                                              OPINION
                                        No. 04-11-00577-CR

                                          Roscol L. HINES,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2010CR2739
                          Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 29, 2012

AFFIRMED

           After a jury trial, appellant Roscol L. Hines was found guilty of the felony offense of

driving while intoxicated (“DWI”).         Based on the jury’s recommendation, the trial court

sentenced Hines to thirty-five years confinement. On appeal, Hines claims: (1) the trial court

erred in overruling his motion to suppress; (2) the evidence was legally insufficient to support his

conviction; (3) the trial court erred in admitting into evidence a video from an officer’s

dashboard camera; and (4) the trial court erred in refusing to instruct the jury it was required to
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unanimously agree on the same two of the three prior convictions. We affirm the trial court’s

judgment.

                                           BACKGROUND

          Officers from the San Antonio Police Department responded to an accident call for an

overturned vehicle near “Grass to Go” on the northbound access road of I-35 in the early

morning hours of December 6, 2009.           When officers arrived at the accident scene, first

responders from the San Antonio Fire Department were examining Hines for injuries. Other

than the overturned vehicle, there were two other vehicles at the scene. The occupants of the

vehicles witnessed the accident, but after briefly speaking with an officer, they left. Other than

the two vehicles, and fire and police department personnel, only Hines was found at the scene of

the accident. Fire department personnel determined Hines was uninjured and able to speak to

police.

          Immediately, officers noticed several signs of intoxication, including a strong odor of

intoxicants, slurred speech, and unsteadiness.           After questioning Hines about the accident,

officers administered two field sobriety tests, the horizontal gaze nystagmus (“HGN”) and the

walk and turn. Thereafter, police arrested Hines for driving under the influence and took him to

the police station. Hines was offered the opportunity to submit to a breath test, but after several

tries, he failed to produce a sufficient sample.

          At trial, the State sought testimony from the individual who reported the accident, law

enforcement personnel, and a latent fingerprint examiner.

          Christina Morgan, who reported the accident, testified that on the night of the accident,

she and her husband were driving on the northbound service road of Interstate 35. She stated she

did not witness the accident, but she saw an overturned vehicle near a fence and saw an African



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American male, who she identified as being around the same height as Hines, pulling himself out

of the driver’s side window. Morgan told the jury she saw the man stumbling in an area in front

of the car. Morgan stated she saw only one person near the overturned vehicle. She also stated

that the road in that area was straight and it was dry at that time.

         Officer Gabriel Gallegos testified he responded to the accident and when he approached

Hines, after Hines was cleared by fire department personnel, he immediately smelled alcohol on

Hines’s breath and noticed his slurred speech and unsteadiness. Officer Gallegos also said he

saw Hines had urinated on himself. Based on these observations, Officer Gallegos decided to

administer the standard field sobriety tests. Officer Gallegos testified Hines exhibited such clear

signs of intoxication in the first two tests, the HGN and walk and turn, that Officer Gallegos

declined to administer further tests out of concern for Hines’s safety.

         Officer Gallegos also testified he spoke to Hines at the accident scene, asking him what

happened. According to Officer Gallegos, Hines admitted driving the overturned vehicle and

stated he lost control and crashed into a fence. 1

         Hines was taken downtown and was offered a breath test. Hines agreed, but then refused

to provide a second breath sample when the breathalyzer “timed out” because Hines provided an

insufficient first breath sample. Officer Gallegos stated he did not seek a warrant for a blood

sample or a blood draw and no blood sample was taken. Officer Gallegos also testified about the

DWI video that recorded events at the scene. 2 He stated his patrol car was equipped with a

dashboard camera, but it was not working that night. However, another responding officer did

have a working dashboard camera that recorded portions of the interaction between Officer


1
  These statements are a portion of the evidence Hines sought to suppress, an issue we will deal with in the analysis
portion of the opinion.
2
  The admission of the video is challenged by Hines in this appeal, and like the statements, will be discussed in the
analysis portion of the opinion.

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Gallegos and Hines. Officer Gallegos admitted the resulting video was of poor quality and did

not record all of the events.

       The video, which was shown to the jury, showed officers arriving at the accident scene,

Hines performing one of the field sobriety tests – the walk and turn test – and being placed under

arrest. It also showed a patrol car leaving the scene and a moving tow truck. Unidentifiable

footage from different times interrupted sections of the video footage of the night Hines was

arrested.

