## In the Court of Appeals Second Appellate Dis trict of Texas

at Fort Worth

_____________

______________ No. 02

- 22

- 00255

- CR

_______ ______ __ ____________

On Appeal from County Court at Law Hood County, Texas Trial Court No. 53683

Before Sudderth, C.J.; Kerr and Womack, JJ. M emorandum Opinion by Chief Justice Sudderth 

### S T EV EN 

### W ESLEY 

### B ARKER 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORA

NDUM OPINION Appellan t Steven W e sley Barker appe al s his conviction f or driving while hi s license was invalid (DWLI) and with a p rior conviction for the same

. See Tex. Transp.
Code Ann. § § 521.021 , .457 (a) (2) , (f)(1)

. His sole issue on appea l is the sufficiency of the evidence to prove that hi s licen se w as inv a l i d at the time of the offense. Barker
claims that because his license revocation took effect a certa in number of d ays after the Texas Department of Pub lic Safety (DPS) mailed him notice of the revocation , the State was req u i red to offer evidence

— o r more acc urately, required to offer more evidence than it did

— t o show if a nd when the notice of revocation w as sent to
Bar ker

. We disagree and, after modifying the judgment to correct a cler ical error, we
will affirm.
I. Standard of Review In our evidentiary

- suf

ficiency review, w e view all the evidence in the light most
favorable to the verdict to determine wh ether any rational factfinder could have found

t h e crim e’s essential elemen ts beyond a reasonable doubt

. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 27 81, 2789 (1979) ; Q u e eman v. State , 520 S.W.3d 616, 622 (T ex. Crim. App. 20 17). The factfinder alo ne judges the ev idence ’ s weight, determi nes its credibility, and dra w s reas onable inferences from it

. See Tex. Code Crim. Proc. Ann.

art. 38.04; Jacks on , 443 U.S. at 319, 99 S

. Ct. at 2789; Harrell v. State , 620 S.W.3d 910, 914 (Tex. Cr im. App. 2021)

. “[ T] he trier of fact may use common sense and apply common knowledge, observa tion, and experience gained in ordinary affairs when3

drawing inferences from the ev idence.” See Garc ia v. State , No. PD

- 0679

- 21, 2023 WL
151 989, at *4 (Tex. Crim. App. Jan. 11, 202 3) ( quoting Ac osta v. State , 429 S.W.3d 621, 625 (Tex. Crim. App. 20 14) ). We must presume that the fac tfinder re solved any conflicting inferences in favor of the verdict, and we must defer to that resolution as long as the inferences are reas onable base d on the evidence’s cumulative force

. Dunham v. State , No. PD

- 0831

- 18 , 2023 WL 151346, at *3 (Tex. Crim. App. Jan. 11, 2023) ; Queeman , 520 S .W.3d at 622

. The essential element s of DWLI are (1) op erating a motor vehicle (2) on a highway (3) during a period i n which the per son ’ s dri ver ’ s license or privilege is
suspe nded or revoked under a law of this S tate
. T ex. Transp. Code Ann. § 521.457(a)( 2). B a rker ’ s appeal foc us es on the final element

— whether his license

was suspended or revo ked at the time of his arr est
. II
. DWLI Statutes
The State presented evidence t hat Barker ’ s license was rev oked un der Texas Transportation Code Chapter 521, Sub chapter O

. See Tex. Tra nsp. Code A nn. §§ 5 2 1 .34 1

– . 3 51 (201 2) 1 (Su bcha pter O)

.

1 Because Barker ’ s license was revoked in 2012, we apply the D PS revo cati on statutes in eff

ect a t that time. Citations to th e 2012 provisions are indicated wi th a p arenthetical notation of the year

. However, the relevant p ortions of th e 2012 rev ocation statutes are substantially similar to those c urre n tly in effect

. Compare T ex. Transp. C ode Ann. § 521.344 (e), (g) , (g

- 1) , with i d. at § 521.344(e), (g) (2012).4

Within that Subchapter, Section 52 1. 344 provides for the suspension of a
driver ’s license if th e driver is co nvicted of cert ain intoxication

