Pat Lane Swanzy Jr. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00136-CR
__________________

PAT LANE SWANZY JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 26250
__________________________________________________________________

OPINION

In 2021, a Hardin County grand jury indicted Pat Lane Swanzy Jr.

for DWI third or more—a third-degree felony—based on evidence tied to

a stop in February 2021, which resulted in Swanzy’s arrest. 1 Swanzy had

a jury decide both his guilt and his punishment. At trial, the jury found

1Tex. Penal Code Ann. § 49.04 (driving while intoxicated); id. §
49.09(b)(2) (enhanced offenses and penalties).
1
Swanzy guilty of DWI, “Driving While Intoxicated 3rd or More, as alleged

in the indictment.” In the punishment phase of the trial, the trial court

submitted a question asking the jury to address whether Swanzy had

committed at least two of the prior, sequential felonies that were alleged

in the State’s “Notice to Enhance Punishment.” Because the jury

determined it was “True” that Swanzy committed at least two of the prior

sequential felonies, the jury answered a verdict form in which the trial

court instructed the jury that it could assess Swanzy’s punishment at not

less than 25 years or more than 99 years in the Institutional Division,

Texas Department of Criminal Justice. 2 Based on the jury’s findings and

2DWI is a third-degree felony when the State proves the defendant

has incurred two prior convictions for DWI. Id. § 49.09(b)(2). The
punishment (in contrast to the grade of the offense) that applies to a
third-degree felony may then be enhanced if it is shown that the
defendant is guilty of committing two prior, sequential felony convictions.
Id. § 12.42(d). If the two prior, sequential felonies are proven to enhance
the punishment for a defendant committing a third-degree felony, the
defendant faces a term of “life, or for any term of not more than 99 years
or less than 25 years.” Id. We note that the “Notice to Enhance
Punishment,” which the trial court referred to in the charge, isn’t among
the documents that were included in the appellate record that is before
us in Swanzy’s appeal. That said, Swanzy didn’t raise any issues in his
brief complaining that he wasn’t properly notified as required by law of
the State’s allegations as to the convictions that are relevant to the
State’s proof of Swanzy’s status as a habitual felon. Swanzy also doesn’t
complain the evidence the State presented in his punishment hearing is
insufficient to support the jury’s finding that he committed at least two
2
the trial court’s instructions, the jury assessed Swanzy’s punishment at

imprisonment for 99 years.

Swanzy appealed, and he argues the trial court erred in denying his

motion for an instructed verdict of not guilty. According to Swanzy, the

trial court should have granted his motion for instructed verdict because

the evidence “was legally insufficient for a rational jury to find the

essential elements of the offense beyond a reasonable doubt.” More

specifically, Swanzy contends that one of the DWIs on which the State

relied, a DWI to which he had pleaded guilty in 1979, was dismissed after

he completed probation. Swanzy concludes that because the 1979 DWI

case didn’t result in a final conviction, the State failed to prove that he

had incurred convictions on two prior DWIs in the trial of his 2021 DWI.

And if deprived of the benefit of the jury’s finding that he incurred a final

conviction on the 1979 DWI, Swanzy claims the evidence is insufficient

to prove he committed the two or more prior DWIs the State had to prove

to establish he committed a felony DWI. Swanzy contends that because

of the prior sequenced felonies the State alleged in its “Notice of
Enhancement.”
3
the State failed to prove he committed the felony DWI as alleged in the

indictment, he is entitled to an acquittal in the appeal.

We agree with Swanzy that the State failed to prove he suffered a

final conviction on the 1979 DWI. Deprived of the benefit of the 1979

DWI—a DWI to which Swanzy pleaded guilty, was placed on probation,

and his probation was never revoked—the record doesn’t contain

sufficient evidence to support Swanzy’s conviction on the felony DWI on

which he was convicted. That said, because the evidence established that

Swanzy was driving while intoxicated in February 2021, and because the

trial gave the jury the option of finding Swanzy guilty of Driving While

Intoxicated, we disagree with Swanzy that the State’s failure to prove he

committed a felony-grade DWI entitles him to acquittal in his appeal.

Because the error on this record concerns the “grade of the offense,”

the trial court had the authority to “hear and determine the case as to

any grade of offense included in the indictment, whether the proof

show[ed] a felony or a misdemeanor.” 3 In this case, the record shows that

Swanzy demanded that a jury assess his punishment. For that reason,

he has a right to have a jury, not this Court or the trial court, assess his

3Tex. Code Crim. Proc. Ann. art. 4.06.

