STATE v. HORTON (2025)

Defendant appeals his conviction and sentence for driving while intoxicated, third offense. For the following reasons, we affirm. We also grant appellate counsel's motion to withdraw as counsel of record.

FACTS AND PROCEDURAL HISTORY

On December 21, 2023, the Jefferson Parish District Attorney filed a bill of information charging defendant, Tommy Horton, with driving while intoxicated (DWI), third offense, in violation of La. R.S. 14:98(A) and La. R.S. 14:98.3(A). He was arraigned on January 30, 2024, and pled not guilty. On April 9, 2024, defendant proceeded to trial before a six-person jury that found him guilty as charged. On May 9, 2024, the trial court sentenced defendant to imprisonment at hard labor for one year without benefit of parole, probation, or suspension of sentence.¹

At trial, Deputy Brenan Bean of the Jefferson Parish Sheriff's Office testified that on August 28, 2023, at approximately 1:00 a.m., he responded to a radio call indicating there was a suspicious person at the La-Z-Boy store on Veterans Boulevard and Severn Avenue in Metairie. When Deputy Bean arrived at the scene, he saw a vehicle with two flat tires and its lights off in the parking lot of the business, which was closed. After speaking with another deputy at the scene and determining defendant was not trying to break into the business, Deputy Bean began investigating the matter as a possible DWI.

According to Deputy Bean, he approached the defendant, who was alone in the vehicle. He testified that defendant told him he had been drinking at a bar, after which he began driving home and struck a curb. Deputy Bean further testified that defendant exhibited signs of impairment, namely, he had slurred speech, was unsteady on his feet, and emitted a strong odor of alcohol. He stated that defendant had a partially empty, corked bottle of wine in the back seat of the vehicle, and there was a dark red liquid that appeared to be wine in the cupholder. Deputy Bean testified that defendant declined to take a field sobriety test, stating that he knew he would fail it. Deputy Bean was wearing a body camera that night, which recorded his interaction with defendant. The video was played for the jury and corroborated Deputy Bean's testimony.

According to Deputy Bean, he arrested defendant and transported him to the First District Station, which had an Intoxilyzer machine where he could provide a breath sample. He asserted that he advised defendant of his rights with regard to the machine and of his Miranda ² rights, after which defendant waived his rights and provided a breath sample. Deputy Bean pointed out that he administered the Intoxilyzer test and that he was certified to do so.³ He stated that the test was conducted at 1:34 a.m. and showed defendant's blood alcohol concentration was .188 grams percent, which exceeded the legal limit of .08 grams percent.⁴

Deputy Bean testified that following the Intoxilyzer test, he interviewed defendant. He recalled that defendant told him that he started drinking at 11:30 p.m. and stopped at midnight, that he had three drinks at a nearby club but did not feel any effects from the alcohol, and that he had not been involved in an accident. After the interview, Deputy Bean transported defendant to the Jefferson Parish Correctional Center and booked him with DWI, third offense, driving while under suspension for a previous DWI, and an open container violation.

The State and defense counsel stipulated that defendant had two prior convictions for DWI in First Parish Court for Jefferson Parish, one in case number F-2140872 on July 17, 2019, and the other in case number F-2229253 on January 23, 2023.

LAW AND DISCUSSION

On appeal, pursuant to the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,⁵ appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it.⁶ The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (quotation omitted).

In Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court or grant the motion and appoint substitute appellate counsel. Id.

In the present case, defendant's appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. He asserts that the State properly filed a bill of information, which contained the pertinent statute, the name of the parish, the docket number, the date of defendant's two prior convictions, the date of the offense, and the signature of the assistant district attorney. He also indicates that the evidence at trial was sufficient to support defendant's conviction. Appellate counsel states there was no evidence to suggest that the machine used to detect defendant's blood alcohol level had malfunctioned or that the officer did not perform the test properly. He further contends that defendant's sentence was not excessive, pointing out that the one-year sentence was at the lowest possible end of the sentencing range. He avers that there were no pretrial rulings that would constitute a credible assignment of error on appeal. As such, appellate counsel concludes there are no appealable issues regarding defendant's conviction and sentence.

