text:
    STATE of Louisiana v. Robbreion T. GREEN.
    No. 13-KA-238.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Parish of Jefferson, Terry M. Boudreaux, Matthew Caplan, Jerome G. Smith, III, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges Jude G. GRAVOIS, MARC E. JOHNSON and ROBERT M. MURPHY.
   MARC E. JOHNSON, Judge.

^Defendant, Robbreion Green, appeals his conviction for second degree murder on the basis of insufficient evidence. For the reasons that follow, we affirm Defendant’s conviction and sentence.

Defendant was indicted by a grand jury on May 5, 2011 and charged with the second degree murder of Rodney Ross in violation of La. R.S. 14:8o.!. He proceeded to trial on October 2, 2012. After a four-day trial, a 12-person jury found Defendant guilty as charged. The trial court subsequently sentenced Defendant to life imprisonment without the benefit of parole, probation or suspension of sentence.

FACTS

Shortly after midnight on April 11, 2010, the Jefferson Parish Sheriffs Office (JPSO) received two 911 calls regarding multiple shots being fired in the 1000 block of Dimarco Street in Marrero. Sergeant Eddie Klein with the JPSO |sresponded to the calls. When he arrived, he observed the murder victim, Rodney Ross (also known as “Mob”), lying on the ground along with ten .45 caliber casings and two 9 mm casings. An autopsy revealed the victim sustained two gunshot wounds to the head and eleven gunshot wounds to the rest of his body. The autopsy also showed that two separate guns were used to shoot the victim.

During the investigation, Sgt. Klein learned that a maroon GMC or Chevy pickup truck was seen leaving the scene. Surveillance cameras from nearby businesses captured the pickup truck but not the license plate or any occupants. Sgt. Klein also discovered that a similar maroon pickup truck was involved in a nonfatal shooting with .45 caliber casings that occurred six days earlier on April 5, 2010. He viewed still photographs from surveillance video of that incident, which he subsequently showed to Defendant’s mother, who thought the person in the photograph was “Telly.” After a computer search, an arrest warrant was issued for Telly Wes-terman on April 12, 2010 for attempted murder in connection with the April 5th shooting. Westerman came into the Detective Bureau later that night, waived his rights and gave five statements, three of which related to the April 10th homicide.

In his first statement dated April 13, 2010 at 2:28 a.m., Westerman stated that on the day of the murder, he, Maurice Williams, Defendant, co-defendant Jeffery Davis, and Ross gathered around 5:00-6:00 p.m. at Williams’ mother’s apartment at 1000 Dimarco. Westerman explained that he left the apartment around 10:00-11:00 p.m. and went to his girlfriend’s house. He later received a phone call from Ross, who angrily accused him of taking his gun. Westerman told Ross that he did not have his gun. Ross called five to seven more times and, although no one said anything on the phone each of those times, Wester-man could hear the group talking about a gun. Westerman then decided to go back to the |4apartment to see what was going on. When he arrived, Williams, Davis, Defendant and Ross were there, and the victim was upset that someone had taken his gun.

Westerman reminded Ross that when he left, Ross was playing with his small black and gray gun and Defendant’s gray and black 9 mm gun on the floor. At that point, Westerman and Williams decided to go to Tim’s Billiards to play pool, which was located around the corner from the apartment. Defendant and Davis jumped into the truck with them, but Ross stayed behind. Before arriving at Tim’s Billiards, Defendant asked Westerman to bring him back to the apartment so he could get “something.”

Westerman complied and went back to the apartment. When they arrived, everyone got out of the truck except Wester-man. While Westerman was waiting, he saw Williams in his rearview mirror coming down the alley. Williams opened the door of the truck and was about to enter it when Westerman heard two shots. Wes-terman turned around and saw Davis shooting Ross and Ross falling to the side. Defendant subsequently returned to the truck and said he had shot Ross in the head with the last two shots.

According to his statement, Westerman and Williams left the scene in Westerman’s truck, but later encountered Defendant and Davis walking down the street and let them get into the truck. They then went to Tim’s Billiards. After learning there were no pool tables available, the group walked back to the truck so Westerman could get his pool stick. Westerman told Defendant and Davis to get their guns out of his track and hide them, which they did. Afterward, they went back inside Tim’s Billiards and then left.

Westerman stated he dropped everyone off on Carmadelle in front of Davis’ house, after which Westerman called his girlfriend and went to her house. IsWesterman told his girlfriend what had happened. Approximately one hour later, Williams called Westerman and told him “they” were looking for a maroon truck. Westerman later spoke to Davis, who told him that he had talked to the police and that the police wanted to question him as well.

In his statement, Westerman confirmed he had positively identified Defendant in a photographic lineup. He further stated that he knew Davis had gone back and retrieved his gun, but was unsure whether Defendant had done so because he had not talked to Defendant since the shooting. Westerman gave a second statement at 3:17 a.m., in which he confirmed that he had viewed photographic lineups and had positively identified Williams. He gave a third statement at 4:56 a.m., in which he stated that Defendant and Davis did not walk away from the scene after they shot Ross like he claimed in his first statement, but that they got into his truck immediately after the incident.

After Westerman gave his statements, Sgt. Klein obtained video surveillance from Tim’s Billiards, which he said confirmed Westerman’s account of what happened. Sgt. Klein further testified that Wester-man’s statements were consistent with the physical evidence. He stated ballistics tests showed that a .45 caliber gun and a 9 mm gun were used to kill Ross. The .45 caliber gun used in the murder was recovered and was determined to be the same gun Davis used in the April 5, 2010 nonfatal shooting.

In July 2010, Sgt. Klein learned that Williams’ mother, Eunice Williams, had information about Ross’ murder. She subsequently came to the Detective |fiBureau and gave a statement. In her statement, which was played for the jury, Ms. Williams said that she arrived home at approximately 10:00 p.m. on the night in question and found Ross, her cousin, alone playing video games. She asked where her son, Westerman, Davis and Defendant were, and Ross replied that they had gone to the pool hall. She asked Ross why they had left him there, but Ross would not say. Ms. Williams stated that she could tell something was wrong.

Ross asked Ms. Williams for Wester-man’s phone number. He then called Westerman and Ms. Williams overheard Ross say, “man stop playing.” Ross also called Defendant and said the same thing. Shortly thereafter, her son, Westerman, Davis and Defendant came to her house. Defendant came inside and took a Xanax pill, while the others stayed outside the front door. After that, Defendant and Ross left and Ms. Williams closed the door behind them. About one minute after she closed the door, she heard approximately nine gunshots. She waited awhile and opened the door to find police on the scene and Ross lying on the ground. Ms. Williams stated she positively identified her son, Westerman, Davis, Defendant, and Ross from photographic lineups.

At trial, Westerman was the State’s primary witness. Westerman’s trial testimony was similar to the statements he made to the police; however, he additionally testified at trial that the day after Ross’ murder, Williams showed him Ross’ 9 mm gun and said, “I told that b*tch I got him.” Westerman also testified that a month pri- or to Ross’ murder, he and Williams were riding up the street when they saw Ross. Williams told Westerman to stop and he did. Williams and Ross pushed each other, and Williams yelled to Ross, “I’m going to kill you b*tch.” |7Westerman explained that Williams was upset because Ross had “hollered” at the mother of his child; however, Ross said it was Defendant who had done so.

Westerman explained that he omitted this information when giving his statements to the police because he wanted to protect Williams, who was his close friend. He stated he disclosed the additional information approximately one year after Ross’ murder. Westerman testified that he was initially charged with second degree murder in the instant case and aggravated second degree battery in the April 5, 2010 non-fatal shooting. The aggravated second degree battery charge was later changed to three counts of attempted murder. In exchange for his trial testimony in the present case, Westerman pled guilty to reduced charges of accessory after the fact. Westerman explained that he faced zero to five years for each charge or possibly probation.

DISCUSSION

In his sole assignment of error, Defendant claims the evidence was insufficient to support a conviction for second degree murder. He claims the record is devoid of any credible evidence that he and Davis killed Ross. Defendant asserts that Wes-termaris testimony was too inconsistent and self-serving to be believable.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or 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, 318, 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).

|sIn cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La.10/17/00); 772 So.2d 78, 83; State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04); 866 So.2d 973, 977.

Defendant was convicted of second degree murder in violation of La. R.S. 14:30.1. Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). In addition to proving the statutory elements of the charged offense at trial, the State is required to prove Defendant’s identity as the perpetrator. See State v. Draughn, 05-1825 (La.1/17/07); 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Ingram, 04-551 (La.App. 5 Cir. 10/26/04); 888 So.2d 923, 926. When the key issue in the case is identification, the State is required to negate any reasonable probability of misidentifieation in order to carry its burden of proof. State v. Suggs, 11-64 (La.App. 5 Cir. 12/13/11); 81 So.3d 815, 821, writ denied, 12-54 (La.4/20/12); 85 So.3d 1269. Positive identification by one witness is sufficient to support a conviction. Id.