- relat ed off enses . Id. § 521.34 4 (a) , ( b) (2012)

. A n d “[a] fter the date has passed, accordi ng to [DPS ] records,
for successful com pletion of the educ ation al program designed to rehabi litate persons who operated motor vehi c le s while intoxicat ed, the director [of DPS ] shall revoke the
lic ense of a per son who does not successfully complete the program or, if the person
is a resident wit hout a license to o perat e a motor vehicle in this sta te, shall issue an order pr ohibiting t h e person from obtaining a li cense. ” Id. § 52 1.344(e) (2012)

. DP S
is required to “promptly send notic e of [the] revocation or prohibition order

. . . by
fi rst class mail to the perso n at the pe rson ’ s most recent addr ess as shown in the
records of [DPS]

. ” 2 Id. § 5 21.344( g ) (2012)

. T he revo ca tion “ takes effect on the 30th day after the date the notice is mailed ” and it “r emains in effect until [DPS] receiv es notice of successful compl etion of the edu cational program

. ” I d.
I II. Su ffic iency of t he Ev idence
B ec ause Barker ’ s Subcha pter O license revocation took effect 3 0 days after
DPS mailed him notice , 3 Barker claims that , (1) to prove DWLI, the State was

2 The current statute also authorizes notice to be sent via “ e

- ma il if the p er son has pr ovided an e

- mail address to [DPS] and has elected to rece ive notice electronically

. ” I

d. § 5 21.344(

g) (2)

. But th e e

- mail provision was added in 2017 and
was no t in ef

fect a t the time of Barker ’ s suspe nsion. S ee Act of M a y 24, 2017 , 85th Leg., R.S., ch. 1079 , 2017 Tex. Gen. Laws 4225, 4225

– 28 ( eff ective Sept. 1, 2017 )

3 In his brief, Barker applies Subchapter N rather than S u bchapte r O , so he argues t hat th e revocatio n took effect 45 days after DPS mailed his noti fication letter.5

require d to show if and when it m ailed him notice and that (2) it f a iled to of

fer
sufficient ev

idence of those fa ct s . A. We nee d no t decide whether evidence of notice w as required
. F irst, Barker clai ms that , to prove DWLI, the State was required to offer
evid ence “ to show if or when t he notice of suspension was sent t o Barker. ” To support this contention, Barker heavily relies upo n our sister court ’ s opinion in White
v. State

. 458 S.W.3d 188 (Tex. App.

— Texarkana 2015, no pet.)

. The State points ou t , th ough, that White ’ s holding has been rejected by other court s of a ppeal s . S ee C a ntu v. State , No. 07

- 17

- 00446

- CR, 2019 WL 1285295, at * 2

– 3 (Tex. App.

— Amari llo Ma r. 20, 2019, no pet.) (mem. op., not designated for publication)

. In Wh ite v. S t

at e , t h e Te x arkana Court of Appeals held tha t , “ in ord er to show that a suspension perio d was in effect at the time o f the alleged violation, the State must proffer competent evidence that i t provided notice of the su s pension to the
licensee a s re quired by [ Chapter 521, Sub chapter N]

. ” 4 458 S.W.3d at 192 ; s e e Mondy v.

See Tex. Tran sp. Code Ann. §§ 521 .2 95(b), .2 97(a) (2012)

. B ecause Subchapter O

— not Subchapter N

— applies to the case , we constru e Barker ’s argument broadly an d extend its logic to S ubchapter O

. Se e Te x. R. App. P. 38. 9

.

4 In White , th e driver was arres te d on No vember 6, 2012, and th e State offered a copy of the driver ’s license return

— the officer ’ s in

- car “ computer report received in response to a computer inq uiry regarding the stat us of a dr iver ’ s lic ense ”

— which showe d three s uspension s, two of which b egan on October 2 9, 201 2 , an d the third of which began on November 5, 20 12

. White , 458 S.W.3d at 189

– 90 & n.2

. White refu ted thi s evidence, though, by providing a copy of t he order o f suspensi o n , wh ich
was dated Novembe r 8, 2012

. Id. at 190. White testified th at h e ha d re ceived the order on Novemb e r 11 a nd knew of no other suspensions. Id. T he applicable6

State , No. 06

- 16

- 0 0100

- CR, 2 017 WL 359786, at *2

– 3 (Tex. App.