4
punishment on the Class A misdemeanor the evidence shows that he

committed in February 2021. 4 We reverse the trial court’s judgment and

remand the case to the trial court for a new punishment hearing

consistent with the range of punishment for the lower-grade offense.

Background

Given the limited scope of Swanzy’s appeal, we limit our discussion

of the background to the facts needed to explain our resolution of his

issue.

The stop that resulted in Swanzy’s arrest occurred on February 9,

2021. The testimony in Swanzy’s trial shows that Brian Williford Jr., a

sales representative, was driving in one of the northbound lanes of

Highway 69 in Hardin County when he saw a truck in front of him veer

off the road. Later that day after the truck Williford was following

stopped, Williford learned that Pat Swanzy Jr. was the driver of the truck

he had seen in the northbound lane on Highway 69.

4Tex. Const. art. I, §15 (The right of trial by jury shall remain
inviolate.); Tex. Penal Code Ann. § 49.09(a) (making it a Class A
misdemeanor when the State shows that the person it has charged with
DWI has incurred a prior conviction for a DWI).
5
Because Williford thought the driver he was following (Swanzy)

might be intoxicated, Williford called the police. But before the police

arrived, Swanzy collided with another truck. Swanzy, however, didn’t

stop at the scene. Instead, after he hit the truck, Swanzy turned around

and headed south on Highway 69. Williford also turned around, began

following Swanzy, and called the Hardin County Sheriff’s Department to

let them know the driver of the truck that he was following had been in

a wreck and was coming their way.

Swanzy pulled off Highway 69 and stopped at some storage

buildings in Kountze, Texas. Williford stopped in front of Swanzy’s truck

just as a police officer from the City of Kountze arrived on the scene.5

Deputy Blake Brewer, a deputy sheriff employed by the Hardin County

Sheriff’s Department, came to the scene to assist the City of Kountze

police officer with the stop. At trial, Deputy Brewer testified that he could

smell a “heavy odor of an alcoholic beverage” on Swanzy’s breath when

he approached Swanzy on the scene.

5The testimony in the trial revealed a Kountze police officer was the

first officer on the scene. However, that testimony also shows that when
the trial occurred, the officer no longer worked for the Kountze Police
Department, and the officer was not called to testify in the trial.
6
State Trooper Luis Morales came to the scene to assist in the

investigation. He took Swanzy to the Altus Hospital in Lumberton,

Texas. A registered nurse employed by the hospital drew a sample of

Swanzy’s blood, and Trooper Morales sent the sample to the DPS Crime

Lab for testing. Cheryl Szkudlarek, a forensic scientist employed by the

Department of Public Safety, testified in Swanzy’s trial that she tested

the sample in the lab and that Swanzy’ blood-alcohol content tested at

“0.309 grams of alcohol per 100 milliliters of blood.” Szkudlarek also

testified the “legal limit is 0.08.”

On appeal, the dispute centers around whether the State’s evidence

fails to establish the 1979 DWI may serve as one of the two prior

convictions for DWI that the State needs to prove that Swanzy committed

a felony-grade DWI in February 2021. As to the indictment, in alleging

Swanzy committed a felony-grade DWI, it alleges that Swanzy committed

two prior DWIs, one in 1979 and one in 1982. As to the two predicate

DWIs, the indictment reads:

And it is further presented that prior to the commission
of the charged offense (hereafter styled primary offense), on
the 7th day of July, 1982, in Cause No. 98,289 in the County
Court of Jefferson County at Law No. 2, Jefferson County,
Texas, the Defendant was convicted of an offense relating to
operating a motor vehicle while intoxicated; and on the 2nd day
7
of August, 1979, in Cause No. 84,781 in the County Court of
Jefferson County at Law No. 2, Jefferson County, Texas, the
Defendant was convicted of an offense relating to operating a
motor vehicle while intoxicated.

To establish Swanzy incurred a conviction on the 1979 DWI, the

State relied on one exhibit in the trial, Exhibit 12. We note that Exhibit

12 doesn’t include a judgment of conviction on the 1979 DWI. That said,

Exhibit 12 includes a “Probation Order,” which shows that on August 2,

1979, the County Court at Law Number 2 of Jefferson County, Texas,

found Swanzy guilty of misdemeanor DWI, assessed a $500 fine, and

ordered Swanzy confined to jail for 120 days. In the same order, the trial

court suspended Swanzy’s sentence and placed him on probation for a

year.