In the instant case, Westerman testified that he sat in his truck while Williams, Davis, and Defendant went to Ms. Williams’ house. While Westerman was waiting, he saw Williams in his rearview mirror coming down the alley. Williams opened the door of the truck and was about to enter it when Westerman Rheard two shots. Westerman turned around and saw Davis shooting Ross. Afterward, Defendant came up to the truck and said he had shot Ross twice in the head.

The victim sustained IB gunshot wounds. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Hoffman, 98-3118 (La.4/11/00); 768 So.2d 542, 585, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Batiste, 06-869 (La.App. 5 Cir. 4/11/07); 958 So.2d 24, 27. Specific intent to kill may also be inferred from the extent and severity of the victim’s injuries. State v. Stacker, 02-768 (La.App. 5 Cir. 12/30/02); 836 So.2d 601, 606, writ denied, 03-411 (La.10/10/03); 855 So.2d 327.

On appeal, Defendant points out numerous inconsistencies in Westerman’s statements. However, the jury heard those inconsistencies and Westerman’s explanations for those inconsistencies during direct and cross-examination. For example, Westerman said in his first statement that Davis and Defendant walked away after they shot Ross; however, in his third statement, he stated that they got into his truck right afterward. Westerman said he lied in his first statement because he was initially trying to minimize his involvement in the incident. Also, in his first statement, Westerman stated that he and the others got together about 5:00 or 6:00 p.m.; however, at trial Westerman testified that he and Williams were at Ms. Williams’ house and that Defendant, Davis, and Ross came later around 9:00 or 10:00 p.m. Westerman explained that he was nervous and “moving fast” at the Detective Bureau when he gave those times, and that the times were approximate. Also, Sgt. Klein testified that Westerman was “guessing” on the times and Sgt. Klein found Westerman’s statements to be consistent with the physical evidence.

| ¶ Nevertheless, the most significant part of Westerman’s testimony, i.e., that he witnessed Davis shoot the victim and heard Defendant admit he shot the victim, never changed. Also, Angel Merrill, Wester-man’s former girlfriend, testified that Wes-terman told her shortly after the shooting that he witnessed a man shoot the victim, and that the other man shot the victim in the face and head.

Defendant further points out that Westerman got a favorable plea bargain in exchange for his testimony. However, the jury also heard the details of that plea agreement and Westerman’s hope for probation. Nevertheless, the jury accepted Westerman’s testimony and found him to be credible. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97); 694 So.2d 1052, 1056.

Despite the inconsistencies in Wester-man’s statements and the fact Westerman received a favorable plea bargain in exchange for his testimony, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support the verdict and that the State negated any reasonable probability of misidentification. (See State v. Weary, 03-3067 (La.4/24/06); 931 So.2d 297, 312, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006), where the supreme court found the evidence sufficient to support a first degree murder conviction despite the inconsistencies in the witnesses’ testimonies; and State v. Neal, 00-674 (La.6/29/01); 796 So.2d 649, 658-59, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002), where the supreme court found the evidence sufficient to support a first degree murder conviction even though the co-perpetrator turned State’s witness and testified pursuant to a favorable plea agreement.)

J^ERRORS PATENT

Pursuant 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. 5th Cir.1990), we reviewed the record for errors patent and found no errors.

DECREE

For the foregoing reasons, we find the evidence was sufficient to support the jury’s verdict that Defendant committed second degree murder. Thus, Defendant’s conviction and sentence for second degree murder are affirmed.

AFFIRMED

      . The indictment also charged co-defendant, Jeffery Davis, with second degree murder. Davis was convicted and filed a separate appeal, which bears docket number 13-KA-237.

      . At trial, Westerman testified that he went to Tim's Billiards so the surveillance cameras would show Defendant and Davis hiding their guns.

      . At trial, Westerman's girlfriend testified that Westerman told her that he saw one of the men shoot the victim first, and then the other man stood over the victim and shot him in the face and head. She explained that she went to the Detective Bureau with Westerman and gave a recorded statement to the same effect to which she testified.

      . Westerman's fourth and fifth statements given at 5:16 a.m. and 5:41 a.m. discussed his involvement in the April 5, 2010 non-fatal shooting. In his fourth statement, Wester-man explained that he went to a gas station and three men were staring at him. Thereafter, he picked up Davis to see if Davis recognized the men. Words were exchanged when Westerman and Davis encountered the men, and Davis shot one of the men in the leg. In his fifth statement, Westerman said he had positively identified Davis in a photographic lineup as the person who was in his truck on April 5th and who had shot at three people.

      . At trial, Ms. Williams claimed she did not remember that a murder occurred outside her door or that she had talked to the police about what she saw. She explained that her memory was faulty because she was under the influence of drugs at that time. Ms. Williams reviewed her statement but continued to claim she did not remember giving it. Sgt. Klein testified that Ms. Williams did not appear to be intoxicated or under the influence of drugs when she came to the Detective Bureau and gave her statement.


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kelin HARRIS.
    No. 13-KA-246.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Blair C. Constant, Assistant District Attorneys, Gretna, Louisiana, for PlaintiffAppellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Kelin Harris, St. Gabriel, Louisiana, Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

12Pefendant, Kelin Harris, appeals his conviction for simple burglary as well as his multiple offender adjudication and sentence. For the reasons that follow, we affirm defendant’s conviction and sentence, and we grant appellate counsel’s motion to withdraw as attorney of record.

PROCEDURAL HISTORY

On July 28, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant with simple burglary in violation of LSA-R.S. 14:62. At his arraignment, defendant pled not guilty. Defendant then filed motions to suppress evidence and statement, which were denied after a hearing on March 7, 2012.

On August 20, 2012, defendant withdrew his not guilty plea and, after being advised of his rights, pled guilty as charged to simple burglary. In accordance with 13the plea agreement, the trial court sentenced defendant to six years imprisonment with the Department of Corrections. On the same day, the State filed a multiple offender bill of information, alleging that defendant was a second felony offender. Defendant stipulated to the allegations in the multiple offender bill. The trial judge then vacated defendant’s original sentence and, in accordance with the plea agreement, sentenced defendant again to six years imprisonment with the Department of Corrections. This enhanced sentence was imposed without benefit of probation or suspension of sentence and was ordered to run concurrently with any other sentence defendant may be serving. Defendant now appeals.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530-31 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief 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), asserting that she has thoroughly reviewed the trial court record and “can find no non-frivolous issues to raise on appeal and can find no ruling of the trial court which arguably supports the appeal.” Accordingly, appointed counsel requests to withdraw as attorney of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds the case to be wholly frivolous after a conscientious examination of it. 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 |4determining 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).

In State v. 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.” State v. Jyles, supra.

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. 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 identified by the court, or grant the motion and appoint substitute appellate counsel. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

|sIn this case, defendant’s appellate counsel asserts that after a conscientious and thorough review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel notes that there is no trial court ruling to challenge, recognizing that the plea was not under State v. Crosby, 338 So.2d 584 (La.1976). She further explains that she considered whether to raise an issue regarding exces-siveness of the sentence, but was compelled to conclude that such a claim would be frivolous. Counsel acknowledges defendant’s claim that he was not told that his sentence would be served as flat time and that his attorney represented to him and his family that he was only going to have to serve 85 percent of the sentence. However, appellate counsel asserts that she has reviewed the record and this representation by defendant is not borne out in the record. Counsel contends that defendant was informed of the sentencing range he faced and that the six-year sentence would not be regarded as constitutionally excessive or made under false representation.

Along with her brief, appellate counsel has filed a motion to withdraw as attorney of record, which states that she has made a conscientious and thorough review of the trial court record and could find no non-frivolous issues to raise on appeal and no rulings of the trial court that would arguably support the appeal. She further asserts that she notified defendant of the filing of her motion to withdraw and she advised defendant of 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 could file a pro se supplemental brief. Defendant has filed a pro se brief, raising several issues which will be addressed herein, subsequent to our review of the record.

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 1 ^information properly charged defendant and plainly and concisely stated the essential facts constituting the offense charged. It also sufficiently identified defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-466. Further, as reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea proceedings, his sentencing, and his multiple offender proceedings.

In addition, defendant pled guilty as charged to simple burglary. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. In the instant case, defendant filed motions to suppress evidence and statement that were denied after a hearing. However, defendant did not preserve these rulings for review under the holding in State v. Crosby, supra.

Additionally, our review of the record reveals no irregularities in defendant’s guilty plea to simple burglary. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin, colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

The record shows that defendant was aware he was pleading guilty to one count of simple burglary. Further, on the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a judge or jury 17trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood that he was waiving these rights.

During his guilty plea proceedings, defendant further indicated that he was satisfied with the way his attorney and the trial judge handled his case. He stated that he had not been forced, coerced, or threatened into pleading guilty. He also indicated that he understood that pleading could result in deportation if he was not a citizen and that his guilty plea could be used to enhance a penalty for any future conviction. Defendant indicated that he understood the possible legal consequences of pleading guilty, but wished to plead guilty. Defendant was also informed during the colloquy and by means of the waiver of rights form of the sentencing range for the offense as well as the actual penalty that would be imposed upon acceptance of his guilty plea. After his colloquy with defendant, the trial judge accepted defendant’s guilty plea as knowingly, intelligently, freely, and voluntarily made.

