TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00369-CR

Crae Robert Pease, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY

NO. 720828, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

The jury convicted Crae Robert Pease of the offense of reckless driving. See

Tex. Transp. Code Ann. § 545.401(a) (West 1999). Punishment was assessed at 30 days in jail and

a $200.00 fine, but imposition of the sentence was suspended and Pease was placed on community

supervision for two years. In three points of error, Pease asserts that the jury charge authorized a

non-unanimous verdict, challenges the legal and factual sufficiency of the evidence, and claims that

his conviction is “null and void” because the trial judge was not qualified. We affirm the judgment.

BACKGROUND

The jury heard evidence that in the earlymorning hours of November 3, 2004, Officer

Kelly Gutierrez of the Austin Police Department was driving eastbound on William Cannon Drive

in south Austin when she witnessed a red truck speed past her patrol vehicle. Gutierrrez testified that

the truck’s high rate of speed caused her vehicle to shake and sway. Gutierrez then observed the
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truck maneuver into the middle lane of traffic, forcing another car to swerve evasively into the righthand lane to avoid being rear-ended. Gutierrez turned on her overhead lights and siren and sped up

to catch the truck. She observed that the truck was going 80 miles per hour in a 40-miles-per-hour

residential zone. The driver of the truck, who was later identified as Crae Pease, did not pull over.

Gutierrez testified that in her experience, drivers who refuse to pull over are “usually DWI.” After

being pursued for about half a mile, Pease turned right onto a “small, narrow” neighborhood street

through which only one car could pass through at a time. Gutierrez had “no idea” where Pease

was leading her.

Gutierrez testified that Pease finally turned into a steep driveway and parked. A

female passenger got out of the truck, ignored Gutierrez, and walked inside the house. Pease also

exited the truck, looked at Gutierrez but “completely blew her off” and started walking towards the

house. Gutierrez asked Pease to show her his hands but he refused, continuing to ignore her. At this

point, fearing that Pease might have a weapon, Gutierrez grabbed him, threw him against the truck,

and put his hands behind his back. Gutierrez placed Pease under arrest for reckless driving.

Gutierrez explained that she could smell “extreme amounts of alcohol” on him and had to hold him

against the truck because of how much he was stumbling and swaying. Gutierrez testified that

Pease’s speech was slurred, and that he resisted her efforts to lead him towards her vehicle: “He kept

on going against the handcuffs, I was trying to maneuver him towards my vehicle, he kept on

stumbling, kept on leaning back, trying to stop walking, planting his feet, he kept on dragging his

feet.” Finally, Gutierrez was able to get Pease to her vehicle. A videotape from Gutierrez’s patrol

car recorded the incident from the time Pease turned into the neighborhood until he was placed in
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the patrol car, and the tape was admitted into evidence and played for the jury. Finally, Gutierrez

testified that Pease refused a breath test once they arrived at the police station.

Pease was charged by information with reckless driving. The information alleged

various ways in which Pease engaged in this conduct: “by driving 80 miles per hour in a 40 mile per

hour zone, and by passing a police vehicle at an extremely high rate of speed, and by almost striking

another vehicle while traveling at a high rate of speed, and by disregarding patrol car overhead lights

for several blocks, and by consuming alcohol and operating a motor vehicle.”

The allegations in the jury charge mirrored the allegations in the information, except

that each allegation was submitted disjunctively to the jury. In other words, following the first

allegation of driving 80 miles per hour in a 40-miles-per-hour zone, each subsequent allegation was

preceded by an “and/or” conjunction. The jury convicted Pease of reckless driving and the county

court at law placed him on community supervision. This appeal followed.

DISCUSSION

Jury unanimity

In his first point of error, Pease asserts that by submitting disjunctively the various

allegations in the jury charge, the county court at law allowed for a non-unanimous verdict.

The right to a unanimous jury verdict is constitutionally and statutorily guaranteed.

See U.S. Const. amends. VI, XIV; Tex. Const. art. V, § 13; Tex. Code Crim. Proc. Ann. arts.

36.29(a), 37.03 (West 2006). The unanimity requirement ensures that each juror is convinced

beyond a reasonable doubt that the prosecution has proved each essential element of the offense.

Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006). But while jury unanimity is
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required as to the essential elements of the offense, if the statute in question establishes different

modes or means by which the offense may be committed, unanimity is generally not required as to

the alternate modes or means of commission. Id. Ordinarily, then, the first step in a unanimity

challenge is an examination of the statutory language to determine the elements of the crime

and whether the legislature has created a single offense with multiple or alternate modes of

commission. Id.

