                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00142-CR


ERIK JONATHAN CARRASCO                                             APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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      FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY
                   TRIAL COURT NO. 1471572

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant Erik Jonathan Carrasco appeals his conviction for driving while

intoxicated (DWI)—misdemeanor repetition.        See Tex. Penal Code Ann.

§ 49.09(a) (West Supp. 2017). In three points, Carrasco argues that the trial

court committed reversible error by permitting the State to read the enhancement


      1
      See Tex. R. App. P. 47.4.
paragraph to the jury before the guilt-innocence phase; that the evidence

showing the presence of methamphetamine in his blood is insufficient to prove

that he was intoxicated; and that Texas Code of Criminal Procedure article

102.0185(a), which assesses a $100 emergency-services fee as court costs, is

facially unconstitutional. See Tex. Code Crim. Proc. Ann. art. 102.0185 (West

Supp. 2017). For the reasons set forth below, we will delete the $100 court cost

associated with the emergency-services fee and affirm the judgment as modified.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      On May 14, 2016, Gabriel Sanchez was driving on Lancaster Avenue

when he saw a red pickup truck ahead of him that was swerving between the

right lane and the turning lane. When the pickup truck stopped in the turning

lane, Sanchez moved over to the right and passed the pickup truck.         When

Sanchez stopped at an intersection, he saw the pickup truck coming at him from

behind and noted that the pickup truck was not slowing down. Sanchez warned

his wife, who was with him, that the pickup truck was going to hit them. At the

last minute, the male driver of the pickup truck braked hard, swerved to cut

through the parking lot of a gas station, and continued on Bowen Road. Sanchez

also continued on Bowen Road, keeping his distance from the pickup truck.

When Sanchez saw the pickup truck swerve into oncoming traffic, he called 911.

Sanchez continued to follow the speeding pickup truck and provide updates to

the 911 operator. While they were still on Bowen Road, Sanchez saw a utility

worker run to get out of the truck’s way because it almost hit the utility worker


                                       2
and his utility truck that was parked in the right lane. After turns onto Pioneer

Parkway and Cooper Street, Sanchez saw the pickup truck swerve between

lanes and speed away. The pickup truck then made a right on Collins Street and

an immediate left into a QuikTrip parking lot, almost hit a car and a woman, and

then returned to the service road. Sanchez lost sight of the pickup truck after it

ran a red light at Matlock Road.

      Based on Sanchez’s 911 call, Lieutenant Cook caught up with the pickup

truck and initiated a stop.    Officer Darrell Gordon with the Arlington Police

Department joined Lieutenant Cook in approaching the vehicle. Lieutenant Cook

asked the driver to exit the pickup truck and escorted him to the back of the

pickup truck.   Officer Gordon noted that when the driver exited the car, he

exhibited unsteady balance.        Lieutenant Cook asked the driver, who was

identified as Carrasco, several general questions, and then Officer Gordon took

over the investigation. Officer Gordon noted that Carrasco had bloodshot eyes

and slurred speech and that an odor of marijuana was emanating from inside the

truck.2   Based on the reports of Carrasco’s erratic driving and his physical

appearance, Officer Gordon believed that Carrasco was intoxicated.

      Officer Gordon asked Carrasco where he was coming from, and Carrasco

said that he had started from his family’s house in Fairfield but could not recall

      2
       Officer Gordon testified at trial that he had completed the Advanced
Roadside Impaired Driving Enforcement (ARIDE) course after the stop and that
based on that training, he would now describe the smell of the smoke coming
from inside the vehicle as possible methamphetamine or cocaine.


                                         3
the address. Carrasco told Officer Gordon that he was headed to his mother’s

house in Arlington, but he did not know her address. Carrasco said that he was

not taking any medication and that he had not suffered any head injuries. Officer

Gordon questioned Carrasco about whether he had been drinking and whether

he had smoked marijuana, and Carrasco responded that he had not drunk any

alcohol and that he had not smoked any marijuana. During the questioning,

Carrasco was “very standoff-ish,” upset, and agitated.           Carrasco refused to

perform any field sobriety tests. Carrasco also refused to voluntarily provide a

sample of his blood and his breath.

         Officer Gordon decided to arrest Carrasco based on the 911 caller’s

description of Carrasco’s driving (weaving from lane to lane, running a red light at

Matlock Road, and almost hitting a pedestrian at QuikTrip), on Carrasco’s

physical appearance (bloodshot eyes, slurred speech, and unsteady balance),

and on the smell of marijuana that came from inside the truck. Officer Gordon

concluded that Carrasco had lost the use of his mental faculties due to

intoxication but that the intoxication was not due to alcohol.