We have also reviewed the multiple offender proceedings and conclude that defendant was sufficiently advised of his multiple offender rights. The waiver of rights form, in conjunction with the colloquy between the trial judge and defendant, indicates that defendant understood that by stipulating to the allegations in the multiple offender bill, he was giving up his right to a hearing and his right to remain silent throughout the hearing. Defendant was also advised of his potential sentencing range as a multiple offender as well as the actual sentence that would be imposed. Throughout the multiple offender proceedings, defendant indicated that he was satisfied with the way his attorney and the court had handled his case and |sthat he had not been forced, coerced, or threatened into pleading guilty. Defendant further indicated that he understood the possible legal consequences of pleading guilty and wished to plead guilty because he was in fact guilty. His stipulation was accepted by the judge as knowingly, intelligently, freely, and voluntarily made.

We further note that defendant’s enhanced sentence was imposed in accordance with the terms of the plea agreement on the multiple bill. LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In addition, defendant’s sentence falls within the sentencing range prescribed by statute. See LSA-R.S. 15:529.1 and LSA-R.S. 14:62.

Based on the foregoing, we find that the guilty plea and multiple offender proceedings do not present any issues for appeal. Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she 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, we grant appellate counsel’s motion to withdraw as attorney of record.

PRO SE ASSIGNMENTS OF ERROR

In his pro se supplemental brief, defendant sets forth three assignments of error, in which he raises issues relating to the voluntariness of his guilty plea and ineffective assistance of appellate counsel. We have reviewed all of defendant’s claims and for the reasons that follow, we find no merit to his arguments.

Voluntariness of Guilty Plea

In his first two assigned errors, defendant contends that his guilty plea was not knowingly and voluntarily entered, but rather was induced by promises of parole eligibility by both the prosecutor and his attorney. First, defendant argues 13that the prosecution induced him into pleading guilty by promises of parole eligibility, pointing to the following representation made during the colloquy for the multiple bill:

Q. And that will be without the benefit of probation—
THE COURT: Is it probation and suspension but he’s eligible for parole?
LAW CLERK: Yes, sir.
STATE: He’s eligible for parole.
BY THE COURT:
Q. You understand that?
A. Yes, sir.

Second, defendant argues that his guilty plea was involuntary and not intelligently entered because counsel said nothing when the foregoing discussion on sentencing took place. Additionally, defendant contends that his counsel promised him that he would receive parole eligibility and would serve no more than 85 percent of the actual sentence. Defendant requests specific performance of the considerations and inducements which caused him to plead guilty or requests that he be allowed to withdraw his guilty plea.

It is well settled law that a guilty plea is constitutionally infirm when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain, and that bargain is not kept. State v. Dixon, 449 So.2d 463, 464 (La.1984). However, if a defendant’s misunderstanding is not induced by or attributed to representations made by the district attorney or the trial court, there is no ground for invalidating the guilty plea. State v. Vaurigaud, 96-807 (La.App. 5 Cir. 2/12/97), 690 So.2d 110, 112, writ denied, 97-0666 (La.9/19/97), 701 So.2d 165. When the record establishes that an accused was informed of and |inwaived his right to trial by jury, to confront his accusers and against self-incrimination, the burden shifts to the accused to prove that despite this record his guilty plea was involuntary. State v. Harrell, 09-364 (La.App. 5 Cir. 5/11/10), 40 So.3d 311, 321, writ denied, 10-1377 (La.2/10/12), 80 So.3d 473.

In the present case, there is nothing in the record before us to suggest that defendant’s plea was constitutionally infirm. As noted earlier in this opinion, the record of defendant’s guilty plea indicates that he was advised of and waived his right to trial by jury, his right to confront his accusers, and his privilege against self-incrimination. Moreover, with regard to sentencing on the simple burglary charge, both the waiver of rights form and the colloquy between defendant and the trial court show that defendant was advised that he faced a sentencing range of zero to twelve years with the Department of Corrections. Moreover, defendant was clearly advised that, upon acceptance of his guilty plea, he would receive a sentence of six years imprisonment to be served with the Department of Corrections, that he would be given credit for time served, and that his sentence would run concurrently with any other sentences he was serving. Defendant indicated that he understood his sentencing exposure and the actual sentence that would be imposed.

Also, at the multiple offender proceedings, the trial court explained to defendant that he faced a sentencing range of six to twenty-four years with the Department of Corrections, and that his actual sentence would be six years with the Department of Corrections to run concurrently with any other sentences he was serving. Defendant was also advised that the sentence would be imposed without benefit of probation or suspension of sentence. Defendant was told that he would be eligible for parole. Also, the waiver of rights form signed by defendant clearly showed that defendant was advised of and understood his potential sentencing ^exposure and the actual sentence that would be imposed upon acceptance of his stipulation to the multiple bill. Defendant was aware on the waiver of rights form that his sentence would be imposed without benefit of probation or suspension.

The record shows that defendant was sentenced in accordance with the plea agreement that was set forth in the record. In particular, the trial court sentenced defendant, as a second felony offender, to six years with the Department of Corrections without benefit of probation or suspension. Defendant was not denied parole eligibility at the time of his plea.

According to defendant, after he “arrived at DOC he was advised that he was not eligible for 85% or Parole and would have to serve his sentence flat.” Defendant then wrote a letter to the district court requesting that his six-year enhanced sentence be vacated and corrected based on his belief that he would only serve 85 percent of his sentence and then be granted a parole date. The trial court denied defendant’s request to vacate his sentence finding that the record did not support defendant’s claim that he was promised parole eligibility in exchange for his plea.

Having reviewed the record, we agree with the trial court and with appellate counsel’s statement in her Anders brief that the record does not support defendant’s assertion. There is absolutely no representation in the record about defendant serving only 85 percent of his sentence. The discussion about parole eligibility, that defendant references in his brief, clearly pertains to the sentencing provisions of the statutes to which defendant was pleading guilty. Those statutes specifically allow for parole eligibility. LSA-R.S. 14:62 does not require a restriction of benefits, and therefore, under LSA-R.S. 15:529.1(G), the enhanced |12sentence was required to be without ben-efít of probation or suspension of sentence only and parole was not restricted.

Defendant was not denied parole eligibility under the plea agreement, but was apparently denied it based on other statutory criteria for parole consideration. Generally, the Department of Public Safety and Corrections administers the standards governing parole eligibility and determines whether a particular inmate is eligible for parole consideration by the Board of Parole. State v. Brown, 12-0872 (La.5/7/13), 118 So.3d 332, 335 n. 2. In determining parole eligibility dates, the Department looks to the applicable statutory criteria set out in LSA-R.S. 15:574.4, and “administers these standards and criteria by applying them, as well as other relevant statutes and interpretative jurisprudence, to determine whether or not a particular inmate is parole eligible, i.e., eligible for parole consideration by the board.”

The issue of whether a trial court needs to advise defendant of his parole ineligibility at the time of his guilty plea has been addressed on numerous occasions. It has been consistently held that “the trial court is only required to designate whether a defendant is entitled to parole under the statute of conviction, ... the trial court was not required to inform the defendant that good time or parole would be barred under La.R.S. 15:574.4(B).” State v. Fontenot, 06-226 (La.App. 3 Cir. 7/12/06), 934 So.2d 935, 939.

In State v. Lewis, 30,536 (La.App. 2 Cir. 4/8/98), 711 So.2d 383, the defendant raised an argument similar to the one advanced by defendant in the instant case. In Lewis, after defendant pled guilty to drug related charges, he discovered that he was not eligible for parole under LSA-R.S. 15:574.4 because he was a third felony offender. On appeal, he argued that his plea was not voluntary because he was not informed of his ineligibility for parole. The appellate court |1sheld that the trial court did not have to inform him that he was ineligible for parole because it was not part of the statute under which he pled guilty.

Likewise, the defendant in State v. Hartshorn, 09-47 (La.App. 5 Cir. 11/10/09), 25 So.3d 172, 179-81, writ denied, 09-2654 (La.6/4/10), 38 So.3d 298, raised a similar argument to the one raised by defendant herein. In Hartshorn, the defendant argued that the sentence he received was not as agreed upon in the plea agreement because he pled guilty with the understanding that he would be eligible for parole and good time credit. This Court found that the defendant was precluded from seeking review of his sentence imposed in conformity with the plea agreement and that there was nothing in the record to support his allegations that he was promised parole eligibility and good time credit in his enhanced sentence or that the State violated the terms of the plea agreement. This Court also recognized that the trial court was not required to inform the defendant of the minimum sentences relating to good time or parole as affected by the classification of the crime as a crime of violence.

Based on the foregoing, we find that defendant’s guilty plea was knowingly and voluntarily made. The sentence was imposed in accordance with the plea agreement and was not based on any misrepresentations about parole eligibility. Accordingly, the arguments raised by defendant in his first two pro se assigned errors are without merit.

