Opinion filed January 18,2013




                                           In The



         CleUcntl) Court of Appeals

                                    No. 11-ll-OOOlO-CR



                     JOHN WILLIAM SPURLOCK, Appellant

                                              V.


                                STATE OF TEXAS, Appellee


                          On Appeal from the 278th District Court

                                      Leon County, Texas

                                Trial Court Cause No. CM-10-241




                           MEMORANDUM                 OPINION

       A jury convicted John William Spurlock of felony driving while intoxicated. Tex. Penal
Code Ann. §§ 49.04, 49.09(b)(2) (West Supp. 2012). The trial court sentenced appellant as a
habitual offender to confinement for life. Id. § 12.42(d). We modify and affirm.
                                        Issues on Appeal
       Appellant presents four issues for review. In his first issue, appellant contends that the
trial court erred by ordering him to pay attorney's fees because there was no evidence of his
ability to pay those fees. In his second issue, appellant contends that the trial court erred by
sentencing him as a habitual offender because the State failed to prove that an earlier felony
conviction was final. In his third issue, appellant challenges the sufficiency of the evidence to
support his conviction for the charged offense. In his fourth issue, appellant contends that the
trial court erred by overruling his objection to the prosecutor's jury argument during the
guilt/innocence phase.
                         Sufficiency ofthe Evidence to Support Conviction
       A person is guilty of driving while intoxicated "if the person is intoxicated while
operating a motor vehicle in a public place." Id. § 49.04(a). "Intoxicated" is defined as "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, a combination of two or more of those
substances, or any other substance into the body" or "having an alcohol concentration of 0.08 or
more." Id. § 49.01 (2)(A), (B) (West 2011). Driving while intoxicated is a third-degree felony if
it is shown at trial that the defendant has previously been convicted "two times of any other
offense relating to the operating of a motor vehicle while intoxicated." Id. § 49.09(b)(2) (West
Supp. 2012).
       In this case, appellant was charged with a third-degree felony offense under
Section 49.09(b)(2). The indictment alleged that, on or about May 6, 2010, appellant operated a
motor vehicle in a public place while he was intoxicated.       The indictment also alleged that
appellant had previously been convicted twice of offenses relating to operating a motor vehicle
while intoxicated, with the first conviction occurring on February 4, 1983, and the second
conviction occurring on January 14,1991.
       We review the sufficiency of the evidence under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. refd).
Under this standard, we examine all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and any reasonable inferences from it, any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).          In
conducting a sufficiency review, we are required to defer to the jury's credibility and weight
determinations because the jury is the sole judge of the witnesses' credibility and the weight to
be given their testimony. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks,
323 S.W.3d at 899.

       Katherine Wagley testified that she lived in a house at 3914 Highway 7 East in
Centerville, Texas.   Appellant and Wagley's daughter were acquaintances. Appellant was at
Wagley's house on May 6, 2010. Wagley testified that, on that occasion, appellant was "very
drunk." She said that appellant could not walk straight, talk, or respond. Wagley also said that
appellant ran into a tree that was in her yard with his blue pickup. Wagley testified that she
called 9-1-1 because appellant insisted on leaving her house in his pickup. Wagley was afraid
that "he was going to either kill himself or kill someone else." When appellant left Wagley's
house, he turned right onto Highway 7, which was a two-lane highway.
       Wagley said that she had seen appellant at her house on prior occasions when she did not
believe he was drunk. She said that, on those occasions, appellant had been able to respond to
questions and converse with her.
       Leon County Deputy Sheriff Robert Allen Kelley testified that, on May 6, 2010, he
received a dispatch about a possible intoxicated driver in a blue pickup.         Deputy Kelley
responded to the dispatch by driving his patrol car in an easterly direction on Highway 7. His
patrol car was not equipped with video recording equipment. He located the blue pickup about
ten miles east of Centerville. The record shows that appellant was driving the pickup. When
Deputy Kelley arrived at the scene, Leon County Sheriff Jerry Wakefield was following
appellant. Deputy Kelley activated his lights and followed appellant and Sherriff Wakefield.
Deputy Kelley testified that appellant was driving twenty to twenty-five miles per hour.
Deputy Kelley said that appellant continued to veer his pickup from right to left. According to
Deputy Kelley, appellant "drove off of the roadway on more than one occasion" and "crossed the
centerline on more than one occasion."

