Arthur Williams v. State

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ARTHUR KAY WILLIAMS,                               ) ) No. 08-03-00083-CR Appellant, ) ) Appeal from the v. ) ) 243rd District Court THE STATE OF TEXAS,                                     ) ) of El Paso County, Texas Appellee. ) ) (TC# 20010D04553) ) O P I N I O N Appellant, Arthur Kay Williams, was charged by indictment with the felony offense of driving while intoxicated. A jury found the Appellant guilty and the trial court sentenced the Appellant to ten years= confinement probated to ten years= community supervision, and a fine of $1,000, probated. On appeal, Appellant raises the following three issues: (1) Appellant challenges the trial court=s decision to allow the State to read the entire indictment to the jury including his two prior DWI convictions; (2) challenges the legal sufficiency of the evidence to support his conviction; and (3) argues that the trial court erred in denying Appellant=s motion for mistrial due to the improper and prejudicial closing argument made by the State. We reverse and acquit. UNDERLYING FACTS On September 5, 2001, El Paso Police Officers David Aldana and Adrian Alvillar were on duty patrolling Yarbrough Street, when they came to the intersection of Yarbrough and Montwood and noticed Appellant=s vehicle parked about two car lengths behind the car in front of him at the red light. Both Officer Aldana and Officer Alvillar were alerted to this behavior since they testified that this is often a sign of an intoxicated driver. They continued northbound on Yarbrough following the Appellant. Officer Alvillar, who was driving the patrol vehicle slowed down and determined that Appellant was driving approximately 20 mph in a 40 mph zone. Then as they approached the intersection of Yarbrough and Edgemere, although the traffic light was green, Appellant made what is commonly referred to as a ACalifornia stop@ before proceeding through the intersection. Appellant then began straddling the lane and then overcorrected. This prompted the police officers to pull over Appellant. When Officer Alvillar approached Appellant=s car, he testified that the driver=s window was rolled up; Appellant refuted this testimony by testifying that he had the window rolled down. Officer Alvillar asked Appellant for his driver=s license and proof of insurance and then handed the information to Officer Aldana in order to run a warrant check on the Appellant. Both officers saw Appellant moving around in the vehicle and Officer Alvillar asked the Appellant to exit the vehicle. As Appellant stepped out of his vehicle, he was having a hard time keeping his balance, he was swaying, his steps were staggered, and he was walking slow. Officer Alvillar also testified that Appellant was having trouble following directions. His breath smelled of alcohol, he had bloodshot eyes, and slurred speech. When asked if he had been drinking, Appellant stated that he had not been drinking. The officers testified that Appellant declined to perform the field sobriety tests as well as a breath test. Appellant was placed under arrest for driving while intoxicated. The officers performed an inventory search of his car and discovered a bottle of vodka about one-third full on the passenger floorboard. The bottle did not have a cap and it appeared to have spilled onto the floorboard. However, the vodka bottle was not documented. Appellant was indicted for the offense of felony driving while intoxicated on September 25, 2001. Appellant had his first jury trial on February 5, 2002, which resulted in a mistrial due to a hung jury. Appellant=s second trial, the basis for this appeal, took place on February 11, 2003 and concluded on February 13, 2003 with a guilty verdict. At the beginning of the punishment phase, Appellant moved to change his punishment election in order to have the trial court assess his punishment. The State did not object to the change of election and the trial court granted Appellant=s motion. As recommended by the plea bargain, the trial court sentenced the Appellant to ten years= community supervision, a $1,000 fine, probated, 300 hours of community service, 90 meetings of Alcoholic Anonymous in 90 days, and other standard terms and conditions of a DWI probation. Appellant now timely files this appeal. ISSUES ON APPEAL In Issue Two, Appellant argues that even though he stipulated to the two prior DWI offenses, the State failed to introduce into evidence the stipulation or any other evidence of the two prior convictions, and as such, his conviction for felony DWI cannot be sustained. Appellant argues that the evidence is insufficient to sustain his conviction because the State failed to prove he committed the two prior convictions specifically alleged in the indictment. The standard of review for challenging the legal sufficiency of the evidence in a criminal case is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In order to support a conviction for felony DWI, in addition to proving the underlying DWI offense, the State must prove the defendant was convicted of the two prior DWI offenses. Tex.Pen.Code Ann. ' 49.09(b)(Vernon Supp. 2004-05); see Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999). Where proof of a prior conviction is a jurisdictional element, the fact of the prior conviction or convictions, including the identity of the accused, must be proven beyond a reasonable doubt. See Zimmer v. State, 989 S.W.2d 48, 50 (Tex.App.