                                                                                ACCEPTED
                                                                           06-13-00110-CR
                                                                 SIXTH COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                       1/5/2015 2:25:34 PM
                                                                           DEBBIE AUTREY
                                                                                    CLERK




                 ORAL ARGUMENT WAIVED
                                                           FILED IN
                                                    6th COURT OF APPEALS
                  CAUSE NO. 06-13-00110-CR            TEXARKANA, TEXAS
                                                    1/8/2015 3:01:00 PM
                           IN THE                       DEBBIE AUTREY
                                                            Clerk

                     COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

              MICHAEL EARITT WHITE, Appellant

                              V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

        ON APPEAL FROM THE COUNTY COURT AT LAW
                   LAMAR COUNTY, TEXAS
   TRIAL COURT NO. 60286; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________

      APPELLEE’S (STATE’S) BRIEF
____________________________________________________________


                        Gary D. Young, County and District Attorney
                         Lamar County and District Attorney’s Office
                        Lamar County Courthouse
                         119 North Main
                         Paris, Texas 75460
                        (903) 737-2470
                        (903) 737-2455 (fax)


                      ATTORNEYS FOR THE STATE OF TEXAS
                IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.




                                       -i-
                                    TABLE OF CONTENTS

                                                                                             PAGE NO.:

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . .                                           i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                          ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . .                            iii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . .                              vi

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . .                                                    vii

ISSUE PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . . . .                               viii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .                           2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . .                                      9

ARGUMENT AND AUTHORITIES

         SOLE ISSUE PRESENTED IN REPLY: VIEWED IN
         THE LIGHT MOST FAVORABLE TO THE JURY’S
         VERDICT, THE EVIDENCE WAS LEGALLY SUFFICIENT
         FOR A RATIONAL JURY TO HAVE FOUND THE
         ESSENTIAL ELEMENTS OF DRIVING WHILE
         LICENSE INVALID BEYOND A REASONABLE
         DOUBT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          17

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . .                                   18

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . .                            19


                                                      -ii-
                                INDEX OF AUTHORITIES

CASES:                                                                                         PAGE:

Brooks v. State, 323 S.W.3d 893, 912, 917-918 (Tex. Crim.
     App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     11, 16

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). . .                                    11

Clayton v. State, 652 S.W.2d 810, 812 (Tex. App.--Amarillo
      1983, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     13, 16

Ex parte Drake, 212 S.W.3d 822, 823-824 (Tex. App.--Austin 2006,
      pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim.
     App. 2004), cert. denied, 543 U.S. 944, 125 S.Ct.
     358, 160 L.Ed.2d 256 (2004) . . . . . . . . . . . . . . . . . . . . . . . .                      11

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.--Texarkana
       2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         11

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
     App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          12

Jackson v. Virginia, 443 U.S. 307, 318, 319, 99 S.Ct. 2781,
      61 L.Ed.2d 560 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 16

Lugo v. Tagle, 783 S.W.2d 815, 816 (Tex. App.--
      Corpus Christi 1990, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
      App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         12

Sparkman v. State, 997 S.W.2d 660, 663, 669 (Tex. App.
     --Texarkana 1999, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16



                                                   -iii-
CASES:                                                                                 PAGE:

Vanderburg v. State, 365 S.W.3d 712, 714 (Tex.
     App.--Texarkana 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . .            11

White v. State, 441 S.W.3d 803, 805, 808-09 (Tex.
      App.--Texarkana 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . .            9

Wilson v. State, 391 S.W.3d 131, 135 (Tex. App.--
      Texarkana 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . .   11, 12




                                               -iv-
STATUTES:                                                                                    PAGE:

TEX. PENAL CODE ANN. § 2.04 (West 2014) . . . . . . . . . . . . . .                              17

TEX. R. APP. P. 38.1 (I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         11

TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      v, 1

TEX. REV. CIV. STAT. ANN. ART. 6687b, § 34 (1977). . . . . . .                                   13

TEX. TRANSP. CODE ANN. § 521.292(a) (West 2013) . . . . . . .                                10, 17

TEX. TRANSP. CODE ANN. § 521.295(a)-(b) (West 2013) . . .                                    10, 17