         Because Carrasco refused to provide a blood sample, Officer Gordon

obtained a search warrant to have Carrasco’s blood drawn. Carrasco’s blood

tested     positive   for   methamphetamine.      Officer   Gordon     testified   that

methamphetamine can cause someone to lose the normal use of his mental or

physical faculties. Officer Gordon further testified that Carrasco’s behaviors were

consistent with someone who had taken methamphetamine.


                                          4
      Cheryl Wheeler, a senior forensic toxicologist with the Tarrant County

Medical Examiner’s Office, testified that Carrasco’s blood sample contained 183

nanograms of methamphetamine per milliliter of blood. Wheeler further testified

that the form of methamphetamine detected in Carrasco’s blood was the illegal

form of methamphetamine. Wheeler could not testify about the effects of 183

nanograms per milliliter of methamphetamine on the body because that was

outside her area of expertise.

      Deputy Joel Garcia, a fingerprint identification expert with the Tarrant

County Sheriff’s Department, testified that the fingerprints on a DWI judgment

from 2003 matched Carrasco’s fingerprints.

      After hearing the above evidence, the jury found Carrasco guilty of DWI as

charged in the information.3 Carrasco entered into a punishment agreement with


      3
       The misdemeanor information charged Carrasco as follows:

      Comes now the undersigned Assistant Criminal District Attorney of
      Tarrant County, Texas, in behalf of the State of Texas, and presents
      in and to the COUNTY CRIMINAL COURT NO. 8 of Tarrant County,
      Texas

      THAT ERIK JONATHAN CARRASCO, HEREINAFTER CALLED
      DEFENDANT, IN THE COUNTY OF TARRANT AND STATE
      AFORESAID, ON OR ABOUT THE 14TH DAY OF MAY 2016, DID
      OPERATE A MOTOR VEHICLE IN A PUBLIC PLACE WHILE THE
      SAID DEFENDANT WAS INTOXICATED,

      ENHANCEMENT PARAGRAPH: AND IT         IS FURTHER
      PRESENTED IN AND TO SAID COURT THAT PRIOR TO THE
      COMMISSION OF THE AFORESAID OFFENSE BY THE SAID
      DEFENDANT, THAT ON THE 9TH DAY OF JULY 2003, IN THE
      COUNTY COURT AT LAW OF ECTOR COUNTY, TEXAS, IN

                                       5
the State to serve 190 days in jail, and the trial court sentenced him in

accordance with that agreement. Carrasco then perfected this appeal.

               III. THE TRIAL COURT DID NOT ERR BY ALLOWING
      THE ENHANCEMENT TO BE READ BEFORE THE GUILT-INNOCENCE PHASE

      In his first point, Carrasco argues that the trial court committed reversible

error by permitting the State to read the enhancement paragraph in the

information to the jury before the guilt-innocence phase of the trial.

      Article 36.01 of the code of criminal procedure provides that the indictment

or information shall be read to the jury by the prosecuting attorney after a jury is

impaneled. Tex. Code Crim. Proc. Ann. art. 36.01(a) (West 2007). However, not

all portions of the indictment or information may be read to the jury at the outset.

See generally id.       When prior convictions are alleged for purposes of

enhancement and are not jurisdictional, that portion of the indictment or

information reciting such convictions shall not be read to the jury until the

punishment phase begins. Id. The purpose is to prevent prejudice against a

defendant during the guilt-innocence stage from the jurors having heard or read

the specific allegations in any enhancement paragraphs. Gentry v. State, 881

S.W.2d 35, 40 (Tex. App.—Dallas 1994, pet. ref’d).



      CAUSE NUMBER 033103, THE SAID DEFENDANT WAS
      CONVICTED OF THE OFFENSE OF DRIVING WHILE
      INTOXICATED AND SAID CONVICTION BECAME FINAL PRIOR
      TO THE COMMISSION OF THE AFORESAID OFFENSE,

      AGAINST THE PEACE AND DIGNITY OF THE STATE.


                                          6
      Article 36.01 does not, however, restrict reading the portions of the

indictment containing the elements of the offense because the State must prove

each element of the offense beyond a reasonable doubt to obtain a guilty verdict.

See generally Tex. Code Crim. Proc. Ann. art. 36.01(a); Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). An element is a fact that is legally

required for a factfinder to convict a person of a substantive offense. Schmutz v.