--San Antonio 1998, pet. ref=d). The State can satisfy this obligation at trial either by offering in evidence certified copies of the judgments or a stipulation. See Robles v.State, 85 S.W.3d 211, 212 (Tex.Crim.App. 2002). In this case, the State did not offer any proof of the two prior DWI offenses. The State in its brief concedes that Aother than reading the allegation of the 2 prior DWI convictions to the jury, no further evidence, proof, or jury instruction regarding the 2 priors was presented or submitted to the jury.@ However, the State argues that this was not a case where it did not have sufficient evidence of proof, but rather that the Appellant Ainduced the trial court--erroneously--to preclude any mention or proof of the prior convictions, even though [the Appellant] had stipulated to the existence and validity of those prior convictions and the State was ready to introduce evidence of those prior convictions . . . .@ To support its argument, the State cites to this Court=s opinion in Orona v. State, 52 S.W.3d 242 (Tex.App.--El Paso 2001, no pet.). In Orona v. State, the trial court instructed the jury of the existence of Appellant=s stipulation that he had been convicted of two prior offense as alleged in the indictment. Orona, 52 S.W.3d at 247-48. We held that A[g]iven that the trial court informed the jury of Appellant=s stipulation regarding the prior convictions, and presuming a correct charge@ the evidence was sufficient to support the appellant=s conviction. Id. However, in this case, the trial court did not instruct the jury that the Appellant had stipulated to the prior convictions. The jury nevertheless found the Appellant guilty of DWI as alleged in the indictment, which included the allegation of the two prior convictions. The State argues that Appellant should be estopped from complaining of the sufficiency of the evidence proving those prior convictions. The State argues that had Appellant not erroneously induced the trial court to exclude the stipulation, the evidence would have been clearly sufficient to prove the prior convictions. Further, since Appellant was the moving factor behind this erroneous ruling, he should not now be allowed to complain of the evidence. At the beginning of the trial, Appellant made a motion in which it requested the trial court to Apreclude the State from referring to the prior convictions [and] reading the portion of the indictment that alleges the prior convictions.@ Appellant further stated that since he had stipulated to jurisdiction, there was no reason for the State to ever bring up the prior convictions during the guilt/non-guilt portion of the trial. In support of its motion, the Appellant provided the trial court with the following two cases, Hollen v. State, 87 S.W.3d 151 (Tex.App.--Fort Worth 2002), rev=d, 117 S.W.3d 798 (Tex.Crim.App. 2003), cert. denied, 124 S.Ct. 2022 (2004) (holding that the State could not admit the stipulations), and Robles v. State, 85 S.W.3d 211 (Tex.Crim.App. 2002)(discussing whether convictions could be introduced into evidence at the guilt stage of the trial, but not addressing whether the jury may be informed of the stipulation or whether the stipulation itself may be admitted into evidence). The trial court, after considering the Appellant=s motion made the following statement: [B]ut my ruling after reading the case of Gary Don Holden [sic] vs. State of Texas and the case of Robles vs. State, is that -- as directed by the Court of Criminal Appeals, the State may read the indictment at the beginning of the trial, mentioning the jurisdiction of prior conviction, but the State may not present evidence of conviction in its case-in-chief. Secondly, again, reading the two cases in their entirety, and, the -- you know, their importance, what we=re trying to do is making sure that the fact that there are prior convictions do not unfairly prejudice. In other words, that the probative value of those convictions is far outweighed by the prejudicial effect that it=s going to have on the case-in-chief, here. What you need to prove is that he was driving while intoxicated at the time of this offense. Because he has stipulated, as I understand, the cases, there=s no evidence that is required on the prior offenses. Also, very clear in this case is that the stipulation is not read or presented to the jury in any way. The trial court=s decision, although clearly erroneous today, was made at a time when the case law regarding stipulations in felony DWI offenses was in flux. The Texas Court of Criminal Appeals opinion in Hollen v. State, 117 S.W.3d 798 (Tex.Crim.App. 2003), held that the State Amay@ admit the stipulation into evidence had not been handed down at the time of Appellant=s trial. Therefore, the trial court=s decision in not allowing the stipulation to be discussed during the State=s case-in-chief was not invited error since at the time case law was not clear on this issue. We therefore find that in this case, the State failed to offer any evidence to satisfy its burden of proving beyond a reasonable doubt that the Appellant