       The State also alleged three prior Wisconsin state court DWI convictions to enhance the

conviction to felony DWI. The State introduced fingerprint comparisons, certified copies of

three Wisconsin judgments, and related jail records to support the enhancement.           Shannon

Standifer, a latent fingerprint examiner with the City of San Antonio, took fingerprints from

Hines on the day of trial and compared them to a booking slip for a DWI judgment from

Milwaukee County, Wisconsin and to those on a booking slip and drop card for DWI judgments

from Marquette County and Washaura County, Wisconsin.               She testified that all of the

fingerprints matched.

       At the conclusion of evidence, the trial court charged the jury on the applicable law. As

part of the jury charge, the trial court instructed the jury that it must “find at least two of the

following occurred beyond a reasonable doubt,” referring to the three prior DWI convictions. It

did not require the jury to be unanimous as to any two specific convictions, only unanimous that

Hines had been previously convicted of at least two DWI offenses. After deliberating, the jury

found Hines guilty of felony DWI. Hines perfected this appeal.




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                                            ANALYSIS

       As noted above, Hines contends: (1) the trial court erred in overruling his motion to

suppress; (2) the evidence was legally insufficient to support his conviction; (3) the trial court

erred in admitting into evidence a video from an officer’s dashboard camera; and (4) the trial

court erred in refusing to instruct the jury it was required to unanimously agree on the same two

of the three prior convictions. With regard to the motion to suppress, Hines argues the trial court

should have suppressed the statements he made to officers at the scene because he was not

Mirandized, and the statements were the result of a custodial interrogation. Relating to his

sufficiency challenge, Hines argues that although he may have been intoxicated, there was no

evidence he was the driver of the overturned vehicle. As for the video, he argues the trial court

erred in admitting the DWI videotape because it was not properly authenticated. The final issue

concerns the jury’s findings relating to Hines’s prior DWI offenses. We begin with an analysis

of the motion to suppress.

                                       Motion to Suppress

       Hines filed a pretrial motion to suppress. In his motion, Hines argued the trial court

should suppress the statements he made to Officer Gallegos at the accident scene – the

statements relating to his admission that he was driving the car at the time of the accident. The

trial court denied the motion. No findings of fact or conclusions of law were requested or filed.

Hines reurged his motion to suppress when the State, during its case-in-chief, began to question

Officer Gallegos about statements Hines made at the scene. Hines objected and the trial court

held a hearing outside the presence of the jury to reconsider the admissibility of these statements.

Hines argued the statements were made during a custodial interrogation, and because he was not

given his Miranda or Article 38.22 warnings, the statements were inadmissible. The trial court



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overruled the objection and allowed Officer Gallegos to testify that Hines admitted he was

driving the vehicle at the time of the accident.

       In his second and third points of error, Hines argues the trial court erred in denying his

motion to suppress. Hines contends the statements should have been suppressed because they

were made during a custodial interrogation without the benefit of the Miranda warnings. Hines

argues this violated his state and federal constitutional rights and his rights under Texas statutory

law. Thus, the issue is whether Hines was in custody at the time he spoke to Officer Gallegos.

       We review a trial court’s ruling on a motion to suppress for an abuse of discretion under a

bifurcated standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Hodson

v. State, 350 S.W.3d 169, 173 (Tex. App.—San Antonio 2011, pet. ref’d). “[W]e defer to the

trial court’s determination of facts, but review the court’s application of the law de novo.”

Hodson, 350 S.W.3d at 173. All evidence is viewed “in the light most favorable to the trial

court’s ruling.” Id. (quoting State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008)). We

will uphold the trial court’s ruling “if there is any valid theory of law applicable to the case, even

if the trial court did not base its decision on that theory.” Id. (citing State v. Steelman, 93 S.W.3d

102, 107 (Tex. Crim. App. 2002)). We will overturn the ruling only if it is “outside the zone of

reasonable disagreement.” Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011).

       As set forth in Miranda v. Arizona, police are required to warn suspects of certain

constitutional rights prior to a custodial interrogation. 384 U.S. 436, 444, 478 (1966); Hodson,

350 S.W.3d at 173. The Texas Code of Criminal Procedure also governs the admissibility of

statements made during a custodial interrogation. See TEX. CODE. CRIM. PROC. ANN. art 38.22

(West 2011). It provides that a defendant’s oral statement is admissible against him in a criminal

proceeding if the defendant was given certain warnings prior to making the statement, that the



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warnings and the statement were electronically recorded, and the defendant “knowingly,

intelligently, and voluntarily” waived these rights. Id. art. 38.22, §§ 2(a), 3(a)(1)-(2).

