      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00269-CR



                                     Glenn Meek, Appellant

                                                 v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
       NO. D-1-DC-2004-202554, HONORABLE JON WISSER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This case concerns the admissibility and the sufficiency of the evidence used to

convict Glenn Alan Meek of felony driving while intoxicated. A jury found Meek guilty of felony

DWI. The court assessed punishment at twenty-five years in prison. See Tex. Pen. Code Ann.

§ 49.09(b)(2) (West 2003) (DWI third conviction). Meek raises two issues on appeal. In his first

issue, he contends that the evidence was legally insufficient to prove his identity as the person

convicted in one of the two prior DWI offenses that are required to prove felony DWI. See id. In

his second issue, Meek argues that the admission of inculpatory statements he made after his arrest

and prior to receiving his Miranda warnings violated his right against self-incrimination. U.S.

Const. amend. V, XIV. We affirm the conviction.

               Officer Randy Ballard of the Austin Police Department testified that, at approximately

1 a.m. on June 5, 2004, he saw a vehicle run a red light. He then followed the vehicle for
approximately two and a half blocks until he saw it fail to come to a complete stop while turning

right on red at the intersection of 11th Street and the Interstate 35 frontage road. Ballard testified

that Meek’s GMC Jimmy was moving in a “jerking motion.” Meek pulled over into the parking lot

of a hotel within half a block after Ballard turned on his overhead lights. Activation of the lights also

triggered Ballard’s car-mounted video camera to record.

                 Ballard testified that when he approached the vehicle and began speaking to Meek

he noticed the odor of alcohol, that Meek’s eyes were bloodshot, and that Meek’s speech was slurred.

Ballard then asked Meek to step out of the vehicle. In response to an investigative line of

questioning in which Ballard sought to determine what Meek had to eat and drink that night, Meek

told Ballard that he was taking medication.1

                 Ballard then administered field sobriety tests—the horizontal gaze nystagmus (HGN)

test, the walk-and-turn test, the one-leg stand test, and the Romberg balance test. Ballard testified

that Meek performed poorly enough on the tests to be arrested for DWI. He also testified that, prior

to performing the one-leg stand test, Meek said that he had a hurt back or ruptured disc that would

make his performance “a little shaky” on the one-leg test. Ballard further testified that Meek then

stated a second time that he was taking medication (Soma) for his back.

                 The videotape recording of the sobriety tests and arrest shows that when Ballard

handcuffed Meek and told him he was under arrest for DWI, Meek asked Ballard to “please go ahead

and let [him] just book into the nearest motel.” Meek requested at least six times that he be allowed

to check into a motel instead of being arrested. Before he was put in the patrol car, Meek remarked


        1
            Meek stated he was taking “Adavan” for anxiety and “Soma” for a ruptured disc in his
back.

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again about the “medication that [he’s] taking.” When Meek was in the back of the patrol car,

Ballard read him the DIC-24 form requesting a blood and/or breath sample and explaining the

consequences of his refusal. Ballard then requested a sample from Meek, to which Meek responded

that he was “under psych meds.” During the trial, the videotape of the arrest was played for the jury

until this point and was then stopped.

               To satisfy the elements of felony DWI, the State offered evidence of two prior

convictions of Meek for DWI offenses. The evidence consisted of penitentiary packets for a

conviction in cause no. 843207, contained in State’s exhibit 2 (SX-2), and cause no. 528376 (SX-4),

each containing the judgment, front and side view photographs, and a fingerprint card taken of the

individual convicted in each respective cause number. Travis County Deputy Sheriff Toby Cross,

a fingerprint expert, testified that the fingerprints contained in SX-2 matched fingerprints taken from

Meek on the morning of the trial. Cross testified that he was not able to match Meek’s fingerprints

with the fingerprints contained in SX-4, due to the poor quality of the print card in SX-4. Cross

testified that certain identifying information contained in SX-4—the name, State Identification

Number (SID), and signature—was the same as information contained in SX-2 and SX-7, which

included a handwritten letter that Meek sent to Ballard from the Del Valle Correctional Center. This

letter asked Ballard not to testify at Meek’s trial. The letter was signed: “Glenn Alan Meek.” The

return address on the envelope was signed: “Glenn A. Meek.”

