3d 536.  However,
“it is not enough that the jury may disbelieve crucial evidence pertaining to
the greater offense, but rather, there must be some evidence directly germane
to the lesser–included offense for the finder of fact to consider before an
instruction on a lesser–included offense is warranted.”  See Hampton
v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).  We review all
evidence presented at trial to make this determination.  See Rousseau
v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).  If the evidence
raises the issue of a lesser included offense, a jury charge must be given irrespective
of who introduced the evidence and irrespective of whether it is “strong, weak,
unimpeached, or contradicted.”  Id. at 672.
Analysis
The
State agrees that the misdemeanor driving while intoxicated offense is a lesser
included offense of a felony driving while intoxicated offense.  This is so
because felony driving while intoxicated is nothing more than the misdemeanor
offense enhanced by proof of two prior driving while intoxicated convictions.  See
Tex. Penal Code Ann. §
49.09(b)(2) (Vernon Supp. 2009).  Therefore, we focus our analysis on the
second part of the statutory test, whether there is some evidence that
Appellant is guilty only of the lesser included offense.  See Guzman,
188 S.W.3d at 188; Feldman v. State, 71 S.W.3d 738, 750 (Tex.
Crim. App. 2002).
Appellant
argues that the proof of one of his prior convictions, specifically a
conviction from Tarrant County, was incomplete and notes that he did not plead
true to the allegation that he had that prior conviction.  The question
presented is whether there is evidence from any source that negates or refutes
the element establishing the greater offense, or if the evidence showing the
additional element is so weak that it is subject to more than one reasonable
inference.  See Schweinle v. State, 915 S.W.2d 17, 19
(Tex. Crim. App. 1996); Saunders v. State, 840 S.W.2d 390, 391-92
(Tex. Crim. App. 1992).  As we stated above, it is not enough that a defendant
denies the additional element of the offense by pleading not guilty or that
there exists a possibility that a jury could simply disbelieve the State’s evidence. 
See Hampton, 109 S.W.3d at 441. 
There
is no affirmative evidence that Appellant was not convicted of the Tarrant
County offense.  For example, no witness testified that he was not the person
convicted.  However, the State’s proof in this matter was convoluted.  Other
than his name being the same as the person charged in the Tarrant County
conviction, the records of that conviction do not contain any identifying
characteristics to show that it was Appellant who was convicted in Tarrant
County.  What the State did offer, however, is evidence that Appellant had
previously pleaded true to an enhancement paragraph in a Gregg County criminal
case in which the indictment alleged the Tarrant County conviction.[3] 
The State argued at trial that this admission was sufficient to link Appellant
to the Tarrant County conviction.  On appeal, Appellant advances no argument as
to why evidence that Appellant admitted to having this prior conviction is any
less compelling than his plea of true to the other prior conviction.  
Because
of Appellant’s admission that he was convicted of driving while intoxicated in
Tarrant County, there was not a failure or weakness of the State’s proof that
would allow the conclusion that Appellant was guilty only of a lesser included
offense.  Other courts considering whether a lesser included offense instruction
should be given when there was not a realistic challenge to the evidence of the
prior conviction have answered that question in the negative.  See Carter
v. State, No. 14-08-00662-CR, 2009 Tex. App. LEXIS 6825, at *9–10 (Tex.
App.–Houston [14th Dist.] Aug. 11, 2009, pet. filed) (mem. op., not designated
for publication); Sorrells v. State, No. 03-05-00135-CR, 2007
Tex. App. LEXIS 4877, at *12–13 (Tex. App.–Austin June 19, 2007 pet. ref’d)
(mem. op., not designated for publication); McDowell v. State,
No. 02-04-530-CR, 2006 Tex. App. LEXIS 39, at *17–18 (Tex. App.–Fort Worth Jan.
5, 2006, pet. ref’d) (mem. op., not designated for publication).  We agree with
the reasoning expressed in those decisions, hold that the trial court did not
err, and overrule Appellant’s second issue.
 
