                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00509-CR

                                         Glenn JOHNSON,
                                             Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR6086
                            The Honorable Sid L. Harle, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: July 30, 2014

AFFIRMED

           Glenn Johnson was indicted for driving while intoxicated, enhanced to a third degree

felony by two prior convictions. Following the trial court’s denial of Johnson’s motion to quash

the indictment, Johnson pled guilty pursuant to a plea agreement. The trial court sentenced

Johnson to five years of probation, suspended his driver’s license for two years, and assessed a

$1,500 fine. In two issues on appeal, Johnson contends that the trial court erred in denying his

motion to quash the indictment. We affirm the trial court’s judgment.
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                                            BACKGROUND

        Johnson was charged with operating a motor vehicle in a public place while intoxicated

(DWI). The indictment contained enhancement paragraphs, alleging that Johnson was previously

convicted of two offenses “relating to the operating of a motor vehicle while intoxicated.” In

particular, the indictment referred to Johnson’s 2007 conviction for DWI in Bexar County, Texas

and his 1992 conviction for “driving while ability impaired” (DWAI) in Buffalo, New York.

        Johnson filed a motion to quash the indictment, contending: (1) the New York conviction

was not related to the operating of a motor vehicle while intoxicated; and (2) the New York

conviction was invalid because Johnson was not represented by counsel during the 1992

proceeding. Following a hearing, the trial court denied the motion. Johnson re-urges both

arguments in this appeal of the trial court’s denial of the motion to quash.

                                             DISCUSSION

    A. New York’s DWAI Statute as Section 49.09(b)(2) Enhancement Offense

        In his first issue, Johnson contends that New York’s DWAI statute is not a law that

“prohibit[s] the operation of a motor vehicle while intoxicated,” as alleged in the indictment. TEX.

PENAL CODE ANN. § 49.09(c)(1)(F) (West Supp. 2013). A trial court’s ruling on a motion to quash

an indictment presents a question of law that we review de novo. Smith v. State, 309 S.W.3d 10,

13–14 (Tex. Crim. App. 2010); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

Resolution of this issue requires us to consider whether conduct constituting DWAI in New York

would also constitute DWI in Texas. See Smith v. State, 401 S.W.3d 915, 918 (Tex. App.—

Texarkana 2013, pet. ref’d).

        Under Texas law, a person commits DWI “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

offense is enhanced to a third degree felony “if it is shown on the trial of the offense that the person
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has previously been convicted . . . two times of any other offense relating to the operating of a

motor vehicle while intoxicated . . . .” TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2013).

An “offense relating to the operating of a motor vehicle while intoxicated” includes “an offense

under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.”

TEX. PENAL CODE ANN. § 49.09(c)(1)(F) (West Supp. 2013). The Texas Penal Code offers two

alternate definitions for “intoxicated.” Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App.

2010). Under the “impairment theory” definition, a person is intoxicated when he experiences a

loss of the normal use of mental or physical faculties by reason of the introduction of alcohol into

the body. TEX. PENAL CODE ANN. § 49.01(2)(A) (West 2011); Kirsch, 306 S.W.3d at 743. Under

the “per se theory,” a person is intoxicated if he has an alcohol concentration in the blood, breath,

or urine of 0.08 or more. TEX. PENAL CODE ANN. § 49.01(2)(B) (West 2011); Kirsch, 306 S.W.3d

at 743.     These definitions, which set forth alternate means by which the State may prove

intoxication, may overlap and are not mutually exclusive. Crenshaw v. State, 378 S.W.3d 460,

466 (Tex. Crim. App. 2012); Bagheri v. State, 119 S.W.3d 755, 762 (Tex. Crim. App. 2003).

          Under New York law, a person commits DWAI if the person “operate[s] a motor vehicle

while the person’s ability to operate such motor vehicle is impaired by the consumption of

alcohol.” N.Y. VEH. & TRAF. LAW § 1192.1 (McKinney, Westlaw through 2014 Sess.); People v.

Hoag, 416 N.E.2d 1033, 1034 (N.Y. 1981). Under a separate provision, a person commits DWI

if he “operate[s] a motor vehicle while in an intoxicated condition.” Id. at § 1192.3; Hoag, 416

N.E. at 1034. A person is “impaired” if the consumption of alcohol “has actually impaired, to any

extent, the physical and mental abilities which he is expected to possess in order to operate a

vehicle as a reasonable and prudent driver.” People v. Cruz, 399 N.E.2d 513, 516 (N.Y. 1979)

(emphasis added). In contrast, intoxication is a “greater degree of impairment which is reached

when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing
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the physical and mental abilities which he is expected to possess in order to operate a vehicle as a

reasonable and prudent driver.” Id. at 517 (emphasis added). Thus, the degree of a person’s

impairment determines whether they have committed DWI or DWAI. See People v. Ardila, 647

N.E.2d 1355, 1356 (N.Y. 1995). Although the statute proscribes two separate offenses “‘based

upon the degree of impairment caused by alcohol ingestion,’ the provisions ‘closely overlap’ and

are ‘species of the generic offense of ‘[o]perating a motor vehicle while under the influence of

alcohol.’” People v. Litto, 872 N.E.2d 848, 857–58 (N.Y. 2007) (quoting People v. Farmer, 330

N.E.2d 22, 23 (N.Y. 1975)).