The State has filed a brief in this matter, concurring with appellate counsel's assertion that there are no non-frivolous issues for appeal.

Our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offense. It also sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 464-466. As reflected by the minute entries, defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, trial, and sentencing. As such, defendant's presence does not present any appealable issues.

Further, the record does not reflect that defense counsel filed any pretrial motions, and therefore, there are no pretrial rulings to review. Additionally, the record shows the jury was properly comprised of six members and that the jury reached a unanimous verdict.

Next, the record shows that the evidence admitted at trial was sufficient to find defendant guilty of DWI, third offense.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct, circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Robinson, 11-12 (La. App. 5 Cir. 12/29/11), 87 So.3d 881, 892-93, writ denied, 12-279 (La. 6/15/12), 90 So.3d 1059.

Evidence may be direct or circumstantial. State v. Robertson, 22-363 (La. App. 5 Cir. 3/29/23), 360 So.3d 582, 590. When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 provides, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Id. On appeal, the reviewing court does not determine if another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. State v. Williams, 14-882 (La. App. 5 Cir. 5/14/15), 170 So.3d 1129, 1136, writ denied, 15-1198 (La. 5/27/16), 192 So.3d 741. Instead, the appellate court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Id.

In the instant case, defendant was convicted of DWI, third offense, in violation of La. R.S. 14:98. At the time of the offense, La. R.S. 14:98 provided in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exist:

(a) The operator is under the influence of alcoholic beverages.

(b) The operator's blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.

In order to convict an accused of driving while intoxicated, the State must prove that the defendant was operating a vehicle and was under the influence of alcohol or drugs. State v. Cowden, 04-707 (La. App. 5 Cir. 11/30/04), 889 So.2d 1075, 1082, writ denied, 04-3201 (La. 4/8/05), 899 So.2d 2. To convict a defendant of a third offense of driving while intoxicated, the State must also show that the defendant had two other valid convictions for driving while intoxicated. Id.; State v. Reeder, 15-68 (La. App. 5 Cir. 8/25/15), 189 So.3d 401, 407.

La. R.S. 14:98 does not require proof that the defendant was driving a vehicle, and the jurisprudence recognizes that the term “operating” is broader than the term “driving.” State v. Winstead, 16-217 (La. App. 5 Cir. 5/26/16), 193 So.3d 565, 571. However, in order to operate a motor vehicle, the defendant must have exercised some control or manipulation over the vehicle, such as steering, backing, or any physical handling of the controls for the purpose of putting the car in motion. Id. It is not necessary that these actions have any effect on the engine nor is it essential that the car move in order for the State to prove the element of operation. Id.

Here, Deputy Bean testified that he arrived at the La-Z-Boy parking lot, where he found defendant in his vehicle with two flat tires. He further testified that defendant admitted to drinking at a nearby club, after which he began driving home and hit a curb. Deputy Bean noticed signs of impairment, including slurred speech, unsteadiness on his feet, and a strong odor of alcohol. He saw a partially empty, corked bottle of wine in the back seat and what he believed was wine in the cupholder. Deputy Bean asserted that defendant would not take a field sobriety test because he said he would fail it. After waiving his rights, defendant provided a breath sample for the Intoxilyzer machine that reflected his blood alcohol concentration was .188 grams percent, which was above the .08 legal limit. Also, Deputy Bean's body-cam equipment recorded his interaction with defendant and the video footage was shown to the jury. Additionally, the State and the defense stipulated to defendant's two prior DWI convictions.

Considering the record before us, it is clear that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support defendant's conviction. Therefore, there are no appealable issues regarding the sufficiency of the evidence.

Finally, the record shows that defendant's one-year sentence was not constitutionally excessive and does not present any appealable issues.