State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014). In discerning whether any

given fact constitutes an element of an offense, we look to the plain language of

the statute involved. Calton v. State, 176 S.W.3d 231, 234 (Tex. Crim. App.

2005).

      Here, Texas Penal Code section 49.09(a) provides that a DWI is a Class A

misdemeanor “if it is shown on the trial of the offense that the person has

previously been convicted one time of an offense relating to the operating of a

motor vehicle while intoxicated.” Tex. Penal Code Ann. § 49.09(a). The prior

DWI is a fact that is “legally required for a fact[]finder to convict a person” of

Class A misdemeanor DWI.          See Schmutz, 440 S.W.3d at 34 (defining

“element”); see also Jackson, 443 U.S. at 315, 99 S. Ct. at 2787 (requiring proof

beyond a reasonable doubt of “every fact necessary to constitute the crime with

which he is charged”). Thus, under the statute’s plain language, one prior DWI

conviction is an element of the offense of Class A misdemeanor DWI under

section 49.09(a). See Oliva v. State, 525 S.W.3d 286, 292 (Tex. App.—Houston

[14th Dist.] 2017, pet. granted); Mapes v. State, 187 S.W.3d 655, 659–60 (Tex.


                                        7
App.—Houston [14th Dist.] 2006, pet. ref’d); see also Gibson v. State, 995

S.W.2d 693, 695–96 (Tex. Crim. App. 1999) (concluding that one prior

intoxication-related offense elevated DWI offense from Class B to Class A

misdemeanor).

      Carrasco contends on appeal that “[t]he State did not incorporate [his] prior

[DWI] conviction into the primary offense as an essential element to prove a

Class A misdemeanor” because the information contained “a separate and

distinct ‘Enhancement Paragraph.’”4     Carrasco’s argument places form over

substance.    Although the second paragraph in the information is labeled

“Enhancement Paragraph,” that label does not cause the prior conviction to act

as a punishment enhancement. In the context of section 49.09(a), one prior DWI

conviction “serve[s] the purpose of enhancing the [DWI] offense” from a Class B

misdemeanor—the classification for a single DWI offense with no prior

conviction—to a Class A misdemeanor. See Tex. Penal Code Ann. § 12.43

      4
        The jury charge clearly set forth the prior DWI conviction as an element of
the offense:

      Now, if you find from the evidence beyond a reasonable doubt that
      in Tarrant County, Texas, on or about the 14th day of May, 2016, the
      defendant, Erik Jonathan Carrasco, did then and there operate a
      motor vehicle in a public place while the said defendant was
      intoxicated, and if you find from the evidence beyond a reasonable
      doubt that prior to the commission of the aforesaid offense by the
      said Defendant, that on the 9th day of July 2003, in the County Court
      at Law of Ector County, Texas, in Cause Number 033103, the said
      Defendant was convicted of the offense of driving while intoxicated
      and said conviction became final prior to the commission of the
      aforesaid offense, then you will find the defendant guilty as charged.


                                        8
(West 2011) (titled “Penalties for Repeat and Habitual Misdemeanor Offenders”

and raising the punishment range upon conviction of a Class A, Class B, and

Class C misdemeanor based on certain prior convictions); Gibson, 995 S.W.2d at

696 (emphasis added).       It does not serve the purpose of enhancing the

punishment.    See Tex. Penal Code Ann. § 49.04(a), (b) (West Supp. 2017),

§ 49.09(a); Oliva, 525 S.W.3d at 293.

      Because one prior DWI conviction is an element of the offense of Class A

misdemeanor DWI, the State had the burden to prove beyond a reasonable

doubt during the guilt-innocence stage that Carrasco had one prior DWI

conviction. See Tex. Penal Code Ann. § 49.09(a); Oliva, 525 S.W.3d at 293.

Accordingly, the trial court did not err by permitting the State to read the second

paragraph of the information, which alleged that Carrasco had one prior DWI

conviction, to the jury at the outset of the guilt-innocence stage of the trial. See

Tex. Code Crim. Proc. Ann. art. 36.01(a); cf. Ford v. State, 112 S.W.3d 788, 792

(Tex. App.—Houston [14th Dist.] 2003, no pet.) (holding that trial court did not err

by allowing State to read enhancement paragraph to the jury because prior

conviction constituted an element of the felony offense of evading arrest);

Montgomery v. State, No. 10-03-00324-CR, 2005 WL 675556, at *4 (Tex. App.—

Waco Mar. 23, 2005, pet. ref’d) (mem. op., not designated for publication) (“[T]he

trial court did not err in allowing the portions of the indictment alleging a prior

conviction for evading arrest to be read to the jury because the prior conviction is

an element of the offense.”). We overrule Carrasco’s first point.