Ineffective Assistance of Counsel

In his third pro se assignment of error, defendant contends that his counsel on appeal was ineffective in failing to research the law applicable to his case prior to filing an Anders brief. Defendant complains that if counsel would have done such research she would have discovered errors as assigned in defendant’s two pro |14se assignments relating to the voluntariness of his plea. He contends that she should be ordered to file a supplemental brief.

Initially, it is noted that counsel did mention in her brief that defendant complained that there was a promise regarding parole eligibility. However, she chose not to raise the issue after she found nothing in the record to support that such a representation was made.

Nevertheless, even assuming appellate counsel’s performance has been deficient, defendant has not been prejudiced as a result. This Court has conducted an independent review of the record, which failed to disclose any non-frivolous appealable issues. Additionally, as evidenced by the discussion herein, the issues raised by defendant are without merit. See State v. Miller, 12-126 (La.App. 5 Cir. 10/16/12), 102 So.3d 956, 963, writ denied, 12-2487 (La.5/31/13), 118 So.3d 388. Accordingly, defendant’s claim of ineffective assistance of counsel is likewise without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors that require corrective action.

Accordingly, we affirm defendant’s conviction and sentence, and we grant appellate counsel’s motion to withdraw as counsel for defendant.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam ), and adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11.

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

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274(1969).

      . See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). According to Strickland v. Washington, in assessing a claim of ineffective assistance of counsel, a two-pronged test is employed. The defendant must show that (1) his counsel’s performance was deficient, and (2) the deficiency prejudiced him. State v. Dussett, 12-356 (La.App. 5 Cir. 12/18/12), 106 So.3d 1203, 1207 n. 3, writ denied, 13-0154 (La.6/21/13), 118 So.3d 410.


author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Troy W. DEWEESE, Jr.
    No. 13-KA-293.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Matthew Caplan, J. Brandon Kinnett, Blair C. Constant, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Thibodaux, Louisiana, for DefendanbAp-pellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

1 ¡^Defendant, Troy W. Deweese, Jr., appeals his conviction and sentence for attempted manslaughter of Gavin Ratcliff in violation of La. R.S. 14:27 and 14:31. For the reasons that follow, we affirm defendant’s conviction and sentence. Defendant’s application for post-conviction relief, filed in this Court on August 27, 2013 during the pendency of this appeal, is denied as premature, as defendant must first exhaust whatever appellate rights he has. La. C.Cr.P. art. 924.1.

FACTS AND PROCEDURAL HISTORY

On October 24, 2010, the victim, Gavin Ratcliff, a Minnesota resident, was in Ken-ner, Louisiana visiting his sister Nicole Ratcliff and her fiancé, Troy W. Deweese, Jr., defendant herein. On that evening, the victim, defendant, and Ms. Ratcliff went to Halloween costume parties before returning to the apartment Ms. Ratcliff shared with defendant, located at 616 Vou-vray Drive, Apartment C, in Kenner. On the way back to the apartment after the second Halloween party, they picked up another friend David Normand. Mr. Rat-cliff and defendant had consumed about 10 drinks between them that evening.

|sAn argument ensued in the apartment. Mr. Ratcliff was upset that defendant had searched his bag and found heroin needles. Ms. Ratcliff argued with defendant regarding his passing out in bed with another girl. She admitted that her brother may have also called her a bitch. She tried to calm things down and told defendant to go upstairs to bed.

Defendant went upstairs while the others discussed how “heated” the argument had gotten. Defendant returned downstairs stating, “You still want to talk sh*t now.” He had a bathroom shower rod in one hand and a serrated knife from the bedroom nightstand in the other hand behind his back as he came down the steps. Ms. Ratcliff and Normand testified that they did not see what defendant held in his concealed hand. Defendant pushed by Normand to get past him. The victim got up and walked towards defendant, who, without stopping, rushed towards the victim. Ms. Ratcliff testified that her brother did not retreat, but that also he was not running. Mr. Ratcliff testified that he was defending himself and that when defendant got close, defendant pulled the serrated knife out from behind his back and stabbed him in the upper abdomen before running away. Ms. Ratcliff testified she did not recognize which object was used to stab her brother other than that it was shiny. Normand testified that defendant hit the victim with the hand not holding the pole.

The victim took four steps before collapsing as defendant ran from the apartment partially clothed. Normand ran after defendant but was unable to keep up; Normand returned to the apartment and put pressure on the victim’s wound. Ms. Ratcliff called 9-1-1. Within 45 seconds, the victim was telling his sister that he loved her.

Ms. Ratcliff acknowledged that she initially used the word “accident” on the 9-1-1 recording to describe the event because she was not ready to deal with the |4consequences of what her fiancé had just done. She testified that she was focused on getting her brother to the hospital and did not want to cause any delay on the phone. She described that she was in shock, and it took her time to realize exactly what had happened. She testified she never believed it was an accident and notes that defendant went into two different rooms to grab two separate weapons before returning downstairs.

Kenner Police Officer Robert Lee arrived on the scene of the stabbing at 4:07 a.m. Ms. Ratcliff advised that her fiancé had stabbed her brother. An ambulance transported the victim to the hospital; Officer Lee obtained statements from Ms. Ratcliff and Normand. Kenner Police Office Matthew Glapion was working off-duty at Tastee Donuts on Loyola Drive when he observed defendant run into the parking lot and speak to an unknown person while gesturing that someone had held a knife to him or that he stabbed someone. Glapion then approached defendant who stated that he “thought he had killed his brother-in-law.” Glapion learned via police radio that Kenner Police were working a stabbing on Vouvray. After Officer Emile Sanchez arrived at the donut shop, defendant advised Officer Sanchez that he thought he killed his brother-in-law. Officer Sanchez then placed defendant under arrest and advised him of his Miranda rights.

Dr. Alan Marr, a trauma surgeon at the Interim Louisiana Public Hospital, was qualified as an expert in the field of trauma and surgical critical care. On October 4, 2010, at about 4:40 a.m., Dr. Marr treated the victim, who had a stab wound to the left upper portion of his abdomen. Dr. Marr testified that the victim’s condition required him to be brought directly to the operating room. At that time, Dr. Marr found two holes within the victim’s colon. Dr. Marr testified that the wound extended into the victim’s hilum, where the blood vessels enter the spleen, |fithrough his spleen, then through his diaphragm behind the spleen and into his chest cavity. Dr. Marr testified that the injury would have to be approximately eight to ten inches deep in order to puncture all of those organs. He testified that it would require a great deal of force to cause the injury because tissues are relatively tough. Dr. Marr testified that it would be very difficult to get through all of the muscles and different organs without putting a great deal of force behind it.

Dr. Marr testified that the damage to the victim’s colon caused a moderate amount of contamination. The victim lost at least one to two units of blood. Dr. Marr testified that the injury was potentially very lethal, and the victim would have died had it been untreated. Dr. Marr testified that the medical treatment saved the victim’s life. Dr. Marr testified that the victim underwent at least ten surgeries. The victim was released from the hospital in January of 2011. The victim developed several abscesses and infections due to the contamination from the damage to the colon, which required several surgeries.

Dr. Marr testified that some of the victim’s organs were permanently damaged including the complete loss of his spleen. In addition, one side of the victim’s lungs was permanently damaged, and a small portion of his lung had to be removed. Dr. Marr testified that the victim is unable to breathe as well as the average person his age. The victim had to have a colostomy, a procedure where the colon is brought out to the skin in order for stool passage out on the belly wall instead of the backside. This is typically done with a colostomy bag, which the victim had to live with for more than one year.

Even after being discharged from the hospital in January of 2011, Dr. Marr continued to treat the victim on a number of occasions to deal with an advanced infection because the abscess in his chest returned. The victim also had to have chest surgery, and a part of his ribs was removed. Dr. Marr testified that after 1 fibeing discharged from the hospital initially, the victim was required to have at least three additional surgeries. Dr. Marr testified that if the medical records showed that the victim underwent approximately 19 surgeries, then those records would be accurate. Dr. Marr testified that defendant’s probability of death was extremely high, but for his medical treatment.

On February 4, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Troy W. Dew-eese, Jr., with attempted second degree murder of Gavin Ratcliff in "violation of La. R.S. 14:27:30.1. At his arraignment on February 7, 2011, defendant pled • not guilty to this charge. On February 8, 2011, defendant filed omnibus motions. On April 5, 2012, after a motion hearing, defendant’s motion to suppress statement was denied. On June 14, 2012, the trial court heard defendant’s pro se motion for preliminary examination and motion to quash, which were both denied.

On July 19, 2012, defendant proceeded to a judge trial, and on July 20, 2012, defendant was found guilty of the lesser charge of attempted manslaughter. After being convicted, defendant made an oral notice of intent to seek an appeal. On August 6, 2012, defendant filed a motion for new trial which was denied on the same date. After waiving sentencing delays, defendant was immediately sentenced to ten years imprisonment in the Department of Corrections.

