                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                              §
 GUSTAVO RODRIGUEZ,                                          No. 08-11-00345-CR
                                              §
                       Appellant,                                Appeal from
                                              §
 v.                                                      Criminal District Court No. 2
                                              §
 THE STATE OF TEXAS,                                       of Tarrant County, Texas
                                              §
                       Appellee.                               (TC # 1254226R)
                                              §

                                        OPINION

       Gustavo Rodriguez appeals his conviction of felony driving while intoxicated. A jury

found Appellant guilty and assessed his punishment at imprisonment for a term of eight years.

We affirm.

                                    FACTUAL SUMMARY

       On June 12, 2010 at approximately 9:30 p.m., Appellant entered a convenience store

alone. The clerk on duty, Brittany Petty, knew Appellant because he came into the store about

once a week. Petty was also familiar with the car Appellant drove and she had a direct view of

the handicap parking space where Appellant had parked. Petty was busy with another customer,

but she told Appellant not to park in the handicap parking space. Appellant replied that he had

not parked in the handicap parking space and he would only be in the store a “second.” In

Petty’s opinion, Appellant appeared to be intoxicated. After a few minutes, Petty saw a police
car pull up behind Appellant’s car.

       Gregory Fues is a police service assistant employed by the City of Arlington. He is not a

police officer but functions as civilian patrol in support of patrol operations. Fues explained that

a police service assistant handles certain types of calls, such as abandoned vehicles, and he takes

reports so that the police officers are available for in-progress or emergency calls. He is also

authorized to issue city ordinance tickets and handicap parking violations. Fues wears a uniform

and drives a marked police vehicle. On June 12, 2010, he was on routine patrol when he saw a

Nissan Maxima parked in a handicap parking space. Fues exited his car and saw that no one was

in or around the Maxima. Fues determined that the car did not have credentials, such as a license

plate or placard, that would allow it to be parked in the handicap space. As Fues began to write

the citation, Appellant walked out of the store and Fues asked him whether the Nissan belonged

to him. Appellant answered affirmatively and Fues spoke with him about the handicap parking

violation. Appellant told Fues he did not know that he could not park in a handicap space. He

also told Fues that he was the person who had parked the car there. Fues requested Appellant’s

driver’s license and insurance card so that he could write the citation. While Appellant was

getting those items, Fues noticed that Appellant was losing his balance and his speech was

slurred. After concluding Appellant might be intoxicated, Fues called for additional units to

investigate. Arlington police officers arrived and took over the investigation.

       Officer Nathan Bishop was dispatched to the convenience store at approximately 9:41

p.m. and he arrived a few minutes later. Bishop spoke with Fues and Brittany Petty before

talking to Appellant who was seated on the curb next to his car. His eyes were red and bloodshot

and Bishop could smell an odor of an alcoholic beverage on his breath. Appellant told Bishop he

had drunk four beers at around 10 p.m. that evening. Because it was still just a few minutes



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before 10, Bishop asked Appellant what time he thought it was. Appellant thought it was

between midnight and 1 a.m. Bishop asked Appellant to stand up so he could talk to him face-

to-face. Appellant had trouble with his balance and he used his car to steady himself. Bishop

asked Appellant why he had parked in the handicap parking space and Appellant replied that he

did not know. Appellant also said that he was alone. Appellant never told Bishop that he was

not the driver of the vehicle.     Bishop performed the horizontal gaze nystagmus test and

determined that Appellant showed the clues indicating he was intoxicated.            He next asked

Appellant to perform the walk and turn field sobriety test. Appellant failed the test because he

did not follow instructions and he lost his balance. Appellant refused to perform any more tests.

Bishop placed Appellant under arrest for driving while intoxicated. Appellant spontaneously

told Bishop that he could not be arrested for driving while intoxicated because he was driving

earlier but he was out of the car by the time Bishop got there. Bishop transported Appellant to

the hospital for a blood test to determine his blood alcohol concentration. The test revealed the

blood alcohol concentration was .26.

