Justin Cole Dryman v. State ( 2015 )

ACCEPTED
05-15-00078-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
10/27/2015 9:49:20 PM
LISA MATZ
CLERK
5th Court of Appeals
FILED: 12-7-15
Lisa Matz, Clerk
No. 05-15-00078-CR
IN THE RECEIVED IN
5th COURT OF APPEALS
DALLAS, TEXAS
FIFTH COURT OF APPEALS 10/27/2015 9:49:20 PM
LISA MATZ
Clerk
OF TEXAS
AT DALLAS, TEXAS
______________________________
JUSTIN COLE DRYMAN
V.
STATE OF TEXAS
______________________________
On Appeal from the County Court at Law,
Kaufman County, Texas, in Cause Number 12CL-0355
_______________________________
BRIEF OF THE STATE OF TEXAS
_______________________________
Counsel of Record:
ERLEIGH NORVILLE WILEY
KAUFMAN COUNTY CRIMINAL DISTRICT ATTORNEY
SUE KORIOTH
ASSISTANT DISTRICT ATTORNEY
SBN# 11681975
100 W. MULBERRY
KAUFMAN, TEXAS 75142
972 932-0260
ATTORNEYS FOR THE APPELLEE, fax 972 932-0357
THE STATE OF TEXAS suekorioth@aol.com
IDENTITY OF PARTIES AND COUNSEL:
Appellant: Justin Cole Dryman
APPELLANT’S TRIAL COUNSEL: Joseph Russell (plea) and
William Bratton III (revocation)
APPELLANT’S COUNSEL ON THIS APPEAL: Brandi Fernandez
APPELLEE: THE STATE OF TEXAS
APPELLEE’S TRIAL COUNSEL: Erleigh Norville Wiley, Kaufman County
Criminal District Attorney, and Assistant Criminal District Attorneys
Gabe Garcia and Phil Williams
APPELLEE’S COUNSEL ON THIS APPEAL: Erleigh Norville Wiley, Kaufman
County Criminal District Attorney; Sue Korioth, Assistant Criminal District
Attorney
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iii-
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
STATE'S COUNTERPOINT
Appellant’s attempt to appeal from the original plea hearing is untimely,
and in addition, appellant waived appeal of his guilty plea and
conviction; in any event, nothing in the record before this Court
supports appellant’s present claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
STATEMENT OF PERTINENT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
STATE'S COUNTERPOINT, restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
RULE 9.4 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . -13-
-iii-
INDEX OF AUTHORITIES
CASES
Blank v. State,
172 S.W.3d 673 (Tex. App. - San Antonio 2005, no pet.). . . . . . . . . . . . -12-
Gibson v. State,
995 S.W.2d 693 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . -11-
Leach v. State,
170 S.W.3d 669 (Tex. App. - Fort Worth 2005, pet. ref’d). . . . . . . . . . . . -7-
Mapes v. State,
187 S.W.3d 655 (Tex. App. - Houston [14th Dist.] 2006,
pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-,-12-
State v. Cooley,
401 S.W.3d 748 (Tex. App. -Houston [14th Dist.] 2013, no pet.). . . . . . -10-
Vance v. State,
970 S.W.2d 130 (Tex. App. - Dallas 1998, no pet.). . . . . . . . . . . . . . . . . -12-
Wise v. State,
394 S.W.3d 594 (Tex. App. Dallas 2012, no pet.) . . . . . . . . . . . . . . . . . -12-
STATUTES
Tex. Penal Code section 12.21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
Tex. Penal Code section 12.43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-, -10-
Tex. Penal Code section 49.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-, -9-
Tex. Penal Code section 49.09(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-, -8-
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No. 05-15-00078-CR
IN THE
FIFTH COURT OF APPEALS
OF TEXAS
AT DALLAS, TEXAS
______________________________
JUSTIN COLE DRYMAN
V.
STATE OF TEXAS
______________________________
TO THE HONORABLE JUDGES OF SAID COURT:
The State of Texas, appellee herein, respectfully submits this brief in response
to appellant’s brief, and would show the Court:
STATEMENT OF THE CASE
Appellant Justin Cole Dryman was convicted on May 23, 2013, on his guilty
plea to the information which alleged driving while intoxicated with a prior
conviction for driving while intoxicated (DWI-2nd). His punishment was assessed
by the court at confinement for one year in county jail; his sentence was suspended,
and he was placed on community supervision for a period of two years. (CR: 21).