Also on August 6, 2012, the State filed a multiple offender bill of information alleging defendant was a second felony offender. Defendant stipulated 17to these allegations. Defendant’s original sentence was vacated, and defendant was resentenced to ten years imprisonment in the Department of Corrections with credit for time served. The sentence was imposed without benefit of probation or suspension of sentence, and it was ordered to run concurrently with any other sentence defendant may have been serving since the date of his arrest. Defendant again noted for the record his oral motion for appeal.

Defendant filed a written motion for appeal on August 7, 2012, and the motion was granted on August 14, 2012. Defendant’s timely appeal followed. Subsequent to the lodging of the appeal, defendant filed an application for post-conviction relief on August 27, 2013.

In his sole assignment of error, defendant argues that the evidence presented was insufficient to support the conviction because the element of specific intent was not proved beyond a reasonable doubt. Specifically, defendant argues that the trial court’s determination that defendant did not have the specific intent for an attempted second degree murder conviction but then finding that defendant had the necessary specific intent for attempted manslaughter was inconsistent. Defendant asserts that this inconsistency shows that the evidence was insufficient for the responsive verdict of attempted manslaughter. Defendant argues that the trial court first determined that defendant was unable to form the necessary intent to kill because the situation escalated and was heated, which deprived defendant of his cool reflection. Defendant asserts that the record does not reveal sufficient | Revidence presented by the State to conclude beyond a reasonable doubt that defendant possessed the requisite specific intent to attempt to kill the victim. Defendant argues that if this conviction is reversed for insufficient evidence, the double jeopardy provision of the Louisiana and U.S. Constitutions would apply, prohibiting a retrial of defendant.

The State argues a trial court’s articulation of its thought processes in returning a verdict is irrelevant and a reviewing court is to perform an objective evaluation of the evidence in the light most favorable to the prosecution in accordance with State v. Marshall, 04-3139 (La.11/29/06), 943 So.2d 362, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). We agree; the appellate court is not required to consider the thought processes of the particular fact finder. Id. at 367.

The State asserts that the record does reveal sufficient evidence to allow a rational finder of fact to conclude that the defendant acted with specific intent to kill in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The State asserts that defendant attacked the victim with a concealed knife after distracting the victim’s attention with a rod wielded in defendant’s other hand. The State argues that defendant rushed towards the victim and stabbed him in the abdomen/ribcage area with enough force to go through the victim’s lower intestine, spleen, diaphragm, and into his chest cavity. The State asserts that after fleeing the scene and leaving the victim to die, defendant made a voluntary statement to police that he felt that he had killed the victim. The State further argues that the doctor that treated the victim testified that the victim would have died if the wound had been left untreated. Thus, the State asserts that a rational finder of fact could infer that defendant had specific intent to kill the victim.

|flThe standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. Jackson, supra. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. State v. Alexander, 12-194 (La.App. 5 Cir. 5/16/13), 119 So.3d 120, 130-31 (citing State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240). Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

Defendant was charged with attempted second degree murder, La. R.S. 14:27 and 14:30.1 and convicted of the lesser charge of attempted manslaughter, La. R.S.14:27 and 14:31. La. R.S. 14:27(A) provides:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

La. R.S. 14:31(A) provides that “manslaughter” is:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

According to La. R.S. 14:30.1, second degree murder is the killing of a human being, when the offender has a specific intent to kill or inflict great bodily harm. La. R.S. 14:10(1) provides that: “[sjpecific criminal intent is that state of linmind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

Specific intent need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. State v. Trim, 12-115, p. 6 (La.App. 5 Cir. 10/16/12), 107 So.3d 656, 660, writ denied, 12-2488 (La.4/19/13), 111 So.3d 1030 (citing State v. Girod, 94-853, pp. 5-6 (La.App. 5 Cir. 3/15/95), 653 So.2d 664, 668). Specific intent to kill can be inferred from the intentional use of a deadly weapon such as a knife or a gun. Trim, 12-115 at 6, 107 So.3d at 660 (citing State v. Knight, 09-359, p. 14 (La.App. 5 Cir. 2/9/10), 34 So.3d 307, 317, writ denied, 10-2444 (La.10/21/11), 73 So.3d 376). Specific intent to kill may be inferred from the extent and severity of the victim’s injuries. State v. Riley, 11-673, p. 11 (La.App. 5 Cir. 3/13/12), 90 So.3d 1144, 1150, writ denied, 12-0855 (La.9/28/12), 98 So.2d 828 (citing State v. Stacker, 02-768, (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 606, writ denied, 03-0411 (La.10/10/03), 855 So.2d 327).

Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard. Trim, 12-115 at 6, 107 So.3d at 660 (citing State v. Gonzalez, 07-449, p. 9 (La.App. 5 Cir. 12/27/07), 975 So.2d 3, 8, writ denied, 08-0228 (La.9/19/08), 992 So.2d 949).

In the present case, Dr. Marr testified that the victim’s wound was eight to ten inches deep, and that the weapon went through his spleen, then his diaphragm, and then into his chest cavity. Dr. Marr testified that it required a great deal of force to cause the injury to puncture all of the muscles and different organs. He also testified that the injury was potentially lethal, and the victim’s probability of death was extremely high but for his medical treatment. The witnesses and evidence showed that defendant stabbed the victim in his rib area. Officers lnGlapion and Sanchez testified that the first words defendant spoke to them was “I think I just killed my brother-in-law.”

In State v. Hebert, 05-1004, p. 10 (La.App. 5 Cir. 4/25/06), 930 So.2d 1039, 1047, this Court found that the State proved the defendant had specific intent to kill the victim and that the defendant committed an overt act in furtherance of that goal. The victim testified that the defendant stabbed him and that a struggle ensued when the defendant attempted to stab him again. Id. The victim’s doctor testified that as a result of the stab wound, the victim had blood in his chest. Id. He also testified that the injury damaged the victim’s diaphragm, liver, and lung, which required surgery. Id., 05-1004 at 10-11, 930 So.2d at 1047. The doctor testified that it took considerable force for the knife to go through the victim’s rib cage. Id., 05-1004 at 11, 930 So.2d at 1047. The defendant’s girlfriend testified on behalf of the State after entering into a plea deal. Id., 05-1004 at 4, 930 So.2d at 1044. She testified that before the stabbing, the defendant told her that he wanted to rob and kill the victim. Id., 05-1004 at 10, 930 So.2d at 1047. She further testified that the defendant handed her two knives and told her to put them underneath the seat of the car, where the stabbing occurred. Id. This Court found that the evidence supported the defendant’s conviction for attempted second degree murder. Id., 05-1004 at 11, 930 So.2d at 1047.

In State v. Lewis, 97-160, p. 6 (La.App.7/29/97), 698 So.2d 456, 459, writ denied, 97-2381 (La.3/27/98), 716 So.2d 881, this Court found that the intent to kill may be inferred from the extent and severity of the victim’s injuries. The surgeon that treated the victim at the hospital testified that the victim’s most serious injury was the stab wound to her abdomen. Id., 91-160 at 7, 698 So.2d at 460. He testified the stabbing punctured a main blood vessel, the victim lost a lot of blood, and her survival rate was 50 percent. Id. He also testified that the injury | ^would have been caused by the plunging of a knife deep into the victim’s abdomen. Id. The victim also suffered multiple perforations of the large and small intestines, multiple stab wounds to her forearm, and blunt force trauma to her right temple. Lewis, 97-160 at 7, 698 So.2d at 460. After causing the victim’s serious injury, the defendant fled the scene without seeking medical assistance for her. The defendant testified that he stabbed the victim repeatedly after she had stabbed him during an argument. Id., 91-160 at 4, 698 So.2d at 458. This Court found the specific intent might reasonably be implied from intentional use of a deadly weapon to produce injuries involving serious risk of death. Id. (citing State v. Weiland, 562 So.2d 950 (La.App. 5 Cir. 1990)).

In the present case, similar to Hebert, supra, the victim suffered a single stab wound that damaged multiple organs. The doctor who treated the victim at the hospital testified the injury required a great deal of force. Similar to Hebert, in which the defendant provided the knife used in the stabbing, in the present case defendant went upstairs and when he returned downstairs he had the knife used to stab the victim. Similar to Lewis, supra, in the present case, the doctor testified that the victim’s injury was potentially very lethal, and the victim would have died but for receiving medical treatment. Defendant also fled the scene of the crime without attempting to seek medical assistance for the victim.