The statutory language of the offense of reckless driving is straightforward: “A person

commits an offense if the person drives a vehicle in wilful or wanton disregard for the safety of

persons or property.” Tex. Transp. Code Ann. § 545.401(a). The statute does not specify any

particular manner or means of committing the offense, probably because there are countless ways

in which a person can drive a vehicle in wilful or wanton disregard for the safety of persons or

property, including each of the ways alleged in the information. We conclude that the language of

the statute indicates that the legislature intended to penalize the act of reckless driving, regardless

of the specific ways in which that act may be committed. Therefore, we hold that the unanimity

requirement goes to the act of driving a vehicle in wilful and wanton disregard for the safety of

persons or property, while the jury need not be unanimous on the manner or means of committing

the act. See Ngo v. State, 175 S.W.3d 738, 746 n.27 (Tex. Crim. App. 2005).

Pease attempts to compare his case to Stuhler v. State, 218 S.W.3d 706 (Tex. Crim.

App. 2007), and Ngo v. State, cited above. However, these cases are inapplicable here. In Stuhler,

the defendant was convicted of the offense of injury to a child pursuant to section 22.04(a) of the

penal code. See Tex. Penal Code Ann. § 22.04(a) (West Supp. 2006). However, the defendant was
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charged with both causing “serious bodily injury” to a child pursuant to subsection (a)(1), and

causing “serious mental deficiency, impairment, or injury” to a child pursuant to subsection (a)(2).

The allegations were submitted disjunctively to the jury. The court affirmed the intermediate court’s

reversal of the conviction, holding that “the Legislature intended the separate results spelled out in

the various subsections of the statute to be elemental and thus required jury unanimity.” Stuhler,

218 S.W.3d at 719.

Similarly, in Ngo, the State sought to prove that the defendant committed one credit

card abuse offense by proving three different criminal acts, occurring at three different times,

and in three different ways: (1) stealing the victim’s credit card; (2) receiving the victim’s card; or

(3) fraudulently presenting the card with intent to obtain a benefit. Ngo, 175 S.W.3d at 744. These

three theories were submitted disjunctively to the jury, and the jury returned a general verdict. The

court held that stealing, receiving, and presenting a credit card were each separate offenses, and

submitting them to the jury disjunctively violated the unanimity requirement. Id. at 749.

In contrast to Stuhler, there are no “separate results” or “various subsections” in the

reckless driving statute. In contrast to Ngo, there is only a single offense charged in this

case—driving a vehicle in wilful or wanton disregard for the safety of persons or property. The

various allegations in the charge were simply different manners and means of committing that

offense, and the jury did not have to unanimously agree on them. We overrule Pease’s first point.

Legal and factual sufficiency

In his second point, Pease asserts that the evidence is legally and factually insufficient

to support his conviction. Pease intertwines this point with his previous point, arguing that if the
 Pease also asserts under this point that there is a variance between the evidence offered at 1

trial and the allegations in the charging instrument. See Gollihar v. State, 46 S.W.3d 243, 246 (Tex.

Crim. App. 2001). However, Pease does not identify what this variance is nor does he explain how

the variance is material to his case. Therefore, we find this argument to be inadequately briefed. See

Tex. R. App. P. 38.1(h).

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State is allowed to introduce evidence “to support such a laundry list of prejudicial acts alleged in

the information, the State has the burden of proving all the acts in totality in order

to support a conviction.”1

First, we note that when alternate manners and means of committing an offense are

submitted to the jury, it is appropriate for the jury to return a general verdict for that offense if

the evidence supports a conviction under any one of them. Marinos v. State, 186 S.W.3d 167,

175 (Tex. App.—Austin 2006, no pet.) (citing Kitchens v. State, 823 S.W.2d 256, 258

(Tex. Crim. App. 1991)).

Furthermore, we find that there is legally and factually sufficient evidence of each of

the manners and means of reckless driving alleged by the State. When there is a challenge to the

sufficiency of the evidence to sustain a criminal conviction, the question presented is whether a

rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (legal

sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal sufficiency);

Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency). In a legal

sufficiency review, all the evidence is reviewed in the light most favorable to the verdict; it is

assumed that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew

reasonable inferences in a manner that supports the verdict. Griffin, 614 S.W.2d at 159 (citing
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Jackson, 443 U.S. at 318-19). In a factual sufficiency review, we view the evidence in a neutral light

and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then determine whether the

evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or

whether the verdict is against the great weight and preponderance of the conflicting evidence. Id.

at 415. We will not reverse a case on a factual sufficiency challenge unless we can say, with some

objective basis in the record, that the great weight and preponderance of the evidence contradicts the

jury’s verdict. Id. at 417.

In this case, the primary evidence offered at trial was the testimony of Officer

Gutierrez. Pease offered no evidence in his defense. Gutierrez testified to each of the allegations

in the jury charge. Gutierrez testified that, during her pursuit of Pease, her speedometer read 80

miles per hour. Gutierrez also testified that she was pursuing Pease in a 40-miles-per-hour

residential area. This testimony supports the allegation that Pease was driving 80 miles per hour in

a 40-miles-per-hour zone. Gutierrez further testified that when Pease passed her, he was driving so

fast that her patrol car shook and swayed. This testimony supports the allegation that Pease passed

a police vehicle at an extremely high rate of speed. Gutierrez also testified that she observed Pease

maneuver into the middle lane of traffic and cause another vehicle to swerve into the right-hand lane

to avoid being hit. This testimony supports the allegation that Pease almost struck another vehicle

while traveling at a high rate of speed. Gutierrez further testified that she turned on her overhead

lights and siren and that Pease did not pull over during the pursuit, which lasted at least half a mile.