— Texa rkana Jan. 24, 2017, pet. ref’d) (mem. op., not designated for public ation) (quoting and applying
Whi te when driver testifie d he had no kn owled ge of suspension ). T he Am arillo Court of Appeals “ agree [d] with the court in Whi te that [the mailing of a notice] is one way to prove a period of suspensio n , ” but it dec lined to “ construe [ S] ect ion 521.457 [i.e.,
the DWLI stat ute] as requiring proof of a period of suspension only by evidence of the mailing of a notice ” and inste ad “ c o nclude [d] that [a] certified abstr act of [the ] driving record indicating th at [the driver ’ s] li cense was suspended [ wa] s sufficient evidence to suppor t [ a

] conviction for DWLI

. ” C antu , 2019 WL 1285295 , at * 2

– 3

. W e n eed not weigh in on this split f or two reasons
. First, Wh ite and Cantu d iscuss the applicat ion of Subchapter N of Chapter 521 , and Barker ’s license was revoked under Subchap ter O. See id. ; White , 458 S.W.3d at
19 1

– 93; c ompare Tex. Tra ns p. Code A nn. §§ 52 1.291

– . 320 (Subchapter N) , with id. § § 521.3 41

– .3 51 ( S u bcha pter O)

. Al though the relevant portions of Subchapter N
and S u bchapter O contain similar langua ge
— bot h requiring DPS to mail no tifi ca tion
of a suspensio n or revocation , and both t ying the effective d ate of the suspension or
license

- suspension statute provided that the su spension “ t [ook] effect on the 40th day
a fter the date the person [ wa] s considered to have received notice of the susp ension or revocation under Sec t

ion 521.295 (

b) , ” i. e., five days after t he notice was mailed by DPS. Tex . Transp. Code Ann. § 521. 295(b), . 297( a) (2012) ; see White , 458 S.W.3d at 191

– 9 3

. T he only evidence of the license suspension came f rom the arrest

ing officer ’ s testimony and the license return, n either of wh i ch provided any ind ication that an earlier noti ce of suspension had been mailed to White. White , 458 S.W.3d a t 19 3

.7

rev ocatio n to the date of mailing , c ompare T ex. Tra nsp. Code A nn. §§ 521.295 , .297 (a) , with id. § 521. 344 (g

- 1 )

— Barker ’ s brief do es not compar e the two s tatutes or enuncia t e
any reason why we should extend White ’s non

- bi nding Subchapter N h olding t o this Subchapter O case. 5

5 Althou gh the two Co urt of C r imi nal Appeals cases relied upon in White

— Smit h an d Podany

— would be bi nding on us i f they were applicable, t hey are not

. S ee g enerally Podany v. State , 3 58 S.W.2d 118 ( Tex. Crim. App. 1962) ; Smith v . State , 324 S.W.2d 207 (

Tex. Crim. App. 1959 ). Smith a n d P odany discussed the predecessor to Subcha pt er N

—

Article 6687b, Section 22

— and both cases relied on a now

- ir relevant certifie d

- mail statute , Article 29c

. See Act of May 22, 1957, 55 th Leg., R.S. ch. 424, § 1 , 1957 T ex. Gen. L aws 12 66 (e ff ective June 6, 195 7) [hereina fter Art. 29c] ( then codified at Tex . Rev. Civ. Stats. Ann. art. 29 c ) ; Act of Apr. 14 , 1941 , 47th Leg., R .S., ch. 173, 1941 Tex. Gen. Laws 245 , 252

– 53 (eff ective Apr. 23, 1941), amended by Act of July 16, 195 9, 56th Leg. , 2d C.S., ch. 41, § 1, 1959 Tex. Gen. Laws 161 , 161