Jury Instruction on Breath Test Refusal
In
his third issue, Appellant argues that the trial court erred by instructing the
jury that it could consider Appellant’s refusal to take a breath test. 
Improper Comment
Appellant
argues that the instruction given in this case was an improper comment on the
evidence and that it decided a contested factual issue.  The instruction given
in this case is as follows: “You are instructed that you may consider the
Defendant’s refusal to submit to a breath test as evidence in this case.”  With
respect to the first part of Appellant’s argument, the court of criminal
appeals, in a decision issued after the trial in this case, held that an
instruction on the refusal to take a breath or blood test was an impermissible
comment on the evidence.  See Bartlett v. State, 270
S.W.3d 147, 154 (Tex. Crim. App. 2008).[4] 
However, Appellant did not object to the instruction because it impermissibly
highlighted the issue of the refusal.  Instead, he objected to the instruction
only on the basis of his argument that he had not refused to give a breath
specimen[5]
because the trooper simply accepted his statement that he was not going to take
a test rather than formally ask him if he wished to comply with the law and
take the test.[6] 
See Tex. Transp. Code Ann.
§ 724.015 (Vernon Supp. 2009) (officer must give warnings before requesting
breath or blood test).  Accordingly, the portion of the present complaint that
pertains to whether the instruction improperly highlighted the issue of a
refusal to take a breath or blood test is not preserved for our review.  See
Tex. R. App. P. 33.1.  We review
an unpreserved complaint about a jury charge for egregious harm.  See Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (Where there is no
objection to a jury charge, reversal is required only when error is so egregious
and created such harm that the appellant “has not had a fair and impartial
trial.”). 
 
Resolution of Factual Issue
In
the second part of his argument, Appellant makes the argument he made in the
trial court, specifically, that the trial court’s instruction was error because
it decided a contested factual issue.  As a general rule, a trial court should
not express any opinion as to the weight of the evidence, sum up the testimony,
discuss the facts, or use any argument in its charge calculated to arouse the
sympathy or excite the passions of the jury.  Bartlett, 270
S.W.3d at 150 (citing Tex. Code Crim.
Proc. Ann. art. 36.14).  And
a trial court must refrain from making any remark calculated to convey to the
jury its opinion of the evidence in a particular case.  Tex. Code Crim. Proc. Ann. art. 38.05.  The jury is the exclusive judge of the facts
proved, and of the weight to be given to the testimony, unless the law provides
that the proof of any particular fact is to be taken as either conclusive or
presumptive evidence of the existence of an ultimate fact, or where the law
specifically directs that a certain degree of weight is to be attached to a
particular item or species of evidence.  Bartlett, 270 S.W.3d at
150 (citing Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979)).  
The
court of criminal appeals has recognized three areas in which a trial court may
“single out” a particular item of evidence.  Id.  They include
when the law attaches a certain degree of weight to a particular kind of
evidence–for example, accomplice testimony–or when consideration of evidence is
limited for some reason, when a predicate fact is important to the
consideration of an ultimate fact, or when admission of evidence is contingent
on a factual predicate.  Id.  
The
instruction here does not fit into one of those areas.  As the court held in Bartlett,
the legislature did not require that a jury be instructed about the refusal of
a breath or blood test and that an instruction on this specific issue was
unnecessary and an improper comment on the weight of the evidence.  See Bartlett,
270 S.W.3d at 150–51.  The instruction given in this case is improper both
because it unnecessarily shines a light on a singular factual issue, the issue
in Bartlett, and because it puts a judicial imprimatur on the
conclusion that Appellant did refuse the breath test, a conclusion he contests here
and contested at the trial court.  See Tex.
Code Crim. Proc. Ann. art. §
38.04 (jury is the exclusive judge of the facts proven).  Because Appellant objected
to the instruction on the basis that it decided a contested factual issue, we
must reverse the conviction if the erroneous instruction caused him to suffer
“some harm.” See Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim.
App. 1994); Hess v. State, 224 S.W.3d 511, 516 (Tex. App.–Fort
Worth 2007, pet. ref’d).  Neither party bears the burden of proving that the
defendant suffered harm.  Warner v. State, 245 S.W.3d 458, 464
(Tex. Crim. App. 2008).  In assessing whether the instruction caused harm, we
consider (1) the charge, (2) the state of the evidence, including contested
issues and the weight of the probative evidence, (3) arguments of counsel, and
(4) any other relevant information revealed by the record.  See Hutch
v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
After
considering the charge, the evidence, the arguments of counsel and other
relevant information, we conclude that Appellant was not harmed.  First,
Appellant’s argument that he did not refuse the requested breath test is one
that was unlikely to have persuaded the jury.  The jury was able to watch the video
of the trooper reading a form to Appellant that includes information about a
breath specimen.  The video shows Appellant’s face as the trooper explains the
form to him.  The jury could watch as the trooper told Appellant that he was
going to give him a copy of the statutory warning.  Appellant says, “. . .
copy, whatever you want to do, I’m not signing nothing.”  Moments later, the
trooper reads from the form where it says, “You will be asked to give a
specimen of your breath.”  Appellant says, “No sir, nothing will be happening
now.”  After reading all of the warnings, the trooper did not ask Appellant if
he would sign the document or if he would give a specimen.  Instead, he checked
a box stating that Appellant refused to allow the taking of a specimen and
further refused to sign the document.  
Appellant
argues that he did not refuse to give a sample because the trooper did not ask
him at the end of the warnings if he wished to give a sample.  This is a
technical argument based on the statute.  It was one he was entitled to make, but
we think it unlikely that this argument would be persuasive or that the jury’s
resolution of this issue would have been different without the trial court’s
instruction.  
There
was very little discussion in the parties’ summation of Appellant’s refusal to
provide a specimen, and it was not an overridingly important issue in the trial. 
Appellant’s counsel did not address the issue.  And while counsel did not
concede that Appellant was intoxicated, the thrust of his argument was that
there was insufficient evidence to show that Appellant was operating the
vehicle.  The State mentioned the refusal briefly, but did not leverage the
trial court’s apparent conclusion that Appellant had refused the test to its
advantage.  
 