       Appellant turned his pickup onto FM 1511. At that time, Deputy Kelley pulled his patrol
car alongside appellant's pickup, and then appellant pulled his pickup over to the shoulder of the
road and stopped. Deputy Kelley testified that he followed appellant for two or three miles
before appellant stopped his pickup. Deputy Kelley stopped his patrol car, exited the car, and
then approached appellant.     Appellant got out of his pickup at Deputy Kelley's request.
Deputy Kelley said that appellant was "unstable on his feet," that appellant had bloodshot eyes,
and that appellant's speech was "a little slurred and a little slow." Deputy Kelley noticed "a faint
odor of alcohol about appellant."
       Appellant gave Deputy Kelley consent to search his pickup. Deputy Kelley testified that
he found a "thirty-two" pack of beer behind the driver's seat of the pickup and that at least three
cans of beer were missing from the pack. He also found an unopened can of beer under the
driver's seat. Deputy Kelley also found a black shaving kit on the floorboard that contained
prescription medications belonging to appellant. Deputy Kelley requested the Department of
Public Safety to dispatch a trooper to assist him in his investigation.
       DPS Trooper Derek Seymore arrived at the scene at about 11:45 a.m. Trooper Seymore
activated the video recording equipment in his patrol car. The State introduced a copy of the
recording of the stop into evidence. The recording contained video and audio. Trooper Seymore
got out of his patrol car and approached appellant. At that time, appellant was standing near the
back of his pickup. Trooper Seymore testified that appellant was "swaying" on his feet. In
response to questioning by Trooper Seymore, appellant said that he had been to the doctor's
office, that he had stopped at an individual's house, and that he was on his way home.
Trooper Seymore said that appellant's eyes were "heavy" and that his speech was "very thick."
Trooper Seymore smelled "a slight odor of an alcoholic beverage" on appellant.
       Trooper Seymore asked appellant whether he had any medical conditions and whether he
took any medications. Appellant told Trooper Seymore that he had high blood pressure and that
he was a diabetic.    Because appellant said that he was a diabetic, Trooper Seymore asked
appellant about his sugar level. Appellant informed Trooper Seymore that he did not believe his
sugar level was elevated or low at that time. Appellant also told Trooper Seymore that he had a
mental disorder. Appellant said that he took glyburide for his diabetes; clonidine for his blood
pressure; diazepam, Valium, and Pristiq for his mental disorder; and Darvon for his pain. In
response to further questioning, appellant told Trooper Seymore that he had taken his
medications but that he had not consumed any alcoholic beverages.
       Trooper Seymore administered standard field sobriety tests to appellant.            Trooper
Seymore testified in detail about the tests.    He said that appellant exhibited all six clues of
intoxication on the horizontal gaze nystagmus (HGN) test. Appellant exhibited five of eight
clues of intoxication on the walk-and-turn test and two of four clues of intoxication on the one-

leg stand test. Trooper Seymore testified that appellant performed "poorly" on the field sobriety
tests and that the results of the tests were "positive," which meant that appellant failed them.
Appellant also performed a preliminary breath test, and the test indicated the presence of alcohol
on his breath.