TEX. TRANSP. CODE ANN. § 521.297(a) (West 2013) . . . . . . .                                10, 17

TEX. TRANSP. CODE ANN. § 521.457(West 2013) . . . . . . . . .                                    13

TEX. TRANSP. CODE ANN. § 521.457(d) (West 2013) . . . . . .                                      17

TEX. TRANSP. CODE ANN. § 521.457(a) (West 2013) . . . . . . .                                 iv, 16

TEX. TRANSP. CODE ANN. § 521.457(a) (2) (West 2013). . . .                                       12

TEX. TRANSP. CODE ANN. § 708.001 - .156 (West 2006) . . . .                                     14

TEX. TRANSP. CODE ANN. § 708.103(West 2006) . . . . . . . . .                                   14

TEX. TRANSP. CODE ANN. § 708.152 (West 2006) . . . . . . . . .                                  14




                                                   -v-
                       STATEMENT OF THE CASE

      This is a criminal appeal from the trial court’s final judgment and

sentence (CR, pgs. 51-52) for the misdemeanor offense of driving with an

invalid/suspended license with a prior conviction. See Tex. Transp. Code

Ann. § 521.457(a) (West 2013).

      Following a traffic stop for speeding on November 6, 2012, Trooper

Tim Keele arrested the appellant, White, for the offense of driving with an

invalid/suspended license with a prior conviction. See RR, Vol. 3, pgs. 36,

42, 50. Subsequently, the State charged White by information with the

misdemeanor offense of driving while license suspended. See CR, pg. 7.

      After a one-day trial, the jury found White guilty of the offense of

driving while license invalid/suspended with previous conviction, as charged

in the information. See RR, Vol. 3, pg. 181; CR, pg. 57. The jury also

assessed punishment at imprisonment in the Lamar County jail for a term of

ninety (90) days and a fine in the amount of $1,000.00. See RR, Vol. 3, pg.

227; CR, pg. 61.

      From the trial court’s final judgment and sentence (CR, pgs. 51-52),

White timely filed his notice of appeal. See CR, pg. 63. By this appeal,

White raised a single issue/point of error.


                                      -vi-
    STATEMENT REGARDING ORAL ARGUMENT

The State will waive oral argument. See Tex. R. App. P. 38.2.




                             -vii-
            ISSUE(S) PRESENTED IN REPLY

SOLE ISSUE PRESENTED IN REPLY: VIEWED IN THE LIGHT
MOST FAVORABLE TO THE JURY’S VERDICT, THE EVIDENCE
WAS LEGALLY SUFFICIENT FOR A RATIONAL JURY TO HAVE
FOUND THE ESSENTIAL ELEMENTS OF DRIVING WHILE
LIGENSE INVALID BEYOND A REASONABLE DOUBT.




                       -viii-
                       CAUSE NO. 06-13-00110-CR

                                   IN THE

                           COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

                  MICHAEL EARITT WHITE, Appellant

                                      V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

        ON APPEAL FROM THE COUNTY COURT AT LAW
                   LAMAR COUNTY, TEXAS
   TRIAL COURT NO. 60286; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________

       APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

TO THE HONORABLE 6TH COURT OF APPEALS AT TEXARKANA:

      COMES NOW, the State of Texas, by and through the elected County

and District Attorney of Lamar County, Gary D. Young, and the Lamar

County and District Attorney’s Office, respectfully submits its Appellee’s

(State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.

      Unless otherwise indicated, Michael Earitt White will be referred to as

“the appellant” or “White” and the State of Texas as “the State.”


                                     -1-
                        STATEMENT OF FACTS

      Traffic Stop for Speeding.

      On November 6, 2012, Tim Keele, a trooper for the Texas Highway

Patrol for “a little over seven years,” (Trooper Keele) pulled White over for

speeding. See RR, Vol. 3, pgs. 22-23. Trooper Keele was on a previous

traffic stop (RR, Vol. 3, pgs. 24, 39) and was sitting on the side of the road

on FM 1497, inside the Loop. See RR, Vol. 3, pg. 24. See also State’s

Exhibit 4 (DVD video of the traffic stops). Trooper Keele observed a

vehicle in his rear view mirror (RR, Vol. 3, pgs. 24, 40) that was speeding

over the speed limit of 40 there. See RR, Vol. 3, pg. 24. Trooper Keele

activated his rear antenna, checked the vehicle’s speed, and confirmed it on

radar at 53 miles an hour. See RR, Vol. 3, pg. 24.