– 63 (eff ective Aug. 5, 1959) [hereinafter, A rt. 6687b , § 22 ] (e nacting and amending Tex. Rev. Civ. Stat. Ann. art. 6687b, § 22 ; r epealed an d recodified 1995) ; see also Act of May 1 , 1995, 74 th Leg., R.S., ch. 165, § 1 , 19 95 T ex. Gen. Laws 1025, 1563

– 68 (reco difying trans portation statutes)

. Article 6687b, S ection 22 a uthorized DPS to su spend a driver ’ s license after a heari ng, and the driver was en titled to 10 days ’ notice of the hearing

. A rt. 6687b, § 22(a)

. “ Notice by r egistered mail

. . . constitute [d] se rvice , ” i d. , bu t under Article 29c , “ certified mail with return receipt requ ested [could be use d] in lieu of register ed mail ” and w ould “ have the same legal eff ect as if sent by register ed mail, pro vided receipt for suc h certified mail [wa] s validated by offi cial post office postmark

. ” Art. 29c (emphasis added )

. In S m ith , the dri ver had no actual notice of the hearing o r suspension until he
wa s charg ed with DWLI

. 3 24 S.W.2d at 20 7

. N otice of th e hearing was attempt ed by certified mail , but t he post offic e did not validate receipt ; instead, t he post office marked the notification letter as unclaimed. Id. at 208

. Moreo ver , even af ter the h e aring, “ the record sh ow [ed] that appellant was not notif ied that [DPS] had

. . . ordered his oper a tor ’ s license suspe nded

. ” I d. Noti ce of the suspension was maile d to the driver ’ s address, bu t the letter was returned to DPS , and “ [s ]o far as th [e] record rev e al[ed], th [e] le tt er wa s not sent by r egistered mai l or by certified mai l. ”8

And second, e ven if we were to ex tend White to this case , it would not be dispositive. White , Cantu , Barker, and the Sta te all agree that evidence of m aili ng a statutory notice is at least on e metho d of proving that a license ha s been revoked , a nd here, the S tate chos e to present such ev idence

— w hether it was required to do so or

not
. See Cantu , 2019 WL 1285295, at * 2

– 3 ; Wh ite , 458 S.W.3d at 19 1

– 93

. Id. Because th e driver was not pro vid ed wit h notice of the hearing or suspension, the court reversed his convi ction

. Id.
I n Podany , DPS agai n relie d on certified mail ( as a su bstitute for regi stered mail ) to send n otice of the license suspension , b ut again the post of f ice marked the cer t

ified let ter as unclaimed rather tha n “ validat [ing] ” receipt “ by official po st office po stmark. ” 358 S.W.2d at 119

. The dr iver had no actual notice of the su s pension prior to his D WLI

. Id. A n d the driver had re ta ined possession of his driver ’s license even thou gh the relevant statutory provisions required DPS to confisca te th e suspen ded license

. Id. at 1 1 8

– 1 9

. Citing S mith , the court reversed th e D WLI conviction , i

d. , noting tha t the legisla tu re required officia l validation of receipt for certified mail to “ ha ve the same legal effect as if sent by registered mail , ” i d. at 12 0 ( o verruling motion for rehearing )

. S m ith a nd Poda ny thus turned on the statutory validation requirement s for DPS ’ s u se of certifie d mail , and the records in those cases affirmatively dem onstrated that (1) DPS had n ot provided notice in compliance with the re lev ant statute s and (2 ) the driver s lack ed actual notice

. See Podany , 358 S.W.2d at 11 8

– 1 9 ; Smith , 3 24 S.W.2d at 20 7

– 08; c

f. Simmo ns v . State , 443 S.W.2d 852, 85 3

– 5 4 (Tex. Crim. App. 1969) (quoting Podany ’s disc ussion of Article 29c and reversing DWLI c onvictio n w hen DPS sent notice of hearing via certified mail and notice was re turned to sender)

. But by 2 012, whe n Barker ’ s licens e wa s rev oked, DPS was no longer require d t o send Sub chapter N or Subchapter O re vocation notices via registered mail or v a lidated certified mail

. Instea d, DPS was required to send notification of a
sus pension or revoca tio n v ia firs t