This testimony supports the allegation that Pease disregarded patrol car overhead lights for several
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blocks. Finally, Gutierrez testified that Pease had an extremely strong odor of alcohol on him,

exhibited slurred speech during his arrest, was stumbling and staggering, and refused a breath test

at the police station. This testimony supports the allegation that Pease was consuming alcohol and

operating a motor vehicle.

The jury is the exclusive judge of the facts, the credibility of the witnesses, and

the weight to be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 670

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Penagraph v. State, 623 S.W.2d 341, 343

(Tex. Crim. App. 1981)). An appellate court must be appropriately deferential to the fact-finder’s

role at trial. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.—Dallas 2003, no pet.) (citing Jones

v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996)). The jury may believe all, some, or none

of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jaggers,

125 S.W.3d at 670. The jury could have rationally chosen to believe the testimony of Officer

Gutierrez, especially in the absence of any controverting testimony. We hold that the evidence is

legally and factually sufficient to support Pease’s conviction for reckless driving. We overrule his

second point.

Judicial qualifications

In his third point, Pease asserts that his conviction is “null and void” because the trial

judge, who is retired and was sitting by assignment, “did not take the oath of office as required by

the Texas Constitution” and, therefore, “lacked the qualifications to preside over the case.” See Tex.

Const. art. XVI, § 1. Pease did not raise this issue at trial. However, a challenge to a trial judge’s
 In a case involving a peace officer who had allegedly failed to take the constitutional oath, 2

this Court, in an opinion authored by Judge John Onion, disagreed with the reasoning in Prieto:

The Prieto case leaves many questions. If a retired senior judge opts to retain his

judicial capacity as permitted by law and accepts temporary assignments from time

to time to different courts, what appointed de jure office does he or she hold? Who

is the appointing authority? What is the term of such office? How often must the

constitutional oaths be taken by the senior judge? We disagree with the reasoning

of the Prieto court.

Delamora v. State, 128 S.W.3d 344, 358-59 (Tex. App.—Austin 2004, pet. ref’d).

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qualifications may be raised for the first time on appeal. Wilson v. State, 977 S.W.2d 379, 380 n.3

(Tex. Crim. App. 1998).

Pease’s argument on this issue is as follows:

The trial judge in this case, Judge Bill Bender, retired on March 24, 2000 and

submitted the required oath at that time. No oath has been submitted since then.

Retired judges must take the same oaths required of appointed judges and as such are

subject to the same time-frame requirement. Elected judges must take an oath with

each new term. Judge Bender has not taken the oath for almost seven years.

Pease provides no evidence to support the above contentions.

Citing Prieto Bail Bonds v. State, 994 S.W.2d 316 (Tex. App.—El Paso 1999, pet.

ref’d), Pease argues that retired senior judges must take the oaths required of appointed officers

under the Texas Constitution. See id. at 320-21. Even assuming the validity of this argument, “we 2

‘must indulge every presumption in favor of the regularity of the proceedings and documents’ in the

trial court.” Murphy v. State, 95 S.W.3d 317, 320 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)

(citing McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975)). “The presumption of

regularity is a judicial construct that requires a reviewing court, ‘absent evidence of impropriety,’
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to indulge every presumption in favor of the regularity of the trial court’s judgment.” Id. (citing

Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000)).

This presumption of regularity applies to appellate challenges of visiting trial court

judges for alleged failures to take their constitutionally required oaths. Id. Furthermore, “an

appellant who makes such a challenge must make a prima facie showing that the trial judge did not

take the required oaths before we will consider the issue on the merits.” Id.

Pease has failed to meet this burden. Without citing to any proof in the record, Pease

merely alleges that Judge Bender failed to take the required oaths. That is not enough to overcome

the presumption of regularity. See id.

In addition to the constitutional oath requirements, Pease also refers to the statutory

requirement that retired judges sitting by assignment certify to the presiding judge a willingness not

to appear and plead as an attorney in Texas courts for a period of two years. See Tex. Gov’t Code

Ann. § 74.055(c)(6) (West 2003). Once made, this certification renews by operation of law every

two years, unless the retired judge revokes it in writing. See id. § 74.0551(b), (c), (d) (West 2003).

Pease concedes that the trial judge submitted the required certification on March 24, 2000. Again,

Pease provides no evidence that this certification has since been revoked. On this record, we must

presume that Judge Bender has not revoked his certification. See Murphy, 95 S.W.3d at 320

(presumption of regularity in proceedings absent contrary evidence). We overrule Pease’s third

point.

CONCLUSION

Having overruled Pease’s points of error, we affirm the judgment of the district court.
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_____________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 9, 2007

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