      Trooper Keele activated the patrol car’s emergency lights, and the

speeding vehicle pulled over. See RR, Vol. 3, pg. 25. Trooper Keele walked

up to the vehicle, made contact with White, and advised him what he was

being stopped for. See RR, Vol. 3, pg. 25. This incident “did happen” in

Lamar County, State of Texas. See RR, Vol. 3, pg. 42.

      White’s Driver’s License.

      Trooper Keele asked him for his driver’s license and his insurance.


                                     -2-
See RR, Vol. 3, pg. 25. White “wasn’t being very pleasant.” See RR, Vol.

3, pg. 25. Trooper Keele asked him to step out and come to the back. See

RR, Vol. 3, pg. 25. White did comply with that. See RR, Vol. 3, pg. 25.

White gave his license to Trooper Keele. See RR, Vol. 3, pg. 26.

      Trooper Keele advised White that he was “going to go check the

status of his driver’s license and that [he] would be right back with him and

to please stand where [he’d] asked him to.” See RR, Vol. 3, pg. 26. Later,

Trooper Keele had to call out to White not to move, but he did anyway. See

RR, Vol. 3, pg. 26. White went to get a soda out of his truck. See RR, Vol.

3, pg. 26. Trooper Keele advised White to stand back where he’d asked him

to and not go back to his vehicle. See RR, Vol. 3, pg. 27.

      Trooper Keele went back to his car to look up his driver’s license on

an in-car computer, like a mobile dispatch system, and found it to be

suspended. See RR, Vol. 3, pgs. 27, 30, 41. Trooper Keele entered the

driver license number and the license plate number of the vehicle. See RR,

Vol. 3, pg. 41. Trooper Keele had a license plate return and his driver

license return. See RR, Vol. 3, pg. 28; State’s Exhibit 3. The license plate

return was “for local warrants, just Class C stuff here in Lamar County.”

See RR, Vol. 3, pg. 41. White had no local warrants out of Lamar County.


                                     -3-
See RR, Vol. 3, pg. 41.

       The return showed an “SR suspension.” See RR, Vol. 3, pg. 31.

“That’s for state responsibility for a no-insurance citation.” See RR, Vol. 3,

pg. 31. Trooper Keele looked at the date on that, and it was “10/29 of ‘12”

with “no lift date.” See RR, Vol. 3, pg. 31. Trooper Keele stopped White on

“11/6 of ‘12.” See RR, Vol. 3, pgs. 31, 34.

       Trooper Keele continued looking, and there was a mandatory

suspension for driving while license invalid for a previous Class C citation.

See RR, Vol. 3, pg. 32. It had a begin date of “10/29 of ‘12” and the end

date of 3/3 of 2013. See RR, Vol. 3, pg. 32. White’s license was suspended

twice with two different dates. See RR, Vol. 3, pgs. 32, 46.

       After that, Trooper Keele walked up to White and advised him of the

violation. See RR, Vol. 3, pg. 36. Trooper Keele placed White under arrest,

placed him into handcuffs, searched his person and put him in the front

passenger seat of the patrol car. See RR, Vol. 3, pg. 36. Trooper Keele

explained to White that “he was being arrested because a prior DWLI1

suspended him.” See RR, Vol. 3, pg. 42. See also RR, Vol. 3, pg. 50. On


1
  During the trial on June 6, 2013, Trooper Keele explained that the terms “driving while
license invalid” (or DWLI) and “driving while license suspended” were relatively the
same terms. See RR, Vol. 3, pg. 48. He further explained that the driving while license
suspended was usually for insurance, for state responsibility. See RR, Vol. 3, pg. 48.

                                           -4-
the following Monday, Trooper Keele “re-ran” his driver’s license to find

out what the history was. See RR, Vol. 3, pg. 56.

      Information and Jury Trial.

      On December 31, 2012, the State charged White by information with

the misdemeanor offense of driving while license suspended. See CR, pg. 7.

