Full Opinion (html_with_citations)

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


                   No. 06-22-00093-CR



        MICHAEL JOHN BRUMLEY, Appellant

                            V.

            THE STATE OF TEXAS, Appellee




            On Appeal from the County Court
                Burleson County, Texas
                Trial Court No. 24,604




      Before Morriss, C.J., Stevens and van Cleef, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION

        Michael John Brumley was stopped by a Caldwell police officer in the early morning

hours of February 23, 2020, when he failed to stop at a stop sign. When the officer smelled

alcohol on Brumley’s breath and Brumley admitted to having consumed alcohol, the officer

administered field sobriety tests and arrested Brumley. Subsequently, Brumley was convicted by

a Burleson County1 jury of driving while intoxicated (DWI).2 After the trial court found that

Brumley had previously been convicted of operating a motor vehicle while intoxicated, it

convicted him of a Class A misdemeanor and sentenced him to thirty days in jail and a $1,500.00

fine.3 On appeal, Brumley complains that the evidence was insufficient to support his DWI

conviction and that the evidence was insufficient to support the trial court’s finding that he had

previously been convicted of operating a motor vehicle while intoxicated.                        We find that

(1) sufficient evidence supports Brumley’s conviction for DWI but that (2) insufficient evidence

supports the trial court’s finding that Brumley had previously been convicted of operating a

motor vehicle while intoxicated. Therefore, we reverse the trial court’s judgment convicting

Brumley of the Class A misdemeanor offense of operating a motor vehicle while intoxicated, and

we remand this cause to the trial court with instructions to reform the judgment to reflect a

1
 Originally appealed to the Tenth 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. We are unaware of any
conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R.
APP. P. 41.3.
2
 See TEX. PENAL CODE ANN. § 49.04(b) (Supp.) (providing that an offense of operating a motor vehicle in a public
place while intoxicated is a Class B misdemeanor, with a minimum term of confinement of seventy-two hours).
3
 See TEX. PENAL CODE ANN. § 49.09(a) (Supp.) (providing that “an offense under Section 49.04 . . . is a Class A
misdemeanor, with a minimum term of confinement of 30 days, if it is shown . . . that the person has previously
been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated”).
                                                        2
conviction of the Class B misdemeanor offense of operating a motor vehicle while intoxicated

and to conduct a new punishment hearing attendant to the post-reformation conviction.

(1)    Sufficient Evidence Supports Brumley’s Conviction for DWI

       Brumley challenges the sufficiency of the evidence supporting his DWI conviction. The

Court of Criminal Appeals has expressed the standard of review on a sufficiency issue as

follows:

               When addressing a challenge to the sufficiency of the evidence, we
       consider whether, after viewing all of the evidence in the light most favorable to
       the verdict, 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
,
99 S. Ct. 2781
,
61 L.Ed.2d 560
 (1979); Villa v. State,
514 S.W.3d 227, 232
 (Tex. Crim.
       App. 2017). This standard requires the appellate court to defer “to the
       responsibility of the trier of fact fairly to resolve conflicts in the testimony, to
       weigh the evidence, and to draw reasonable inferences from basic facts to
       ultimate facts.” Jackson,
443 U.S. at 319
,
99 S.Ct. 2781
. We may not re-weigh
       the evidence or substitute our judgment for that of the factfinder. Williams v.
       State,
235 S.W.3d 742, 750
 (Tex. Crim. App. 2007). The court conducting a
       sufficiency review must not engage in a “divide and conquer” strategy but must
       consider the cumulative force of all the evidence. Villa,
514 S.W.3d at 232
.
       Although juries may not speculate about the meaning of facts or evidence, juries
       are permitted to draw any reasonable inferences from the facts so long as each
       inference is supported by the evidence presented at trial. Cary v. State,
507 S.W.3d 750, 757
 (Tex. Crim. App. 2016) (citing Jackson,
443 U.S. at 319
,
99 S.Ct. 2781
); see also Hooper v. State,
214 S.W.3d 9
, 16–17 (Tex. Crim. App.
       2007). We presume that the factfinder resolved any conflicting inferences from
       the evidence in favor of the verdict, and we defer to that resolution. Merritt v.
       State,
368 S.W.3d 516, 525
 (Tex. Crim. App. 2012). This is because the jurors
       are the exclusive judges of the facts, the credibility of the witnesses, and the
       weight to be given to the testimony. Brooks v. State,
323 S.W.3d 893, 899
 (Tex.
       Crim. App. 2010). Direct evidence and circumstantial evidence are equally
       probative, and circumstantial evidence alone may be sufficient to uphold a
       conviction so long as the cumulative force of all the incriminating circumstances
       is sufficient to support the conviction. Ramsey v. State,
473 S.W.3d 805, 809
       (Tex. Crim. App. 2015); Hooper,
214 S.W.3d at 13
.


