                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00114-CR



         GEORGE WAYNE SMITH, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 3rd District Court
               Henderson County, Texas
               Trial Court No. C-19,057




       Before Morriss, C.J., Carter and Moseley, JJ.
            Opinion by Chief Justice Morriss
                                                 OPINION

          George Wayne Smith was charged in Henderson County1 with felony driving while

intoxicated (DWI), with two jurisdictional enhancement convictions alleged. 2 Enhancement

offense number one, an Oklahoma offense, is the focus of all three of Smith’s points of error on

appeal.     Smith challenges the admissibility of the evidence of the Oklahoma offense, the

usefulness of the Oklahoma offense to act as an enhancement in this case, and the sufficiency of

the evidence to show Smith was the one convicted of the Oklahoma offense. We affirm the

judgment of the trial court—because (1) the evidence of the Oklahoma conviction was properly

admitted, (2) the Oklahoma conviction was a proper enhancement offense here, and (3) sufficient

evidence shows Smith was the defendant in the Oklahoma conviction.

(1)       The Evidence of the Oklahoma Conviction Was Properly Admitted

          The first jurisdictional enhancement paragraph in the indictment against Smith alleged

that, “on the 18th day of November, 1991, in cause CF-91-5689 in the 7th Judicial District of

1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
 On August 26, 2011, at about 12:20 a.m., Log Cabin Police Department Officer Jonathon Hutchison saw a
motorcycle attempt to turn onto Farm-to-Market 3054. During the turn, the motorcycle left the road and entered the
ditch before returning to the roadway, where it swerved erratically. Hutchison turned on his overhead lights in an
attempt to stop the motorcycle. After a short distance, with no compliance from the driver of the motorcycle,
Hutchison turned on his emergency siren two or three times in a further attempt to get the driver’s attention. After
about one-half mile, the motorcycle stopped.
          Approaching the driver, Smith, Hutchison smelled a strong odor of alcohol on Smith’s breath and noticed
that he had slurred speech. Due to these factors and Smith’s erratic driving, Hutchison administered field-sobriety
tests, which Smith failed. Hutchison determined that Smith had committed the offense of DWI. After Smith was
arrested, his blood test showed that he had a blood-alcohol concentration of 0.17, well in excess of the legal limit of
0.08.
          The indictment alleged two jurisdictional enhancements, making the charged offense a third degree felony.
Smith was found guilty and assessed a ninety-nine year sentence.

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Oklahoma County, Oklahoma, [Smith] was convicted of an offense relating to the operating of a

motor vehicle while intoxicated . . . .” In support of this allegation, the State offered, and the

trial court admitted over Smith’s objections, a partially redacted Oklahoma pen packet. Smith

contends that the trial court erred in admitting the pen packet, essentially because of errors in the

custodian’s certification detailing the contents of the pen packet.

       We review the trial court’s decision to admit or exclude evidence under an abuse of

discretion standard, and we will not disturb the trial court’s ruling if it is within the zone of

reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 379–80, 391 (Tex. Crim. App.

1990) (op. on reh’g.); Clay v. State, 390 S.W.3d 1, 13 (Tex. App.—Texarkana 2012, no pet.).

       A pen packet is admissible if it complies with either Rule 901 of the Texas Rules of

Evidence or, for self-authenticating documents, Rule 902. Reed v. State, 811 S.W.2d 582, 586

(Tex. Crim. App. 1991).       Under Rule 901, a document is authenticated for purposes of

admissibility if there is sufficient evidence “to support a finding that the matter in question is

what the proponent claims.”       TEX. R. EVID. 901(a).      In other words, “the requirement of

authentication is satisfied by extrinsic evidence that the matter in question is what its proponent

claims.” Reed, 811 S.W.2d at 587. Under Rule 902(4), a document is self-authenticating if

accompanied by a certificate from the custodian or manager of the public records who certifies

them as a true and correct copy of the original. TEX. R. EVID. 902(4).

       Here, the certification states that the pen packet contains copies of a fingerprint card,

photograph, and “commitment documents.” The packet included a judgment and sentence on a

plea of guilty that included Smith’s full name, date of birth, and social security number. The pen

                                                  3
packet, however, did not contain a photograph. In addition, the fingerprint card related to a

different prior offense than the one alleged in the indictment, though the card does contain

Smith’s full name, his date of birth, and most of his social security number. Smith argues that

the pen packet was improperly certified because of the missing photograph and his fingerprint

card from a different offense.

           The pen packet was accompanied by the appropriate certificate from the manager of

records and, therefore, satisfied the Texas Rules of Evidence for authentication and certification.