               The jury found beyond a reasonable doubt that Meek was the individual previously

convicted of DWI in cause numbers 843207 and 528376 and found him guilty of the offense of

felony DWI. Based on this verdict, the judge sentenced Meek to twenty-five years in prison.



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                In his first issue, Meek contends that the evidence is legally insufficient to prove that

he was convicted of two previous DWI offenses. Texas Penal Code section 49.09(b)(2) provides that

“an offense [of driving while intoxicated] under section 49.04 . . . is a felony . . . if it is shown on

the trial of the offense that the person has previously been convicted two times of any other offense

relating to the operating of a motor vehicle while intoxicated . . . .” Tex. Pen. Code Ann. § 49.09

(West 2003). Previous convictions of driving while intoxicated are an essential part of the felony

DWI offense that must be alleged and proved by sufficient evidence. Johnson v. State, 269 S.W.2d

393, 394 (Tex. Crim. App. 1954); White v. State, 634 S.W.2d 81, 82 (Tex. App.—Austin 1982, no

pet.). The indictment against Meek alleges two prior convictions: a 2000 conviction of operating

a motor vehicle while intoxicated, cause no. 843207, and a 1993 conviction of operating a motor

vehicle while intoxicated, cause no. 528376. Meek does not dispute that he was convicted of DWI

in cause no. 843207, but he challenges the legal sufficiency of the evidence to establish that he was

the individual convicted in cause no. 528376.

                In a legal sufficiency review, we examine the evidence in the light most favorable to

the verdict and determine whether any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v.

State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). There is no exclusive manner of proving a

defendant’s identity as to prior convictions. Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App.

1987) (op. on reh’g); Green v. State, 140 S.W.3d 776, 777 (Tex. App.—Eastland 2004, no pet.).

Each case is to be judged on its own individual merits. Littles, 726 S.W.2d at 32. One means of

proving identity for purposes of enhancement includes the introduction of certified copies of the

judgment, sentence, and record of the Texas Department of Corrections or a county jail, including

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fingerprint records of the person convicted, supported by expert testimony identifying them as

identical with known prints of the accused. Id. at 31. Because there is no exclusive means of

proving identity with respect to prior convictions, even unorthodox proof of identity will support an

enhancement of the offense if it is sufficient to prove identity. Id. at 31-32. In Littles, the court of

criminal appeals held that a jury could compare photographs in two penitentiary packets relating to

separate offenses to determine if the individual identified by fingerprints as the person convicted of

one offense was the same person convicted of the second offense. Id. at 32. The court held such

photographic evidence to be sufficient. Id.

               At trial, the State introduced a penitentiary packet for cause no. 528376, containing

a fingerprint card, the judgment for cause no. 528376, and photographs—a front and side view—of

the individual convicted in cause no. 528376. The penitentiary packet was certified by the Vice-

Chairman of Classification and Records for the Texas Department of Criminal Justice Correctional

Institutions Division. Meek argues that the State failed to prove that he was the individual convicted

in cause no. 528376 because the fingerprint page in that penitentiary packet could not be matched

to Meek’s fingerprints due to the poor quality of the print card in the penitentiary packet.

               We find that the jury could compare the photographs contained within the penitentiary

packets for the two prior offenses with Meek in the courtroom to determine that Meek was the

individual convicted in cause no. 528376. The jury is capable of making such a comparison and no

additional testimony is required regarding the photographs. See Yeager v. State, 737 S.W.2d 948,

952 (Tex. App.—Fort Worth 1987, no pet.). In addition to the photographs, the documents in each

penitentiary packet contain the same full name: Glenn Alan Meek, as well as the same SID: 651289.

Meek correctly asserts for the first time on appeal that there is no evidence in the record that an SID

                                                   5
number is unique. Regardless, the jury could use the photographs to link the offenders in the two

causes and use the fingerprints in the penitentiary packet for cause no. 843207 to link all of the

information to Meek. See Littles, 726 S.W.2d at 32.