          Miranda and Article 38.22 warnings are required only when a suspect is in custody.

Miranda, 384 U.S. at 444, 478; Hodson, 350 S.W.3d at 173. “‘A person is in ‘custody’ only if,

under the circumstances, a reasonable person would believe that his freedom of movement was

restrained to the degree associated with a formal arrest.’” Hodson, 350 S.W.3d at 173-74

(quoting Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)). The court of criminal

appeals has recognized four situations that may constitute custody: (1) when a suspect is

physically deprived of his freedom of action in any significant way; (2) when a police officer

tells a suspect he cannot leave; (3) when a police officer creates a situation that would lead a

reasonable person to believe his freedom of movement has been significantly restricted; and (4)

when there is probable cause to arrest and a police officer does not tell a suspect he is free to

leave. Id. at 174. The objective circumstances, not the subjective views of either the officer or

the suspect, determine whether the defendant was subject to custodial interrogation. Dowthitt,

931 S.W.2d at 254; Garza v. State, 34 S.W.3d 591, 593 (Tex. App.—San Antonio 2000, pet.

ref’d).

          The State bears no burden to show compliance with Miranda or Article 38.22 “unless and

until the defendant proves that the statements he wishes to exclude were the product of custodial

interrogation.” Herrera, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (quoting Wilkerson v.

State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)). Thus, Hines had the burden to establish

he was in custody before the State was required to show compliance with Miranda or Article

38.22. Hines failed to meet his burden.




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       The United States Supreme Court has held that persons who are temporarily detained due

to ordinary traffic stops are not in custody for purposes of Miranda. Berkemer v. McCarty, 468

U.S. 420, 440 (1984). In Berkemer, a police officer saw a car weaving in and out of a lane of

traffic. 468 U.S. at 423. The officer stopped the suspect and asked him to get out of the car. Id.

The officer noticed the suspect had difficulty standing and concluded, subjectively, that the

suspect would not be free to leave. Id. The officer, however, did not communicate this fact to

the suspect. Id. The officer then asked the suspect to perform a balancing test, which the suspect

failed. Id. Thereafter, and while still at the scene, the officer asked the suspect if he had been

drinking. Id. The suspect told the officer he drank two beers and smoked several marijuana

joints a short time before he was stopped. Id. At that point, the officer arrested the suspect and

took him to the jail for an intoxilyzer test. Id. When the test failed to show any alcohol, the

officer resumed questioning the suspect. Id. at 423-24. To this point, no one had given the

suspect the Miranda warnings. Id. at 424.

       The suspect was charged with DWI. Id. The suspect moved to suppress the statements

he made to the officer, claiming he was not informed of his Miranda rights prior to the

interrogation. Id. The trial court denied the motion. Id.

       Ultimately, the case was submitted to the Supreme Court, which had to determine

whether the suspect was in custody for purposes of Miranda at the time he made the statements

to police. Id. at 423. The Supreme Court held the suspect failed to establish he was in custody at

any time before he was formally arrested. Id. at 441. Although the Court recognized that only a

brief period of time passed between the initial stop and the arrest and the officer had subjectively

decided to arrest the suspect as soon as the suspect had gotten out of the vehicle, it concluded




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that these circumstances did not constitute custody as imagined by Miranda and the statements

the defendant made were admissible, regardless of the officer’s subjective intent. Id. at 441-42.

       The Texas Court of Criminal Appeals has held that on-the-scene police questioning of

drivers about an accident is not a custodial interrogation. State v. Stevenson, 958 S.W.2d 824,

829 (Tex. Crim. App. 1997); Loar v. State, 627 S.W.2d 399, 400 (Tex. Crim. App. 1981);

Higgins v. State, 473 S.W.2d 493, 494 (Tex. Crim. App. 1971). In Stevenson, the court held that

even though the initial accident investigation had made the defendant the focus of a DWI

investigation, that fact alone would not give rise to custody. Stevenson, 958 S.W.2d at 829.

Accordingly, the court held the statements the defendant made in Stevenson were not required to

be suppressed. Id.