After the State filed a motion to revoke appellant’s probation, the court heard the
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motion and revoked his probation on December 3, 2014, and sentenced appellant to
serve eleven months in county jail. (CR: 86). Appellant gave notice of appeal of his
conviction to this Court. 1
STATE'S COUNTERPOINT
APPELLANT’S ATTEMPT TO APPEAL FROM THE ORIGINAL PLEA HEARING IS
UNTIMELY, AND IN ADDITION, APPELLANT WAIVED APPEAL OF HIS GUILTY PLEA AND
CONVICTION; IN ANY EVENT, NOTHING IN THE RECORD BEFORE THIS COURT
SUPPORTS APPELLANT’S PRESENT CLAIM.
STATEMENT OF PERTINENT FACTS
Appellant does not contest sufficiency of the evidence to support revocation
of his probation, nor does he complain of any procedural error relating to the
revocation. Appellant’s complaint is to the judgment of conviction entered at his
original plea hearing in May 2013, but that plea hearing is not included in the record
on this appeal.
Appellant’s summary of the relevant portions of the record is materially
misleading. The complaint and information in this case charged appellant with
“driving while intoxicated 2nd.” (CR: 8-9). The information alleged that defendant
1
Appellant sent a letter to the court in which appellant indicated his desire to appeal and
requested counsel for appeal dated January 5, 2015, which was more than 30 days after sentence
was pronounced on December 3, 2014, and his letter was received by the county clerk on January
12, 2015. (CR: 88). The trial court appointed counsel on January 12, 2015, and counsel filed a
formal notice of appeal on January 14, 2015. (CR: 89, 91). Appellant did not file a motion for
new trial until January 16, 2015. (CR: 94). Upon appellant's motion for extension of time to file
his notice of appeal filed with this Court on January 16, 2015, this Court granted appellant's
extension of time to file notice of appeal and deemed appellant's notice filed timely on February
2, 2015.
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did:
operate a motor vehicle in a public place while the said defendant was
intoxicated.
And it is further presented In and to said Court that, prior to the
commission of the aforesaid offense, on the 25th day of February, 2010,
in the County Court at Law of Kaufman County, Texas, in cause number
09CL-1756, the defendant was convicted of an offense relating to the
operating of a motor vehicle while intoxicated.
(CR: 8-9).
The bond information form from the jail indicated that appellant was held on
the charge of “DRIVING WHILE INTOXICATED 2ND.” (CR: 11). The Bail Bond
executed by appellant and his surety was for the charge of “DWI 2nd.” (CR: 14). The
first appearance letter from the county clerk to appellant advised him that he was
charged with the offense of “DRIVING WHILE INTOXICATED 2ND.” (CR: 15).
The judgment of conviction entered by the court on May 23, 2013, indicated
“Offense for which Defendant Convicted: DRIVING WHILE INTOXICATED 2ND.”
(CR: 21). The judgment further stated that the “statute for offense” was “§49.09(a),”
and that the degree of offense was “Class A misdemeanor.” (CR: 21). The judgment
further provided that the court assessed punishment at “one year” of confinement in
county jail, which was suspended for two years. (CR: 21).
The conditions of community supervision signed by appellant state that the
offense of conviction was “DWI 2nd.” (CR: 25-28). The court’s admonitions within
-3-
the plea agreement stated that appellant was charged with “driving while intoxicated
2nd,” and that the punishment range would be for a class A misdemeanor. (CR: 30).
In the plea agreement, defendant stated that “I admit and judicially confess than I
committed the offense of DRIVING WHILE INTOXICATED 2ND on 12/13/2011
exactly as alleged in the charging instrument and/or any amendments thereto.” (CR:
31).
Appellant waived his right to appeal and right to file a writ of habeas corpus
as part of the plea agreement. (CR: 31). Appellant signed a stipulation of evidence
which provided that he did “commit the offense(s) as alleged in the above referenced
cause number and any amendments thereof.” (CR: 33). The certification of
defendant’s right of appeal entered by the trial court on the May 2013 plea provided
that the case was a plea bargained case from which appellant had no right of appeal
and that appellant had waived his right to appeal. (CR: 34). The capias and motion
to revoke filed in the case listed the offense of conviction as “driving while
intoxicated 2nd.” (CR: 38-39). The judgment revoking community supervision
indicated that the offense of conviction was “driving while intoxicated 2nd,” that the
"statute for offense" was "§49.09(a)," and that the degree of offense was "Class A
misdemeanor." (CR: 86). Judgment revoking the community supervision was
entered on December 3, 2014. (CR: 86).
