Opinion issued October 30, 2014.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00398-CR
                           ———————————
                 TYRONE GAYNELL CONELLY, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 7
                           Harris County, Texas
                       Trial Court Case No. 1765756



                                  OPINION

      A jury found appellant, Tyrone Gaynel Conelly, guilty of driving while

intoxicated [DWI], and, after appellant pleaded true to a DWI enhancement, the

trial court assessed punishment at 180 days’ confinement. In three points of error,
appellant contends that (1) the evidence was legally insufficient to show that he

operated a motor vehicle; (2) the trial court erred in admitting his booking photo,

which he claims was unduly prejudicial; and (3) the use of a 1985 conviction for

enhancement purposes violated constitutional prohibitions against ex post facto

laws. We affirm.

                                 BACKGROUND

      On the night of June 26, 2011, Corporol N. Yeley, of the Clear Lake Shores

Police Department, was off duty and heading home from a family trip when he saw

a red SUV driving erratically. Yeley called 911 and followed the vehicle as it left

the freeway. According to Yeley, the vehicle was “moving from lane to lane,” had

a turn signal flashing “for a long period of time,” and “almost struck the barricades

a couple of times but maintained a slight distance away from them.” Yeley was in

a civilian vehicle, so he turned on his hazard lights to alert the police to the

location of the vehicle when they arrived.

      A police car arrived and pulled over the vehicle. Yeley remained in his car

while the vehicle that he had seen being driven erratically was stopped. Yeley

remained at the scene so that he could assist if there a problem. Yeley saw that the

SUV had only one occupant, who he described as “an older, skinny guy with

roughed up hair.” Yeley approached the scene and spoke with the deputies before

leaving the scene.

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      Deputy Gerrish, a deputy constable for Precinct 8 in Harris County, was

working patrol on June 26, 2011, when he was called to service for a possible

intoxicated driver. His supervisor, who was in another car, saw the vehicle first and

pulled the driver over. Gerrish arrived shortly thereafter. When he arrived,

appellant was in the driver’s seat of the vehicle and there were no passengers.

Gerrish approached appellant and asked him if he had ingested any narcotics.

According to Gerrish, appellant responded that he had been on a “multiple-day

bender of cocaine” and he had a “70-dollar-a-day addiction.” Gerrish noticed that

appellant had body tremors, and was constantly moving, and that the muscles on

his face seemed to contract into involuntary smiles.         He also noticed that

appellant’s pupils were very small.

      Gerrish decided to administer the standard field sobriety tests in order to

evaluate appellant’s possible impairment. According to Gerrish, appellant was

unable to perform the HGN test because he was unable to control his eyes and head

independently, and he failed both the walk-and-turn test and the one-leg-stand test.

      Due to appellant’s poor performance on the field sobriety tests, Gerrish

placed appellant under arrest, called a drug recognition expert to the scene, and

conducted a search of appellant’s vehicle incident to arrest. In appellant’s vehicle,

Gerrish found a crack pipe with residue, some steel wool commonly used as a filter

for smoking crack, some syringe caps, and a small gauge needle.

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      Deputy Michael Ford, also a deputy constable with Harris County Precinct

8, responded to Officer Gerrish’s request for a drug recognition examination

[“DRE”]. In performing the DRE there are seven categories of drugs that are

subject to recognition: central nervous system depressants, central nervous system

stimulants, hallucinogens, dissociative anesthetics, narcotic analgesics, inhalants,

and marijuana. Ford inquired about Gerrish’s observations during the standardized

field sobriety tests. He also performed a breath test. Because appellant’s breath

alcohol concentration was 0.0010, Ford ruled out alcohol, but because of Gerrish’s

observations, Ford believed that appellant was under the influence of a narcotic or

some other substance.

      Ford observed that appellant’s “eyes were bloodshot and glassy; he spoke

with a slurred, quick manner; his actions were quick; he had difficulty sitting still;

he would go from restless to passed out, drowsiness and falling asleep.” Appellant

informed Ford that he had not slept in over 48 hours. Ford conducted a

psychophysical evaluation including four exercises: (1) the Romberg Balance test,

which helps determine the pace of the individual’s internal clock; (2) the walk-and-

turn test; (3) the one-leg-stand test; and (4) the finger-to-nose test. Appellant was

able to perform the Romberg test without difficulty, but Ford described his

performance on the final three tests as “poor.”




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      After completing the psychophysical tests, Ford checked appellant’s vital

signs. Appellant had high blood pressure, but his pupils were within normal range.

Ford observed track marks on appellant’s arms and noticed that his muscle tone

was rigid, indicating a stimulant had been ingested. Ford questioned appellant

about his drug use. Appellant admitted to using cocaine and agreed to provide a

urine sample. Ford opined that appellant was impaired by a central nervous system

stimulant and as a result he was not able to safely operate a vehicle at the time of

his arrest. He also noted that cocaine, which appellant had admitting ingesting, is a

central nervous system stimulant. Ford did not see appellant operate the vehicle

and, at the time of his arrest, the vehicle was inoperable because it was out of gas.