Unlike Hebert, the State in the present case did not offer any testimony regarding statements made before the stabbing that defendant intended to kill the victim. Nevertheless, the State did offer the testimony of two officers that defendant stated after the stabbing that he thought he had killed his brother-in-law. Unlike Hebert and Lewis, there is no evidence or testimony that defendant stabbed or attempted to stab the victim multiple times. Nevertheless, the evidence and testimony supports that the single stab wound was life-threatening. After the fact, [isdefendant admitted that he knew the injury he caused to the victim was life-threatening and yet failed to seek medical assistance for the victim. Therefore, we find that specific intent to kill may reasonably be inferred from the extent and severity of the victim’s injuries and from defendant’s use of a deadly weapon to produce those injuries, which involved serious risk of death. We further find that defendant fled immediately after the crime, and that such flight, considered with all the other evidence, was due to defendant’s consciousness of guilt. See State v. Burbank, 07-125 (La.App. 5 Cir. 10/30/07), 971 So.2d 1173, writ denied, 07-2287 (La.4/25/08), 978 So.2d 364. We conclude that defendant had the specific intent required to be convicted of the responsive verdict of attempted manslaughter.

Based on the foregoing, defendant’s assignment of error lacks merit.

ERRORS PATENT DISCUSSION

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).

We note that the re-sentence on the multiple bill was imposed “at hard labor” as reflected in the commitment. However, the transcript reflects that the trial court stated that the sentence would be served “in the Department of Corrections.” “[Ojnly individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Public Safety and Corrections.” La. R.S. 15:824(0(1). This Court has found it unnecessary to remand a matter for re-sentencing when the transcript does not specifically state that the sentence was to be served at hard labor, yet the trial court stated that the sentence would be served in the Department of Corrections. See State v. Hubbard, 12-202 (La.App. 1145 Cir. 10/30/12), 103 So.3d 594; State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06), 947 So.2d 105, writ denied, 07-0152 (La.9/28/07), 964 So.2d 351; State v. Upchurch, 00-1290 (La.App. 5 Cir. 1/30/01), 783 So.2d 398, 403.

Further, it appears that it was mandatory for defendant’s sentence to be served at hard labor, which indicates that the re-sentence is determinate, and the trial court’s failure to state that the re-sentence was to be served at hard labor was harmless error. See State v. Alexander, 08-580, p. 10 (La.App. 5 Cir. 2/25/09), 8 So.3d 732, 738, writ denied, 09-717 (La.12/11/09), 23 So.3d 912; Hubbard, supra.

La. R.S. 14:27(3) provides in general that a person who attempts to commit a crime: “shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.” La. R.S. 14:31(B) provides that “[wjhoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.” (Emphasis added). Therefore, we find that no corrective action is required. Alexander, supra; Hubbard, supra.

DECREE

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence. Defendant’s application for post-conviction relief, filed in this Court on August 27, 2013 during the pen-dency of this appeal, is denied as premature, as defendant must first exhaust whatever appellate rights he has. La. C.Cr.P. art. 924.1.

AFFIRMED

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

      . Interim Louisiana Public Hospital was also referred to as University Hospital.

      .The bill of information misspelled the victim’s name as "Gravin.” In all other instances, the victim’s name is spelled "Gavin.” Specifically, it appears that the victim correctly spelled his name at the beginning of his trial testimony.

      . The record reflects that defendant waived any substantive motions in his Motion for Speedy Trial filed on March 7, 2012. Nevertheless, the hearing on defendant’s motion to suppress statement was held after defendant had filed his Motion for Speedy Trial.

      . At the motion hearing, defense counsel stated that defendant waived his right to preliminary examination and instead accepted open discovery. Defendant argued the motion to quash on the ground that defendant was originally charged with aggravated battery in Division B, but the assistant district attorney in that division increased the charges to attempted second degree murder. The record reflects only one bill of information charging defendant with attempted second degree murder.

      . Defendant made an oral notice of intent to seek an appeal on July 19, 2012, and filed a written motion for appeal on August 7, 2012, which was granted on August 14, 2012. Defendant was convicted on July 19, 2012, and sentenced, both originally and as a multiple bill offender, on August 6, 2012. After resen-tencing, defendant again noted his oral motion for appeal. Therefore, the motions for appeal were made within 30 days of the judgment or ruling in accordance with La.C.Cr.P. art. 914(B)(1), and the written motion for appeal was also filed within 30 days of sentencing.

      . The record does not reflect that the trial court ever stated or found that defendant did not have specific intent to commit attempted second degree murder. The record reflects that the trial court found defendant guilty of the responsive verdict of attempted manslaughter instead of attempted second degree murder because the crime would be murder but it was committed in a sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.

      . The trial court also failed to impose the original sentence at hard labor.

      . Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. See State v. Lynch, 441 So.2d 732, 734 (La.1983).


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Eric Charles DAVIS.
    No. 13-KA-313.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Jerome G. Smith, III, Jennifer Rodriguez, Assistant District Attorneys, Twenty-Fourth Judicial District, Gretna, LA, for Plaintiff/Appellee.
    Provino C. Mosca, Attorney at Law, Harahan, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

^Defendant, Eric Charles Davis, has appealed his conviction of operating a motor vehicle while intoxicated (DWI), fourth or subsequent offense, in violation of La. R.S. 14:98(A)(E). For the reasons that follow, we affirm.

FACTS

At defendant’s bench trial on the subject charge, Roy Moore testified that on October 25, 2010 at approximately 5:00 p.m., he was driving towards Kenner (or westbound) in the far left of the left lane of West Napoleon Avenue in Metairie, Louisiana, being the last car in a line of stacked up traffic, when a dark Nissan pickup truck in the right lane moved over to the left lane behind his vehicle. There was an SUV next to him in the far right of the right lane. The pickup truck was heading right for him; he was expecting a rear-end collision. The pickup truck suddenly shifted to the right and went between his vehicle (a Ford Explorer) and the SUV to his right, sideswiping his vehicle in the process. The pickup truck then collided with the rear of a Toyota RAV4 SUV that was located directly in front of his Explorer, causing the hood of the pickup truck to pop up. The driver of the Rpickup truck, later identified as defendant, got out of his truck and “slammed” his hood down. At that time, the windshield wipers on defendant’s truck were on. Defendant removed the driver’s side windshield wiper from his truck and threw it into the grass on the north side of West Napoleon. By this time, traffic on West Napoleon in front of the accident scene had moved ahead. Then, after instructing everyone who had gathered at the scene to get out of his way, defendant got back into his truck, drove around the RAV4, struck the left guardrail along the street, and entered a U-turn lane up ahead on West Napoleon. Defendant’s truck started smoking as it entered the U-turn lane. Defendant then completed the U-turn and proceeded in the opposite direction on West Napoleon.

Martha Meyers testified that on October 25, 2010 at approximately 5:00 p.m., while she was sitting in traffic at a stop light at West Napoleon Avenue and Clearview Boulevard, her vehicle (a Toyota RAV4 SUV) was struck from behind “with a big thud or jolt” by a black truck, whose hood was raised up. As the truck pulled around her vehicle, she wrote its license plate number down. The truck went a little farther down, made a U-turn, and started heading in the opposite direction. She saw heavy smoke coming from the pickup truck as it made the U-turn. The driver of the pickup truck failed to stop and determine whether or not she had been injured in this accident. According to Ms. Meyers, “he just took off.”

Detective Steven Brens of the Jefferson Parish Sheriffs Office testified that on October 25, 2010 at approximately 5:15 p.m., he was dispatched to a hit-and-run motor vehicle accident in the 4400 block of West Napoleon Avenue. When he arrived at the scene a few minutes later, Detective Brens observed two damaged vehicles in the left lane of West Napoleon, a Ford Explorer and a Toyota RAV4 SUV: the Explorer had been struck in the right rear bumper area; the RAV4 had been struck in the rear.

14Petective Brens interviewed Mr. Moore, the owner of the Explorer, Ms. Meyers, the owner of the RAV4, and another witness. As a result of his investigation, Detective Brens concluded that the subject pickup truck struck the right rear bumper of the Explorer as it was passing between the Explorer and another vehicle to its right, straddling the center line of West Napoleon in the process. The pickup truck then entered the left lane of West Napoleon and struck the rear of the RAV4, causing the truck’s hood to rise up. The driver of the pickup truck then backed up, drove around the RAV4, reentered the left lane of West Napoleon, made a U-turn on West Napoleon, and proceeded eastbound on West Napoleon. Detective Brens never came into contact with defendant.

Deputy Brent Remondet of the Jefferson Parish Sheriffs Office testified that on October 25, 2010, he was driving eastbound on West Napoleon Avenue in his police unit when he observed a black pickup truck emitting smoke with its hood raised up against the top of the truck. The truck was proceeding slowly eastbound on West Napoleon. Deputy Re-mondet activated his lights, approached the truck, and identified himself as a Jefferson Parish Sheriffs deputy. He notified dispatch to send an officer to his location.