-4-
The single volume of reporter’s record reflects that when the hearing
commenced on the motions to revoke in this case and a second case, the trial court
began with:
Let's start with Cause number 12CL-0355, that one is styled the State of
Texas versus Justin Dryman. It appears that back on May the 23rd,
2013, Mr. Dryman pled either guilty or no contest to the charge of
driving while intoxicated, second offense. At which point and time he
was found guilty, accessed punishment of 365 days in Kaufman County
Jail. That was probated for 2 years, assessed zero fine and Court cost
and typical terms and conditions of probation. Mr. Dryman, do you
remember pleading either guilty or no contest to this charge back on that
date?
(RR: 7).
Appellant responded that he remembered pleading guilty as stated by the court.
(RR: 8). Appellant also confirmed that he recalled being placed on probation for the
term described by the court. (RR: 8). Appellant pleaded not true to each motion to
revoke, and the State proceeded to prove its allegations. (RR: 9-10).
At the hearing on the motion to revoke, the trial court held, in regard to the
offense on appeal, that:
On Cause number 12CL-0355, the driving while intoxicated
second offense, on that case, I find that both allegations have been
proven by preponderance of the evidence. I am going to grant the State's
Motion and I am going to assess punishment at 11 months in the
Kaufman County Jail.
(RR: 77).
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SUMMARY OF THE ARGUMENT
The State contends that the issue sought to be appealed is not properly before
this Court on this appeal from revocation of community supervision. The State
alternatively contends that the record adequately reflects that appellant was convicted
of driving while intoxicated, second offense, under Tex. Penal Code section 49.09(a)
and that the sentence imposed was therefore within the range of punishment.
STATE'S COUNTERPOINT, restated
APPELLANT’S ATTEMPT TO APPEAL FROM THE ORIGINAL PLEA HEARING IS
UNTIMELY, AND IN ADDITION, APPELLANT WAIVED APPEAL OF HIS GUILTY PLEA
AND CONVICTION; IN ANY EVENT, NOTHING IN THE RECORD BEFORE
THIS COURT SUPPORTS APPELLANT’S PRESENT CLAIM.
Appellant complains in his sole issue on appeal that the record does not support
appellant’s conviction of DWI, second offense, because the May 23, 2013, judgment
of conviction does not contain a separate “true” finding regarding an enhancement
paragraph. That judgment reflects that appellant pleaded guilty to and was convicted
of “driving while intoxicated 2nd” pursuant to Tex. Penal Code §49.09(a), and that the
trial court assessed punishment within the legal range for a Class A misdemeanor.
The State contends that any complaint regarding the form of the judgment was
waived at the time appellant entered his guilty plea and waived his right to direct
appeal and to the writ of habeas corpus.
In addition, appellant ought to have asserted the claim when the judgment was
-6-
entered in May 2013. As the Fort Worth Court has explained,
The failure to timely appeal from a conviction resulting in community
supervision waives the right to appeal. See Tex. Code Crim. Proc. Ann.
art. 42.12, § 23(b) (Vernon Supp. 2004–05); Hoskins v. State, 425
S.W.2d 825, 828–29 (Tex. Crim. App. 1967) (op. on reh'g); Anthony v.
State, 962 S.W.2d 242, 245–46 (Tex. App.-Fort Worth 1998, no pet.).
Article 42.12, section 23(b) states,
The right of the defendant to appeal for a review of the
conviction and punishment, as provided by law, shall be
accorded the defendant at the time he is placed on
community supervision. When he is notified that his
community supervision is revoked for violation of the
conditions of community supervision and he is called on to
serve a sentence in a jail or in the institutional division of
the Texas Department of Criminal Justice, he may appeal
the revocation.
Tex.Code Crim. Proc. Ann. art. 42.12, § 23(b).
Leach v. State, 170 S.W.3d 669, 676 (Tex. App. - Fort Worth 2005, pet. ref’d). The
Court in Leach went on to explain that the appellate court could not address an issue
relating to the original conviction on the appeal from revocation of community
supervision and that Leach’s issue therefore had to be dismissed for lack of
jurisdiction. Appellant waived any complaint regarding the sufficiency of the
evidence to support his plea, as well as any complaint regarding the trial court’s
method of memorializing his conviction of driving while intoxicated, second offense,
by failing to appeal the issues at the time his conviction was entered and he was
placed on community supervision.