Conclusion

Whether
Appellant refused to take the breath test is germane only to the issue of
whether he was intoxicated.  See Bartlett, 270 S.W.3d at 153
(“Evidence of the appellant’s refusal to submit to a breath test is relevant
for precisely the reason that the trial court identified in the contested jury
instruction, namely, that it tends to show a consciousness of guilt on his
part.”).  There was ample evidence that Appellant was intoxicated and whether
he was intoxicated was not the most important contested issue in the trial. 
Therefore, we conclude that Appellant was not egregiously harmed by the trial
court’s highlighting of the issue of the refusal.  For the same reason, we hold
that Appellant was not harmed by the trial court’s implicit admonition to the
jury that he had refused the test.  We overrule Appellant’s third issue.
 
Disposition
Having
overruled Appellant’s three issues, we affirm the judgment of the
trial court.
                                                                                                 
   JAMES T. WORTHEN    
                                                                                                                
Chief Justice
 
Opinion delivered February 26, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and
Hoyle, J.
 
 
 
 
 
 
 
 
 
 
 
 
 
(PUBLISH)




[1]  The felony convictions were
also for driving while intoxicated.  The indictment alleged that Appellant had
four different convictions for driving while intoxicated.


[2] Appellant’s son testified that
Appellant told him “there were no keys” and that he had to have a key made to
recover the van.


[3] The State also argues that
exhibits 4 and 7 show that Appellant had previously pleaded true to enhancement
paragraphs alleging the Tarrant County conviction.  We disagree.  Exhibit 4
shows that Appellant pleaded guilty to misdemeanor driving while intoxicated in
1995.  He was indicted for felony driving while intoxicated in that case and
two prior convictions, including the Tarrant County conviction, were alleged. 
According to the judgment he pleaded true to the enhancements.  But as he was
convicted only of a misdemeanor offense, proof of both prior convictions was
not necessary for the conviction.  See Tex.
Penal Code Ann. §§ 49.04, 49.09(a).  He may have judicially confessed
that both convictions were his, but that is not clear from the record. 
Similarly, exhibit 7 consists of a penitentiary packet for cause number
23,854-A and contains a judgment revoking Appellant’s probation in that case. 
Exhibit 9 is the indictment for that case, and it alleged the Tarrant County
conviction.  There is no evidence in the record, however, that Appellant
admitted that the Tarrant County conviction was his as part of the proceedings
in cause number 23,854-A.


[4] The State concedes that the
instruction is error in light of Bartlett.  The State argues,
without citation to authority, that the trial court’s decision could be upheld
as a permissible judgment within the court’s discretion because this was an
unsettled area of law prior to the trial in this case.  There is nothing in the
Bartlett decision that suggests that it is to have only
prospective application, and the court found error in that case.  Bartlett,
270 S.W.3d at 154.
 


[5] The decision in Bartlett simply
states that the trial court should not instruct the jury as to how to use
evidence that a defendant refused a breath or blood test; it did not rule that
such evidence was inadmissible or that a jury could not consider it.  See
Tex. Transp. Code Ann. § 724.061
(Vernon 1999).
 


[6] The entire objection is as
follows: “Judge, I would object to Paragraph Number 5 being inserted,
especially after we’ve had an objection.  I understand it was previously
overruled, but the – – again, the basis of that objection was that the trooper
testified that he did not specifically ask the defendant whether he would give
a – – in fact, if I could just read it right quick.  Trooper Johnson
specifically testified that he did not ask – – request of [Appellant] a
specimen of his breath or blood.  And because of that testimony, I would object
to Paragraph Number 5.”
 