Deputy Remondet testified that upon making contact with defendant, the driver of the truck, he noticed that defendant “appeared to be really sluggish inside the vehicle.” He asked defendant to step out of his vehicle and have a seat along the curb of West Napoleon. He noticed that defendant’s eyes “were really bloodshot” and his words “were really slurred.” He could not recall much about defendant’s balance. Defendant did not complain to him of any injuries. When another deputy, Anthony Cannatella, arrived to assist, Deputy Remondet advised him that defendant appeared to have been “driving under the influence.”

| ¡¿Deputy Cannatella, who was accepted by the court as an expert in the administration of standard field sobriety testing, testified that he heard Deputy Remondet radio headquarters that he had a “signal 98,” which is police jargon for a person suspected of driving under the influence. When he arrived at the scene, Deputy Cannatella observed a black Nissan Frontier pickup truck with its left front tire deflated and smoking. The truck’s hood was flat up against its windshield. Based on his investigation, Deputy Cannatella concluded that defendant’s vehicle was the same vehicle that had earlier been involved in the nearby hit-and-run accident on West Napoleon. Defendant complained of neck, back, and stomach injuries, which defendant stated he received because “an old lady ran him off the road.”

Due to his slurred speech, Deputy Can-natella questioned defendant regarding any medical problems that he may have been experiencing at that time. Defendant denied having any medical problems. When asked if he was taking any medications, defendant responded that he had ingested one or two Alprazolam pills that day. Deputy Cannatella testified that he did not smell anything on defendant’s breath, but that defendant had slurred speech and stumbled as he walked. He stated that defendant “actually stumbled so bad that he almost went into the right lane of — eastbound West Napoleon was still open to traffic.” He had to grab defendant by the back of his shirt and “pulled him back to stop him from getting smacked by a car.” The standard field sobriety test was not administered to defendant on the scene because he claimed he was injured. Defendant was then transported by ambulance to East Jefferson General Hospital. After a tow track removed defendant’s disabled vehicle, Deputy Cannatella traveled to the hospital.

|f,Because he knew that he was dealing with an impaired driver, Deputy Cannatel-la brought with him to the hospital the required DWI rights forms. Defendant signed the forms but refused to consent to having his blood drawn for a chemical blood test. Deputy Cannatella had difficulty speaking with defendant because he appeared to be falling asleep. As part of the standard field sobriety test, Deputy Cannatella attempted to perform a “horizontal gaze nystagmus test” on defendant; this proved unsuccessful because defendant repeatedly closed his eyes. He did not know if defendant was actually physically falling asleep or if he was just being uncooperative in closing his eyes. While being interviewed by Deputy Cannatella, defendant did not admit that he had taken any medications. In light of defendant’s disposition and demeanor, Deputy Canna-tella stated that he found it “unusual” that defendant requested sedatives from the doctor in the emergency room.

Deputy Cannatella testified that defendant was in possession of a prescription bottle for Alprazolam. It was a legal prescription made out to him. The prescription had been filled earlier that day. The prescription bottle indicated that a quantity of 40 pills had been dispensed; however, Deputy Cannatella was able to clearly see that the bottle contained less than 40 pills. After the pills were poured out of the bottle and counted, Deputy Cannatella determined that only 21 pills remained in the bottle. When he was questioned by Deputy Cannatella regarding in the quantity of pills remaining in the bottle (as compared to the number of pills that had been filled earlier that day), defendant stated that he thought that he might have spilled some pills inside of his vehicle. However, Deputy Cannatella testified that he did not notice any loose pills on the inside of | defendant’s truck when he had earlier retrieved defendant’s registration and insurance documents out of the truck’s glove compartment.

Deputy Cannatella testified that he believed he had sufficient probable cause to arrest defendant for DWI and reckless operation of a motor vehicle based on defendant’s actions in operating his vehicle with its hood up against the windshield and with only three inflated tires. Deputy Cannatella testified that he cited defendant for operating a motor vehicle while intoxicated in violation of La. R.S. 14:98. Deputy Cannatella testified that defendant became belligerent, and strangely, asked to instead be arrested for “reckless impaired driving.”

Antoinette Valenti, an emergency medical technician at East Jefferson General Hospital, testified that on October 25, 2010, she responded to a call for an ambulance to defendant’s location on West Napoleon Avenue. Upon her arrival at 5:19 p.m., defendant stated to her that he was in pain and that “these people had ran [sic] him off the side of the road.” Ms. Valenti did not notice any smells emanating from defendant. He denied that “he had taken anything, drank any alcohol, or anything like that.” She noticed that defendant’s speech was “very slurred” and that “he wasn’t that oriented.” Defendant was placed on a stretcher and put into the back of the ambulance. When asked again if he was sure he had not taken anything, defendant stated that he had taken some Al-prazolam two hours before the accident. When asked why she insisted on asking defendant that question again, she replied: “Because a person doesn’t act like that if they’re not under some kind of influence. I mean his speech was slurred. He just— he wasn’t that oriented.” While being transported in the ambulance to the hospital, defendant |sbecame “really antsy and agitated and tried to get off the stretcher.” She tightened his straps up a little bit and then loosened them once he finally calmed down.

On cross-examination, Ms. Valenti testified that she included information regarding the Glasgow Coma Scale in her report and that defendant scored the highest on alertness, verbal, and ability to follow commands. She agreed that achieving the “highest” score meant that defendant could understand his speech, was alert, and was conscious. She explained however, that the Glasgow Coma Scale is not used to determine whether someone is on prescription medication. She ranked defendant highest on alertness because he was talking to her. She did not mark defendant as disoriented because he was able to have a conversation with her without speaking nonsense.

Dr. Granville Morse, III, who was accepted by the court as an expert in emergency medicine, treated defendant at East Jefferson General Hospital on the day of his accident. He stated that defendant was alert, had slightly slurred speech, and a smell of alcohol. He complained of pains in his head, neck, abdomen, and back areas. According to Dr. Morse, defendant’s injuries, which included soft tissue injuries and a laceration under his eye, were insignificant.

Defendant volunteered to Dr. Morse that he had “ingested a significant amount of his [Alprazolam] today as well.” Dr. Morse ordered laboratory tests on blood and urine samples taken from defendant. Dr. Morse diagnosed defendant with “acute benzodiazepine intoxication” and neck strain. Defendant asked for a sedative at the end of his visit. Dr. Morse denied this request because in his opinion, defendant “had had plenty [of sedatives] at that point.” Upon discharge, defendant received a handout on benzodiazepine abuse.

|nOn cross-examination, Dr. Morse admitted that the discharge instructions given to defendant upon his discharge from the hospital stated that Alprazolam should not be taken more often than one pill every six hours, and no more than four times a day, and that defendant’s prescription bottle stated for him to take one tablet twice a day. Benzodiazepine was detected on defendant’s urine screen. Dr. Morse admitted that the trauma that defendant sustained could have caused slurred speech. On redirect examination, Dr. Morse testified that he made his diagnosis of acute benzodiazepine intoxication based on his physical examination of defendant, the laboratory test results, and defendant’s statement that he had ingested a significant amount of Alprazolam that day. Dr. Morse also stated that ingesting several Alprazolam also could cause slurred speech.

Sally Ann Malone, an emergency room nurse at East Jefferson General Hospital, also treated defendant on October 25, 2010. She observed that defendant was “very lethargic,” “sort of slumped over,” and “drowsy but arousable.” She was unable to recall any smell emanating from defendant. She recalled defendant’s speech as being slurred, and that he stated to her that he had ingested three Alprazo-lam earlier in the day. She collected blood and urine samples from defendant.

At the conclusion of the trial, the trial judge found defendant guilty as charged.

ASSIGNMENT OF ERROR— Sufficiency of the evidence

In his sole assignment of error, defendant argues that this case rested on the testimony of only one witness, Dr. Gran-ville Morse, whose testimony failed to prove defendant’s guilt beyond a reasonable doubt. Defendant asserts that Dr. Morse’s medical diagnosis that defendant suffered from acute benzodiazepine intoxication was not substantiated by reliable evidence and lacked a proper | inevidentiary foundation because defendant’s lab results were not admitted into evidence.

The State responds that it presented sufficient evidence to prove that defendant was operating a motor vehicle while under the influence of Alprazolam, a Schedule IV controlled dangerous substance as defined by La. R.S. 40:964. The State argues that several witnesses testified at trial that defendant admitted that he had ingested Al-prazolam on the date of the accident. The State asserts that these witnesses testified regarding defendant’s behavioral manifestations that showed impairment, including slurred speech, staggering, striking two vehicles (one with enough force to push the hood of defendant’s truck up), attempting to flee the scene with a flat tire and with smoke emitting from his vehicle, and the behavior of repeatedly closing his eyes while Deputy Cannatella attempted to conduct a field sobriety test.

In response, defendant argues that his behavioral manifestations were consistent with the behavior of a person who was involved in a car accident and complained of head and neck injuries. He contends that his trouble speaking and finding a sense of balance were reasonable behavior after this accident. Defendant argues that his difficulty walking and slurred speech resulted from the accident and do not prove that he was driving while intoxicated.

ANALYSIS

In reviewing sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or 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. Delanueville, 11-379 (La.App. 5 Cir. 2/14/12), 90 So.3d 15, 19, writ denied, 12-0630 (La.9/21/12), 98 So.3d 325. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Delanueville, 90 So.3d at 19-20. Rather, the reviewing court is required to consider the whole record and to determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

In the present case, defendant was convicted of operating a motor vehicle while intoxicated in violation of La. R.S. 14:98(A)(E) after having previously been convicted five times of operating a motor vehicle while intoxicated. At the time of the offense, La. R.S. 14:98(A) provided, in pertinent part:

(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:
* * * *
(c) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964;

La. R.S. 40:964 lists “Alprazolam” as a Schedule IV controlled dangerous substance.