- clas s mail

. See Tex. Tra nsp. Code Ann. § § 521.295 (a) , .344(g) (2012) ; Act of May 30, 1 999, 76th Leg., R. S., ch. 14 09 , § 2 , 1999 T ex . Gen. Laws 4758, 4758 (amending Sectio n 5 2 1.344, Subchapter O to provide for notice via first

- class mai l) ; A ct of May 2 6 , 1999 , 7 6 th Le g., R.S. , ch. 1117, § 1, 1999 Tex. Gen. Laws 3988, 3 989 ( amend ing Section 52 1. 2 95, Subchapter N to provide for notice vi a first

- class mail)

. Thus, Smith and Podany do no t contr o l

.9

B
. The S tate offered sufficient evidence o f Barker ’ s license revocatio n , includi ng evidence that it mailed Barker a Subc hapter O notice
. Th e S tate was required to p ro ve that , at the time of Barker ’ s offense

— April 25 , 2022

— his license had been suspe nde d or re voked under a law of this S tate
. T ex. T r ansp. Code Ann. § 52 1.457(a)( 2)

. T h e State chose to prove thi s by , among other things, o ffering multipl e pieces of evidence from which a reasonable jury could
conclud e that Barker had been provide d a Subchapter O n otice of revocation more than a decade b efore his 2022 offense

. First , the St ate offered a c ertified co py o f B a rker ’s driving record

. 6 S e e Stautzenberger v. State , 232 S.W.3d 323, 32 6

– 2 7 (Tex. App.

— H ouston [14th Dist.] 2 007, no pet.) (holding evidence of DWLI sufficie nt when State offere d certi fied driving record); c f. White , 458 S.W.3d at 193 ( holding evi dence insufficient wh en drivin g

re cord ca me in the form of a “ license return printed out from [th e arre sting officer ’s ]
in

- car computer ” ). T he driving r ecord is divi ded into sections, i ncludin g ( 1 ) an “Even t Hi story ” section , whi ch “ displays in formation r elating to convictions, crash
invo lvement, safety courses completed, out

- of

- state su rrendered lic ense h istory and
ed uc ation program certificates ” ; ( 2 ) a n “ Enforcement Action H istory” section , w hich

states t hat it “ displays enforce ment actions that may affe ct a person ’ s eligibility to

6 M uch of the driving record is print ed i n all capita l lette rs , as are portions of the certified notific atio n letter discussed b elow

. T o improve reada bility, we have altered the capitaliz ation of all

- cap i tal s excerpts by capitaliz ing only the first letter of each word

.10

drive ” with “[a] dditional information pertai ning to any e vent r elated to the

e nforcement action

. . . in the Event Section ” ; and ( 3 ) a “ Status Information ” section , wh ich “ reflects a person ’ s el igibili ty to drive at the time th [e] document was requested ” in Jul y 2 022.
The “ Stat us Inf

ormation ” section sum marizes B arker ’s “Driver Eligibility ” by stating that he is “ N ot E li gible ” to drive

. Ba rker ’s “ Event History ” prov ides background for his ineligi ble st atus by showing that he wa s convicted of drivi ng while
int ox icated in J une 2011, that his se ntence was probated, and that a “DWI E ducation
P rogram [was] R equire d

. ” Th is convictio n is listed a s “ Event 8 ” in B a rker ’ s “ Ev ent History , ” and it is cross

- referen ced in the “Enfo rc ement Ac tion History

. ” Specifically, the “ Enforc ement Action Hi story , ” referencing “ Event 8 , ” sh ows that Barker ’s li cense was revo ked in February 201 2 : ACTION 1 9 ACTIVE REVOKED

- FAILURE TO COMPLETE D WI EDU CATION PR OGRAM Begin Date: 02/ 18/2012 End Date: INDEFI N I TE
Notice Date: 01/ 21/2012
Stat e: TX Related Event(s) : EVENT 8
Notabl y, “ Action 19 ” is ma rked as “ A ctive ” while the oth er 23 enfo rcement
actions listed in Barker ’s driving record are m arked as “ E xpire d ” or “ L ifted

. ” The

“ A ctive ” notation is c onte xtualize d by the “ I ndefinite ” end date of Bark er ’ s “ Action11