                Furthermore, the jury could compare the signature on the fingerprint card for cause

no. 528376, and Meek’s signature in the penitentiary packet for cause no. 843207, with his signature

on the letter and envelope he sent to Ballard in connection with this case to determine that the

individual convicted in the two previous instances and Meek are the same person. The State need

not present expert testimony regarding the handwriting comparison because the jury is capable of

making such a comparison. See Tex. Code Crim. Proc. Ann. art. 38.27 (West 2005). When viewed

in the light most favorable to the jury’s verdict, the evidence is legally sufficient for a rational jury

to find beyond a reasonable doubt that Meek had twice been previously convicted of driving while

intoxicated. Accordingly, we overrule Meek’s first point of error.

                In his second issue, Meek challenges the admission into evidence of his “post-arrest,

pre-Miranda statements.” He argues that these statements made after his arrest were erroneously

admitted into evidence in violation of his Fifth Amendment right against self-incrimination. U.S.

Const. amend. V. Meek made two post-arrest, pre-Miranda statements. After Meek was handcuffed

and while being escorted to Ballard’s patrol car, he remarked about “the medications that [he’s]

taking.” Then, after Ballard read Meek the DIC-24 and requested a blood or breath sample from

him, Meek responded that he was “under psych meds.” Meek argues that these two statements

should not have been admitted into evidence. He claims that his Miranda warnings were

intentionally delayed to allow him to make inculpatory statements without being aware of his



                                                   6
constitutionally guaranteed choices. See Missouri v. Seibert, 542 U.S. 600, 604 (2004) (criticizing

the “question first” interrogation technique).

               Meek challenges the admission of post-arrest statements only. Meek does not

challenge the admission of pre-arrest statements he made concerning his use of medications. The

videotape showed that, in response to questions immediately after the traffic stop, Meek stated that

he had taken medications for anxiety and pain. Ballard testified and the videotape confirmed that,

during the field sobriety tests, Meek volunteered that he had taken Soma for back pain. These

statements made after the stop but before Meek was arrested, handcuffed, and put into the patrol car

do not fall within Meek’s point of error or the protections of Miranda v. Arizona, 384 U.S. 436, 478-

79 (1966). The Supreme Court was primarily concerned with protecting individuals from being

coerced into confessions when subjected to custodial interrogations without knowledge of their

rights. Id. at 458-70; Berkemer v. McCarty, 468 U.S. 420, 433 (1984). Temporary detentions during

routine traffic stops generally do not fall within the Miranda protections. Berkemer, 468 U.S. at 437-

42. Police can even ask a modest number of questions and conduct sobriety tests without arresting

a person. Id. at 440-42. Even arrest, handcuffing, and placement into a car for transport does not,

without interrogation, invoke Miranda safeguards. Rhode Island v. Innis, 446 U.S. 291, 300 (1980).

“‘Interrogation’ under Miranda refers not only to express questioning, but also to any words or

actions on the part of the police (other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating response from the suspect.” Id.

at 301 (footnote omitted). Meek’s pre-arrest statements were not made in response to the conduct

of a custodial interrogation without provision of Miranda warnings as in Seibert, 452 U.S. at 604.



                                                  7
               We conclude that Meek was not in custody immediately after the stop when he told

Ballard that he had taken medication, nor do we find evidence of intentional, improper delay in

provision of Miranda warnings. Meek’s voluntary assertion that the medication he was taking might

affect his performance on field sobriety tests was not prompted by any question or behavior that the

police should know would evoke an incriminating response. Because the admission of these pre-

arrest statements was not challenged at trial or on appeal, any error in the admission of the similar

post-arrest statements is harmless or waived. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim.

App. 1999); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Thompson v. State, 537

S.W.2d 732, 735 (Tex. Crim. App. 1976). We nevertheless have considered the merits of Meek’s

complaints about the admission of his post-arrest statements regarding medications he had taken.

Finding that they were not made in response to any interrogation or circumstances that police should

know would evoke an incriminating response, we find no error in their admission.

               Having resolved all of the issues raised on appeal, we affirm the judgment.




                                              G. Alan Waldrop, Justice

Before Justices Puryear, Pemberton and Waldrop

Affirmed

Filed: July 28, 2006

Do Not Publish



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