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Nguyen, 06-969 (La. App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La. 12/7/07), 969 So.2d 628. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Id.

A trial court is afforded great discretion in determining sentences, and sentences within the statutory limit will not be set aside as excessive absent a clear abuse of that discretion. State v. Carter, 11-758 (La. App. 5 Cir. 5/31/12), 96 So.3d 1283, 1291. The appellate court can look to the record for support of the defendant's sentence, and if the record supports the sentence imposed, the appellate court shall not set aside the sentence for excessiveness. Id. at 1292; La. C.Cr.P. art. 881.4(D).

At the time of the offense, La. R.S. 14:98.3 provided that the sentencing range for DWI, third offense, was imprisonment, with or without hard labor, for not less than one year nor more than five years, with at least one year of the sentence to be served without benefit of parole, probation, or suspension of sentence. In the present case, the trial judge sentenced defendant to the minimum term of one year of imprisonment, without benefit of parole, probation, or suspension of sentence, and ordered the sentence to be served at hard labor.

Considering the facts and circumstances in this case, we find defendant's one-year sentence is not constitutionally excessive. Defendant admitted that he left a bar after drinking, drove his vehicle, and hit a curb which resulted in two flat tires. He stipulated to having two prior DWI convictions. At the time of the instant offense, defendant's driver's license was suspended and he was still on probation for a DWI offense that occurred just seven months earlier. Moreover, defendant's blood alcohol level was well above the legal limit, and he placed the general public in great danger by driving while intoxicated. In light of the foregoing, defendant's sentence was not excessive, and therefore, it does not present an issue for appeal.

Appellate counsel has filed a motion to withdraw as attorney of record, stating that he has filed an Anders brief because, after a conscientious and thorough review of the record, he could not find any non-frivolous issues for appeal. Counsel also stated that he notified defendant of the motion to withdraw and his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until August 21, 2024, to file a pro se supplemental brief. However, defendant has not filed a pro se supplemental brief in this matter.

Appellate counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion. Accordingly, we affirm defendant's conviction and sentence, and we grant appellate counsel's motion to withdraw as attorney of record.

ERRORS PATENT

The record was reviewed for errors patent according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review revealed one error requiring corrective action.

The transcript reflects that the trial court did not advise defendant of the prescriptive period for seeking post-conviction relief under the provisions of La. C.Cr.P. art. 930.8. Although the sentencing minute entry indicates the trial judge informed defendant of this prescriptive period, when there is a discrepancy between the transcript and the minute entry, the transcript prevails. See State v. Lynch, 441 So.2d 732, 734 (La. 1983).

If a trial court fails to advise or provides an incomplete advisal of the provisions of La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief in its opinion. See State v. Becnel, 18-549 (La. App. 5 Cir. 2/6/19), 265 So.3d 1017, 1022. Accordingly, we advise defendant by way of this opinion that no application for post-conviction relief, including applications seeking an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. We also point out that the petitioner must be in custody in order to file an application for post-conviction relief. See La. C.Cr.P. art. 924(1).

DECREE

For the foregoing reasons, we affirm defendant's conviction and sentence for driving while intoxicated, third offense. We also grant appellate counsel's motion to withdraw as counsel of record.

AFFIRMED; MOTION TO WITHDRAW GRANTED

FOOTNOTES

1.   In case number 23-5898 of the 24th Judicial District Court, defendant was charged with operating a vehicle while under suspension, in violation of La. R.S. 14:98.8, which is a misdemeanor offense. A judge trial on this offense was held at the same time as the jury trial in the present matter, and defendant was found guilty as charged. On May 9, 2024, the trial court sentenced defendant to six months in parish prison to run concurrently with his one-year sentence for DWI, third offense.

2.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3.   A copy of Deputy Bean's Intoxilyzer certification card was admitted into evidence.

4.   Deputy Bean identified a printout of the test result and testified that the machine was in proper working order.

5.   In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177.

6.   The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

WICKER, J.