       We hold the facts in this case do not establish Hines was in custody. The record shows

Officer Gallegos initially questioned Hines to investigate the accident.            The accident

investigation became a DWI investigation after Officer Gallegos discovered reasons to suspect

Hines was intoxicated. Moreover, Hines was not in the type of police-dominated atmosphere

contemplated by Miranda. Rather, he was in plain view of passing cars and other non-law

enforcement individuals. Regardless of Officer Gallegos’ subjective belief that Hines was not

free to leave, the objective circumstances as a whole would not lead a reasonable person to

believe he was in custody.

       Therefore, we conclude Hines did not meet his burden to establish he was in custody.

We hold the trial court did not abuse its discretion in denying the motion to suppress.

Accordingly, we overrule Hines’s second and third points of error.




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                                  Motion for Directed Verdict

       In his first point of error, Hines contends the trial court erred in denying his motion for

directed verdict. We disagree.

       A challenge to a trial court’s denial of a motion for directed verdict is reviewed under the

same standard used to review a legal sufficiency challenge. Sony v. State, 307 S.W.3d 348, 353

(Tex. App.—San Antonio 2009, no pet.) (citing Williams v. State, 937 S.W.2d 479, 482 (Tex.

Crim. App. 1996)). Under the legal sufficiency standard, we must review all of the evidence in

the light most favorable to the verdict to decide whether the necessary inferences from the

evidence are reasonable so that a rational jury could have found the essential elements of the

offense beyond a reasonable doubt. Sony, 307 S.W.3d at 353-54; Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007). Because the jury is the sole judge of witness credibility and

determines the weight to be given to testimony, we must defer to the its determinations. Brooks

v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Moreover, circumstantial and direct

evidence are reviewed in the same manner, and “‘circumstantial evidence alone can be sufficient

to establish guilt.’” Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012) (quoting

Hooper, 214 S.W.3d at 13). Based on this, we will uphold the verdict “unless a rational

factfinder must have had reasonable doubt as to any essential element.” Laster v. State, 275

S.W.3d 512, 518 (Tex. Crim. App. 2009).

       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

2011). If a person has two previous DWI convictions, the offense is a felony of the third degree.

Id. § 49.09(b)(2).




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        At trial, Hines conceded he might have been intoxicated when he encountered Officer

Gallegos, and does not challenge the element of intoxication on appeal. Therefore, the only issue

is whether the evidence is legally sufficient to prove beyond a reasonable doubt that Hines was

operating a motor vehicle. We hold that it is.

        Hines rests his contention on the fact that no one saw him driving, no direct evidence

showed when the accident occurred, and the vehicle involved was not registered to him.

However, as detailed above, Morgan told the jury she saw an African American male, who she

identified as being around the same height as Hines, pulling himself out of the driver’s side

window. She also testified she saw only one person near the overturned vehicle, and she did not

see any other person or vehicle leave the scene. Officer Gallegos testified Hines was the only

person at the scene connected to the overturned vehicle. And, the jury heard testimony from

Officer Gallegos that Hines admitted he was driving the vehicle, lost control, and crashed into a

fence. As we noted above, these statement were admissible.

        The jury heard the foregoing evidence. We hold a rational jury could have found Hines

was operating a vehicle while intoxicated. The jury’s finding is reasonable considering a person

matching Hines’ description was observed crawling out of the driver’s side window of the

overturned car and Hines himself admitted to Officer Gallegos he was driving. Therefore, we

hold the evidence was sufficient to support Hines’s conviction for DWI and overrule his first

point of error.

                                     Admission of Videotape

        In his fourth point of error, Hines contends the trial court erred in admitting into evidence

the DWI videotape recorded at the scene of the accident. Hines argues the videotape could not

be properly authenticated under rule 901 of the Texas Rules of Evidence “due to deletions,



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additions, and alterations.” He also claims the tape could not be authenticated because it was not

“made” by Officer Gallegos; rather, the videotape was from another officer’s dashboard camera.

       We review a trial court’s evidentiary rulings using an abuse of discretion standard.

Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012); Martinez v. State, 327 S.W.3d

727, 736 (Tex. Crim. App. 2010). A trial court does not abuse its discretion unless its decision is

outside the zone of reasonable disagreement. Tienda, 358 S.W.3d at 638. And, with regard to

the specific issue here, i.e., authentication, there is no abuse of discretion if the trial court

“reasonably believes that a reasonable juror could find that the evidence has been authenticated

or identified.” Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007).

