George Steven Kuhel v. State ( 2011 )

NUMBER 13-09-00180-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
GEORGE STEVEN KUHEL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas
____________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, George Steven Kuhel, was convicted by a jury of engaging in organized
criminal activity;1 manufacture or delivery of a substance in Penalty Group One (400 grams
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TEX. PEN. CODE ANN. §§ 71.02(a) (West 2010); 12.42(c)(1) (West 2003) (first degree felony,
enhanced to repeat felony offender).
or more);2 and possession of certain chemicals with intent to manufacture a controlled
substance.3 The jury assessed appellant’s sentences, respectively, as follows: Count 1—
sixty years’ confinement in the Institutional Division of the Texas Department of Criminal
Justice and a $ 10,000.00 fine; Count 2—confinement for life in the Institutional Division of
the Texas Department of Criminal Justice and a $10,000.00 fine; and Count 3—fifty years’
confinement in the Institutional Division of the Texas Department of Criminal Justice and a
$ 10,000.00 fine. The sentences were ordered to run concurrently. By four issues,
appellant challenges the enhancements and sentences imposed upon him. We affirm.4
I. BACKGROUND
The Victoria County Sheriff’s Office received a 9-1-1 call complaining about the
operation of a methamphetamine lab. The caller complained about the emission of a
strong odor that caused eyes to burn and she expressed fear and concern for her children.
Appellant was arrested and confessed to operating a business of manufacturing
methamphetamines for profit and for personal usage.
After appellant was found guilty of all three counts, the prosecutor and appellant’s
counsel entered a stipulation that confirmed appellant’s four prior felony convictions, three
2
TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) & (f) (West 2010) (first degree felony, with special
punishment). Methamphetamine is in Penalty Group One. TEX. HEALTH & SAFETY CODE ANN. §
481.102 (West 2010).
3
TEX. HEALTH & SAFETY CODE ANN. § 481.124(d)(1) (West 2010); TEX. PEN. CODE ANN. § 12.42(b)
(West 2003) (second degree felony, enhanced to first degree felony).
4
Appellant’s counsel filed a motion to withdraw as counsel, which was carried with the case. We
abated and remanded the case for the trial court to consider. After appellant’s counsel informed the trial
court that he would be able to continue work on the case, the trial court entered Order/Findings wherein it
found that appellant’s counsel would be able to provide effective assistance of counsel for this appeal and
that he should be permitted to withdraw his motion to withdraw as counsel. Appellant’s counsel thereafter
filed a brief for appellant. We hereby dismiss, as moot, appellant’s counsel’s motion to withdraw.
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of which were from Kansas and one from Victoria County, Texas. Appellant did not object
to this stipulation. After accepting the stipulation, the trial court modified the court’s charge
indicating that the unenhanced options for sentencing were to be disregarded, leaving only
the enhanced paragraphs available for the jury to consider. After the jury’s verdict of
conviction and sentence, this appeal ensued.
II. ISSUES PRESENTED
By four issues, appellant argues: (1) the sentences imposed violate his United
States constitutional right to receive a sentence which is not more than necessary to
accomplish all of the objectives of the Texas Penal Code; (2) he did not properly ―stipulate
to the veracity‖ of the exhibits showing his prior felony convictions, and therefore, the
evidence presented was insufficient; (3) the trial court did not rule on whether the Kansas
convictions contained elements that were substantially similar to Texas laws or crimes,
and therefore, were improper for enhancement purposes; and (4) the trial court erred by
not allowing the jury to determine whether the prior convictions were proven beyond a
reasonable doubt or substantially true.
III. ANALYSIS
A. Appellant’s Prior Felony Convictions
In his second issue, appellant argues the evidence presented with respect to his
prior convictions was insufficient because he did not properly stipulate to the veracity of the
exhibits used to prove his prior felony convictions. In his fourth issue, appellant argues the
trial court erred by not allowing the jury to determine whether the prior convictions were
proven beyond a reasonable doubt or substantially true.
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In order to prove a defendant was convicted of a prior offense for enhancement
purposes, the State must prove beyond a reasonable doubt that (1) a prior conviction
exists, and (2) the person identified for the conviction is the defendant. Flowers v. State,
220 S.W.3d 919, 921–22 (Tex. Crim. App. 2007). No specific document or mode of proof
is required to prove these two elements, and there is no ―best evidence‖ rule that requires
the fact of a prior conviction to be proven with any particular document. Id. The State may
prove the required elements in a number of different ways, including a defendant's
admission or stipulation. Id; Bryant v. State, 187 S.W.3d 397, 401 (Tex. Crim. App. 2005).
Evidence of prior convictions is not insufficient merely because the defendant did not
personally join in the stipulations, where the record shows that the defendant voiced no
objection to the stipulations entered into by his counsel and the counsel for the state.
Genzel v. State, 415 S.W.2d 919, 921–22 (Tex. Crim. App. 1967).
Stipulations to the court act as a judicial admission. Bryant, 187 S.W.3d at 401.