         Trooper Seymore believ ed that appellant was intoxicated and, therefore, placed him
under arrest. Appellant agreed to provide a blood specimen for analysis. Trooper Seymore
transported appellant to the hospital, where a phlebotomist obtained a blood specimen from
appellant at about 1:30 p.m. After giving blood, appellant believed that his blood pressure was
elevated and that his blood sugar level was elevated. Trooper Seymore took appellant to the
hospital's emergency room for evaluation. Appellant's blood sugar level and blood pressure
were both within normal ranges.
         Trooper Seymore testified that, during an inventory of appellant's pickup, officers found
eighteen Bud Light beers that remained in what had been a "thirty-pack" of beer. Officers also
found a can of beer under the driver's seat. Trooper Seymore said that the officers also found the
black bag that contained appellant's prescription medications.
         Trooper Seymore transported appellant to the county jail.         Trooper Seymore took
appellant's medications to the jail so that they could be administered to appellant there.
         We have reviewed the video footage of the stop that was recorded by the equipment in
Trooper Seymore's patrol car. The audio and video portions of the footage support Trooper
Seymore's testimony.
         Lindsay Hatfield, a DPS forensic scientist, analyzed appellant's blood specimen for the
presence of alcohol. Hatfield testified that testing of appellant's blood showed that it contained
0.08 grams of alcohol per one hundred milliliters of blood. Hatfield explained that she had four
separate test results for appellant's blood. Those results showed blood alcohol levels of 0.0863,
0.0853, 0.0874, and 0.0865.      According to DPS protocol, Hatfield dropped off the last two
decimal places from the results to arrive at the alcohol level of 0.08.
         Dana Paris, a DPS forensic scientist, analyzed appellant's blood for the presence of
drugs.    Testing of appellant's blood showed that it contained diazepam, nordiazepam, and
temazepam. Paris said that diazepam was an antianxiety drug and that Valium was a brand name
for diazepam. Paris testified that the side effects of diazepam included drowsiness, dizziness,
lack of coordination, and decreased divided attention.      Paris explained that nordiazepam and
temazepam were metabolites of diazepam. Additional testing showed that appellant's blood also
contained O-desmethylvenlafaxine, a metabolite of an antidepressant drug with the brand name
Pristiq. Appellant's blood also contained norpropoxyphene, which was a metabolite of the drug
propoxyphene. Paris explained that propoxyphene was a pain killer with the brand name of
Darvocet or Darvon.

       Viewing the evidence in the light most favorable to the jury's verdict, we conclude that
the evidence was sufficient to establish that appellant operated his pickup in a public place while
"not having the normal use of [his] mental or physical faculties by reason of the introduction of
alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those
substances, or any other substance into [his] body." See Section 49.01(2)(A). Our conclusion is
supported by ample evidence. Wagley testified that appellant was very drunk, could not walk
straight, and could not carry on a conversation. Deputy Kelley saw appellant drive his pickup off
the road more than once and across the centerline more than once. Deputy Kelley and Trooper
Seymore both observed appellant's personal behavior and smelled the odor of alcohol on
appellant. Trooper Seymore administered the field sobriety tests. Appellant performed poorly
on the tests and exhibited multiple clues of intoxication on all the tests. The preliminary breath
test indicated the presence of alcohol. The video of the stop supported Trooper Seymore's
testimony. Testing of appellant's blood showed that it contained alcohol and drugs. The
evidence was sufficient to establish that appellant was intoxicated while operating his pickup.
       Appellant contends that the video that was recorded by the equipment in Trooper
Seymore's patrol car "does not substantiate much of the trooper's description of appellant's
condition." As the trier of fact, the jury had the responsibility to resolve any conflicts in the
evidence. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). The jury was free to believe or disbelieve all or any part of any witness's testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). An appellate court may not
reevaluate the weight and credibility of the record evidence and thereby substitute its judgment
for that of the jury. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
       The State presented evidence that established, as alleged in the indictment, that appellant
had previously been convicted of two offenses relating to operating a motor vehicle while
intoxicated. Appellant does not challenge the sufficiency of the evidence to establish the prior
convictions. Based on the evidence, a rational juror could have found the essential elements of
the charged offense beyond a reasonable doubt. Appellant's third issue is overruled.
                                          Jury Argument
       Appellant argues in his fourth issue that the trial court erred by overruling his objection to
the prosecutor's jury argument.      Proper jury argument generally falls within four areas:
(1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to
argument of opposing counsel; or (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564,
570 (Tex. Crim. App. 2008); Esquivel v. State, 180 S.W.3d 689, 692 (Tex. App.—Eastland 2005,
no pet.).   Counsel is allowed wide latitude in drawing inferences from the record that are
reasonable, fair, legitimate, and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597
(Tex. Crim. App. 1996).
       Appellant complains that the prosecutor engaged in improper jury argument by asking the
jurors to place themselves in the shoes of the victim. The following exchange took place during
the prosecutor's argument:
               [PROSECUTOR]: And then he was driving. You heard the evidence.
       The officer was behind him. You heard Robert Kelley say that. But Ms. Wagley,
       she knew the defendant. He was friends with her daughter, been to her house
       several times. She had seen him before. But she was so concerned for you, all of
       you on the highway, that day ~