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               We measure whether the evidence presented at trial was sufficient to
       support a conviction by comparing it to “the elements of the offense as defined by
       the hypothetically correct jury charge for the case.” Malik v. State,
953 S.W.2d 234, 240
 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one
       that “accurately sets out the law, is authorized by the indictment, does not
       unnecessarily increase the State’s burden of proof or unnecessarily restrict the
       State’s theories of liability, and adequately describes the particular offense for
       which the defendant was tried.” Id.; see also Daugherty v. State,
387 S.W.3d 654, 665
 (Tex. Crim. App. 2013). The “law as authorized by the indictment” includes
       the statutory elements of the offense and those elements as modified by the
       indictment. Daugherty,
387 S.W.3d at 665
.

Zuniga v. State,
551 S.W.3d 729
, 732–33 (Tex. Crim. App. 2018); Rodriquez v. State,
630 S.W.3d 522
, 525–26 (Tex. App.—Waco 2021, no pet.). “The Court of Criminal Appeals has

also explained that our review of ‘all of the evidence’ includes evidence that was properly and

improperly admitted.” Lockett v. State, No. 10-16-00209-CR,
2017 WL 3927178
, at *1 (Tex.

App.—Waco Sept. 6, 2017, no pet.) (mem. op., not designated for publication) (quoting Conner

v. State,
67 S.W.3d 192, 197
 (Tex. Crim. App. 2001)). Further, “it is well established that the

factfinder is entitled to judge the credibility of witnesses and can choose to believe all, some, or

none of the testimony presented by the parties.”
Id.
 (citing Chambers v. State,
805 S.W.2d 459, 461
 (Tex. Crim. App. 1991)).

       “A person commits Class B misdemeanor DWI if the person is intoxicated while

operating a motor vehicle in a public place.” Ramjattansingh v. State,
548 S.W.3d 540, 548

(Tex. Crim. App. 2018) (citing TEX. PENAL CODE ANN. § 49.04(a), (b)). As applied in this case,

“‘[i]ntoxicated’ means either ‘not having the normal use of mental or physical faculties’ by

reason of ‘the introduction of alcohol’ . . . into the body, or ‘having an alcohol concentration of




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0.084 or more.’”5 Id. (quoting TEX. PENAL CODE ANN. § 49.01(2) (A), (B)). “In order to prove

the offense of driving while intoxicated, the State must prove that the defendant operated a motor

vehicle while intoxicated.” Id. Brumley challenges the sufficiency of the evidence that he was

intoxicated when he was operating his motor vehicle.

        The State presented testimonial and video evidence that Brumley had been stopped by

police shortly after one o’clock in the morning because he failed to stop at a stop sign. John

Hammons, the Caldwell police officer who initiated the stop, testified that he smelled

metabolized6 alcoholic beverage coming from Brumley’s vehicle when he first made contact. He

also testified that Brumley’s eyes were glassy or watery and that he smelled metabolized

alcoholic beverage on Brumley’s breath.               Hammons also noted that Brumley’s eyes were

bloodshot and that his speech was thick-tongued. After Brumley told him that he had consumed

two beers, Hammons, who was certified to conduct standardized field sobriety tests,

administered three such tests on Brumley.