                                   TEN DAYS TO PREPARE

       In his first issue, Appellant argues that the trial court erred by failing to give him ten days

to prepare for trial after re-indictment. The trial court appointed counsel to represent Appellant

on January 4, 2011. A grand jury returned an indictment against Appellant on May 13, 2011

(cause number 1223108D). A grand jury re-indicted Appellant on September 16, 2011 (cause

number 1254226R) and trial began on September 27, 2011. The new indictment alleged two

additional prior DWI convictions. The trial court granted the State’s motion to dismiss cause

number 1223108D on September 30, 2011 because the case had been re-indicted. Pursuant to

Article 1.051(e), appointed counsel is entitled to ten days to prepare for a proceeding. TEX.CODE



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CRIM.PROC.ANN. art. 1.051(e)(West Supp. 2013).            Appellant asserts that counsel was not

appointed in the new cause number until September 20, 2011, but the record reflects that the trial

court appointed the same attorney who had been representing Appellant in the original cause

number.    Thus, appointed counsel had eleven days to prepare for trial following the re-

indictment. Issue One is overruled.

                         VOID JURISDICTIONAL ENHANCEMENT

       In Issue Two, Appellant contends that the State improperly used a void jurisdictional

enhancement paragraph. The indictment alleged that Appellant had four prior DWI convictions.

At the beginning of trial, Appellant and the State entered into a written stipulation to the first and

second.    In exchange, the State abandoned use of the third and fourth as jurisdictional

enhancements. In accordance with that agreement and stipulation, the State read only the first

and second enhancement paragraphs to the jury at the beginning of trial. The prosecutor read the

following stipulation to the jury:

       Now comes the State of Texas by and through the undersigned Assistant District
       Attorney of Tarrant County, Texas, together with GUSTAVO RODRIGUEZ,
       Defendant, in the above styled and numbered cause and his attorney, DANNY
       PITZER, and enter into the following stipulation of evidence:

       1. That the Defendant, Gustavo Rodriguez, on the 14th day of June 2002, in the
          County Court at Law of Henderson County, Texas, in Cause Number
          011229CL, was convicted of the offense of Driving While Intoxicated.
          Defendant, Gustavo Rodriguez, further stipulates that said conviction became
          final prior to the commission of the above-styled offense date. Defendant
          admits that he is one and the same person.

       2. That the Defendant Gustavo Rodriguez, on the 9th day of November, 2004, in
          the County Court at Law of Henderson County, Texas, in Cause Number
          031613CL, was convicted of the offense of Driving While Intoxicated 2nd.
          Defendant, Gustavo Rodriguez, further stipulates that said conviction became
          final prior to the commission of the above-styled offense date. Defendant
          admits that he is one and the same person.

       The State of Texas, the Defendant, Gustavo Rodriguez, and his attorney, Danny

                                                -4-
       Pitzer, hereby agree and stipulate to all of the above facts. All parties agree that
       this Stipulation of Evidence can be admitted into evidence and used for all
       purposes without objection from either party.           The Defendant, Gustavo
       Rodriguez, also waives his right to confront and cross-examine the witnesses on
       the described facts.

The stipulation is signed by the assistant district attorney, Appellant, and his appointed counsel.

       Appellant’s complaint on appeal relates to the second prior conviction stipulated to by

Appellant and the State. In a felony DWI case, the prior DWI convictions are elements of the

offense, and like the other elements of the offense must be proven beyond a reasonable doubt.

Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999). As noted by the State, it is unclear

from Appellant’s brief whether he is attempting to challenge the admissibility of the prior

conviction or if he is attempting to attack the sufficiency of the evidence to prove this element of

the offense. To the extent Appellant is challenging the admissibility of the prior conviction, that

complaint is waived because Appellant did not object in the trial court and he stipulated to the

prior conviction. See Howell v. State, 563 S.W.2d 933, 936 (Tex.Crim.App. 1978).

       In the event Appellant intended to raise a legal sufficiency complaint, Appellant’s

stipulation to the existence of the prior convictions is a judicial admission which removed the

need for the State to provide proof of the prior convictions. See Bryant v. State, 187 S.W.3d 397,

402 (Tex.Crim.App. 2005). A stipulation waives a defendant’s “right to contest the absence of

proof on the stipulated elements.”      Bryant, 187 S.W.3d at 401.        Having stipulated to the

existence of the prior conviction, Appellant is precluded from challenging the sufficiency of the

evidence supporting this element of the offense.        See Bryant, 187 S.W.3d at 400-02 (by

stipulating to two prior convictions for driving while intoxicated (DWI), defendant waived any

right to contest the absence of proof on stipulated element in prosecution for felony DWI; he

could not argue that the State failed to prove its case on an element to which he had stipulated).



                                                -5-
Issue Two is overruled.

