                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00335-CR
                           ____________________

                SAMUEL CHARLES VANNESS IV, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________           ______________

                   On Appeal from the 258th District Court
                            Polk County, Texas
                          Trial Cause No. 22367
________________________________________________________           _____________

                         MEMORANDUM OPINION

      Appellant Samuel Charles Vanness IV (Vanness) was indicted by the Polk

County Grand Jury for “Driving While Intoxicated 3rd or More.” 1 See Tex. Penal

Code Ann. §§ 49.04, 49.09(b) (West Supp. 2013). A jury found Vanness guilty,


      1
       The indictment alleged that Vanness did “unlawfully while intoxicated,
namely not having the normal use of his mental and physical faculties by the
reason of the introduction of alcohol into his body, drive and operate a motor
vehicle in a public place[.]” The indictment also alleged two prior convictions for
driving while intoxicated.

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and the trial court sentenced him to nine years in prison. Vanness timely filed a

notice of appeal.

                                     Stipulations

        Prior to the beginning of the trial, the defendant’s trial attorney filed a

motion to suppress any evidence relating to a mandatory blood draw. At the

suppression hearing, the State and Vanness stipulated “that the fact that the blood

was drawn, that it was tested or what the results were will not be offered or

admitted into evidence in the trial of this case.”

      During the trial, defense counsel also announced another stipulation on the

record as follows:

      [Defense Counsel]:         Your Honor, in this case the State has pled
                                 that the Defendant has two prior convictions
                                 for DWI, same being Cause No. 2009-0039
                                 in County Court at Law, dated June 29th,
                                 2009; and Cause No. 2009-0920 in the
                                 County Court at Law, dated March 1st of
                                 2010.

                                 Both the State and the Defendant stipulate as
                                 to these prior convictions, and there is no
                                 issue as to that. We’re stipulating they are
                                 valid convictions at this point.

      THE COURT:                 All right. Thank you very much. We ready
                                 to bring the jury in?




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                            Evidence Presented at Trial

      At trial, the State did not offer any evidence of Vanness’s blood alcohol

level. The State submitted Exhibits 1 and 2 as evidence of the two prior

convictions alleged in the indictment. Exhibit 1 included a judgment, dated June

29, 2009, for driving while intoxicated, and Exhibit 2 included a judgment, dated

March 1, 2010, for driving while intoxicated. Defendant did not object to either

Exhibit 1 or 2, and the exhibits were admitted into evidence.

      The State called Onalaska police officer, Josh Alexander, as its only witness

at trial. Alexander testified that on the evening of February 23, 2012, he observed a

red truck that appeared to be speeding on Navaho Trail. Alexander verified the

speed of the vehicle on his patrol car radar and stopped the truck for traveling 31

miles per hour in a 20 mile per hour speed zone. Alexander identified the

defendant, Vanness, as the driver of the truck. When Alexander first spoke to

Vanness, Alexander smelled alcohol coming from inside the vehicle. Alexander

asked Vanness to step out of his vehicle, and at that time, Alexander could also

smell the odor of alcohol coming from the defendant’s person. Alexander testified

that Vanness had red bloodshot eyes and slightly slurred speech. Vanness stated he

had “a little bit” to drink and had just left a bar that was identified as “Hookers on

the Lake.”

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      Officer Alexander testified that he administered three standardized field

sobriety tests and some non-standardized tests. When Alexander administered the

horizontal gaze nystagmus test to Vanness, and Alexander “observed lack of

smooth pursuit, sustained nystagmus, maximum deviation, the onset of nystagmus

prior to 45 degrees and also vertical nystagmus.” Next, Alexander administered the

“walk and turn” test. He observed Vanness “step off the line. . . [,] raise his arms

more than six inches away from his body,” make “an improper turn,” and miss

“heel to toe.” Alexander performed the “one legged stand” test during which

Vanness put his foot down several times, and, in the counting part of the test, kept

starting over while counting. Alexander also administered the “finger count” test

during which Vanness touched his fingers in the wrong order and miscounted.