        Hammons explained each test and testified that the horizontal gaze nystagmus (HGN) test

has the higher probability of showing that a person’s blood alcohol concentration (BAC) is

greater than 0.08. He testified that Brumley had six out of six clues on the HGN test, one out of

eight clues on the walk-and-turn test, and one out of four clues on the one-leg-stand test. He

“Alcohol concentration” is defined as “the number of grams of alcohol per: (A) 210 liters of breath; (B) 100
4

milliliters of blood; or (C) 67 milliliters of urine.” TEX. PENAL CODE ANN. § 49.01(1).
5
 “The first definition is the ‘impairment’ theory, while the second is the ‘per se’ theory. They are not mutually
exclusive, and, as long as there is evidence that would support both definitions, both theories are submitted in the
jury charge.” Kirsch v. State,
306 S.W.3d 738, 743
 (Tex. Crim. App. 2010) (citing State v. Mechler,
153 S.W.3d 435, 441
 (Tex. Crim. App. 2005)). In this case, both definitions were included in the trial court’s charge.
6
 Hammons explained that metabolized alcoholic beverage has a pungent sour smell that is produced when a person
drinks alcohol.
                                                         5
initially testified, without objection, that a person who has all six clues on the HGN test would

100 percent have a BAC above 0.08. On cross-examination, he testified that six out of six clues

would have a high probability of a BAC above 0.08 and that the HGN test by itself was eighty-

eight percent accurate. Hammons opined that the difference in the results of the HGN test and

the other two tests was due to Brumley’s tolerance level, because a person with a greater

tolerance level will perform better on the physical tests, but he would not be able to control the

involuntary jerking of the eyes seen in the HGN test.

       Brumley was arrested and taken to jail, where he was requested, but refused, to submit a

breath sample. Hammons obtained a warrant for a blood draw. Before his blood was drawn,

Brumley aggressively refused to have his blood drawn and became argumentative and

belligerent, at one point telling one of the officers, “I’ll see you on the street.” Brumley’s blood

was drawn at 3:45 a.m.

       Salina Vargas, a forensic scientist with the Texas Department of Public Safety Crime

Laboratory in Austin, testified that a toxicology analysis of Brumley’s blood showed 0.123

grams of alcohol per 100 milliliters of blood. She testified that alcohol in the blood will affect

reaction time, visual acuity, peripheral vision, and depth perception; causes HGN; and slows

information processing. She also testified that a BAC above 0.08 will affect mental and physical

faculties. She explained that eighty percent of alcohol is absorbed within thirty to sixty minutes

of the last drink, and she explained the rate at which alcohol is eliminated from the body. She

then estimated that of a man of Brumley’s weight with a BAC of 0.123 would have had a BAC

of 0.139 to 0.172 one hour and forty minutes before the blood draw.                 However, she

                                                 6
acknowledged that she could not give an estimate of what Brumley’s BAC would have been at

the time he was driving because she did not know when he stopped drinking and did not have

other information necessary to make that calculation.

       Brumley acknowledges that both the results of a blood draw taken hours after his arrest

and the results of his HGN test are admissible and probative to show intoxication at the time of

driving. See Kirsch,
306 S.W.3d at 744
; Emerson v. State,
880 S.W.2d 759
, 768–69 (Tex. Crim.

App. 1994). Nevertheless, he argues that, because the HGN test is not sufficiently reliable to

support a finding of a specific BAC and the hours-later blood draw is not conclusive to show the

BAC at the time of driving absent sufficient retrograde extrapolation testimony, see Kirsch,
306 S.W.3d at 744
; Emerson,
880 S.W.2d at 769
, the State has failed to prove that he was intoxicated

when he was driving under the per se theory of intoxication. He also argues that, because he did

well on the walk-and-turn test and the one-leg-stand test, the results of the HGN test are suspect

and created reasonable doubt under the impairment theory of intoxication.

       The Texas Court of Criminal Appeals has held that an hours-later BAC test result is not

sufficient, by itself, to establish intoxication at the time of driving. Kirsch,
306 S.W.3d at 745
.