had two prior DWI convictions. As such, we sustain Appellant=s Issue Two. Having found that the evidence is legally insufficient to support Appellant=s conviction, we do not address Appellant=s Issues One and Three. The State has also raised a cross-point its their brief. The State argues that the trial court erred in precluding any admission of evidence or mention of Appellant=s prior DWI convictions. In so doing, the State was denied the opportunity to prove the allegation of the prior convictions to the jury. However, the State has failed to file a notice of appeal. The State in its brief cites to Article 44.01(c) of the Texas Code of Criminal Procedure to support its contention that the State is not required to file its own notice of appeal in order to raise a cross-point. Under Article 44.01(c), the State is entitled to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment. See Tex.Code Crim.Proc.Ann. art. 44.01(c)(Vernon Pamph. 2004-05). In this case, the State has not raised a question of law on appeal and due to its failure to file a notice of appeal, we do not have jurisdiction to address its cross-point. For the reasons stated above, the trial court=s judgment is reversed and we render a judgment of acquittal. February 10, 2005 DAVID WELLINGTON CHEW, Justice Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ. (Do Not Publish) DISSENTING OPINION At trial, Appellant succeeded in having his stipulation of evidence that he had twice been convicted of driving while intoxicated excluded from the jury=s consideration. Now, on appeal, he contends that the evidence is legally insufficient to prove these same jurisdictional elements, and therefore, his conviction must be reversed and a judgment of acquittal entered. The majority opinion rejects the State=s argument that Appellant is estopped from raising this sufficiency issue. Further, the Court refuses to address the State=s cross-point regarding the erroneous exclusion of this evidence. Finally, the majority does not consider whether Appellant was properly convicted of misdemeanor DWI, and thus, the cause should be remanded to the trial court for a new punishment hearing. Because I am in disagreement with the majority=s treatment of these issues, I respectfully dissent. Underlying Facts Prior to trial, Appellant filed the following written stipulation: The Defendant consents to a written stipulation of evidence, for jurisdictional purposes only, regarding the existence of two previous convictions necessary to prosecute an offense of driving while intoxicated as a felony offense in a district court. The Defendant hereby stipulates to having been previously, finally, and lawfully convicted two times of an offense relating to operating of a motor vehicle while intoxicated, as alleged in the indictment. Furthermore, the Defendant stipulates that at least one of those prior convictions was for an offense committed not more than 10 years before the offense for which the Defendant is being tried was committed. This stipulation is plainly sufficient to prove the two prior convictions beyond a reasonable doubt. Appellant brought this stipulation to the trial judge=s attention prior to the beginning of voir dire and argued that since he had stipulated to jurisdiction, the State should not be allowed to read the enhancement allegations or otherwise mention the prior convictions during voir dire or through its witnesses unless Appellant first opened the door. The trial court reviewed the cases presented by Appellant[1] and ruled that the State could read the entire indictment, including the allegation of the two prior convictions, and could discuss during voir dire the applicable range of punishment in hypothetical terms, but the State would not be allowed to present any evidence of the prior convictions during guilt-innocence. The court additionally ruled that the stipulation itself could not be read or presented to the jury. After the jury had been selected and excused for the day, the trial judge explained to the parties that the court=s charge would not make any mention of the two prior convictions, stating: AIt looks to me like all we=re going to do is submit a DWI charge with no enhancement paragraph.@ Consistent with the court=s rulings, the stipulation was not introduced into evidence and the court=s charge addressed only the charged DWI. The application paragraph stated: Now, if you find from the evidence beyond a reasonable doubt that on or about the September 5, 2001, in El Paso County, Texas, the defendant, ARTHUR WILLIAMS, did then and there, drive and operate a motor vehicle in a public place while intoxicated, to-wit: by not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body, then you will find the defendant guilty of the felony offense as alleged in the indictment. [Emphasis added]. Appellant did not object to this charge which allowed the jury to find him guilty of felony DWI without proof of the prior convictions. The jury found Appellant guilty of driving while intoxicated Aas alleged in the indictment.