19 ” r evocation, and both notations corroborate Barker ’ s “ S t atus Information ” that he
is “ N ot E ligible ” to d rive. Moreover, the “ N otic e D ate ” listed on Barker ’ s certified driving re cord reflect s th a t he was provided notice of his r evocation on “ 1/21/2012 , ” more tha n ten years before his April 2022 offense

. Cf. White , 458 S.W.3d at 193 (hold ing evi dence
insufficient when license return c ontained no evidence that the notice of su spen sion
had bee n m ai led

). T he jury was even provid e d a certified c opy of the 2012 le tter notifying Barker of the revocation

. Se e Tex. Trans p. Code A nn. § 521. 344 (g) (2012)

. Th is notice is entitled “ Notice of Re vocation , ” it is add ressed to B a rker , and it bears
th e “ N otice D ate ” listed on Barker ’ s driving r e cord

— January 21, 2012

. C

f. White , 458
S.W.3d at 19 3 (holding evidence insufficien t when DP S notification was dat ed tw o da y s after offense)

. The letter infor m s Barker that hi s “ driver [ ’ s] l icens e . . . wi ll be
revoked be ca use [he] failed to c omplete an E ducation Program that was duly imposed as a condition of probation [,] ” th at unle ss he “ request [s ] a hearing, [his] lice nse will be
revoked in definitely effecti ve 02/18/2012 , ” a nd that “ [t] o p reven t or lift the
revocation [, DPS ] must receive proof that the Education P rogram was completed. ” [Emphasis omitted .] At the bottom of the noti fication letter , i t list s DPS ’ s “ Statu tory Authority ” as “ T exas Tra ns portation Code Section 521.344 ; 52 2.089 , ” conf irming that

t he letter is intende d to be the “ p rompt[] ” notice required under Sec ti on 521.344 of Subchapte r O

. Tex. Transp. Code Ann. § 521.344 (g ) (2012)

.12

A lthough B a rker questio n s w hether this letter was ever placed i n the mail , t he
certified copy of the letter, “ N otice Date ” notation , and DPS record of an “ A ctive ”

rev ocation are all evidence that i t was, a s is B a rker ’ s admission that he received actual

no tice t hat his license wa s invalid

. See White , 458 S.W.3d at 19 3

– 94 (acknowled ging
that the dated n ot

ification from D PS was “evidence s howing a notice of suspension

w as mailed to Whi te regarding the August 2 8 convictio n ” but holding evidence
insufficient when notic e was dated and received af ter commission of DWLI )

. B u t cf. Mondy , 2 017 WL 359786, at *2 ( h olding evidenc e of notice i nsuffic ient whe n notifi cation letters were offered int o evidence but driver testifie d tha t he did not
receive them

)

. The arresting offic er testifi ed th at , when he walked up to Barker ’s
vehicl e to speak wit h hi m, Barker “t old hi m that [his lic en se] was suspended

. ” 7 C f.
White , 4 58 S.W.3d at 19 0 , 193

– 94 (ho ldi ng evidence insufficient when evidence showed, among other th ings, that driver was not aware of hi s su spension )

. The
officer conf

irmed th is information by entering Ba rk er ’ s n ame a nd date of birth in his
computer s ystem, where he saw that Bar ker ’ s dri ving record reflected an active license
revocation since 2012. S ee Sutton v. State , No. 12

- 19

- 00210

- CR , 2020 WL 16974 34, at
*4

– 5 (Tex. App.

—

Ty ler Apr. 8, 20 20, no pet.) (m em. op., not designated for

7 T he jury was also provided with doc umentat ion sh owing Barker ’ s conv ic tion for DWLI in 2 013 , which had been e n hanced by yet another D WLI conviction in August 2012

. Ba rker pleaded nolo contend e re to the 2013 DWLI

. But that DWL I conv iction was based on a differe nt l icense suspension or revoc ation tha n th e “ Act ion 19 ” revocat

ion discussed here

.13

publication

) (h olding evidence of DWLI sufficient whe n S tate offered certified driving
record showing ind efinite suspension and testimony from arresting off ice r that license

was suspended

)