Alexander administered the “handclap test,” the Rhomberg evaluation, and the

“nose touch” test. The only test that Vanness performed satisfactorily was the

“nose touch” test. Based on his experience as an officer in the field, and on

Vanness’s performance on the tests, Alexander determined that Vanness “had lost

the use of his mental or physical faculties due to the introduction of alcohol into his

body,” and that he was intoxicated. The State also introduced the edited dash video

of the traffic stop without objection from the defendant. At the time of the arrest,

Vanness was very belligerent and vulgar.

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      The defense called two witnesses, Karen Dardin and Vanness. Dardin,

Vanness’s mother, testified that Vanness has had anger management or temper

problems since he was very young and that his cursing at the officers and his acting

out in the patrol car had nothing to do with the alleged intoxication. Vanness told

the jury that he only drank two beers before he left the bar and that he was not

intoxicated when he left the bar.

                                    Issues on Appeal

      Vanness raises two issues on appeal. In his first issue, he argues the evidence

adduced at trial was legally insufficient to support the jury’s verdict. In his second

issue, he contends the evidence at trial was legally insufficient to support his

conviction because there was insufficient evidence to identify him as the same

person who committed the two prior DWI offenses. We conclude that both issues

are without merit and we affirm the judgment.

                                Standard of Review

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

307, 319 (1979), is the standard we apply in determining whether the evidence is

sufficient to support a conviction. Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013); Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)

(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). “[A]

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reviewing court must consider all of the evidence in the light most favorable to the

verdict and determine whether, based on that evidence and reasonable inferences

therefrom, a rational fact finder could have found the essential elements of the

crime beyond a reasonable doubt.” Winfrey, 393 S.W.3d at 768 (citing Gear v.

State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)). The jury is the sole judge of

the witnesses’ credibility and the weight to be given their testimony. Winfrey, 393

S.W.3d at 768. In making a legal sufficiency review, we may not reexamine the

weight and credibility of the evidence or substitute our judgment for that of the fact

finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford

almost complete deference to the jury’s credibility determinations. See Lancon v.

State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

                 Legally Sufficient Evidence Supports the Verdict

      In his first issue, Vanness argues the evidence adduced at trial was legally

insufficient to support the jury’s verdict. He points out that the State did not

introduce any evidence of his blood alcohol level, implies that the testimony of

Alexander about the field sobriety tests was insufficient, and references testimony

from Vanness who denied being intoxicated.

      In a prosecution for driving while intoxicated, the State may prove

intoxication by reason of a loss of faculties (a subjective definition) or by reason of

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blood alcohol concentration (per se definition). See Tex. Penal Code Ann. §

49.01(2) (West 2011); Crenshaw v. State, 378 S.W.3d 460 (Tex. Crim. App. 2012).

      A person commits the offense of DWI “if the person is intoxicated
      while operating a motor vehicle in a public place.” TEX. PENAL CODE
      § 49.04(a). Intoxication is an element of DWI, and the Texas Penal
      Code sets out two definitions of “intoxicated.” The subjective
      definition of intoxicated is “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, or a combination of
      two or more of these substances, or any other substance into the
      body.” Id. § 49.01(2)(A). The per se definition of intoxicated is
      “having an alcohol concentration of 0.08 or more.” Id. § 49.01(2)(B).
      These definitions overlap and are not mutually exclusive. Kirsch v.
      State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010).

Crenshaw, 378 S.W.3d at 466.

      The State presented evidence of intoxication under the subjective definition

of intoxication—i.e., a person’s loss of his faculties by reason of the introduction

of alcohol into the body. Having reviewed the record and the evidence presented at

trial, and considering all of the evidence in a light most favorable to the verdict, we

conclude that there is legally sufficient evidence to support the jury verdict. More

specifically, the evidence presented to the jury from which the jury could have

concluded Vanness was legally intoxicated included the following: At the time of

the initial stop, Alexander smelled alcohol coming from inside the vehicle and

from Vanness; Vanness had blood shot eyes and slurred speech; Vanness told

Alexander that he (Vanness) had “a little bit” to drink and that he just left a bar;
                                          7
Alexander administered standardized field sobriety tests and non-standardized tests

that indicated Vanness was intoxicated; Alexander was an experienced officer, and

based upon his training and observations, he concluded that Vanness was driving

while “intoxicated” and “had lost the use of his mental or physical faculties due to

the introduction of alcohol into his body.” Without objection from the defendant,

the State also introduced the edited traffic-stop video. According to the record, the

video confirms that Vanness was belligerent and vulgar. Furthermore, the State

introduced Exhibits 1 and 2 containing records of the two prior convictions, as

alleged in the indictment, and the defense attorney stipulated to the prior DWI

convictions.