The Louisiana Supreme Court has defined intoxication as the impairment, however slight, to the ability of a person to operate an automobile. Delanueville, 90 So.3d at 20 (citing State v. Hightower, 238 La. 876, 116 So.2d 699, 703 (1959)). The impairment need not be whole, but only to the extent that the influence caused a person to operate his vehicle in a way different from that in which it would be operated by an ordinarily cautious and prudent person. Id.

The jurisprudence has established that intoxication with its attendant behavioral manifestations is an observable condition about which a witness may 112testiiy, and some behavioral signs, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. Id. (citing 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 (citations omitted)). The behavioral manifestations which are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. Id.

In order to convict a defendant of driving while intoxicated, the State only needs to prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. State v. Vidal, 04-1139 (La.App. 5 Cir. 3/29/05), 901 So.2d 484, 487 (citing State v. Bourgeois, 00-1585 (La.App. 5 Cir. 3/14/01), 785 So.2d 848, 853).

The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; credibility will not be re-weighed on appeal. State v. Trepagnier, 07-749, 07-750 (La.App. 5 Cir. 3/11/08), 982 So.2d 185, 191, writ denied, 08-0784 (La.10/24/08), 992 So.2d 1033.

. In the present case, Mr. Moore testified that defendant collided with two vehicles, placed his vehicle in reverse, and then hit a guard rail as he drove off. Mr. Moore and Ms. Meyers both testified that defendant drove off with his hood raised up and his vehicle emitting smoke. Detective Brens testified that defendant struck one of the vehicles as he straddled the center line between two vehicles, and then immediately thereafter. rear-ended another vehicle ahead in the left travel lane.

Deputies Remondet and Cannatella, Dr. Morse, Ms. Valenti, and Ms. Malone all testified that defendant had slurred speech. Deputies Remondet and Canna-tella both testified that defendant appeared to have been driving while intoxicated. Deputy Remondet testified that defendant appeared sluggish and had | ^bloodshot eyes. Deputy Cannatella testified that defendant stumbled as he walked and almost stumbled into oncoming traffic. He also testified that defendant appeared to fall asleep during his attempt to conduct a horizontal gaze nystagmus test and refused to submit to chemical tests. Deputy Cannatella testified that defendant had a pill bottle of Alprazolam that had been filled on the date of the incident, and there were only 21 pills remaining in the pill bottle out of the 40-pill prescription filled earlier that day. Dr. Morse testified that he diagnosed defendant with acute benzodiazepine intoxication based on his physical examination of defendant, defendant’s laboratory test results, and defendant’s statement that he ingested a significant amount of Alprazo-lam that day.

Ms. Valenti, the EMT, testified that defendant was not completely oriented, and defendant was agitated and attempted to exit the stretcher while being transported in the ambulance. Ms. Malone, the emergency room nurse, testified that defendant appeared lethargic and drowsy. Deputy Cannatella, Dr. Morse, Ms. Valenti, and Ms. Malone all testified that defendant admitted that he had ingested Alprazolam on the date of the incident.

In State v. Kestle, 07-1573 (La.12/02/08), 996 So.2d 275, the Louisiana Supreme Court found sufficient evidence to establish that the defendant was intoxicated when the trooper testified that the defendant was severely impaired, his speech was slurred, he had trouble following directions, his balance was poor, he fell down, and he refused to submit to chemical tests. Id. at 281. The trooper also testified that based on his experience as a law enforcement officer, the defendant appeared to be impaired by a narcotic substance. Id. at 280. The defendant argued that he was tired from working long hours, had difficulty walking in the gravel because of his sandals, and had back problems. Id. The Louisiana Supreme Court reversed this Court’s finding that the evidence was insufficient to support the | ^defendant’s conviction for driving while intoxicated and reinstated the trial court’s conviction. Id. at 282.

Similar to Kestle, in the present case, Deputies Remondet and Cannatella both testified that defendant appeared to be impaired. Multiple witnesses testified that defendant had slurred speech. Deputy Cannatella testified that defendant stumbled as he walked and almost stumbled into traffic and that defendant refused to submit to chemical tests. Defendant admitted to ingesting Alprazolam on the date of the incident and was in possession of a pill bottle of Alprazolam that was filled on the date of the incident, but which only had 21 pills remaining in the pill bottle out of the 40-pill prescription. Although defendant argues that his behavior was attributable to injuries sustained in the motor vehicle accident, the trial court was within its discretion to reject defendant’s explanation for his behavior. Further, Dr. Morse diagnosed defendant with acute benzodiazepine intoxication based on his physical examination of defendant, defendant’s laboratory test results, and defendant’s statement that he had ingested a significant amount of Alprazolam that day. Upon our review of the record as a whole, we find that the evidence presented by the State, when viewed in the light most favorable to the prosecution as required by the Jackson standard, was sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant was operating a motor vehicle while intoxicated.

Additionally, defendant invokes affirmative defenses in accordance with La. R.S. 14:98(A)(l)(d)(ii) and (e)(ii), which respectively allow affirmative defenses when either the label on the container of the prescription drug does not contain a warning against combining medication with alcohol and/or when the operator of a vehicle did not knowingly consume quantities of the drug(s) which substantially | ^exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug. Defendant asserts that there is no testimony that indicates that he abused his prescription medication dosage, and the pill bottle did not contain a warning label regarding driving while taking the medication.

The State contends that these affirmative defenses are not available to defendant because Alprazolam is a Schedule IV controlled dangerous substance. The State asserts that defendant was prosecuted pursuant to La. R.S. 14:98(A)(l)(c), and the affirmative defenses invoked by defendant are only available to prosecutions under La. R.S. 14:98(A)(l)(d) and (e), which involve drugs that are not controlled dangerous substances. Therefore, the State argues that whether the Alprazolam bottle had a warning label or not is of no consequence to this case.

Upon review, we find that defendant’s attempt to assert these affirmative defenses is misplaced. Defendant relies on La. R.S. 14:98(A)(l)(d) and (e), which provide 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:
(d)(i) The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription.
(ii) It shall be an affirmative defense to any charge under this Subparagraph pursuant to this Section that the label on the container of the prescription drug or the manufacturer’s package of the drug does not contain a warning against combining the medication with alcohol.
(e)(i) The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription.
11fi(ii) It shall be an affirmative defense to any charge under this Subparagraph pursuant to this Section that the operator did not knowingly consume quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug.

(Emphasis added).

The above-cited statute clearly states that these affirmative defenses apply only to the noted particular subparagraphs, and that these particular subparagraphs only apply to “drugs which are not controlled dangerous substances.” La. R.S. 14:98(A)(l)(d) and (e) (emphasis added). Alprazolam is a Schedule IV controlled dangerous substance listed in La. R.S. 40:964. Consequently, these affirmative defenses are inapplicable to defendant’s case.

For the foregoing reasons, defendant’s assignment of error is without merit.

ERRORS PATENT REVIEW

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether the defendant makes such a request.

The trial court sentenced defendant to fifteen years imprisonment at hard labor with credit for time served. Contrary to the transcript, the minute entry states that the trial court also ordered defendant to pay a fine of $5,000.00. Where there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

La. R.S. 14:98(E)(l)(a) provides that the offender “shall be fined five thousand dollars.” Therefore, the sentence imposed is illegally lenient because the trial court failed to impose a mandatory fíne on the record at trial.

117An illegal sentence may be corrected at any time by an appellate court on review. State v. McCray, 07-143 (La.App. 5 Cir. 7/30/07), 966 So.2d 616, 622, writ denied, 07-1826 (La.2/1/08), 976 So.2d 715 (citing La.C.Cr.P. art. 882(A)). This authority is permissive rather than mandatory. State v. Shaw, 12-686 (La.App. 5 Cir. 1/16/13), 108 So.3d 1189, 1198 (citing State v. Horton, 09-250 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 376). As in Shaw and Horton, we decline to order imposition of the mandatory fíne or to remand this matter for imposition of the mandatory fine.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . Deputy Remondet was off duty at the time.

      . Alprazolam is also known as Xanax. For the purposes of consistency, this drug will only be referred to as "Alprazolam” in this opinion.

      . Deputy Cannatella testified that one of the nurses in the hospital assisted him in counting the pills remaining in the prescription bottle.

      . Defendant was also cited for and convicted of reckless operation of a motor vehicle in violation of La. R.S. 14:99, and hit-and-run driving in violation of La. R.S. 14:100, but those convictions are not involved in this appeal.

      .The Glasgow Coma Scale is apparently a neurological scale that aims at providing a reliable, objective way of recording the conscious state of a person.

        . Alprazolam is a type of benzodiazepine.

      . Defendant stipulated to his prior DWI convictions.