The information, which included an enhancement paragraph, alleged in

pertinent part that:

      ONE MICHAEL EARITT WHITE, late of said County and
      State, anterior to the presentment of this information, did then
      and there intentionally or knowingly operate a motor vehicle on
      a highway during a period that the defendant’s driver’s license
      was suspended or revoked under Chapter 521, Transportation
      Code.

See CR, pg. 7.

      On June 6, 2013, the trial court called cause number 60286 and

questioned the State as to “any housekeeping matters” before swearing in the

jury. See RR, Vol. 3, pg. 6. The State asked the trial court to swear in two

officers and to invoke the Rule. See RR, Vol. 3, pg. 6. The trial court

invoked the Rule and instructed the officers, Tim Keele and Jamie Blunt.

See RR, Vol. 3, pgs 6-7. The trial court also conditionally admitted State’s

Exhibits 1 and 2. See RR, Vol. 3, pg. 10; State’s Exhibits 1 and 2. The trial

court then granted White’s motion in limine regarding any other criminal

                                     -5-
acts of misconduct or any other criminal convictions. See RR, Vol. 3, pg.

11.

      After the trial court gave its instructions to the jury, the State

presented the charging instrument. See RR, Vol. 3, pgs. 18-20. White

entered a plea of “not guilty.” See RR, Vol. 3, pg. 20. See also CR, pg. 53.

      Following opening statements (RR, Vol. 3, pgs. 20-22), the State

called Trooper Keele as its only witness. See RR, Vol. 3, pg. 22. See also

CR, pg. 37 (State’s List of Witnesses). After his testimony, the State rested.

See RR, Vol. 3, pg. 60.

      The trial court excused the jury for “some procedural matters” since

White had filed a motion for an instructed verdict. See CR, pg. 65; RR, Vol.

3, pg. 61. While the jury remained in the jury room, the trial court heard

arguments from the State and opposing counsel. See RR, Vol. 3, pgs. 61-76.

Afterwards, the trial court overruled the motion for directed verdict. See

RR, Vol. 3, pg. 76 (“All we’re talking about are fact issues.”). The trial

court signed an order denying the motion. See CR, pg. 66.

      Subsequently, the defense presented two (2) witnesses, including

White, who testified. See RR, Vol. 3, pgs. 99-140. The State called Judge

Gene Hobbs, who testified as a rebuttal witness. See RR, Vol. 3, pgs. 140-


                                     -6-
155. Both sides then rested and closed. See RR, Vol. 3, pg. 155.

      Following the preparation of the court’s charge (CR, pgs. 53-56), the

trial court read the charge to the jury. See RR, Vol. 3, pgs. 157-165. After

closing arguments, (RR, Vol. 3, pgs. 165-179), the jury retired for its

deliberations. See RR, Vol. 3, pg. 179. Following its deliberations, the jury

found White guilty of the offense of driving while license invalid/suspended

with previous conviction, as charged in the information. See RR, Vol. 3, pg.

181; CR, pg. 57.

      Punishment Phase.

      At the beginning of the punishment phase, both parties waived

opening arguments. See RR, Vol. 3, pg. 189. The trial court admitted

several exhibits. See RR, Vol. 3, pgs. 191-193; State’s Exhibits 8-12. The

State then rested. See RR, Vol. 3, pg. 193. The defense called White as a

witness during the punishment phase. See RR, Vol. 3, pg. 194-207. Both

sides then rested and closed. See RR, Vol. 3, pgs. 207-208.

      Upon the conclusion of the punishment phase, the trial court read its

punishment charge to the jury. See RR, Vol. 3, pgs. 209-215. After closing

arguments (RR, Vol. 3, pgs. 215-224), the jury retired for its deliberations.

See RR, Vol. 3, pg. 225. Following its deliberations, the jury returned a


                                     -7-
verdict. See RR, Vol. 3, pg. 227. By its verdict, the jury assessed his

punishment at imprisonment in the Lamar County jail for a term of ninety

(90) days and a fine in the amount of $1,000.00. See RR, Vol. 3, pg. 227;

CR, pg. 61. The trial court then pronounced sentence. See RR, Vol. 3, pg.

229.

       On June 6, 2013, the trial court signed its judgment and sentence. See

CR, pgs. 51-52. On the same day, White filed his notice of appeal. See CR,

pg. 63.

       Proceedings in this Court.