However, it has also held that such BAC test results, “even absent expert retrograde

extrapolation testimony, are often highly probative to prove both per se and impairment

intoxication.”
Id.
 In addition to the hours-later BAC test result, “[t]here must be other evidence

in the record that would support an inference that the defendant was intoxicated at the time of

driving as well as at the time of taking the test.”
Id.
 The court explained:

       Other evidence that would logically raise an inference that the defendant was
       intoxicated at the time of driving as well as at the time of the BAC test includes,
                                                 7
       inter alia, erratic driving, post-driving behavior such as stumbling, swaying,
       slurring or mumbling words, inability to perform field sobriety tests or follow
       directions, bloodshot eyes, any admissions by the defendant concerning what,
       when, and how much he had been drinking[—]in short, any and all of the usual
       indicia of intoxication.
Id.
 (citing Stewart v. State,
129 S.W.3d 93
, 96–97 (Tex. Crim. App. 2004)).

       In this case, in addition to the evidence that Brumley had a BAC of 0.123 two hours and

forty minutes after he was stopped, Hammons testified that he observed six out of six clues on

the HGN test performed shortly after the stop, which he testified was eighty-eight percent

accurate that Brumley’s BAC was 0.08 or above. The evidence also showed that Brumley failed

to stop at a stop sign and that, at the time of the stop, Brumley had the odor of metabolized

alcohol on his breath, bloodshot and glassy eyes, and thick-tongued speech and that he admitted

that he had drunk “two beers.” Video recording showed that Brumley swayed during the one-

leg-stand test and ended the test before its conclusion. Further, although Brumley performed

acceptably on the walk-and-turn and one-leg-stand tests overall, the jury could have accepted

Hammons’s explanation that that could be attributed to tolerance. Based on this evidence, any

rational jury could have found that Brumley was intoxicated at the time he was driving.

       Based on this record, we find that sufficient evidence supports Brumley’s DWI

conviction. We overrule this issue.

(2)    Insufficient Evidence Supports the Trial Court’s Finding that Brumley Had Previously
       Been Convicted of Operating a Motor Vehicle While Intoxicated

       A DWI offense is a Class B misdemeanor.           TEX. PENAL CODE ANN. § 49.04(b).

However, if the State shows in the punishment phase of the trial that the defendant “has

previously been convicted one time of an offense relating to the operating of a motor vehicle
                                               8
while intoxicated,” the offense is elevated to a Class A misdemeanor. Oliva v. State,
548 S.W.3d 518, 521, 534
 (Tex. Crim. App. 2018); TEX. PENAL CODE ANN. § 49.09(a). Brumley contends

that the evidence is insufficient to support the trial court’s finding that he had been convicted of a

prior DWI as alleged in the amended information. We agree.

       “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) (citing Banks v.

State,
158 S.W.3d 649
, 651–52 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)). “No

specific document or mode of proof is required to prove these two elements. There is no ‘best

evidence’ rule in Texas that requires that the fact of a prior conviction be proven with any

document, much less any specific document.”
Id.
 The Texas Court of Criminal Appeals has

explained:

       While evidence of a certified copy of a final judgment and sentence may be a
       preferred and convenient means, the State may prove both of these elements in a
       number of different ways, including (1) the defendant’s admission or stipulation,
       (2) testimony by a person who was present when the person was convicted of the
       specified crime and can identify the defendant as that person, or (3) documentary
       proof (such as a judgment) that contains sufficient information to establish both
       the existence of a prior conviction and the defendant’s identity as the person
       convicted. Just as there is more than one way to skin a cat, there is more than one
       way to prove a prior conviction.
Id.
 at 921–22 (citations omitted).

       “[O]rdinarily the proof that is adduced to establish that the defendant on trial is one and

the same person that is named in an alleged prior criminal conviction or convictions closely

resembles a jigsaw puzzle.”
Id.
 at 23 (quoting Human v. State,
749 S.W.2d 832
, 835–36 (Tex.

                                                  9
Crim. App. 1988) (op. on reh’g)). Although standing alone the pieces may have little meaning,

“when the pieces are fitted together, they usually form the picture of the person who committed

that alleged prior conviction or convictions.”
Id.
 (quoting Human,
749 S.W.2d at 836
). By

considering the totality of the evidence admitted, the trier of fact determines “1) whether there

was a previous conviction, and 2) whether the defendant was the person convicted.”
Id.
 Only

when “these two elements can be found beyond a reasonable doubt,” will “the various pieces

used to complete the puzzle” be “legally sufficient to prove a prior conviction.”
Id.