       Johnson argues that DWAI cannot be an offense that prohibits the operation of a motor

vehicle while intoxicated because DWAI under New York law—unlike DWI under New York

law—does not require intoxication, but rather a lesser degree of impairment. The question before

us, however, is whether the conduct constituting “impairment” for purposes of DWAI under New

York law meets the definition of “intoxicated” under Texas law. Based on a plain reading of the

New York definition of “impairment” and the Texas definition of “intoxicated,” a person whose

alcohol consumption affects his mental and physical abilities to operate a vehicle as a reasonable

and prudent driver necessarily exhibits a level of impairment measured by a loss of the normal use

of his mental or physical faculties. See TEX. PENAL CODE ANN. § 49.01(2)(A) (West 2011); see

also Tate v. State, 120 S.W.3d 886, 890 (Tex. App.—Fort Worth 2003, no pet.) (Mississippi DUI

statute requiring proof of a diminished mental or physical state met requirements of “intoxicated”

under Section 49.09(b)(2)).

       Moreover, the same evidence sufficient to establish impairment for purposes of DWAI in

New York is sufficient to establish intoxication for purposes of DWI in Texas. In New York, a

person’s impairment may be established by evidence of: (1) a strong odor of alcohol on the

person’s breath; (2) glassy or bloodshot eyes; (3) slurred speech; (4) staggering or poor
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coordination; and (5) speeding or erratic driving. People v. Taylor, 961 N.Y.S.2d 166, 167 (App.

Div. 2013); People v. McDonald, 811 N.Y.S.2d 492, 493 (App. Div. 2009); People v. Crandall,

731 N.Y.S.2d 553, 554 (App. Div. 2001). Likewise under the Texas “impairment theory”

definition, intoxication may be proved by evidence of slurred speech, bloodshot eyes, odor of

alcohol, unsteady balance, and improper manner of driving. See Cotton v. State, 686 S.W.2d 140,

142 & n.3 (Tex. Crim. App. 1985); Ubesie v. State, 379 S.W.3d 371, 376 (Tex. App.—Amarillo

2012, no pet.); State v. Webre, 347 S.W.3d 381, 386 (Tex. App.—Austin 2011, no pet.).

       The Dallas Court of Appeals has held that a conviction under Colorado’s DWAI statute

can be used to enhance a DWI conviction under Section 49.09(b)(2). See State v. Christensen, No.

05-10-00940-CR, 2011 WL 2176656, at *7 (Tex. App.—Dallas Jun. 6, 2011, pet. ref’d) (mem.

op., not designated for publication). In Christensen, the defendant argued that his Colorado DWAI

conviction could not be used to enhance his DWI charge because DWAI did not require

intoxication, but rather a lesser degree of impairment. Id. at *3. The court of appeals noted that a

person commits DWAI in Colorado when the consumption of alcohol “affects the person to the

slightest degree so that the person is less able than the person ordinarily would have been, either

mentally or physically . . . to exercise clear judgment, sufficient physical control, or due care in

the safe operation of a vehicle.” Id. (quoting COLO. REV. STAT. ANN. § 42-4-1301(g)). The court

noted that Colorado had a separate statute prohibiting driving under the influence of alcohol (DUI)

based on the same definition, but requiring that the person’s impairment render the person

“substantially incapable” of safe operation of a vehicle. Id. (quoting COLO. REV. STATE. ANN.

§ 42-4-1301(1)(f)). The court held the Colorado DWAI statute met the requirements of Section

49.09(b)(2), and observed that “[t]he fact that Colorado recognizes different degrees of impairment

through its DUI and DWAI laws does not mean a person ‘impaired’ for purposes of the DWAI

statute is not ‘intoxicated’ for the purposes of the Texas Penal Code.” Id. The court further
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reasoned that “the evidence sufficient to prove in Colorado that a person is impaired under the

DWAI statute is almost identical to that sufficient to prove intoxication due to the loss of the

normal use of physical and mental faculties in Texas.” Id. at *7.

