Opinion
No. 10-00-316-CR.
Opinion delivered and filed June 18, 2003. DO NOT PUBLISH.
From the 258th District Court, Polk County, Texas, Trial Court # 15511.
Before Chief Justice Davis, Justice Gray, and Justice Richards (Sitting by Assignment)
OPINION
Appellant Rodney Camile Smith was indicted for and convicted by a jury of the offense of felony driving while intoxicated. See Tex. Pen. Code Ann. §§ 49.04(a), 49.09(b)(2) (Vernon Supp. 2003). Five issues are presented on appeal. In issue one, appellant challenges the legal sufficiency of the evidence proving intoxication. His remaining issues challenge: the sufficiency of his written stipulation to establish prior offenses (issues two and three); the propriety of the State using a prior conviction for both jurisdictional and enhancement purposes (issue four); and the State's introduction of a prior felony conviction appellant contends was void (issue five). We will affirm. In his first issue, appellant alleges the evidence was legally insufficient. Appellant does not dispute he was intoxicated. Rather, he alleges there was no evidence proving the State's allegation that he was intoxicated due to the introduction of alcohol into his body. The general rules applicable to appellant's sufficiency challenge are well-known. In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Crim.App. 2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). The standard for review is the same for direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). Appellant was stopped by a DPS trooper for not wearing a seatbelt. During the subsequent investigation immediately following the traffic stop, it became clear to the trooper that appellant was intoxicated. As noted above, appellant does not dispute the sufficiency of the evidence establishing that he was driving while intoxicated. He merely questions whether the State proved that his intoxication was due to his consumption of alcohol, as alleged in the indictment. Two other troopers who were present for the investigative detention following the stop testified at trial. One stated that an open can of Natural Light beer — an alcoholic beverage — was found spilled on the floorboard of appellant's vehicle. He also testified that appellant had admitted drinking beer that evening and that appellant's actions and mannerisms, including his slurred and "thick tongued" speech were consistent with a person under the influence of alcoholic beverages. In addition, the officers detected a "strong odor of alcohol emitting from [appellant's] person." Finally, appellant answered "no" when asked if he had "any injections or pills recently." Viewed as a whole, the above testimony was sufficient to prove appellant was intoxicated by reason of alcohol. See Fogle v. State, 988 S.W.2d 891, 893 (Tex.App.-Fort Worth 1999, pet. ref'd) (holding testimony that defendant "reek[ed] of alcohol" was sufficient to prove "alcohol" element in charging instrument). Issue one is overruled. In issues two and three appellant challenges the sufficiency of the evidence proving that the two prior "elemental" offenses occurred within ten years of the date of the instant offense. Because we conclude there is evidence in the record that appellant was convicted in one of the prior offenses within ten years of the date of the commission of the primary offense, we hold the evidence was sufficient. The date of the primary charged offense was proven to be September 4, 1999. Four prior convictions for the offense of driving while intoxicated were alleged in the indictment as elements of the primary offense; however, evidence of only two of those prior offenses were submitted to the jury at the guilt/innocence stage of the trial. A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a). The offense is elevated to a third degree felony if the evidence shows, in addition to the above elements, that the defendant has previously been convicted two times of an offense relating to the operation of a motor vehicle, aircraft, or watercraft while intoxicated. Tex. Pen. Code Ann. § 49.09(b)(2). If the State seeks conviction for the elevated felony offense, the prior convictions are necessary elements of the offense that must be proven beyond a reasonable doubt. Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999). In addition, the legislature has provided several important caveats relating to the State's proof of the prior convictions. See Tex. Pen. Code Ann. § 49.09(e) (Vernon Supp. 2003). One caveat concerns the timing of the prior convictions. Because the offense for which appellant was tried was shown to have been committed on September 4, 1999, the State could not rely on the prior convictions if: (1) less than ten years had elapsed between September 4, 1999 and either the date on which the judgment was entered for the previous conviction, the date on which appellant was discharged from any period of community supervision, the date on which appellant successfully completed any period of parole for the offense, or the date on which appellant completed serving any term of confinement, and (2) appellant had not been convicted of the offense for driving while intoxicated within ten years of the latest of the above noted dates. Id. In other words, when applied to the instant case, Penal Code sections 49.09(e)(2) and 49.09(e)(3), required the State to prove that appellant was convicted of at least one of the two prior driving while intoxicated offenses within ten years of September 4, 1999. See Smith v. State, 1 S.W.3d 261, 263 (Tex.App.-Texarkana 1999 pet ref'd) (holding that statute requires State to prove only one prior D.W.I. conviction in the ten-year period and one other prior D.W.I. conviction which is not subject to the ten-year period). In pertinent part, the indictment alleged that appellant had previously been convicted of the offense of driving while intoxicated in two previous cases: one conviction occurring in 1983 and the other in 1990. At trial appellant entered a written stipulation in which he confessed and agreed to the dates he was convicted of those offenses.