      Even though Vanness denied he was intoxicated and gave testimony

contrary to the evidence and testimony of Officer Alexander, the jury, as the sole

fact finder and judge of witness credibility, was well within its province to believe

the testimony of Officer Alexander, disbelieve the opposing testimony offered by

Vanness, and thereby rationally determine that Vanness was legally intoxicated

because he did not have the normal use of his mental or physical faculties by

reason of the introduction of alcohol. See Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986). We conclude that based on the evidence and reasonable




                                         8
inferences therefrom, a rational fact finder could have found the essential elements

of the crime for which Vanness was indicted beyond a reasonable doubt.

        Vanness is Precluded from Raising a Legal Sufficiency Challenge
              Relating to the Stipulation as to the Prior Offenses

      In his supplemental appellate brief, Vanness argues there was insufficient

evidence presented at trial of the two prior DWI convictions. He admits that

defense counsel stipulated on the record during the trial to both prior convictions,

but Vanness contends that the State should not be allowed to rely upon the

stipulation because Vanness “did not personally agree to that stipulation and . . .

that, without his agreement on the record to this stipulation, it was not valid and

cannot be used as proof” that he was the person referred to in the prior convictions

in the indictment. We disagree.

      Defense counsel can make a stipulation on the record as to the evidence or

some element of the case on behalf of his client, and the defendant’s silent

acquiescence to a stipulation made in open court by the defense attorney in front of

the defendant is binding on the defendant. Matthews v. State, 414 S.W.2d 938, 939

(Tex. Crim. App. 1967); Genzel v. State, 415 S.W.2d 919, 921-22 (Tex. Crim.

App. 1967).

      With respect to proof related to the two prior offenses, the State must prove

beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant
                                         9
is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921–22 (Tex. Crim.

App. 2007). No specific document or mode of proof is required to prove a prior

conviction. Id. The State may use various methods of proof, including but not

limited to, documentary evidence, a defendant’s admission, or a stipulation. Id.;

Bryant v. State, 187 S.W.3d 397, 401 (Tex. Crim. App. 2005). Once defense

counsel makes a stipulation regarding prior offenses, the stipulation effectively

withdraws the facts from issue and dispenses with the need for the State to

introduce further proof thereof. Bryant, 187 S.W.3d at 401-02. The stipulation is “a

kind of judicial admission.” Id. at 402. Accordingly, Vanness is precluded from

making a legal sufficiency challenge to the stipulation that his attorney made to the

two prior DWI offenses. See id. at 401-02 (A stipulation waives a defendant’s right

to challenge the absence of proof on the stipulated elements.); see also Smith v.

State, 158 S.W.3d 463, 464-65 (Tex. Crim. App. 2005) (Even a stipulation to a

conviction that was otherwise too remote to serve as a jurisdictional predicate for a

felony DWI will be enforced.).

       The stipulation wholly dispensed with the need of any further proof

regarding the prior offenses. See Bryant, 187 S.W.3d at 402. Accordingly, we hold




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the evidence was legally sufficient to establish the prior convictions, and we

overrule issue two. 3

      The trial court’s judgment is affirmed.

     AFFIRMED.

                                                   _________________________
                                                      LEANNE JOHNSON
                                                            Justice

Submitted on June 27, 2014
Opinion Delivered July 9, 2014
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




      3
       In addition to the stipulation made by Vanness’s attorney during the trial,
the State introduced Exhibits 1 and 2 which contained copies of documents
purporting to establish Vanness’s prior convictions, and the record reflects that he
did not object to those exhibits.
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