                            NUMBER 13-11-00642-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


DAVID RAY ATWOOD,                                                           Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 435th District Court
                          of Montgomery, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides, and Longoria
            Memorandum Opinion by Justice Benavides
      By one issue, appellant David Ray Atwood asserts that insufficient evidence links

him to two prior misdemeanor driving while intoxicated convictions for purposes of

making his current driving while intoxicated conviction a third-degree felony.   See TEX.

PENAL CODE ANN. §§ 49.04 (West Supp. 2011); 49.09 (West Supp. 2011). We affirm.
                                       I.      BACKGROUND1

          On February 26, 2010, police in Montgomery County arrested Atwood for driving

while intoxicated (DWI) after his vehicle came to a stop following four separate collisions

along a four-mile span of roads which included: crashing into another automobile,

running over two residential mailboxes, and ultimately, colliding into a tree.

          The State indicted and re-indicted Atwood for DWI (third or more), a third-degree

felony.       See id.     In its indictment, the State alleged that Atwood had three prior

convictions for operating a motor vehicle while intoxicated, one dating back to 1991 and

the other two to 1983.

          At trial, a Montgomery County jury found Atwood guilty of DWI (third or more).2

During the punishment phase, the jury found six separate enhancement paragraphs true

and sentenced Atwood to fifty years’ confinement in the Texas Department of Criminal

Justice, Institutional Division.      This appeal ensued.

                    II.     SECTION 49.09 DWI FELONY ENHANCEMENT

          By his sole issue on appeal, Atwood contends that insufficient evidence links him

to two prior misdemeanor DWI convictions for purposes of making his current driving

while intoxicated conviction a third-degree felony under penal code section 49.09.

          A. Standard of Review and Applicable Law

          When reviewing the sufficiency of the evidence, we view the evidence in the light

most favorable to the verdict to determine whether “any rational trier of fact could have

          1
         This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).
          2
          In addition to the underlying driving while intoxicated charge, the State presented evidence of a
1983 driving while intoxicated conviction from Harris County and a 1991 driving while intoxicated conviction
from Montgomery County.

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found the essential elements of the crime beyond a reasonable doubt.”        Montgomery v.

State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (citing Brooks v. State, 323 S.W.3d

893, 902 (plurality op.)); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is

the sole judge of the credibility of witnesses and the weight to be given to their

testimonies, and the reviewing court must not usurp this role by substituting its own

judgment for that of the jury.      Montgomery, 369 S.W.3d at 192. Thus, our duty is

“simply to ensure that the evidence presented supports the jury's verdict and that the

state has presented a legally sufficient case of the offense charged.”            Id. (internal

citations omitted). When faced with a record supporting contradicting inferences, we

must presume that the jury resolved such conflicts in favor of the verdict, even if not

explicitly stated in the record.   Id. (citing Brooks, 323 S.W.3d at 899 n.13).

         The elements of the offense are measured as defined by a hypothetically correct

jury charge.    Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).         Such a charge [is] one

that accurately 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.   Id.

         To have a legally sufficient felony enhancement of a driving while intoxicated

charge, the State must show that the defendant has previously been convicted two times

of any other offense relating to the operating of a motor vehicle while intoxicated.      See

TEX. PENAL CODE ANN. § 49.09(b)(1). To establish that a defendant has been convicted

of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior


                                               3
conviction exists, and (2) the defendant is linked to that conviction.                  Flowers v. State,

220 S.W.3d 919, 921 (Tex. Crim. App. 2007).

       The Flowers Court noted that Texas law does not require “that the fact of a prior

conviction be proven in a specific manner,” and “any type of evidence, documentary or

testimonial, may suffice.”        Id.   In its decision, the court of criminal appeals likened the

process of proving up a prior conviction to evidentiary pieces to a jigsaw puzzle and left

the ultimate decision of whether these “pieces fit together sufficiently to complete the

puzzle” with the trier of fact under the totality of the evidence.                   See id. at 923. A

certified copy of a defendant’s driving record, standing alone, is insufficient to prove prior

convictions.      See Gentile v. State, 848 S.W.2d 359, 360 (Tex. App.—Austin 1993, no

writ) (holding that a driving record is “only what it purports to prove:             that the department

has received the listed notices of conviction.”); but see Flowers, 220 S.W.3d at 923–24

(holding that a driving record in combination with a matching computer printout from the

county clerk’s office that set out the prior DWI conviction was legally sufficient).

       B. Discussion

       In this case, the State offered several “pieces” to the jigsaw puzzle to prove prior

convictions including:        (1) a copy of the DIC-24 post-arrest statutory warning form that

was read to Atwood which includes his Texas driver’s license number and date of birth;

(2) a certified copy of Atwood’s Texas Department of Public Safety driving record, with

matching driver’s license number and date of birth, that shows a 1991 and a 1983 driving

while intoxicated conviction with corresponding cause numbers; (3) judgments for each

corresponding conviction with matching cause numbers, courts, and conviction dates; 3


       3
           The 1983 judgment does not contain a fingerprint, date of birth, or any other identification except

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(4) a certified copy of a “pen packet” from the Texas Department of Criminal Justice, with

Atwood’s photograph and fingerprints, listed under cause number 91-06-00756-CR that

is referenced in Atwood’s 1991 driving while intoxicated judgment; 4 and (5) testimony

from Texas Department of Public Safety Officer Jeremy McGilbery that a driver’s license

number is a unique number that is assigned to a person.

        While it is conceivable here that there are two men named David Ray Atwood with

the same date of birth, living at the same address, with same personal descriptors, like

the court of criminal appeals succinctly articulated in Flowers: it is not likely.            See 220

S.W.3d at 925.      Accordingly, we conclude that a rational trier of fact could have found

beyond a reasonable doubt that two prior misdemeanor DWI charges existed and legally

sufficient evidence links Atwood to those charges.              See Montgomery, 369 S.W.3d at

192.

        Atwood’s sole issue is overruled.

                                       III.    CONCLUSION

        We affirm the trial court’s judgment.


                                                                __________________________
                                                                GINA M. BENAVIDES,
                                                                Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
4th day of April, 2013.

Atwood’s name, cause number, and date of conviction, all listed in the certified copy of Atwood’s driving
record.
        4
          The 1991 DWI judgment identifies Atwood only through a faded right index finger print. The
judgment does, however, reference the cause number listed in subsection four and states that Atwood’s
conviction for the 1991 DWI charge will “run concurrent to” the other charge.

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