Donald Wayne Herod v. State ( 2010 )

Opinion issued May 13, 2010  

In The  

Court of Appeals

For The  

First District of Texas  

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NO. 01-08-00908-CR

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DONALD WAYNE HEROD, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1152281

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MEMORANDUM OPINION

          A jury convicted appellant, Donald Wayne Herod, of driving while intoxicated. Appellant’s charge was elevated to a felony offense due to two prior convictions for the same offense. The trial court found the two enhancement paragraphs true and assessed punishment at 50 years’ imprisonment. In one point of error, appellant contends that the evidence is not legally sufficient to support the jury’s verdict because there is no evidence to support a finding that appellant had two prior convictions for driving while intoxicated.

          We affirm.

BACKGROUND

          On February 4, 2008, at approximately 3:00 p.m., Officer M. Mills of the Pasadena Independent School District Police saw appellant approach the intersection of Chestnut Lane and Dallas Street, near Mae Smythe Elementary School and Sam Rayburn High School, in Harris County, Texas. As Officer Mills watched, appellant drove through a controlled intersection, lost control of his vehicle, crossed through oncoming traffic, and “struck a set of bushes” growing next to a sidewalk. Officer Mills turned on his lights and sirens and began to approach appellant’s vehicle. Before Officer Mills could reach him, appellant backed his truck out of the bushes and drove east on Dallas Street. Appellant drove through two more stop signs, narrowly missing a daycare bus, and did not stop until traffic from a red light forced him to do so.  

          After appellant stopped his truck, Officer Mills approached, noticed that appellant was the only person in the truck, and pulled him from it. After Officer Mills had removed him from his truck, appellant protested, stating, “I wasn’t driving.” Officer Mills attempted to perform field sobriety tests on appellant, but he was unable to do so because of appellant’s condition. He then detained appellant and placed him in the back of his patrol car. Other officers arrived to assist Officer Mills. Inside appellant’s vehicle, the officers found a two-liter bottle of Coke and a bottle of Everclear.

          Officer Mills drove appellant to the South Houston Police Department. There, Sergeant J. Kraatz attempted to administer sobriety tests to appellant, but he refused to submit to them. The officers read appellant his statutory rights and arrested him.

          The State indicted appellant for driving while intoxicated and enhanced the charge based on two alleged prior convictions for the same offense. Appellant’s indictment alleged that he had been convicted of driving while intoxicated on November 17, 1993 and on September 8, 1987. At trial, appellant entered a plea of “not guilty,” and he entered a plea that the enhancement paragraphs were “not true.” However, on the day of his trial, appellant signed a written stipulation to the two prior convictions for driving while intoxicated alleged in his indictment. His stipulation, dated October 15, 2008, states:

The above named Defendant in the above styled cause waives the right to the appearance, confrontation and cross-examination of witnesses against the defendant. Defendant consents to the following written stipulation of evidence regarding the above styled cause:

The Defendant hereby stipulates that:

On NOVEMBER 17, 1993, in the 230th District Court of Harris County, Texas, in Cause Number 0678796, the Defendant was convicted of the offense of DWI.

On SEPTEMBER 8, 1987, in the 185th District Court of Harris County, Texas, in Cause Number 0476691, the Defendant was convicted of the offense of DWI.  

The State called Officer Mills and Sergeant Kraatz, both of whom testified to appellant’s inebriation; the defense did not call any witnesses. The jury found appellant guilty. The trial court found the two enhancement paragraphs true and assessed punishment at 50 years’ imprisonment.  

ANALYSIS

          In one point of error, appellant contends that the evidence is not legally sufficient to support the jury’s verdict because there is no evidence to support a finding that appellant was twice before convicted of driving while intoxicated. Appellant bases his contention on four arguments: (1) the stipulation is deficient because it does not say that the evidence will prove the content of the stipulation; (2) the stipulation created no evidentiary support for the State’s case because there was no agreement about the truthfulness of evidence; (3) the stipulation did not waive the need for proof of appellant’s two previous DWI convictions; and (4) the stipulation only alleged that the prior convictions were for “DWI” and not “driving and operating a motor vehicle while intoxicated.”  

A.     Standard of Review

          We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). This standard is applied to both direct and circumstantial evidence, and it measures evidentiary sufficiency against the substantive elements of the criminal offense as defined by state law. “When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination.” Clayton, 235 S.W.3d at 778.