. Given th is evidence

— th e certified drivin g rec ord reflecting t hat Barker was

“ Ineligible ” to driv e due t o an “ Active ” a nd “ Inde finite ” re vocation, the “ Notice
Date ” entry on the driving record , the cer tified copy of the notif i cation l etter bearing
the same date , th e arresting of ficer ’ s testimony that B a rker ’ s license had been revoked,
and Barker ’s admission that he knew his licens e was invalid

— a reasonable jur y co uld
have i nfer r ed that DPS mailed Barker notice of his revocatio n on or about J anuary 21,
2012 and that the “ Indefin it e ” revocation

— whic h too k effect on “ the 30th day after
the date the no tice [wa] s mailed , ” 8 Tex. Transp. Co de Ann. § 521.344 (g ) (2012)

— bega n more than a d ecade be fore Barker committed his DWLI in April 2 022

. We overrule Barke r ’ s sole iss ue .

8 Bark er e mp h asizes that the F ebruary 18, 20 12 “ Begin D a te ” listed on his dri vi ng record was the 28th d ay after th e “ Notice Date ” even thou gh, u nder Subchapter O, the revocation did not take effect until “ the 30th da y after the date the notice [wa] s mailed

. ” Tex. Transp. C ode Ann. § 5 21.344 (g ) (2012)

. But a reasonable jury could have taken this discrepanc y in to account in assess ing the credibili ty of the driving record ; the jury w as not re quired to t hrow out the exh ibit in its entirety

. Cf. G arcia , 2023 WL 15 1989, at *4 ( reiterating that “ [ t

] he jury acts as the sole judge of the credibility o f the witnesses and may c hoose to believe all , some, or none of the testimony presented ” )

. Moreov er , Barker w as not arrested o n the 28th or 29th d a y after the notice was mai led

— he was a rrested more tha n ten years later. C f. White , 458 S.W.3d at 1 89

– 90, 1 9 3 (holding evidenc e insuf ficient when DP S not

ification was in close proximity to and dat ed two da y s after off ense)

.14 I V . Reformatio n
But on our own motio n, we reform t he judgment to correct a clerical error.

“ We have the power to sua sponte correct and refor m the trial court ’ s judgment ‘ to make the record speak the truth ’ whe n w e have the necessary d ata and
info rm atio n to do so. ” Criado v. State , No. 02

- 21

- 00104

- CR, 2022 WL 2071791, at *4 (Tex. App.

— Fort Worth J une 9, 2022, no pet.) ( mem. op., not designated for publication) (q uoting Munguia v. State , 636 S.W.3d 750, 756 (Tex . A pp.

— Houston [14th Dist .] 2021, pet

. ref ’ d) ) ; see Arent v. State , No. 02

- 20

- 00 023

- CR, 2020 WL 6326151, at *2 (Tex. App.

— Fort Worth Oct. 29 , 2020, no pet.) (mem. op. , not designated for publication ) ( “ We may modify a t rial court ’ s judgmen t to correct errors that contradict the record

. ”)

. H ere, a jury dete rmined Barker ’ s p un ishment , but the judgment erroneously states t hat the trial court “fixed ” and “assessed ” Barker ’ s
pun ishment

. 9 [Capit aliz at ion alter ed.] We reform the judgment to reflect that the j ury

— n ot the trial court

— “ fixed ” and “ as sessed ” Barker ’ s p unishment

. [Capit alizati on a ltered .]

9 Th e judg ment is entitl ed “ JUD G MENT ON VERDICT OF GUILTY PUNISHMENT FIXED BY COURT ” a nd it cont ains an en try reiterating , “ PUNIS HME NT ASSES SED BY: COURT

. ”15 V
. Conclusion Having overruled Barker ’ s sole issue and reformed the judgment to correct a clerical e rror, we affirm the j udgment as modified

. Tex. R. App. P

. 43.2 (a), (b)

.

/s/ Bonnie Sudderth
Bonnie Sudderth Ch ie f Justi ce

Do Not Publish Tex. R. App. P. 4 7 .2(b)
Delivered : March 16 , 2023