      Dr. Jeff Walterschied, the assistant chief toxicologist at the Harris County

Institute of Forensic Sciences analyzed the urine sample provided by appellant and

found that he had an active cocaine metabolite, ethanol, and the inactive metabolite

of THC in his system. Walterschield opined that the presence of the active cocaine

metabolite indicated the drug was still in appellant’s system, but he could not

determine when the drug might have been ingested or whether the amount

indicated would actually cause intoxication.

                      SUFFICIENCY OF THE EVIDENCE

      In his first point of error, appellant contends that “[t]he evidence was legally

insufficient to sustain the conviction for driving while intoxicated because there

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was no evidence to support the ‘operating a motor vehicle’ element of the charged

offense.” See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp. 2014) (“A person

commits an offense if the person is intoxicated while operating a motor vehicle in a

public place.”).

Standard of Review

      This Court reviews legal and factual sufficiency challenges using the same

standard of review. Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref’d) (construing majority holding of Brooks v. State, 323 S.W.3d

893, 912, 926 (Tex. Crim. App. 2010)). Under this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational factfinder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In

re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007). Viewed in the light most favorable to the verdict, the

evidence is insufficient under this standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense; or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11; Laster, 275

                                         6
S.W.3d at 518; Williams, 235 S.W.3d at 750. Additionally, the evidence is

insufficient as a matter of law if the acts alleged do not constitute the criminal

offense charged. Williams, 235 S.W.3d at 750.

      An appellate court determines “whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.” Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007). In viewing the record, direct and

circumstantial evidence are treated equally. Id. at 13. Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt. Id. An appellate court presumes

that the factfinder resolved any conflicting inferences in favor of the verdict and

defers to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. An

appellate court also defers to the factfinder’s evaluation of the credibility and

weight of the evidence. See Williams, 235 S.W.3d at 750

Analysis

      Appellant contends that there is legally insufficient evidence identifying

appellant as the operator of the SUV. Specifically, appellant argues that “Officer

Yeley, the only eyewitness to the operation of the vehicle who testified at trial was

not able to make an in-court identification of [appellant] as the driver[,]” and that

“[n]either Officers Garrish, nor Ford [were] present when the vehicle was actually

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in operation.” The State responds that there was sufficient circumstantial evidence

showing that appellant operated the vehicle. We agree with the State.

      The identity of a perpetrator can be proved by direct or circumstantial

evidence; eyewitness identification is not necessary. Earls v. State, 707 S.W.2d

82, 85 (Tex. Crim. App. 1986); Greene v. State, 124 S.W.3d 789, 792 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d). Here, Yeley saw a single occupant in a

red SUV driving erratically. He stayed behind the car, called 911, and maintained

visual contact with the SUV until police arrived. Yeley saw the police get a man

out of the car, and he never saw any other occupants. When Gerrish arrived, the

red SUV was parked on the side of the road after having run out of gas. Appellant

was seated behind the wheel, and there was no one else in the vehicle. When

questioned, appellant said that he had been on a cocaine bender for several days,

but he was headed home because he had run out of money.              Based on this

evidence, even though Yeley did not identify appellant at trial, the jury could have

rationally concluded that the person Yeley saw driving the red SUV erratically was

the same person Gerrish removed from the red SUV after it ran out of gas and

identified as appellant.

      Accordingly, we overrule point of error one.




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                        ADMISSION OF PHOTOGRAPH

      In his second point of error, appellant contends “[t]he trial court abused its

discretion in failing to exclude State’s exhibit 4 [his booking photo] from the jury’s

consideration because the probative value was outweighed by the prejudicial

effect.”

Standard of Review

      We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim.

App. 2006). A trial court abuses its discretion if it acts arbitrarily or unreasonably,

without reference to any guiding rules or principles. Montgomery v. State, 810

S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court’s

decision to admit or exclude evidence, we will not reverse the ruling unless it falls

outside the “zone of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 102

(Tex. Crim. App. 1996).

      Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” TEX. R. EVID. 403. The opponent of

the evidence must demonstrate that its negative attributes substantially outweigh

any probative value. Montgomery, 810 S.W.2d at 377. A rule 403 analysis must

balance (1) the inherent probative force of the proffered item of evidence, along

with (2) the proponent’s need for that evidence, against (3) any tendency of the

                                          9
evidence to suggest decision on an improper basis, (4) any tendency of the

evidence to confuse or distract the jury from the main issues, (5) any tendency of

the evidence to be given undue weight by a jury that has not been equipped to

evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42

(Tex. Crim. App. 2006).

Analysis

      Appellant argues that his booking photo was unduly prejudicial because in it

appellant “looks tired and disheveled,” and the photograph was not necessary to

prove appellant’s identity because the State had already introduced a video from

appellant’s arrest. The photograph, which was taken at the police station shortly

after appellant was arrested, was introduced by the State to rebut appellant’s

defensive theory that he was not the person Yeley had seen erratically driving the

red SUV. Since the evidence was presented to rebut a defensive theory of

appellant’s, the evidence was strongly probative.