       In this case, the amended information alleged that, “on or about January 14, 1991, in

cause number 1-51,553 in the Victoria County Court at Law #2, in Victoria County, Texas, the

defendant was convicted of an offense relating to the operating of a motor vehicle while

intoxicated.” At the punishment hearing, the State introduced a certified copy of a judgment

entered on April 3, 1989, in cause number 1-51,553 in the County Court at Law of Victoria

County, in which “Michael John Brumley” was convicted of operating a motor vehicle while

intoxicated, assessed a $450.00 fine and forty-five days confinement, and placed on probation for

two years. The April 3, 1989, judgment also contains the right index fingerprint of the defendant

in that case. The State also introduced a certified copy of a judgment entered on January 14,

1991, in cause number 1-51,553 in the County Court at Law Number 2 of Victoria County, in

which the probation granted “Michael John Brumley” in the April 3, 1989, judgment was

revoked and he was ordered to be confined in jail for forty-five days. The January 14, 1991,

judgment also contains the right index fingerprint of the defendant in that case. Neither of those

judgments contained any other identifying information of the defendant, such as a birth date,

                                                10
driver’s license number, or photograph. Nor did the State offer any expert testimony that the

fingerprints on those judgments match Brumley’s fingerprint.

       In support of the trial court’s finding that Brumley was the defendant in those judgments,

the State first notes that Brumley’s name is the same as the defendant named in the January 14,

1991, judgment. However, even if the name on the prior judgment is the same as the defendant

on trial, that is generally not sufficient to show they are the same person. Beck v. State,
719 S.W.2d 205, 210
 (Tex. Crim. App. 1986) (en banc). Rather, the State must show that the

defendant is the same person as the defendant in the prior conviction by independent evidence.
Id.
 In addition, Brumley’s name is not so unique that it would support a finding that he is the

same person as the defendant in the prior conviction. See Strehl v. State,
486 S.W.3d 110
, 114–

15 (Tex. App.—Texarkana 2016, no pet.) (finding that, even though Joseph Leo Strehl, III, was a

rather distinctive name and the offenses were committed in the same county, the evidence was

insufficient to link defendant to the prior offense).

       As for independent evidence, the State argues that Brumley was born in 1963, which

indicates that he would have been of driving age in 1991. However, that does not serve to link

Brumley to the prior conviction since every other person of the same name born before and

including 1975 would also have been of driving age in 1991. The State also cites the testimony

of Cindy Kennedy, who acknowledged that Brumley had told her that he had another DWI

offense thirty years before. However, Kennedy testified that she had known Brumley for four

years and that she had no knowledge of the details of that offense, such as the date or county

where Brumley committed the offense.         Since it was the State’s burden to prove that Brumley

                                                  11
was convicted of a DWI in the specific case it alleged in its information, evidence that he had

admitted to Kennedy that he had another DWI thirty years before, with nothing more, did not

link him to the alleged prior conviction.

       Even considered together and in the light most favorable to the trial court’s finding, we

find that this evidence is insufficient to support the trial court’s finding that Brumley was the

person named in the April 3, 1989, and January 14, 1991, judgments. We sustain this issue.

       In this case, Brumley was convicted of the Class A misdemeanor offense of operating a

motor vehicle while intoxicated. However, the State failed to show that Brumley had previously

been convicted one time of an offense relating to the operating of a motor vehicle while

intoxicated. Therefore, we reverse the trial court’s judgment convicting Brumley of the Class A

misdemeanor offense of operating a motor vehicle while intoxicated. We remand this cause to

the trial court with instructions to reform the judgment to reflect a conviction of the Class B

misdemeanor offense of operating a motor vehicle while intoxicated and to conduct a new

punishment hearing attendant to the post-reformation conviction. See TEX. PENAL CODE ANN. §§

49.04(b), 49.09(a); Thornton v. State,
425 S.W.3d 289, 307
 (Tex. Crim. App. 2014).



                                                    Josh R. Morriss, III
                                                    Chief Justice

Date Submitted:        December 19, 2022
Date Decided:          December 20, 2022

Do Not Publish




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