       On June 20, 2013, White filed his notice of appeal in this Court. Over

the period of several months, “no record ha[d] yet been filed.” See CR, pg.

100. This Court issued an abatement order on December 12, 2013. See CR,

pg. 102.

       Subsequently, “the trial court held indigency hearing to determine

whether White was entitled to a free record and an appointed lawyer on

appeal.” See CR, pg. 88. The trial court ruled that White was not indigent

and was, thus, not entitled to have (1) court-appointed counsel to represent

him or (2) a free record provided on appeal. See CR, pg. 88. On July 28,

2014, this Court concluded, with Chief Justice Morriss writing for the


                                     -8-
majority, that “it was error to deny White a free record and an appointed

attorney on appeal.” See White v. State, 441 S.W.3d 803, 805 (Tex. App.--

Texarkana 2014, no pet.). Justice Moseley dissented. See id. at 808-09.

       On or about August 18, 2014, the County Clerk of Lamar County filed

the Clerk’s Record. On September 4, 2014, this Court ordered the official

court reporter to file the Reporter’s Record on or before September 19, 2014.

On September 11th, the official court reporter filed the Reporter’s Record

with the exhibits being filed on September 17, 2014.

       White sought an extension of time to file his brief, which this Court

granted. White filed his brief on or about November 14, 2014.

       On or about December 16th, the State also sought an extension of time

to file its brief, which this Court granted until January 5, 2015. The State

will be filing its brief at that time.

                     SUMMARY OF THE ARGUMENT

       By a single issue/point of error, the appellant, White, challenged the

legal sufficiency of the evidence underlying his conviction. Viewed in the

light most favorable to the jury’s verdict, the evidence was legally sufficient

for a rational jury to have found the essential elements of driving while

license invalid beyond a reasonable doubt.       Therefore, the trial court’s


                                         -9-
judgment and sentence should be affirmed.

                   ARGUMENT AND AUTHORITIES

SOLE ISSUE PRESENTED IN REPLY: VIEWED IN THE LIGHT
MOST FAVORABLE TO THE JURY’S VERDICT, THE EVIDENCE
WAS LEGALLY SUFFICIENT FOR A RATIONAL JURY TO HAVE
FOUND THE ESSENTIAL ELEMENTS OF DRIVING WHILE
LIGENSE INVALID BEYOND A REASONABLE DOUBT.

      A.     Introduction.

      With his single issue, White alleged that the evidence was insufficient

to support the appellant’s conviction because there was no evidence to show

that the appellant had a lawful license suspension while he was driving on

November 6, 2012. See Appellant’s Brief, pg. 10. In support thereof, White

contended that his suspension period could not have lawfully begun until

well after he was stopped on November 6, 2012. See Appellant’s Brief, pg.

12 (citing Tex. Transp. Code Ann. § 521.292(a), § 521.295(a)-(b), §

521.297(a) (West 2013)).

      B.     Preservation of Error.

      To support his position that the suspension period could not have

lawfully begun, White contended that “[t]he date of this notice [of

suspension] controls the effective date of the suspension.” See Appellant’s

Brief, pg. 12 (citing defense exhibit 1). In his brief, however, White did not


                                      -10-
provide any authority in support of this contention; it was inadequately

briefed. See Tex. R. App. P. 38.1(i); Hankins v. State, 132 S.W.3d 380, 385

(Tex. Crim. App. 2004), cert. denied, 543 U.S. 944, 125 S.Ct. 358, 160

L.Ed.2d 256 (2004). Further, this argument did not comport to the argument

made in the trial court. Accordingly, White waived this argument on appeal.

      C.    Standard of Appellate Review: Legal Sufficiency.

      In evaluating legal sufficiency, this Court reviews all the evidence in

the light most favorable to the jury’s verdict to determine whether any

rational jury could have found the essential elements of the offense beyond a

reasonable doubt. See, e.g., Vanderburg v. State, 365 S.W.3d 712, 714 (Tex.

App.--Texarkana 2012, no pet.) (Justice Carter) (citing Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) and Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.--Texarkana 2010, pet. ref’d) (citing Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). A rigorous legal

sufficiency review focuses on the quality of the evidence presented. See

Wilson v. State, 391 S.W.3d 131, 135 (Tex. App.--Texarkana 2012, no pet.)