Defendant, further, under oath, in writing and in open Court, consents to the Stipulation of Evidence in this case and in so doing, expressly waives the appearance, confrontation and cross-examination of witnesses and consents to the introduction of testimony by oral stipulations, affidavits, written statements and other documentary evidence and hereby waives all Federal and State Constitutional rights against self-incrimination and judicial (sic) confesses and stipulates that:
"I, RODNEY CAMILE SMITH, am the identical person named in the indictment in the above styled and numbered cause; and I have read the same and hereby agree and confess that:
"On February 28, 1983, in the County Criminal Court at Law No. 4 of Harris County, Texas, in Cause No. 685-779, I was convicted of the offense of Driving While Intoxicated; and
"On April 24, 1990, in the 258th District Court of Polk County, Texas, in Cause No. 12,255, I was convicted of the offense of Driving While Intoxicated."
/s/ Rodney Camile SmithThe 1983 conviction in cause number 685-779 obviously did not occur within ten years of the commission of the primary offense on September 4, 1999, but the undisputed evidence provided by the agreed stipulation in a "pen-packet" subsequently introduced by the State showed a judgment of conviction was entered in cause number 12,255 on April 24, 1990. Because one of the two prior convictions occurred within the ten year window, the agreed written stipulation was sufficient to prove appellant had twice before been convicted of the offense of driving while intoxicated. See Smith, 1 S.W.3d at 263. Issues two and three are overruled. In issue four, appellant contends that the use of one of the prior driving while intoxicated convictions used for punishment enhancement was improper because one of the prior convictions used at guilt/innocence was used in the punishment enhancement in that offense. Stated another way, appellant contends that it was improper for the trial court to permit the State to use his prior 1983 conviction in cause number 685-779 at guilt/innocence as an element of the felony, and to use his prior 1996 conviction in cause number 13647 at punishment enhancement because the 1983 conviction was also previously used as a jurisdictional enhancement in that case. This Court has previously rejected a similar contention. See Williams v. State, 846 S.W.2d 886, 895-99 (Tex.App.-Waco 1997, no pet.). Accordingly, issue four is overruled. In his fifth issue, appellant contends his 1996 conviction in cause number 13,647 was void because of the State's failure to prove (in 1996) that the prior convictions used as enhancements in that case were committed within ten years of the date of the primary offense in that case. Appellant pleaded "true" to the enhancement allegation alleging a prior 1996 conviction in case number 13,647 in the 258th District Court of Polk County. Appellant now contends he should be permitted to raise for the first time on appeal of a conviction occurring five years after his conviction in that case, a question concerning the sufficiency of the evidence introduced in the 1996 case. A sister court of appeals recently rejected a virtually identical complaint in State v. Duke, 59 S.W.3d 789, 792 (Tex.App.-Fort Worth 2001, pet. ref'd), and held that the prior convictions must be presumed valid, given the defendant's failure to seek direct appeal or post-conviction habeas relief in the prior convictions. Id. Moreover, Duke was based on the United States Supreme Court's similar ruling in Daniels v. United States, 532 U.S. 374, 12 S.Ct. 1578, 149 L.Ed.2d 590 (2001), where the high court denied relief in the context of a similar attack on a prior conviction in a federal case. We agree with the reasoning of Duke and Daniels and hold that because appellant failed to raise this in the trial court and on direct review or habeas review of his prior 1996 conviction, the issue does not present a cognizable claim for relief on direct appeal in this case. Issue five is overruled. Appellant's conviction is affirmed. Affirmed