              [DEFENSE COUNSEL]: Your Honor, I object. That is an improper line
       of argument right there. She is personalizing the argument to the jury.

               [THE COURT]: Overruled.

               [PROSECUTOR]: She was concerned — she was even concerned about
       the defendant. She called the Sheriffs Office.


       In Torres v. State, 92 S.W.3d 911, 919-23 (Tex. App.—Houston [14th Dist] 2002, pet.
refd), the court provided a thorough analysis of cases involving jury arguments in which
prosecutors asked the jurors to place themselves in the shoes of the victim. As explained in
Torres, a prosecutor engages in improper argument in the punishment phase when the prosecutor
"[asks] the [Jurors] to place themselves in the shoes of the victim to consider what punishment
the victim would want to impose upon the defendant." Id. at 922-23.            Such arguments are
improper because they request the jury "to assess punishment not on impartial objective notions
of justice, but upon personal passion accelerated by the outrage every human being naturally
feels toward one who has wrongfully caused him pain, embarrassment, grief, or loss." Id. at 922.
These improper arguments amount to requests of the jurors to abandon their objectivity in
assessing punishment. Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985).
       In this case, the prosecutor made the complained-of statement in the guilt/innocence
phase. Wagley testified that she called 9-1-1 because she was afraid that appellant would kill
himself or someone else on the road if he drove his pickup. She said that she was concerned for
appellant and others. The prosecutor's statement that Wagley "was so concerned for you, all of
you on the highway, that day" was a proper summation of Wagley's testimony or, alternatively, a
reasonable deduction from that testimony.      The prosecutor's statement did not amount to a
request of the jurors to abandon their objectivity in reaching a verdict. Therefore, the trial court
did not err by overruling appellant's objection to the statement.      Appellant's fourth issue is
overruled.

                           Findings on Habitual-OffenderAllegations
       The State sought to have appellant sentenced as a habitual offender under Section
12.42(d) of the Penal Code. Section 12.42(d) provides in relevant part as follows:
       [I]f it is shown on the trial of a felony offense other than a state jail felony
       punishable under Section 12.35(a) that the defendant has previously been finally
       convicted of two felony offenses, and the second previous felony conviction is for
       an offense that occurred subsequent to the first previous conviction having
       become final, on conviction [he] shall be punished by imprisonment... for life,
       or for any term of not more than 99 years or less than 25 years.