                               INEFFECTIVE ASSISTANCE

       In his third issue, Appellant argues that he was deprived of the effective assistance of

counsel at trial. He alleges two instances of deficient performance: (1) counsel failed to pursue

a motion to suppress Appellant’s statements; and (2) he failed to file a motion to quash the

jurisdictional enhancement paragraph. The State responds that the record is inadequate to review

the ineffective assistance of counsel claim. We agree.

       Both the United States and the Texas Constitutions guarantee an accused the right to

assistance of counsel.     U.S. CONST. amend. VI; TEX.CONST. art. I, § 10; TEX.CODE

CRIM.PROC.ANN. art. 1.05 (West 2005). This right includes the right to reasonably effective

assistance. Strickland v. Washington, 466 U.S. 668, 683-86, 104 S.Ct. 2052, 2062, 80 L.Ed.2d

674 (1984). In Strickland, the Supreme Court set forth the standard of review for evaluating

claims of ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The

two-prong Strickland test requires Appellant to show that: (1) counsel’s performance fell below

an objective standard of reasonableness, and (2) counsel’s performance prejudiced his defense.

Id.   Prejudice requires a showing that, but for counsel’s unprofessional error, there is a

reasonable probability that the result of the proceeding would have been different. Id.; Mitchell

v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002); Vasquez v. State, 830 S.W.2d 948, 949

(Tex.Crim.App. 1992).      Reasonable probability is defined as a “probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

       Appellant has the burden to prove ineffective assistance of counsel by a preponderance of

the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In analyzing a

claim for ineffective assistance, we begin with the strong presumption that counsel was



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competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Appellant must

overcome the presumption that counsel’s conduct falls within the wide range of reasonable,

professional assistance, and that, under the circumstances, the challenged action might be

considered sound trial strategy. Thompson, 9 S.W.3d at 814. Counsel’s action or inaction will

be found to be reasonable if the record is silent as to the facts, circumstances, or rationale behind

a particular course of action. Id.

          Appellant did not raise his ineffective assistance of counsel allegations in a motion for

new trial. Consequently, the record is silent with respect to counsel’s rationale for not pursuing

the motion to suppress and for not filing a motion to quash the second jurisdictional

enhancement paragraph. For this reason alone, Appellant’s ineffective assistance of counsel

claim fails.

                                   Failure to Pursue Motion to Suppress

          Trial counsel filed a motion to suppress Appellant’s statements made to law enforcement

officers at the scene on several grounds, including that he was in custody, his statements were

involuntary and coerced, he was deprived of the right to counsel, the statements were tainted by

his illegal arrest, and he was not provided with the warnings required by Miranda1 and Article

38.22 of the Code of Criminal Procedure. Appellant argues there is no valid trial strategy for not

pursuing the motion to suppress but trial counsel could have concluded that a motion to suppress

would have been unsuccessful. First, Appellant’s argument assumes all of his statements were

the product of custodial interrogation but the record does not support that assertion. He was not

in custody for purposes of Miranda or Article 38.22 during his initial conversation with Fues

about the handicap parking violation, or during the subsequent encounter with Officer Bishop



1
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                                       -7-
prior to his arrest. See Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82

L.Ed.2d 317 (1984); Pennsylvania v. Bruder, 488 U.S. 9, 10-11, 109 S.Ct. 205, 206-07, 102

L.Ed.2d 172 (1988).

       Second, Appellant’s statement to Bishop after being placed under arrest was not shown to

be the product of custodial interrogation. Custodial interrogation occurs when a person in

custody is subjected to direct questioning or its functional equivalent, which occurs when police

officers engage in conduct that they know is likely to elicit an incriminating response. Rhode

Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). This

definition of “interrogation” focuses “primarily upon the perceptions of the suspect, rather than

the intent of the police.” Moran v. State, 213 S.W.3d 917, 923 (Tex.Crim.App. 2007), citing

Innis, 446 U.S. at 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (subjective intent of police officer to

obtain incriminating statement not relevant to determining whether an interrogation has

occurred). Off-hand remarks not designed to elicit any kind of response do not constitute

interrogation. Innis, 446 U.S. at 303, 100 S.Ct. at 1691. There is no evidence in the record that

Appellant made his statement in response to direct questioning or its functional equivalent.

       Third, there is no evidence that Appellant’s statements were involuntary or coerced.

Fourth, there is no evidence to support a conclusion that Appellant’s arrest was illegal. For all of

these reasons, Appellant failed to carry his burden of proving by a preponderance of the evidence

that counsel’s performance was deficient.