Smith does not dispute that the documents in the pen packet were true and correct copies of the

documents the certificate represents them to be.        Therefore, the trial court was within its

discretion to admit the pen packet into evidence. We overrule this point of error.

(2)        The Oklahoma Conviction Was a Proper Enhancement Offense Here

           Smith also contends the State has failed to prove the Oklahoma offense of driving under

the influence (DUI) was properly related to the current charge, because the Oklahoma statute

allows for a DUI conviction if Smith had merely been “in actual physical control of a vehicle and

was not driving or operating it.” Though couched in terms of evidentiary sufficiency, Smith

essentially argues that the Oklahoma DUI statute is not substantially similar to the Texas DWI

statute.

           In Texas, 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. 2012). Unless

statutorily enhanced, DWI is a class B misdemeanor. TEX. PENAL CODE ANN. § 49.04(b) (West

Supp. 2013). As relevant here, DWI is enhanced to a third degree felony if a person has

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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. 2012); see also

Ex parte Roemer, 215 S.W.3d 887, 889 (Tex. Crim. App. 2007). 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. 2012).

       We first consider whether a person could be convicted of a DUI offense in Oklahoma for

conduct that would not involve “operating” a motor vehicle under Texas law.

       The Oklahoma DUI statute, provides, in relevant part:

       A.      It is unlawful and punishable as provided in this section for any person to
       drive, operate, or be in actual physical control of a motor vehicle within this state,
       whether upon public roads, highways, streets, turnpikes, other public places or
       upon any private road, street, alley or lane which provides access to one or more
       single or multi-family dwellings, who:

       1.       Has a blood or breath alcohol concentration, as defined in Section 756 of
       this title, of eight-hundredths (0.08) or more at the time of a test of such person’s
       blood or breath administered within two (2) hours after the arrest of such person;

       2.     Is under the influence of alcohol;

       3.     Is under the influence of any intoxicating substance other than alcohol
       which may render such person incapable of safely driving or operating a motor
       vehicle; or

       4.     Is under the combined influence of alcohol and any other intoxicating
       substance which may render such person incapable of safely driving or operating
       a motor vehicle.

OKLA. STAT. tit. 47, § 11-902 (2012).




                                                   5
       Under Oklahoma law, the phrase “actual physical control” applies the DUI statute to

people who have control over a vehicle, but who may not have the vehicle started or in motion.

See Wofford v. State, 739 P.2d 543 (Okla. 1987) (DUI conviction upheld though defendant slept

in nonmoving car); Kyle v. State, 722 P.2d 1218, 1219 (Okla. 1986) (conviction upheld because

defendant exited driver’s side of vehicle); Hughes v. State, 535 P.2d 1023, 1024 (Okla. Crim.

App. 1975) (person had actual physical control of vehicle when he “placed himself behind the

wheel and could have at any time started the automobile and driven away”).

       The Texas Penal Code does not define “operating” for the purposes of the DWI statute.

Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995). However, the Texas Court of

Criminal Appeals has concluded 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.” Id. at 390; see also Barton v. State,

882 S.W.2d 456, 459 (Tex. App.—Dallas 1994, no pet.); Dornbusch v. State, 262 S.W.3d 432,

436 (Tex. App.—Fort Worth 2008, no pet.). Under this standard, “operating” a motor vehicle is

interpreted very broadly. Dornbusch, 262 S.W.3d at 436; Strong v. State, 87 S.W.3d 206, 215

(Tex. App.—Dallas 2002, pet. ref’d). “[W]hile driving does involve operation, operation does

not necessarily involve driving.” Denton, 911 S.W.2d at 389. “Because ‘operating a motor

vehicle’ is defined so broadly, any action that is more than mere preparation toward operating the

vehicle would necessarily be an ‘action to affect the functioning of [a] vehicle in a manner that

would enable the vehicle’s use.’” Strong, 87 S.W.3d at 216 (quoting Barton, 882 S.W.2d at




                                                6
459); see also Dornbusch, 262 S.W.3d at 436. The action need not be successful in causing the

vehicle to function for the person to be operating it. Strong, 87 S.W.3d at 215. 3

        Though the term “operating” is not defined by the Texas Penal Code, Section 642.001(2)

of the Texas Transportation Code defines the “operator” of a vehicle as “the person who is in

actual physical control of a motor vehicle.” Texas courts have upheld DWI convictions in cases

where a person is not actually driving or moving the vehicle. See, e.g., Denton, 911 S.W.2d at

388 (defendant unable to accelerate because vehicle required time to “warm up”); Dornbusch,

262 S.W.3d 432 (defendant asleep in driver’s seat of idling vehicle parked in parking lot); see

also Hearne v. State, 80 S.W.3d 677, 679 (Tex. App.—Houston [1st Dist.] 2002, no pet.)