       One of the bedrocks of admissibility of evidence is relevance. Tienda, 358 S.W.3d at

638. Evidence that cannot be properly authenticated is irrelevant, and therefore authentication is

a “condition precedent” to admissibility. Id.; TEX. R. EVID. 901(a). With regard to admission of

evidence, the preliminary inquiry for the trial court is “whether the proponent of the evidence has

supplied facts that are sufficient to support a reasonable jury determination that the evidence he

has proffered is authentic.” Tienda, 358 S.W.3d at 638.

       Rule 901(a) specifically states authentication is satisfied by evidence sufficient to support

a finding that the matter in question is what the proponent claims it is. Rule 901 provides a

nonexclusive list of examples of authentication or identification that satisfy the rule. TEX. R.

EVID. 901(b). Rule 901(b)(1) provides that evidence is properly authenticated if a witness with

knowledge testifies that the matter is what it is claimed to be. TEX. R. EVID. 901(b)(1). Thus, the

relevant question here is whether the videotape as presented was supported by sufficient

evidence to establish it was a videotape of the scene of the accident on the night in question. We

hold that it was.



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        Admittedly, the videotape was a “jumbled mess” because it did not operate correctly as it

was produced from an older model dashboard camera. However, Officer Gallego testified that

the portions of the evening that the dashboard camera recorded depicted exactly what happened

that night. We have reviewed the videotape and hold it was sufficient for the trial court to

reasonably believe that a reasonable juror could find that it had been authenticated. See Druery,

225 S.W.3d at 502. Therefore, we hold the trial court did not abuse its discretion in overruling

Hines’s objection to the admission of the videotape.

        As for Hines’s argument that the tape could not be authenticated by Officer Gallegos

because he had not operated the recording device, the Texas Court of Criminal Appeals has

overruled Kephart v. State, 875 S.W.2d 319 (Tex. Crim. App. 1994), thereby removing the

requirement that a witness testifying as to the authenticity of a piece of evidence be a “witness

with knowledge” in the context of an audio recording. See Angleton v. State, 971 S.W.2d 65, 67

(Tex. Crim. App. 1998). In other words, a witness is no longer required to be the maker of the

recording or have otherwise participated in the conversation in order for his testimony that the

recording is what it is claimed to be to sufficiently authenticate it. Id. at 69.

        In addition, Hines’s argument that the poor quality of the video tape makes it impossible

to authenticate also fails. In Schneider v. State, the defendant argued that certain audio tapes

were inadmissible because they contained gaps the witness could not explain. 951 S.W.2d 856,

862 (Tex. App.—Texarkana 1997, pet. ref’d).               The appellate court held the tapes were

admissible because the sponsoring witness testified the tapes fairly and accurately depicted the

conversations therein. Id. at 863.

        Similarly, in Aguirre v. State, a defendant argued a videotape of a DWI stop should have

been excluded based on an absence of authentication because it had no sound, rendering it



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untrustworthy. 948 S.W.2d 377, 378 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d). The

appellate court held the videotape, despite the absence of sound, was properly authenticated

when the deputy testified the tape was a fair and accurate representation of the DWI stop. Id. at

378. The court held the deputy’s testimony was sufficient to support a finding that the matter in

question was what the proponent claimed it was. Id.

       Here, although portions of the video are choppy and the incident was not recorded in its

entirety, Officer Gallegos identified those portions which do purport to represent the incident as

being accurate depictions, and testified that the portions of the evening that the dashboard

camera recorded depicted exactly what happened the night Hines was arrested for DWI. This

was sufficient for the trial court to find the videotape was what the witness and the State claimed

it to be – a depiction of a portion of the events that took place the night Hines was arrested for

DWI.

       Moreover, even if Hines were correct, and the trial court erred in admitting the videotape,

we hold any such error was harmless. Erroneous admission of evidence is non-constitutional

error and must be disregarded unless it affects substantial rights. TEX. R. APP. P. 44.2(b). We

must examine the record as a whole and have “‘fair assurance that the error did not influence the

jury, or had but a slight effect’” to determine that substantial rights are not affected. Motilla v.

State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Solomon v. State, 49 S.W.3d 356,

365 (Tex. Crim. App. 2001)). Only if we have a “grave doubt that the result of the trial was free

from the substantial effect of the error” will we reverse a conviction. Barshaw v. State, 342

S.W.3d 91, 94 (Tex. Crim. App. 2011). Grave doubt exists when the matter is so evenly

balanced that the judge feels “‘in virtual equipoise as to the harmlessness of the error.’” Id.

(quoting Burnett v. State, 88 S.W.3d 633, 637-38 (Tex. Crim. App. 2002)).