                                 Failure to File Motion to Quash

       Appellant also alleges that counsel should have filed a motion to quash the second

enhancement paragraph. Even if we assume for the sake of argument that the enhancement

paragraph is subject to being quashed, Appellant does not address Strickland’s requirement that



                                               -8-
he show that, but for counsel’s unprofessional error, there is a reasonable probability that the

result of the proceeding would have been different.        To establish prejudice resulting from

counsel’s failure to file a motion to quash, Appellant must show that neither of the other two

prior convictions could have been used by the State to enhance the offense to a felony. The

indictment alleged that Appellant had two other prior DWI convictions. Records establishing

both of those prior convictions were admitted during the punishment phase. We conclude that

Appellant has failed to prove ineffective assistance of counsel. Issue Three is overruled.

                                 INSUFFICIENT EVIDENCE

       In his final issue, Appellant challenges the sufficiency of the evidence supporting his

conviction. More specifically, he contends that the evidence failed to prove beyond a reasonable

doubt that he was the driver of the vehicle.

                                        Standard of Review

       The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in determining

whether the evidence is sufficient to support a conviction. Brooks v. State, 323 S.W.3d 893, 894-

95 (Tex.Crim.App. 2010). Under the Jackson standard, a reviewing court must consider all

evidence in the light most favorable to the verdict and in doing so determine whether a rational

justification exists for the trier of fact’s finding of guilt beyond a reasonable doubt. Brooks, 323

S.W.3d at 894-95, citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole

judge as to the weight and credibility of witness testimony, and therefore, on appeal we must

give deference to those determinations. See Brooks, 323 S.W.3d at 894-95. If the record

contains conflicting inferences, we must presume the trier of fact resolved such facts in favor of

the verdict and defer to that resolution. Id. On appeal, we serve only to ensure the trier of fact



                                               -9-
reached a rational verdict. Id. We may not reevaluate the weight and credibility of the evidence

produced at trial and in so doing substitute our judgment for that of the fact finder. King v. State,

29 S.W.3d 556, 562 (Tex.Crim.App. 2000).

       A person commits the offense of driving while intoxicated if the person is intoxicated

while operating a motor vehicle in a public place. TEX.PENAL CODE ANN. § 49.04(a)(West Supp.

2013). The Penal Code does not define the term “operate.” Denton v. State, 911 S.W.2d 388,

389 (Tex.Crim.App. 1995); Barton v. State, 882 S.W.2d 456, 458-59 (Tex.App.--Dallas 1994, no

pet.). The Court of Criminal Appeals has held that a person operates a vehicle when the totality

of the circumstances demonstrates “that the defendant took action to affect the functioning of his

vehicle in a manner that would enable the vehicle’s use.” Denton, 911 S.W.2d at 390.

       Appellant is correct that the State did not present the testimony of any witnesses who

observed him drive the car. But it did offer Appellant’s statements and circumstantial evidence

from which it can be inferred that he operated the vehicle. The convenience store clerk saw

Appellant walk into the store alone and observed his car parked in the handicap space. She told

him that he could not park in there. He did not deny driving the car but insisted that he was not

parked in the handicap space and that he would only be in the store for a short time. Appellant

told Fues that he parked in the handicap spot and claimed he did not know that he couldn’t do so.

He also told Fues that he was the person who had parked there. Bishop asked Appellant why he

had parked in the handicap space and Appellant replied that he didn’t know. He said he was at

the store alone and never told anyone that he wasn’t the driver. After being placed under arrest

for driving while intoxicated, Appellant told Bishop that he could not be arrested for driving

while intoxicated because he had been driving earlier, but he had gotten out of the car by the

time Bishop arrived, and therefore, he could only be arrested for public intoxication.



                                               - 10 -
       Viewing all of the evidence in the light most favorable to the verdict, the jury could have

rationally found beyond a reasonable doubt that Appellant was operating a motor vehicle at the

time of the accident. See Onyekachi v. State, No. 05-12-00519-CR, 2013 WL 3487736 at *2-3

(Tex.App.--Dallas July 10, 2013, no pet.)(evidence sufficient to prove defendant operated

vehicle where defendant, who was alone, admitted to officer that he had parked the vehicle).

Issue Four is overruled.       Having overruled each issue presented on appeal, we affirm the

judgment of the trial court.


December 4, 2013
                                       ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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