In any event, the record before this Court is sufficient to permit the Court to
-7-
find that appellant was in fact charged with and convicted of DWI, second offense,
pursuant to Tex. Penal Code section 49.09, and that his sentence was within the
authorized range of punishment. Driving While Intoxicated is proscribed by Tex.
Penal Code section 49.04, which provides that the offense is generally a Class B
misdemeanor. Tex. Penal Code section 49.09, Enhanced Offenses and Penalties,
provides in pertinent part that:
(a) Except as provided by Subsection (b), an offense under Section
49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a
minimum term of confinement of 30 days, if it is shown on the trial of
the offense that the person has previously been convicted one time of an
offense relating to the operating of a motor vehicle while intoxicated, an
offense of operating an aircraft while intoxicated, an offense of
operating a watercraft while intoxicated, or an offense of operating or
assembling an amusement ride while intoxicated.
Tex. Penal Code section 49.09.
Appellant was charged with “driving while intoxicated 2nd,” and the
information and complaint alleged that he committed driving while intoxicated and
that he had previously been convicted of an offense related to driving while
intoxicated. (CR: 8-9). Appellant pleaded guilty to the offense of “driving while
intoxicated 2nd,” (CR: 30-31), he was convicted of “driving while intoxicated 2nd,"
and all of the documents in the file refer to the offense as DWI 2d, describe the
offense as a Class A misdemeanor, and indicate that the range of punishment
extended to up to one year in county jail. (CR: 11, 14, 15, 21, 25, 28, 30, 31, 33, 38-
-8-
39). Nothing in the record before this Court indicates that appellant ever believed he
was charged with an uncomplicated Class B misdemeanor DWI pursuant to Tex.
Penal Code 49.04. Nothing in the record before this Court indicates that the trial
court intended to convict appellant of an uncomplicated Class B misdemeanor DWI
pursuant to Tex. Penal Code 49.04. The only conclusion to be drawn from the
documents in the court’s file as well as the comments of counsel and appellant at the
commencement of the revocation hearing (RR: 7-8) is that appellant pleaded guilty
to the entirety of the information, including the prior conviction which made this case
a “driving while intoxicated second offense” pursuant to section 49.09. He judicially
confessed to all of the allegations of the information, the court convicted him of
driving while intoxicated second offense, as set out in the judgment, and the court
sentenced him to the maximum one year sentence permitted by Tex. Penal Code
section 12.21 for a Class A misdemeanor, which the court then suspended.
Appellant would apparently have this Court find that the trial court was
required to treat the prior conviction as a separate punishment issue pursuant to Tex.
Penal Code section 12.43, “Penalties for Repeat and Habitual Misdemeanor
Offenders.” Section 12.43, however, provides that after conviction of a Class B
misdemeanor, if the trial court finds a defendant was previously convicted of a Class
A or B misdemeanor, the court shall assess punishment of “(1) a fine not to exceed
-9-
$2,000; (2) confinement in jail for any term of not more than 180 days or less than
30 days; or (3) both such fine and confinement.” Tex. Penal Code section 12.43(b).
Section 12.43 is inapplicable, however, to offenses charged under Tex. Penal Code
section 49.09. See Tex. Penal Code section 12.43(d) (“If the punishment scheme for
an offense contains a specific enhancement provision increasing punishment for a
defendant who has previously been convicted of the offense, the specific
enhancement provision controls over this section.”). When – as here – a defendant
pleads guilty to an information alleging driving while intoxicated, second offense,
and the court accepts the defendant’s plea of guilty and signs a judgment convicting
appellant of driving while intoxicated, second offense, the Class A punishment range
as provided in section 49.09(a) is the applicable punishment range. See State v.
Cooley, 401 S.W.3d 748, 751 (Tex. App. -Houston [14th Dist.] 2013, no pet.). And
where the defendant pleads guilty and judicially confesses to “driving while
intoxicated second offense,” and the court convicts him of “driving while intoxicated
second offense,” this Court should presume that the trial court found appellant’s
confession sufficient to prove both that he drove while intoxicated and that he had a
prior DWI-related conviction.