Just over a year after the County Court at Law of Jefferson County

Number 2 found that Swanzy was entitled to be discharged from

probation on the 1979 DWI because he had complied with the terms of

his probation. That Swanzy had complied with the terms of his probation

is established by the “Order Striking Probation,” an order that is also in

Exhibit 12. The Order Striking Probation recites the finding of guilt is

“set aside, the complaint and information” is “dismissed and [the] cause

8
stricken from the docket of this Court, and [the] defendant . . . is hereby

discharged from probation[.]”

Swanzy argues the evidence found in Exhibit 12 is insufficient to

prove he incurred a final conviction on the 1979 misdemeanor DWI. And

deprived of the benefit of the jury’s finding in the 2021 trial as it is

relevant to his “conviction” on the 1979 DWI, Swanzy concludes the

evidence doesn’t support the jury’s finding that he was convicted of

having committed two felony DWIs as alleged in the indictment that

charged him with committing a felony DWI. As Swanzy sees it, the

problem with the State’s case is that under the version of the Code of

Criminal Procedure that applies to his 1979 DWI, the State can’t use his

1979 DWI for any purpose because he was placed on probation, his

probation was never revoked, he completed his probation on the 1979

case, and the 1979 case against him was ultimately dismissed.

Our resolution of Swanzy’s issue hinges on our interpretation of the

statute that applies to Swanzy’s 1979 DWI. It is undisputed that the

evidence shows the trial court placed Swanzy on probation in 1979 after

he was charged with misdemeanor DWI. It is also undisputed that after

9
Swanzy was placed on probation for the 1979 DWI, his probation on the

1979 DWI was never revoked.

Statutory Construction

To resolve Swanzy’s issue, we must look to the statutory language

that applies to Swanzy’s 1979 DWI. We apply a de novo standard to

issues of statutory interpretation. 6 When interpreting a statute, our focus

is on the statute’s text, and our goal is to determine the statute’s meaning

based on the fair and objective meaning of the words that the legislature

used in the statute. 7 In evaluating a statute’s text, we read the statute in

context and construe it based on the rules of grammar and common

usage. 8 We assume every word of the statute was used for a purpose, and

if possible we give effect to each word, phrase, clause, and sentence.9

Generally, a statute’s “expression of one thing implies the exclusion of

other, unexpressed things.” 10

6Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009).
7Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
8Id.
9Tapps, 294 S.W.3d at 177.
10Chambers v. State, 580 S.W.3d 149, 156 (Tex. Crim. App. 2019).

10
“A statute is unambiguous when it reasonably permits only one

understanding.” 11 And when a “statute is clear and unambiguous, the

legislature must be understood to mean what it has expressed, and it is

not for the courts to add or subtract from such a statute.” 12

Analysis

Swanzy’s 1979 DWI is governed by the Misdemeanor Probation

Law that applies to his 1979 DWI. That law is found in the 1965 version

of the Texas Code of Criminal Procedure. 13 Under the 1965 version of the

Texas Code of Criminal Procedure, the legislature allowed the

defendant’s guilty plea to a misdemeanor to be considered for only one

11State v. Kahookele, 640 S.W.3d 211, 225 (Tex. Crim. App. 2021).
12Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991) (cleaned

up).
13See 1965 Code of Criminal Procedure, 59th Leg., R.S., ch. 722,
1965 Tex. Gen. Laws 317, 499-502 (Misdemeanor Probation Law). In
1979, Article 42.13 was repealed and replaced by a new Article 42.13, but
the amended statute wasn’t in effect when Swanzy committed the offense
or when the trial court placed him on probation. See Act of May 28, 1979,
66th Leg., R.S., ch. 654, § 1, 1979 Tex. Gen. Laws 1514, 1514-20
(Misdemeanor Adult Probation and Supervision Law). The former Article
42.13, referred to in this footnote, was repealed by 69th Leg., R.S., ch.
427, § 3, 1985 Tex. Gen. Laws 1555, and then for good measure, repealed
again by the 70th Leg., R.S., ch. 939, § 24, 1987 Tex. Gen. Laws 3144.
The current version of the statute addressing the dismissal and discharge
of criminal proceedings against a defendant on the expiration of a period
of deferred adjudication community supervision is now codified at Tex.
Code Crim. Proc. Ann. art. 42A.111 (West and Supp.).
11
purpose—whether the defendant if convicted of another DWI should be

placed on probation. 14

As relevant here, the 1965 version of article 42.13 of the Code of

Criminal Procedure stated:

Sec. 4. (a) When a defendant is granted probation under the
terms of this Act, the finding of guilt does not become final,
nor may the court render judgment thereon, except as
provided in Section 6 of this Article.
(b) . . . The court’s records may not reflect a final conviction,
however, unless probation is later revoked in accordance with
Section 6 of this Article.
...

Sec. 7. (a) When the period and terms of probation have been
satisfactorily completed, the court shall, upon its own motion
discharge him from probation and enter an order in the
minutes of the court setting aside the finding of guilty and
dismissing the accusation or complaint and the information
or indictment against the probationer.

(b) After the case against the probationer is dismissed by the
court, his finding of guilty may not be considered for any
purpose except to determine his entitlement to a future
probation under this Act, or any other probation Act.
(emphasis in original). 15

141965 Code of Criminal Procedure, 59th Leg., R.S., ch. 722, 1965

Tex. Gen. Laws 317, at 501.
151965 Code of Criminal Procedure, 59th Leg., R.S., ch. 722, 1965

Tex. Gen. Laws 317, at 500-501.
12
Under Texas law, “[i]f a defendant’s range of punishment is

improperly enhanced, in the sense that the prior convictions alleged do

not actually support enhancement under the applicable statutory

provision, then the defendant has been sentenced in violation of the law

and his sentence is ‘illegal.’” 16 In Swanzy’s case, his attorney moved for a

directed verdict. But in moving for a directed verdict, Swanzy’s attorney

didn’t specifically identify for the trial court why the evidence before the

jury was arguably insufficient to support a verdict. The attorney also

didn’t show the trial court the language in the 1965 version of article

42.13 of the Code of Criminal Procedure, the language that we have

determined shows the legislature didn’t intend to allow a guilty plea

resulting in a defendant’s probation that was subsequently never revoked

to be used as a predicate conviction to enhance the grade of a subsequent

DWI. 17

We note that on appeal, the State argues Swanzy waived his

objections to what we have determined is the State’s improper use of

Swanzy’s guilty plea to his 1979 DWI. And even though we agree with

16Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021).
17Id.; Ex parte Rich, 194 S.W.3d 508, 511-512 (Tex. Crim App. 2006);

see also Levy v. State, 818 S.W.2d 801, 802 (Tex. Crim. App. 1991).
13
the State that Swanzy’s attorney could have and should have pointed the

trial court to the statutory language that governs Swanzy’s 1979 DWI,

we disagree with the State that Swanzy waived his claim that the

evidence is insufficient evidence to support his conviction. The record

shows that Swanzy’s attorney moved for a directed verdict, and we have

concluded the evidence doesn’t support Swanzy’s conviction of a felony

DWI—a conviction that led to a 99-year sentence. Under Texas law, “[a]

defect which renders a sentence void may be raised at any time.” 18

The result we reach in Swanzy’s appeal aligns with the result the

Court of Criminal Appeals reached under similar facts under only a

slightly different version of the Code of Criminal Procedure governing a

1983 DWI in Wilson v. State. 19 In Wilson, the evidence established the

defendant pleaded guilty to a predicate 1983 DWI on which Wilson was

granted probation, and his probation was never revoked. 20 In Swanzy’s

case, the 1965 version of the Code of Criminal Procedure section 42.13

section 7 provided:

After the case against the probationer is dismissed by the
court, his finding of guilty may not be considered for any

18Levy, 818 S.W.2d at 802.
19State v. Wilson, 24 S.W.3d 595, 598 (Tex. Crim. App. 2010).
20Id.