In this case, the indictment alleged that, on April 29, 1993, appellant was convicted of the felony
offense of burglary of a building in cause number 663100 in the 337th District Court of Harris
County, Texas, and that, on January 24, 2006, after the conviction in cause number 663100
became final, appellant was convicted of the felony offense of driving while intoxicated third or
more in cause number 1049661 in the 248th District Court of Harris County.
       Appellant pleaded "not true" to the enhancement allegations. At the punishment hearing,
the State introduced certified copies of two penitentiary packets from the Texas Department of
Criminal Justice - Correctional Institutions Division.     The pen packets related to the cause
numbers described in the enhancement allegations in the indictment. They contained numerous
records, including judgments of conviction in the cause numbers described in the enhancement
allegations in the indictment. The State presented expert testimony that the right thumb print
contained in one of the pen packets matched appellant's right thumb print and that the
fingerprints contained in the other pen packet matched appellant's fingerprints. The pen packets
in combination with the expert testimony showed that, as alleged in the indictment, appellant was
convicted of the felony offense of burglary of a building in cause number 663100 on April 29,
1993, and that he was convicted of the felony offense of driving while intoxicated third or more
in cause number 1049661 on January 24, 2006. After the punishment evidence was concluded,
the trial court found that the enhancement allegations were "true." The trial court sentenced
appellant as a habitual offender to confinement for life.
       Appellant contends in his second issue that the evidence was legally insufficient to
establish that his conviction in cause number 1049661 for driving while intoxicated was a final
conviction for enhancement purposes under Section 12.42(d). In reviewing the sufficiency of the
evidence, we determine whether a rational trier of fact could have found that the enhancement
allegations were true beyond a reasonable doubt. Flowers v. State, 220 S.W.3d 919, 923, 925
(Tex. Crim. App. 2007). We review the evidence in the light most favorable to the trial court's
finding. Littles v. State, 726 S.W.2d 26, 30 (Tex. Crim. App. 1987).
       To establish that a defendant has been convicted of a prior offense, the State must prove
beyond a reasonable doubt (1) that a prior final conviction exists and (2) that the defendant is
linked to that conviction. Flowers, 220 S.W.3d at 921; Henry v. State, 331 S.W.3d 552, 555
(Tex. App.—Houston [14th Dist] 2011, no pet.). A conviction from which an appeal has been
taken is not considered a final conviction until it is affirmed by the appellate court and mandate
has issued. Henry, 331 S.W.3d at 556. Once the State provides prima facie evidence of an
enhancement conviction, we presume that the conviction is final when faced with a silent record
regarding finality. Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007); Henry, 331
S.W.3d at 555. However, if the State's proof of the prior conviction shows on its face that the
defendant appealed the conviction, the presumption of finality has been rebutted, and the State
must prove that the mandate issued. Johnson v. State, 784 S.W.2d 413, 414 (Tex. Crim. App.
1990); Jones v. State, 711 S.W.2d 634, 635-36 (Tex. Crim. App. 1986); Henry, 331 S.W.3d at
555.

       By introducing the pen packet relating to cause number 1049661 and the expert
fingerprint testimony, the State presented prima facie evidence of appellant's conviction in that
cause number. See Varnes v. State, 63 S.W.3d 824, 834 (Tex. App.—Houston [14th Dist.] 2001,
no pet.) ("It is well settled that a pen packet combined with fingerprint analysis linking the
packet to the defendant is sufficient proof of prior convictions."). The pen packet that relates to
cause number 1049661 does not reflect that appellant appealed the conviction. The trial court
included the following "Special Instructions" on page 2 of the judgment in cause number
1049661: "Appeal Waived. No permission to appeal granted." No evidence was presented at
the punishment hearing that appellant appealed the conviction. The record is silent as to whether
appellant appealed. Because there was no evidence that appellant appealed the conviction, the
presumption of finality was not rebutted, and the State had no burden to prove that a mandate
had issued. Johnson, 784 S.W.2d at 414; Figueroa v. State, 250 S.W.3d 490, 504 (Tex. App.—
Austin 2008, pet. ref d).
       The evidence was legally sufficient to establish that appellant's conviction in cause
number 1049661 was a final conviction. Therefore, the trial court did not err by sentencing
appellant as a habitual offender. Appellant's second issue is overruled.
                                          Attorney's Fees
       The trial court ordered appellant to pay $4,770 for court-appointed attorney's fees. In his
first issue, appellant challenges the sufficiency of the evidence to support the trial court's order
that he pay the attorney's fees.    A trial court has authority to order a defendant to pay the
attorney's fees of appointed counsel if the court determines that "[the] defendant has financial
resources that enable him to offset in part or in whole the costs of the legal services provided."
Tex. Code Crim. Proc. Ann. art 26.05(g) (West Supp. 2012).            If the trial court makes this
determination, it shall order the defendant to pay the amount of attorney's fees that it finds the
defendant is able to pay. Id.      "[T]he defendant's financial resources and ability to pay are
explicit critical elements in the trial court's determination of the propriety of ordering
reimbursement of costs and fees." Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).
For the purpose of assessing attorney's fees, once a defendant is determined to be indigent, he is
presumed to remain so for the remainder of the proceedings absent proof of a material change in
his financial circumstances. Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2012);
Mayer, 309 S.W.3d at 557. Accordingly, when a trial court determines that the defendant is
indigent at the outset of trial, there must be some evidence presented to the trial court of a change
in the defendant's ability to pay attorney's fees before the fees can be assessed against the
defendant. Mayer, 309 S.W.3d at 557; Watkins v. State, 333 S.W.3d 771, 781-82 (Tex. App.—