The Court of Criminal Appeals contrasted the enhanced offenses set out in
section 49.09 with the punishment enhancements set out in Chapter 12 of the Penal
-10-
Code in Gibson v. State. In holding that section 49.09 provides for “enhanced
offenses” rather than “enhanced punishment,” the court noted that:
There are three grades of the offense of driving while intoxicated. The
difference between the grades is set by the number of prior convictions
for certain intoxication related offenses. The offense of driving while
intoxicated, without any alleged prior intoxication-related convictions,
is a Class B misdemeanor. TEX. PENAL CODE § 49.04(b) & (c). If the
State can prove a defendant had previously been convicted of one
offense related to operating a motor vehicle, aircraft or watercraft while
intoxicated, the driving while intoxicated offense becomes a Class A
misdemeanor. TEX. PENAL CODE § 49.09(a).
Gibson v. State, 995 S.W.2d 693, 695 (Tex. Crim. App. 1999). Although Gibson was
an appeal from a felony DWI, its explanation of the structure of section 49.09 is
applicable here. See Mapes v. State, 187 S.W.3d 655, 659-60 (Tex. App. - Houston
[14th Dist.] 2006, pet. ref’d).
Even assuming that appellant can complain now about the sufficiency of the
evidence to support the original conviction in May 2013 – which the State disputes
– appellant has failed to produce the record of that May 2013 plea hearing and has
failed to point out (accurately) anything in the record which is before this Court
which would even suggest that appellant pleaded guilty or confessed only to
commission of a Class B driving while intoxicated offense. In addition, appellant has
not produced any authority which would require the trial court to obtain a “true” plea
to the prior DWI alleged in the information rather than accepting appellant’s “guilty”
-11-
plea to the offense of “driving while intoxicated, second offense,” which includes the
allegation of the prior DWI offense. See Mapes, 187 S.W.3d at 659-60.
None of the cases relied upon by appellant is persuasive. Wise v. State, 394
S.W.3d 594 (Tex. App. - Dallas 2012, no pet.) is a theft case in which the judgment
recited pleas of “true” but the record at the bench trial affirmatively reflected that
Wise was convicted of felony theft on a not-guilty plea, then sentenced without
entering any plea on the prior offenses. In Wise, the prosecutor did not offer any
evidence to support the prior convictions, and there was no stipulation admitting
them. Wise is inapplicable to the instant case.
Appellant also relies upon Blank v. State, 172 S.W.3d 673 (Tex. App. San
Antonio 2005, no pet.), but Blank was an appeal from a jury trial on Blank’s not-
guilty plea, and the Court of Appeals merely considered the evidence to support the
prior conviction and found the out-of-state clerk’s record to be insufficient to prove
the conviction. Blank has no application to the instant appeal.
Similarly, in Vance v. State, 970 S.W.2d 130 (Tex. App. Dallas 1998, no pet.),
the issue was whether an enhancement had to be submitted to a jury where the
defendant pleaded “true” to the enhancement after being convicted of DWI by the
jury on her not-guilty plea; the Court held that the issue did not have to be submitted
when it was not in dispute. It is inapposite to the instant appeal. Appellant has failed
-12-
to demonstrate any reversible error in his conviction or sentence.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, there being legal and competent
evidence sufficient to justify the verdict and no reversible error appearing in the
record of this case, the State requests that this Honorable Court will affirm the the
judgment of the Trial Court below.
Respectfully submitted, ___/s/ Sue Korioth ______
SUE KORIOTH,
ERLEIGH NORVILLE WILEY State Bar No. 11681975
CRIMINAL DISTRICT ATTORNEY Asst. Criminal District Attorney
KAUFMAN COUNTY, TEXAS 100 W. Mulberry Street
Kaufman, Texas 75142
(972) 932-4331 ext. 1264
ATTORNEYS FOR THE STATE FAX (972) 932-0357
suekorioth@aol.com
CERTIFICATE OF SERVICE
The undersigned does hereby certify that on the 27th day of October 2015, a
copy of the foregoing will be served on Brandi Fernandez, attorney for appellant, by
e-service if available, or by email to her email address.
___/s/ Sue Korioth ______
RULE 9.4 CERTIFICATE OF COMPLIANCE
Using the Wordperfect 7 word count utility, I have determined that this
document contains 2960 words, TRAP 9.4(I).
/s/ Sue Korioth
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