                                         9
          IV. SUFFICIENT EVIDENCE SUPPORTS ELEMENT OF INTOXICATION

      In his second point, Carrasco argues that the evidence showing the

presence of methamphetamine in his blood is insufficient to prove that he was

intoxicated.

                             A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99

S. Ct. at 2789; Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).

This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Jenkins, 493 S.W.3d at 599.

                             B. Law on Intoxication5

      “Intoxicated” is defined by the penal code as “not having the normal use of

mental or physical faculties by reason of the introduction of alcohol, a controlled

substance, a drug, a dangerous drug, a combination of two or more of those

      5
       The elements of a Class A misdemeanor DWI include the following: (1) a
person, (2) is intoxicated, (3) while operating, (4) a motor vehicle, (5) in a public
place, and (6) has one prior DWI conviction. See Tex. Penal Code Ann.
§§ 49.04(a), 49.09(a). Because Carrasco challenges only the sufficiency of the
evidence to support the intoxication element, we set forth the law and review the
evidence solely as to that element.


                                         10
substances, or any other substance into the body” or as “having an alcohol

concentration of 0.08 or more.” Tex. Penal Code Ann. § 49.01(2)(A)(B) (West

2011). The jury charge here defined “intoxicated” as “[n]ot having the normal use

of mental or physical faculties by reason of the introduction of a controlled

substance into the body.”

      Intoxication can be proven through circumstantial evidence. Paschall v.

State, 285 S.W.3d 166, 177 (Tex. App.—Fort Worth 2009, pet. ref’d) (reflecting

that intoxication may be proved through circumstantial evidence). “‘Evidence of

intoxication’ encompasses specific conduct that, when combined with other

specific conduct which is also evidence of intoxication, leads to the conclusion

that a person is intoxicated or is under the influence of alcohol to the degree that

he may endanger himself or another.” Cotton v. State, 686 S.W.2d 140, 142

(Tex. Crim. App. 1985). The court of criminal appeals has identified several

characteristics that constitute evidence of intoxication, including erratic driving

and postdriving behavior such as stumbling, swaying, slurring or mumbling

words, or bloodshot or glassy eyes. See Kirsch v. State, 306 S.W.3d 738, 745

(Tex. Crim. App. 2010); Cotton, 686 S.W.2d at 142–43 & 142 n.3. The jury may

consider a person’s refusal to provide a breath or blood sample as probative

evidence of his intoxication because it establishes consciousness of guilt. See

Tex. Transp. Code Ann. § 724.061 (West 2011); Bartlett v. State, 270 S.W.3d

147, 153 (Tex. Crim. App. 2008). The testimony of a police officer regarding the

defendant’s behavior and the officer’s opinion that the defendant is intoxicated


                                        11
provides sufficient support to uphold a jury verdict.    See Annis v. State, 578

S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979).

                                  C. Analysis

      The record here contains overwhelming evidence of intoxication.

Sanchez, the 911 caller, described Carrasco’s erratic driving, which included

almost rear-ending Sanchez, almost hitting a utility worker and a utility truck,

swerving between lanes, speeding, almost hitting a woman in the parking lot at

QuikTrip, and running a red light.         Officer Gordon described Carrasco’s

appearance—bloodshot eyes, slurred speech, and unsteady balance—and

testified about Carrasco’s inability to provide addresses for where he was coming

from and where he was going.           Officer Gordon testified at trial that after

completing the ARIDE training, he believed the odor emanating from Carrasco’s

vehicle on the date in question was methamphetamine. Carrasco refused to

submit to the field sobriety, blood, and breath tests. After Carrasco’s blood was

drawn pursuant to a warrant, the lab results revealed that his blood tested

positive for methamphetamine. Officer Gordon testified that methamphetamine

can cause someone to lose the normal use of his mental or physical faculties and

that Carrasco’s behaviors were consistent with someone who had taken

methamphetamine.     Officer Gordon concluded that Carrasco was intoxicated

from a substance other than alcohol.

      Carrasco argues that the State did not present expert scientific evidence

“as to the intoxicating effect, if any, of methamphetamine or whether nanograms


                                         12
of methamphetamine in one milliliter of Mr. Carrasco’s blood would cause Mr.