       We find the Dallas court’s analysis regarding the Colorado statute to be instructive in

evaluating a very similar statutory scheme under New York law. Johnson argues that Christensen

is distinguishable because New York’s DWI statute requires a greater level of impairment than is

required under Colorado’s DUI statute. Johnson also argues that DWAI is considered a lesser-

included offense of DUI in Colorado where DWAI is not a lesser-included offense of DWI in New

York. What is relevant to our inquiry, however, is whether the New York DWAI statute prohibits

a person from operating a motor vehicle while “intoxicated” as defined by Texas law. TEX. PENAL

CODE ANN. § 49.09(c)(1)(F) (West Supp. 2013). Based on a plain reading of the New York and

Texas statutes and a comparison of the evidence sufficient to support convictions under both, we

hold that New York’s DWAI statute “prohibit[s] the operation of a motor vehicle while

intoxicated.” Id. Johnson’s first issue is overruled.

   B. Validity of 1992 Conviction

       In his second issue, Johnson argues the New York conviction is invalid—and therefore

cannot be used to enhance his current DWI conviction—because he was denied assistance of

counsel during the 1992 proceeding and as a result, his plea was not knowing and voluntary. In

an affidavit in support of his motion to quash, Johnson stated:

       At no time, either when I was arrested or in court, did anyone suggest to me that I
       was entitled to be represented by a lawyer. No one said anything at all about a
       lawyer, although I would probably have asked for one had I known I could.

Johnson further argues that the record contains no evidence that he waived his right to counsel.

The State disputes Johnson’s contention that he was not represented by counsel, pointing to a court

document signed by Johnson’s attorney. The document is a plea offer dated October 29, 1992 and
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appears to be a form document of the District Attorney’s Office for the City of Buffalo, New York.

The document reflects that Johnson was charged with DWI but, through an attorney, offered to

plead guilty to the lesser charge of DWAI. The document is signed by an individual above the

title “Attorney for Defendant.” The document reflects that the district attorney’s office agreed to

the lesser charge and is signed by an assistant district attorney. The record contains another New

York court document corroborating that Johnson pled guilty and was convicted of DWAI on

October 29, 1992.

       A defendant may collaterally attack a prior conviction alleged as an enhancement on the

basis that the prior conviction is constitutionally defective because the defendant was denied his

right to counsel. Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. 1979). Upon a

determination that the prior conviction is defective in this regard, the conviction is rendered void

and cannot be used for enhancement purposes. Ex Parte Olvera, 489 S.W.2d 586, 589 (Tex. Crim.

App. 1973). The defendant bears the burden of proving, with regard to the prior conviction, that:

(1) he was indigent, (2) he was without counsel, and (3) he did not voluntarily waive his right to

counsel. Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985). To meet this burden,

the defendant must rebut the presumption of regularity that applies to judgments and court records.

Campise v. State, 745 S.W.2d 534, 535 (Tex. App.—Houston [1st Dist.] 1988, no writ). Based on

this presumption, recitations in court records are presumed to be valid in the absence of affirmative

proof of their falsity. Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000); Breazeale v.

State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984). In the absence of such proof, the “bald

assertions by an accused that he was without counsel at his prior convictions are insufficient to

overcome” the presumption. Maddox v. State, 591 S.W.2d 898, 903 (Tex. Crim. App. 1979).

       The written plea offer in this case, which is part of the New York court’s record, establishes

that Johnson was represented by counsel during the 1992 proceeding. See Maddox, 591 S.W.2d
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at 900 (defendant presumed to be represented by counsel during guilty plea proceedings where

docket sheet and plea document recited name of defendant’s counsel); Omolene v. State, No. 01-

99-00579-CR, 2000 WL 1678446, at *1 (Tex. App.—Houston [1st Dist.] Nov. 9, 2000, pet. ref’d)

(mem. op., not designated for publication) (presumption of regularity applicable to recitals in plea

offer document contained in trial court record); Ross v. State, Nos. 05-01-00760-CR, 05-01-00761-

CR, 2001 WL 1662634, at *1 (Tex. App.—Dallas Dec. 31, 2001, no pet.) (mem. op., not

designated for publication) (same). Johnson has brought forth no evidence, other than his own

affidavit, to support his contention that he was not represented by counsel. Accordingly, Johnson

has failed to meet his burden of producing evidence to rebut the presumption that the New York

court records, showing that Johnson was represented by counsel, are accurate. “To hold otherwise

would allow the mere assertions of a defendant to invalidate [a conviction] obtained nearly twenty

years ago.” Disheroon, 687 S.W.2d at 334. Johnson’s second issue is overruled.

                                          CONCLUSION

       In conclusion, we hold that Johnson’s 1992 conviction for DWAI in New York was

properly used to enhance his DWI conviction under Section 49.09(b)(2) of the Texas Penal Code.

The trial court’s judgment is affirmed.


                                                  Catherine Stone, Chief Justice

DO NOT PUBLISH




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