(citing Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring)). This Court

examines legal sufficiency under the direction of the Brooks opinion, while


                                    -11-
giving deference to the responsibility of the jury “to fairly resolve conflicts

in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” See Wilson, 391 S.W.3d at 135 (citing Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S.

at 318-19)).

      Legal sufficiency of the evidence is measured by the elements of the

offense as defined by a hypothetically correct jury charge. See Wilson, 391

S.W.3d at 135 (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)).    The hypothetically correct jury charge “sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was

tried.” See Wilson, 391 S.W.3d at 135.

      D.       The Law: Driving While License Invalid.

      Section 521.457(a) of the Texas Transportation Code Annotated

provided in pertinent part that “[a] person commits an offense if the person

operates a motor vehicle on a highway:

             (2) during a period that the person’s driver’s license or
      privilege is suspended or revoked under any law of this state;

See Tex. Transp. Code Ann. § 521.457(a)(2) (West 2013).

                                      -12-
      Examination of the statute in question reveals these required elements:

             (1) A person;

            (2) whose license or driving privilege has been cancelled,
      suspended or revoked;

            (3) drives any motor vehicle upon the highways of this
      State while such license or driving privilege is cancelled,
      suspended or revoked.

See Clayton v. State, 652 S.W.2d 810, 812 (Tex. App.--Amarillo 1983, no

pet.) (interpreting Tex. Rev. Civ. Stat. Ann. art. 6687b, § 34 (1977), the

predecessor statute to Tex. Transp. Code Ann. § 521.457 (West 2013)).

      In Sparkman v. State, 997 S.W.2d 660 (Tex. App.--Texarkana 1999,

no pet.), the driver appealed his conviction for operating a motor vehicle

with a suspended license and this Court affirmed.           See id. at 663.    In

Sparkman, this Court held that as an element of the offense of driving with a

suspended license, the State was required to prove the appellant’s driver’s

license was suspended. See id. at 669. In Sparkman, the State did so by

introducing evidence that the Department of Public Safety automatically

suspended his driver’s license after the 1995 conviction based on his prior

1982 conviction. See id.

      Where a statute provides for suspension of a driver’s license upon

conviction of a certain offense, the statute is self-operative, and the license is

                                       -13-
automatically suspended upon a final conviction. See Lugo v. Tagle, 783

S.W.2d 815, 816 (Tex. App.--Corpus Christi 1990, no pet.). The suspension

is not within the discretion of a court or jury. See id.

      In Ex parte Drake, 212 S.W.3d 822 (Tex. App.--Austin 2006, pet.

ref’d), the court of appeals explained that:

      The driver responsibility program was enacted by the
      legislature in 2003. Act of June 2, 2003, 78th Leg., R.S., ch.
      1325, § 10.01, 2003 Tex. Gen. Laws 4884, 4942 (codified at
      Tex. Transp. Code Ann. §§ 708.001-.156 (West Supp. 2006)).
      Under the program, the Texas Department of Public Safety
      assesses an annual surcharge on the driver’s licenses of persons
      convicted of certain driving-related offenses during the
      preceding thirty-six month period. Tex. Transp. Code Ann. §§
      708.053-.054, 708.102-.104 (West Supp. 2006). The amount of
      the surcharge varies depending on the offense; the surcharge for
      driving without financial responsibility is $250 per year. Id. §
      708.103. Failure to pay the surcharge results in the automatic
      suspension of the driver’s license until the surcharge is paid.
      Id. § 708.152. . . .

See Ex parte Drake, 212 S.W.3d at 823-24.

     E.    Application of Law: Legally Sufficient Evidence Supported
White’s Conviction.

      Here, as in Sparkman, the State was required to prove as one of the

elements that White’s driver’s license was suspended, and the State did so

through the testimony of Trooper Keele:

           So, anyway, I went down and looked at the next one. It’s
      a SR suspension. That’s for state responsibility for a no-

                                       -14-
      insurance citation. So, anyway, I looked at the date on that.
      It’s 10/29 of ‘12. I stopped Mr. White on 11/6 of ‘12. So, that
      would be the one that comes into play, or the first one. And so,
      anyway, I look at it, and it’s 12/31/9999. That’s the end date on
      it, which there’s no lift date.