Carrasco to have lost the normal use of his mental and physical faculties at the

time he was driving.” The jury, as the factfinder, could have reasonably inferred

Carrasco’s loss of the normal use of his mental and physical faculties—as

demonstrated by his erratic driving, his physical appearance, and his answers to

Officer Gordon’s questions—was due to the methamphetamine in his system

because the lab results showed that the illegal form of methamphetamine was

the only controlled substance in Carrasco’s blood. See Paschall, 285 S.W.3d at

178 (holding evidence sufficient to permit jury to infer that appellant’s loss of the

normal use of his mental or physical faculties was by reason of the introduction of

“a controlled substance, a drug, a dangerous drug, a combination of two or more

of those substances, or any other substance” into his body). Expert testimony

was thus not necessary. See Williams v. State, 895 S.W.2d 363, 366 (Tex. Crim.

App. 1994) (stating that expert testimony must be limited to situations in which

the expert’s knowledge and experience on a relevant issue are beyond that of an

average juror); Waller v. State, No. 05–09–00097–CR, 2009 WL 4642850, at *3

(Tex. App.—Dallas Dec. 9, 2009, no pet.) (mem. op., not designated for

publication) (holding no expert testimony was necessary to support conviction for

driving while intoxicated because evidence of arresting officer’s experience and

observations could support conviction).6


      6
       To the extent Carrasco’s second point encompasses an argument that the
State had the burden to prove that methamphetamine was the intoxicant that

                                         13
      Viewing the evidence in the light most favorable to the verdict, we

conclude that a rational jury could find beyond a reasonable doubt that Carrasco

was intoxicated at the time of the traffic stop.     See Tex. Penal Code Ann.

§ 49.01(2)(A); Annis, 578 S.W.2d at 407 (holding arresting officer’s testimony

regarding his observations of defendant’s driving, physical appearance,

postdriving behavior, and his conclusion of intoxication sufficient). Accordingly,

we hold the evidence sufficient to support Carrasco’s conviction for DWI–

misdemeanor repetition, and we overrule Carrasco’s second point.

            V. SECTION 102.0185(a) IS FACIALLY UNCONSTITUTIONAL

      In his third point, Carrasco argues that Texas Code of Criminal Procedure

article 102.0185(a), which assesses a $100 emergency-services fee as court

costs, is facially unconstitutional. See Tex. Code Crim. Proc. Ann. art. 102.0185.

The State concedes that Carrasco should not have been charged the $100

emergency-services fee in light of this court’s opinion in Casas v. State. 524

S.W.3d 921, 926–27 (Tex. App.—Fort Worth 2017, no pet.) (holding that

emergency-services fee imposed under article 102.0185 does not direct that the

funds be used in the manner that would make it a court cost, rendering it facially

unconstitutional). Accordingly, we sustain Carrasco’s third point.




caused the loss of the normal use of his mental and physical faculties, the court
of criminal appeals has held that the substance that causes intoxication is not an
element of the offense of DWI. See Gray v. State, 152 S.W.3d 125, 132 (Tex.
Crim. App. 2004).


                                        14
                                 VI. CONCLUSION

      Having sustained Carrasco’s third point, we modify the judgment and bill of

costs to subtract the $100 emergency-services cost from the $487.107 total court

costs assessed, leaving $387.10 in total court costs. See Cates v. State, 402

S.W.3d 250, 252 (Tex. Crim. App. 2013) (stating that when trial court improperly

included fees in assessed court costs, proper remedy was to reform judgment to

delete improper fees); Casas, 524 S.W.3d at 927. Having overruled Carrasco’s

first and second points, we affirm the trial court’s judgment as modified. See

Tex. R. App. P. 43.2(b).

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER and PITTMAN, JJ., and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 4, 2018


      7
       Although the judgment reflects that total court costs of $432.10 were
assessed, this appears to be a scrivener’s error because the bill of costs and the
criminal docket both reflect total court costs of $487.10. Because the judgment
did not accurately reflect the amount of costs for which there is a basis in the
record, we modify the judgment to match the bill of costs. See Nolan v. State, 39
S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (stating that
appellate court may reform a trial court’s judgment to accurately reflect the record
when it has the necessary data and information to do so); see also Gilder v.
State, No. 14-13-01088-CR, 2014 WL 7204962, at *4 (Tex. App.—Houston [14th
Dist.] Dec. 18, 2014, no pet.) (mem. op., not designated for publication)
(modifying judgment to match cost bill).


                                        15