(defendant asleep behind wheel of idling vehicle in “park” in roadway); Barton, 882 S.W.2d at

458 (same, but vehicle in “neutral”).

        The caselaw is clear that operating a vehicle does not necessarily involve driving or

moving. See Denton, 911 S.W.2d at 389. One can be operating a car without actually causing

the vehicle to function. Strong, 87 S.W.3d at 215. Therefore, we find that the Oklahoma DUI

statute is substantially similar to the Texas DWI statute. We overrule this point of error.

(3)     Sufficient Evidence Shows Smith Was the Defendant in the Oklahoma Conviction

        Smith also contends that the evidence supporting the prior conviction in Oklahoma is

legally insufficient because of the lack of proof of his identity. In evaluating legal sufficiency,

3
 Smith relies primarily on Haskins v. State, 960 S.W.2d 207, 209 n.3 (Tex. App.—Corpus Christi 1997, no pet.), and
argues that “the Court in Haskins noted that under Wyoming law a person could be convicted of a DWI even if he is
not driving the vehicle in question. The Court noted that a conviction under such law is not admissible to enhance a
DWI in Texas. The Wyoming law [in Haskins] and Oklahoma law are nearly identical.” In Haskins, however, the
State did not attempt to use the defendant’s prior conviction in Wyoming to enhance the DWI charge in Texas, and
the appellate court’s statement that the Wyoming statute could not be used for enhancement purposes is dicta. See
Haskins, 960 S.W.2d at 209 & n. 3.
                                                         7
we review all the evidence in the light most favorable to the trial court’s judgment to determine

whether any rational jury could have found the essential elements of the offense beyond a

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson

v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—

Texarkana 2010, pet. ref’d). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

       To establish that a defendant has been convicted of a prior offense, the State must prove

beyond a reasonable doubt that (1) a prior conviction exists and (2) the defendant is linked to that

conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). The Flowers court

noted that Texas law does not require “that the fact of a prior conviction be proven in a specific

manner,” and “any type of evidence, documentary or testimonial, may suffice.” Id. In its

decision, the Texas Court of Criminal Appeals likened the process of proving up a prior

conviction to evidentiary pieces to a jigsaw puzzle and left the ultimate decision of whether these

“pieces fit together sufficiently to complete the puzzle” with the trier of fact under the totality of

the evidence. Id. at 923; see Gentile v. State, 848 S.W.2d 359, 360 (Tex. App.—Austin 1993, no

writ) (certified copy of driving record, standing alone, is insufficient); but see Flowers, 220

S.W.3d at 923–24 (driving record plus matching computer printout from county clerk’s office

that set out prior DWI conviction was legally sufficient).

                                                  8
       Here, the State offered several puzzle pieces to prove the prior Oklahoma conviction.

The court admitted a pen packet containing a certified copy of the “judgment and sentence on

plea of guilty” in Oklahoma cause number CF-91-5689 and a fingerprint card. The fingerprint

card included in the packet was not from the alleged Oklahoma conviction. The judgment shows

“George Wayne Smith” was convicted of one count of “driving under the influence AFC of

driving under the influence,” lists Smith’s date of birth as “11-19-65,” and lists his social

security number as “XXX-XX-XXXX.” Investigator Monte Mansfield, a fingerprint expert, took

Smith’s fingerprints the day before his testimony. Mansfield testified that, while taking the

prints, Smith told him that his date of birth was “11-19-65.” During the arrest and booking

process, Smith told Officer Hutchison that his full name was George Wayne Smith, that his date

of birth was “11/19 of 1965,” and that his social security number was “XXX-XX-XXXX.”

       In this case, the individual’s name and the date of birth Smith gave Mansfield matches

that of the man convicted in the Oklahoma judgment, and the social security number Smith gave

Hutchison also matches but for the last digit. While it is conceivable that there are two men

named George Wayne Smith with the same date of birth and having a social security number that

matches but for the last number, such an instance is very unlikely. See Flowers, 220 S.W.3d at

925. Accordingly, we conclude that a rational trier of fact could have found beyond a reasonable

doubt (1) that a prior conviction for DUI in Oklahoma cause number CF-91-5689 existed and

(2) that legally sufficient evidence linked Smith to that conviction. See Montgomery v. State,

369 S.W.3d 188, 192 (Tex. Crim. App. 2012). This point of error is overruled.




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      We affirm the trial court’s judgment.



                                                   Josh R. Morriss, III
                                                   Chief Justice
Date Submitted:      May 7, 2013
Date Decided:        May 24, 2013

Publish




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