14
purpose except to determine his entitlement to a future
probation under this Act, or any other probation Act. 21

As relevant here and under the 1979 version of the Code of Criminal

Procedure, which is the version of the Code of Criminal Procedure that

applied in Wilson, section 42.13 section 7(b) provided:

. . . In case the defendant has been convicted or has entered a
plea of guilty or a plea of nolo contendere and the court has
discharged the defendant hereunder, such court shall set
aside the verdict or permit the defendant to withdraw his
plea, and shall dismiss the accusation, complaint,
information, or indictment against such defendant, who shall
thereafter be released from all penalties and disabilities
resulting from the offense or crime of which defendant has
been convicted or to which defendant has pleaded guilty or
pleaded nolo contendere, except that proof of defendant’s
conviction or plea of guilty or nolo contendere shall be made
known to the court should the defendant again be convicted of
any criminal offense. 22

It's undisputed that the evidence shows Swanzy was placed on

probation after pleading guilty to the 1979 DWI, and that after the trial

court placed him on probation, his probation was never revoked. Thus,

under the law that applies to his 1979 plea, his plea could not be

considered for any purpose, including enhancing a later conviction to a

211965 Code of Criminal Procedure, 59th Leg., R.S., ch. 722, 1965

Tex. Gen. Laws 317, at 501, Art. 42.13 § 7(b).
221979 Code of Criminal Procedure, 66th Leg., R.S., ch. 654, 1979

Gen. Laws 1514, 1516, 1518, Art. 42.13, § 7.
15
higher-grade offense. Consequently, we conclude the evidence the State

introduced is insufficient to prove that Swanzy’s 1979 DWI is a predicate

conviction available to enhance the grade of Swanzy’s 2021 DWI to a

felony DWI. 23

The Remedy

Because there is no evidence that Swanzy was twice convicted of

DWI before his trial on the 2021 DWI, the evidence is legally insufficient

to support the jury’s verdict that Swanzy, on or about February 9, 2021,

committed a felony DWI. That said, when the jury found that Swanzy

committed a felony DWI in February 2021, it also necessarily found that

Swanzy was driving while intoxicated on or about February 9, 2021, and

that he had previously been convicted of committing two prior DWIs—

one in 1979 and the other in 1982. During the guilt-innocence phase of

the case, the trial court’s charge instructed the jury it could consider

finding Swanzy guilty of the lesser included offense of DWI if it did not

find he had been convicted of committing two prior DWIs.

On appeal, Swanzy has not argued the evidence is insufficient to

support the jury’s findings that he was operating a motor vehicle while

23Id.

16
intoxicated on or about February 9, 2021. Additionally, Swanzy has not

argued the evidence doesn’t support the jury’s finding that his 1982

conviction was not final. Thus, the evidence the State presented in

Swanzy’s trial established that, beyond a reasonable doubt, he committed

a Class A misdemeanor DWI. 24 In fact, Swanzy does not dispute that the

evidence established he committed the DWI in February 2021 and that

he incurred a final conviction for committing a DWI in 1982.

With an exception not relevant here, “double jeopardy principles

have no application in the sentencing context.”25 Swanzy has also not

raised any double jeopardy arguments in his appeal.

We may reform a judgment of conviction to a lower-grade DWI

when, (1) in the course of convicting the defendant, the jury necessarily

found every element needed to render a judgment of conviction in the

appeal on the lower-grade DWI, and (2) the evidence is sufficient to

support the defendant’s conviction on the lower-grade DWI.26 We

24Tex. Penal Code Ann. § 49.09(a) (authorizing conviction of a Class

A misdemeanor if it is shown that the person has a prior conviction for a
DWI).
25Monge v. California, 524 U.S. 721, 730 (1998).
26See Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App.

2014); Nixon v. State, 153 S.W.3d 550, 552 (Tex. App.—Amarillo 2004,
pet. ref’d).
17
conclude the jury necessarily found every element needed to render a

judgment on the lower-grade DWI, and we conclude that the evidence is

sufficient to support the defendant’s conviction on the lower-grade DWI.

Therefore, we reform the judgment under the evidence and the record

before us in this appeal.

Conclusion

For the reasons explained above, we reverse the trial court’s

judgment and remand the cause to the trial court to reform the judgment

and render a judgment of conviction on a Class A misdemeanor DWI. We

also instruct the trial court on remand to conduct a punishment hearing

before a jury (at Swanzy’s election) and to provide the jury with the

instructions relevant to the range of punishment applicable to a Class A

misdemeanor DWI. 27

REVERSED AND REMANDED.

HOLLIS HORTON
Justice
Submitted on August 1, 2023
Opinion Delivered September 27, 2023
Publish

Before Golemon, C.J., Horton and Johnson, JJ.

27Tex. Code Crim. Proc. Ann. art. 4.06; see Thornton, 425 S.W.3d at

307.
18