      The State needed the evidence because the photograph demonstrated

appellant’s appearance only a few hours after the offense was committed and

matches Yeley’s description of “an older, skinny guy with roughed up hair.” The




                                        10
photograph is a better representation of appellant’s appearance than the roadside

video, which was taken at night and from a further distance.

      The photograph does not suggest a decision on an improper basis because,

even if the photo suggests that appellant was arrested, that fact was obviously

already known to the jury. See Hajjar v. State, 176 S.W.3d 554, 561–62 (Tex.

App.—Houston [1st Dist.], pet. ref’d) (noting that “[a]s a juror in a criminal trial,

one already knows that the defendant has gone through the process of being

booked and charged with a crime”).            In fact, arguably the photo supports

appellant’s testimony that he was driving erratically because he was sleepy, not

intoxicated.

      There is nothing to suggest that the photograph would confuse or distract the

jury, or that a jury would place undue weight on the photograph, which, while

perhaps unflattering as booking photos tend to be, does nothing more than portray

the way appellant appeared shortly after his arrest.

      Finally, the presentation of the photograph did not take an inordinate amount

of time even if it was somewhat duplicative of the video, which also portrayed

appellant’s appearance on the night of his arrest.

      Rule 403 favors the admission of relevant evidence and carries with it a

presumption that probative evidence will be more probative than prejudicial. See

Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991). Appellant has not

                                         11
overcome that presumption here; thus the trial court did not abuse its discretion by

admitting appellant’s booking photograph.

      Accordingly, we overrule point of error two.

                             EX POST FACTO LAW

      Earlier versions of the DWI statute provided that a prior conviction for DWI

could not be used for enhancement if the conviction was more than ten years old.

See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws

3586, 3698; see also Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 21, 1995

Tex. Gen. Laws 2734, 2743. In 2005, the Legislature eliminated the ten-year

requirement, effective September 1, 2005. See Act of May 27, 2005, 79th Leg.,

R.S., ch. 996, § 3, 2005 Tex. Gen. Laws 3363, 3364; see also TEX. PEN. CODE

ANN. § 49.09(a) (Vernon Supp. 2014). In his third point of error, appellant

contends that “[a]pplication of the 2005 Amendment of the DWI statute in

[appellant’s] case violates the proscription against Ex Post Facto laws under both

the United States and Texas Constitutions.” Specifically, he contends that his 1985

DWI conviction was more than 10 years old at the time of trial and should not have

been used to enhance the level of the charged offense.

Applicable Law and Analysis

      An ex post facto law: (1) punishes as a crime an act previously committed

which was innocent when done; (2) changes the punishment and inflicts a greater

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punishment than the law attached to a criminal offense when committed; or (3)

deprives a person charged with a crime of any defense available at the time the act

was committed. Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002).

Appellant argues that the 2005 amendment constitutes an ex post facto law because

it eliminated the ten-year requirement for enhancements.

      However, we agree with the reasoning of the Fourteenth Court of Appeals,

which addressed this issue by stating:

      We hold that the [ten-year rule] was not an explicit guarantee that . . .
      convictions could not be used in the future, but only a restriction on
      what prior convictions could be used to enhance an offense at the
      time. Therefore, the 2005 changes to the DWI enhancement statute,
      by removing all time limitations on the use of prior DWI convictions
      to enhance current DWI charges, did not increase [a defendant’s]
      punishment . . . for prior convictions and therefore is not an ex post
      facto law.

State v. Pieper, 231 S.W.3d 9, 15 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

      Texas courts have consistently held that for purposes of enhancement, the

use of prior convictions that could not have been used at the time they were

originally committed is not a violation of the prohibition against ex post facto laws.

See Cohen v. State, No. 10-08-00385-CR, 2010 WL 199887, at *2 n.2 (Tex.

App.—Waco Jan. 20, 2010, no pet.) (mem. op., not designated for publication); see

also Engelbrecht v. State, 294 S.W.3d 864, 868 (Tex. App.—Beaumont 2009, no

pet.); Sepeda v. State, 280 S.W.3d 398, 402 (Tex. App.—Amarillo 2008, pet.

ref’d); Crocker v. State, 260 S.W.3d 589, 592 (Tex. App.—Tyler 2008, no pet.);
                                         13
Pieper, 231 S.W.3d at 14; Saucedo v. State, No. 03-06-00305-CR, 2007 WL

1573948, at *4 (Tex. App.—Austin May 30, 2007, no pet.) (mem. op., not

designated for publication); Romo v. State, No. 04–05–00602–CR, 2006 WL

3496933, at *1–2 (Tex. App.—San Antonio Dec.6, 2006, no pet.) (mem. op., not

designated for publication).

      We agree with these cases finding no ex post facto violation because the

“enhancement statues penalize the new criminal offense being enhanced rather

than the prior offense used for enhancement[.]” Pieper, 231 S.W.3d at 12.

      Accordingly, we overrule appellant’s third point of error.

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Publish. TEX. R. APP. P. 47.2(b).




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