See RR, Vol. 3, pg. 31. See also State’s Exhibit 3.

      State’s Exhibit 3 was consistent with Trooper Keele’s testimony

because the last page of State’s Exhibit 3 confirmed that:

      ENFORC ACTN: SR SUSPENSION - MANDATORY CONVICTION
      STATUS: ACTIVE BEGIN DT: 10292012 END DT: 12319999 LIFT DT: STATE: TX


See State’s Exhibit 3. See also Drake, 212 S.W.3d at 824 (failure to pay the

surcharge results in the automatic suspension of the driver’s license); Lugo,

783 S.W.2d at 816 (the statute is self-operative, and the license is

automatically suspended upon a final conviction).

      In addition to the holdings in Drake and Lugo, Trooper Keele

explained through his training that the suspension was automatic by the

following testimony:

           Q.      And do you know how the suspension system
      works?

             A.    Yes.

             Q.    And how do you know that?

             A.    Through my training.



                                     -15-
            Q.     And you state that individuals automatically
      receive a suspension, correct?

             A.    Yes, ma’am, upon their conviction date.

See RR, Vol. 3, pg. 42.

      As set forth above, the testimony of Trooper Keele and State’s Exhibit

3 established the element that White’s driver’s license was automatically

suspended for an “SR suspension” and mandatory conviction on October 29,

2012. See RR, Vol. 3, pgs. 31, 42; Drake, 212 S.W.3d at 824; Lugo, 783

S.W.2d at 816. Therefore, the evidence was sufficient to prove the element

that White’s driver’s license was suspended. See Sparkman, 997 S.W.2d at

669. The evidence was also sufficient to satisfy the remaining two (2)

elements, see Clayton, 652 S.W.2d at 812, that White’s driver’s license was

suspended on November 6, 2012 when Trooper Keele initiated a traffic stop

on the speeding motor vehicle driven by White, a person, upon FM 1497 in

Lamar County, Texas. See RR, Vol. 3, pgs. 24, 36, 42; State’s Exhibit 4.

Viewed in the light most favorable to the jury’s verdict, the State’s evidence

was legally sufficient for a rational Lamar County jury to have found the

essential elements of driving while license invalid beyond a reasonable

doubt. See Brooks, 323 S.W.3d at 912; Jackson, 443 U.S. at 319; Tex.

Transp. Code Ann. § 521.457(a) (West 2013).

                                     -16-
      Finally, it was incumbent upon White to prove that his suspension

period could not have lawfully begun under Tex. Transp. Code Ann. §

521.292(a), § 521.295(a)-(b), § 521.297(a) (West 2013) by requesting an

issue in the jury charge and to prove such an affirmative defense by a

preponderance of the evidence. See Tex. Penal Code Ann. § 2.04 (West

Supp. 2014); § 521.457(d) (West 2013). Because White failed to do so, the

appellant’s argument on appeal should fail. Accordingly, the trial court’s

final judgment and sentence should be affirmed.

                                   PRAYER

      WHEREFORE PREMISES CONSIDERED, the State of Texas prays

that upon final submission of the above-styled and numbered cause without

oral argument, this Court affirm the trial court’s final judgment; adjudge

court costs against the appellant; and for such other and further relief, both at




                                      -17-
law and in equity, to which it may be justly and legally entitled.

                          Respectfully submitted,

                          Gary D. Young
                          Lamar County & District Attorney
                          Lamar County Courthouse
                          119 North Main
                          Paris, Texas 75460
                          (903) 737-2470
                          (903) 737-2455 (fax)

                          By:________________________________
                               Gary D. Young, County Attorney
                               SBN# 00785298
                               gyoung@co.lamar.tx.us

                          ATTORNEYS FOR THE STATE OF TEXAS

                   CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “Appellee’s (State’s) Brief” was a computer-generated document and

contained 4586 words--not including the Appendix, if any. The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.


                                        ______________________________
                                        GARY D. YOUNG
                                        gyoung@co.lamar.tx.us




                                      -18-
                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the “Appellee’s (State’s) Brief” has been served on the 5th day of

January, 2015 upon the following:

            Don Biard
            McLaughlin Hutchison & Biard LLP
            38 First Northwest
            Paris, TX 75460

                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us




                                    -19-