                                                 10
Waco 2010, pet. ref d); Roberts v. State, 327 S.W.3d 880, 884 (Tex. App.—Beaumont 2010, no
pet.).
         In this case, appellant requested court-appointed counsel before trial.              Appellant
submitted an indigence form in support of his request. In the form, appellant stated that he had
monthly income of $653 in social security disability benefits. Appellant listed rent of $450 as
his sole monthly expense. Therefore, appellant listed his monthly net income as $203. The trial
court determined that appellant was indigent and appointed him counsel.
         At the punishment hearing, the State introduced a presentence investigation report into
evidence. The report indicated that appellant received $652 in monthly social security disability
benefits. The State asserts in its brief that, because the trial court sentenced appellant to a life
sentence, "appellant would obviously no longer have the $450 monthly rent obligation and
would consequently have $450 more in available income, which would constitute a material
change in his finances and enable him to pay the attorney's fees assessed."
         However, after the trial court announced the life sentence at the punishment hearing,
appellant's counsel immediately requested the trial court to find that appellant continued to be
indigent and to order the county to pay for the reporter's record. In response, the trial court
stated, "That will be granted." Appellant's counsel also requested the trial court to appoint
appellate counsel to appellant. The trial court entered an order in which it again determined that
appellant was indigent and appointed counsel to represent appellant on appeal. Thus, the record
does not show that the trial court determined that there had been a material change in appellant's
financial circumstances or that appellant had the ability to pay attorney's fees. Nor does the
record contain any evidence that appellant's financial circumstances had materially changed or
that appellant had the ability to pay attorney's fees. The State did not present evidence that
appellant would continue to receive social security disability payments while serving his life
sentence. We conclude that the evidence is insufficient to support the trial court's imposition of
attorney's fees against appellant, and we modify the judgment to delete the part of it in which the
trial court ordered appellant to pay attorney's fees. Appellant's first issue is sustained.




                                                  11
                                        This Court's Ruling
       The judgment of the trial court is modified to delete "Attorney Fees: $4,770.00." As
modified, the judgment of the trial court is affirmed.

                                                      ORIGINAL OPINION SIGNED BY
                                                        JUSTICE THRRYMcGAU.
                                                              TERRY McCALL

                                                              JUSTICE



January 18,2013
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




                                                 12
                                     1 1th Court of Appeals

                                        Eastland, Texas

                                            Judgment



John William Spurlock,                                       * From the 278th District
                                                               Court of Leon County,
                                                               Trial Court No. CM-10-241.


Vs. No. 11-11-00010-CR                                       ♦January 18,   2013

State of Texas,                                              * Memorandum Opinion by McCall, J.
                                                               (Panel consists of: Wright, C.J.,
                                                               McCall, J., and Willson, J.)

     This court has inspected the record in this cause and concludes that there is error in the judgment
below. Therefore, in accordance with this court's opinion, the judgment of the trial court is modified
to delete "Attorney Fees: $4,770.00." As modified, the judgment of the trial court is affirmed.