Stipulations are formal concessions ―that have the effect of withdrawing a fact from issue
and dispensing wholly with the need for proof of the fact.‖ Id. The admonitions of article
26.13 of the Texas Code of Criminal Procedure do not apply to a stipulation of an
enhancement conviction. See TEX. CODE CRIM. PROC. art. 26.13 (West 2010); Harvey v.
State, 611 S.W.2d 108, 112 (Tex. Crim. App. 1981). Once a stipulation is entered into with
respect to an enhancement conviction, the trial court may charge the jury on punishment
as though the primary offense, for which the accused has been convicted, carries the
enhancement punishment. Id.; see also State v. Allen, 865 S.W.2d 472, 473–74 (Tex.
Crim. App. 1993) (citing Harvey, 611 S.W.2d at 111).
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During the punishment stage of the trial, the following exchange occurred between
the court and counsel:
MR. TYLER: Your Honor, the State would offer State’s Exhibit 106
and 107, which are—the first is a Certification of
Conviction in Kansas for three offenses that were just
mentioned in Cause Number 90 CR849PB,
89CR204PB, and 96CR35G, for the defendant, George
Kuhel, with the stipulation by the defense that this is the
same George Steven Kuhel as the defendant in this
case and a Judgment and Sentence that is…
THE COURT: Hold on just a second. Do you so stipulate, Mr. Denton?
MR. DENTON: Yes, Your Honor.
MR. TYLER: Further, State’s Exhibit 107, which is a Judgment and
Sentence in Cause Number 03-5-20, 150-D out of the
377th Judicial District Court of Victoria County, naming
as the defendant, George Kuhel, who is one in the same
as the George Steven Kuhel, the defendant in this case.
And by stipulation they would agree to the identity.
THE COURT: So stipulate?
MR. DENTON: Yes, Your Honor.
MR. TYLER: The State would offer these exhibits and ask that they be
published to the jury . . .
THE COURT: State’s Exhibits 106 and 107 are admitted. Ladies and
gentlemen, the stipulation by the defense as to the
veracity of these exhibits allows you to consider them in
your deliberations on punishment . . . .
Exhibits 106 and 107 are certified copies of documents which establish the
existence of appellant’s prior convictions; the stipulation, through appellant’s attorney, links
appellant to those convictions. See Flowers, 220 S.W.3d at 921. The fact that appellant
did not personally join the stipulation does not render the proof of his prior convictions
insufficient. Rather, his silence and failure to timely raise an objection establishes his
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acquiescence to the enhancements. See Genzel, 415 S.W.2d at 921–22. The admission
of the certified copies, combined with defense counsel’s stipulations, wholly dispensed with
the need of further proof regarding the enhancements. See Bryant, 187 S.W.3d at 402.
As such, the trial court was permitted to charge the jury on the enhanced ranges of
punishment. See Harvey, 611 S.W.2d at 111.
Appellant’s reliance on Washington v. State is misplaced. 677 S.W.2d 524 (Tex.
Crim. App. 1984). In that case, the Court of Criminal Appeals held the trial court erred by
denying the defendant a right to have a jury determine whether or not the defendant
―should be classified and punished as a habitual criminal,‖ where the only evidence
regarding the defendant’s enhancement was his own testimony. Id. at 527. The Court of
Criminal Appeals, however, further stated that had Washington pleaded true or stipulated
to the enhancements, the trial court’s actions would have been proper. Id.
We hold the evidence was sufficient to establish appellant’s prior convictions for
enhancement purposes. We also hold that the trial court did not err by charging the jury
on the enhanced ranges of punishment. See Allen, 865 S.W.2d at 474; Washington, 677
S.W.2d at 527; Harvey, 611 S.W.2d at 112. Appellant’s second and fourth issues are
overruled.
B. Waiver
In his first issue, appellant argues that the sentences imposed violate his
constitutional right under the United States Constitution to receive a sentence which is not
more than necessary to accomplish all of the objectives of the Texas Penal Code. In his
third issue, appellant argues that the trial court erred by failing to rule on whether the
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Kansas convictions which were used to enhance his sentence contained elements that
were substantially similar to Texas laws or crimes.
To preserve a complaint for appellate review, a defendant must have presented a
timely request, objection, or motion stating the specific grounds for the ruling desired to the
trial court. See TEX. R. APP. P. 33.1; Martinez v. State, 867 S.W.2d 30, 35 (Tex. Crim.
App. 1993). Almost every right, constitutional and statutory, may be waived by the failure
to object. See Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). Issues
pertaining to unconstitutional sentencing must be preserved in the trial court. Rhodes v.
State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); see also Hill v. State, No. 13-10-
00178-CR, 2011 Tex. App. LEXIS 4804, at *4 (Tex. App.—Corpus Christi June 23, 2011,
no pet.)(mem. op. not designated for publication).
Appellant failed to indicate in his brief, and we cannot find in the record, where he
made any such objections in the trial court. See TEX. R. APP. P. 38.1(i). Appellant’s issues
are being raised for the first time on appeal. As such, the issues have not been preserved
for review on appeal. Appellant’s first and third issues are overruled.
IV. CONCLUSION
We affirm the judgment of the trial court.
______________________________
GREGORY T. PERKES
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
25th day of August, 2011.
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