B.     Proof of Prior Convictions

          Appellant contends that the evidence establishing the indictment’s jurisdictional paragraph was inadequate to prove he had two prior convictions for driving while intoxicated. To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 923 (Tex. Crim. App. 2007). However, the State is not required to produce a specific document or specific proof to establish these two elements because “[t]here is no ‘best evidence’ rule in Texas that requires that the fact of a prior conviction be proven with any document, much less any specific document.” Id. at 921. Flowers stated:

While evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means, the State may prove both of these elements in a number of different ways, including (1) the defendant’s admission or stipulation, (2) testimony by a person who was present when the person was convicted of the specified crime and can identify the defendant as that person, or (3) documentary proof (such as a judgment) that contains sufficient information to establish both the existence of a prior conviction and the defendant’s identity as the person convicted.

Id. at 921–22.   

          Further, neither the Texas Code of Criminal Procedure nor the Texas Penal Code requires prior convictions to be proven in a specific way. Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 2005) (providing that evidence may be offered as to “any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, [and] the circumstances of the offense for which he is being tried”); Tex. Penal Code Ann. § 12.42 (Vernon 2003) (providing sentencing requirements for repeat offenders).   

          1.       Stipulation’s Failure to State that the Evidence Would Prove the Contents of the Stipulation

          Appellant first argues that the stipulation did not state that the evidence would prove the contents of the stipulation and thus violated Article 1.15 of the Texas Code of Criminal Procedure, which, in relevant part, states:

No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14. . . . The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.

Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). According to its plain language and the relevant case law, article 1.15 applies only to cases in which a jury trial has been waived. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Landers v. State, 720 S.W.2d 538, 540 (Tex. Crim. App. 1986). Here, appellant’s case was tried by a jury, and therefore article 1.15 does not apply. See Wright, 28 S.W.3d at 537.

          2.       Inadequate Stipulation

          In his second and third arguments, appellant contends that his stipulation did not provide evidentiary support for the State’s case and that “the stipulation did not waive the need for proof and, having failed to admit any form of evidence to substantiate its jurisdictional paragraphs, the evidence was legally insufficient.”

          “A defendant in a criminal case may stipulate to evidence against him. If the defendant elects to do this, his stipulation is a kind of judicial admission.” Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005). Judicial admissions remove the need for the State to provide proof of the facts a defendant stipulates to. Id. at 402; Martin v. State, 200 S.W.3d 635, 641 (Tex. Crim. App. 2006). When a defendant makes a stipulation, he may not complain on appeal that the State failed to prove the element to which he stipulated. Bryant, 187 S.W.3d at 402. A stipulation is sufficient for the State to prove a prior conviction. Flowers, 220 S.W.3d at 921–22; Smith v. State, 158 S.W.3d 463, 465 (Tex. Crim. App. 2005).

          Here, appellant stipulated in writing to the two convictions for driving while intoxicated alleged in his indictment. Because appellant stipulated to the two prior convictions, he surrendered the opportunity to complain that the State did not produce adequate evidence of these convictions. See Bryant, 187 S.W.3d at 400; Smith, 158 S.W.3d at 463. Further, a stipulation is sufficient evidence for the State to prove a prior conviction. Flowers, 220 S.W.3d at 921–22. Therefore, we conclude that appellant’s stipulation is sufficient to support his conviction. See Flowers, 220 S.W.3d at 921; Smith, 158 S.W.3d at 465; Bryant, 187 S.W.3d at 400.   

          3.       Ambiguous Stipulation

          Lastly, while appellant admits he stipulated to two prior convictions for DWI, he argues that the stipulation only alleges that the prior convictions were for “DWI” and not “driving and operating a motor vehicle while intoxicated.” Specifically, appellant alleges that, because the stipulation fails to explain what “DWI” means, the stipulation is ambiguous and, therefore, not valid.   

          Appellant argues that the use of “DWI” instead of “driving and operating a motor vehicle while intoxicated” is ambiguous. We disagree. Appellant is correct in stating that the stipulation of evidence does not define “DWI.” However, he offers no evidence that any other meaning could be construed from the term besides “driving and operating a motor vehicle while intoxicated.” Black’s Law Dictionary defines “DWI” as an abbreviation for “driving while intoxicated,” but does not indicate that “DWI” means anything else. Black’s Law Dictionary 582 (9th ed. 2009). Additionally, throughout Texas case law, “DWI” is used interchangeably with “driving and operating a motor vehicle while intoxicated.” See, e.g., Curtis v. State, 238 S.W.3d 376, 377 (Tex. Crim. App. 2007); Phillips v. State, 992 S.W.2d 491, 492 (Tex. Crim. App. 1999). Therefore, we conclude that appellant’s stipulation was not ambiguous and that this ground does not support appellant’s complaint.

          We conclude that a rational trier of fact could have found proof of the prior convictions beyond a reasonable doubt, and we thus overrule appellant’s sole point of error.          

CONCLUSION

          We affirm the judgment of the trial court.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

Do not publish. Tex. R. App. P. 47.2(b).