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        In this case, the video merely showed the jury Hines’s behavior on the night of the

accident, i.e., his intoxicated state. That Hines was intoxicated was supported by other evidence

presented in the case, including testimony by Officer Gallegos and Christina Morgan that Hines

was stumbling, and Officer Gallegos’s testimony that Hines had urinated on himself, had the

strong odor of alcohol on his breath, and had slurred speech. Accordingly, any error in the

admission of the videotape did not affect substantial rights and was harmless.

        Based on the foregoing, we conclude the trial court did not err in admitting the videotape,

and that if it did, such error was harmless. We therefore overrule Hines’s fourth point of error.

                                              Jury Instruction

        In his fifth and final point of error, Hines contends the trial court erred when it failed to

instruct the jury that it must unanimously agree on the same two of the three prior convictions

alleged to raise the offense to a felony. We disagree.

        When reviewing alleged charge error, we must determine whether there is actually an

error in the charge, and whether sufficient harm resulted from this error to require reversal.

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Abdnor v. State, 871 S.W.2d 726,

731-32 (Tex. Crim. App. 1994). The portion of the charge about which Hines complains states,

in pertinent part:

        Now, if you find from the evidence beyond a reasonable doubt that on or about
        the 6th Day of December, 2009, in Bexar County, Texas, the defendant, Roscell
        Hines 3 did operate a motor vehicle in a public place while intoxicated;
        And you further find at least two of the following occurred beyond a reasonable
        doubt:

        1. That prior to the commission of the aforesaid offense on the 19th day of March,
        2009, in cause number 2009CT000084 in the Circuit Court of Milwaukee County,


3
  Although the indictment spells Hines’s first name “R-o-s-c-e-l-l,” during the course of the proceedings, Hines
asserted the proper spelling of his first name was “R-o-s-c-o-l.” The judgment reflects the proper spelling as
indicated by Hines.

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        Wisconsin, Roscell Hines was convicted of an offense relating to the operating of
        a motor vehicle while intoxicated;

        2. That prior to the commission of the aforesaid offense on the 23rd day of July,
        2008, in cause number 2006CT000075 in the Circuit Court of Marquette County,
        Wisconsin, Roscell Hines was convicted of an offense relating to the operating of
        a motor vehicle while intoxicated;

        3. That prior to the commission of the aforesaid offense on the 29th day of
        November, 2007, in cause number 2006CM000066 in the Circuit Court of
        Waushara County, Wisconsin, Roscell Hines was convicted of an offense relating
        to the operating of a motor vehicle while intoxicated;

        Then, you will find the defendant guilty of a felony offense of driving while
        intoxicated as alleged in the indictment.

(emphasis added). The charge further instructed the jury that its verdict must be unanimous.

However, it did not require the jury to be unanimous as to any two specific prior convictions.

This is the basis of Hines’s complaint.

        The offense of DWI under section 49.04 of the Texas Penal Code is a felony of the third

degree if it is shown at trial that the defendant has been previously 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 2011).

        The Texas Court of Criminal Appeals has clearly held that “when a combination of more

than two felonies is charged for enhancement purposes, jury unanimity is not required on any

two specific felonies out of this combination.” Valdez v. State, 218 S.W.3d 82, 85 (Tex. Crim.

App. 2007). The Valdez court also held that jury unanimity requirements are determined by the

legislative intent of the applicable statute. Id. at 84.

        To enhance a DWI to a felony of the third degree, the statute requires a person to have

been previously convicted “two times of any other offense relating to the operating of a motor

vehicle while intoxicated.” 49.09(b)(2). This language clearly requires the jury to unanimously



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find two prior DWI convictions, but there is no language indicating that unanimity must exist

regarding the same two prior convictions. Id. Thus, there is no clear intent that jurors are

required to be unanimous as to the same two prior DWI convictions.

       In the instant case, the jury charge required the jury to be unanimous as to whether or not

Hines had previously been twice convicted of DWI. It did not require the jury to be unanimous

as to the same two out of the three alleged prior DWI convictions. Given the absence of

statutory intent, and the court of criminal appeals’ analogous holding in Valdez, we hold there

was no error in the jury charge because it failed to require the jury to be unanimous as to the

same two prior convictions. Accordingly, we overrule this point of error.

                                         CONCLUSION

       Based on the foregoing, we affirm the trial court’s judgment.


                                                 Marialyn Barnard, Justice

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