@ The State=s Estoppel Argument The trial court acted properly by accepting Appellant=s stipulation of evidence, but erred by sustaining Appellant=s objection to the introduction of this stipulation before the jury. See Hollen, 117 S.W.3d at 801-02. The State argues that Appellant should be estopped from challenging the sufficiency of the evidence to prove these jurisdictional elements since he not only induced the trial court to commit the error but plainly benefitted by having his case tried in isolation from his prior convictions. The State draws an analogy between the circumstances presented in this case and the case law holding that where the defendant requests or does not object to the inclusion of a lesser-included offense in the charge, the defendant is thereafter estopped from challenging the sufficiency of the evidence to prove the lesser-included offense. See e.g., State v. Lee, 818 S.W.2d 778, 781 (Tex.Crim.App. 1991), overruled on other grounds, Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1998); Otting v. State, 8 S.W.3d 681, 686-87 (Tex.App.-- 1999, pet. ref=d, untimely filed). See also State v. Yount, 853 S.W.2d 6, 9 (Tex.Crim.App. 1993); Taylor v. State, 947 S.W.2d 698, 702 (Tex.App.‑‑Fort Worth 1997, pet. ref=d); Scott v. State, 867 S.W.2d 148, 154 (Tex.App.‑‑ Austin 1993, no pet.); Tamez v. State, 865 S.W.2d 518, 519‑20 (Tex.App.‑‑Corpus Christi 1993, pet. ref=d). If the defendant causes or acquiesces to the inclusion of a lesser-included offense in the charge, and thereby accepts the benefit of such a charge, the defendant is estopped from challenging the sufficiency of the evidence to support the lesser-included offense. Otting, 8 S.W.3d at 687; see Taylor, 947 S.W.2d at 702. In my view, there is no cogent reason to not apply the same estoppel rule here since Appellant caused the exclusion of the evidence which would have proved the jurisdictional elements and he failed to object to the court=s charge which permitted the jury to find him guilty of felony DWI absent proof of the prior convictions. Cf. Bryant v. State, 135 S.W.3d 130, 137-39 (Tex.App.--Waco 2004, pet. granted)(Gray, C.J., dissenting)(where defendant stipulated to prior DWI convictions and trial court informed the jury of the stipulation in the charge, but the State did not offer stipulation in evidence, majority opinion held evidence legally insufficient to prove the prior convictions and acquitted defendant; dissent stated that defendant should not be permitted to challenge sufficiency of the evidence since he benefitted by preventing the state from introducing evidence of the prior convictions); Smith v. State, 135 S.W.3d 198, 202 (Tex.App.--Waco 2004, pet. granted)(Gray, C.J., dissenting)(where defendant stipulated to prior DWI convictions and agreed that the State did not have to prove up his priors, defendant raised sufficiency of the evidence to prove that one of the priors was too remote to use; majority opinion reversed conviction and acquitted defendant; dissent stated that defendant should not be permitted to challenge sufficiency of the evidence since he benefitted from the stipulation). I would overrule Issue Two. The State=s Cross-Point The State contends in a cross-point that the trial court erred by excluding the stipulation from the jury=s consideration. Given that I would overrule Issue Two, it would be unnecessary to address the State=s cross-point. See Hargrove v. State, 774 S.W.2d 771, 773 (Tex.App.‑-Corpus Christi 1989, pet. ref=d). But because the majority opinion addresses the merits of this question, I make the following observations. The majority opinion holds, in essence, that it lacks jurisdiction to consider the State=s cross-appeal because the State did not file its own notice of appeal. The Court reaches this conclusion without acknowledging that there is a split of authority among the intermediate appellate courts whether the State must file a notice of appeal in order to appeal pursuant to Article 44.01(c). Compare Strong v. State, 87 S.W.3d 206, 211-13 (Tex.App.--Dallas 2002, pet. ref=d)[2] and Malley v. State, 9 S.W.3d 925, 927 (Tex.App.‑‑Beaumont 2000, pet. ref=d)(cases holding that State is required to file a notice of appeal in order to present a cross-point) with Mizell v. State, 70 S.W.3d 156, 162-63 (Tex.App.--San Antonio 2001), aff=d on other grounds, 119 S.W.3d 804 (Tex.Crim.App. 2003)[3] and McClinton v. State, 38 S.W.3d 747, 750-51 (Tex.App.--Houston [14th Dist.] 2001), pet. dism=d improvidently granted, 121 S.W.3d 768 (Tex.Crim.App. 2003)(cases holding that it is not necessary for State to file its on notice of appeal). I would follow the holdings of Mizell and McClinton. Article 44.01 of the Code of Criminal Procedure provides: (a) The state is entitled to appeal an order of a court in a criminal case if the order: (1) dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint; (2) arrests or modifies a judgment; (3) grants a new trial; (4) sustains a claim of former jeopardy; (5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case; or (6) is issued under Chapter 64. (b) The state is entitled to appeal a sentence in a case on the ground that the sentence is illegal. (c) The state is entitled to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment. (d) The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 15th day after the date on which the order, ruling, or sentence to be appealed is entered by the court. Tex.Code Crim.Proc.Ann. art. 44.01(a)-(d)(Vernon Pamph. 2004-05). While Article 44.01(d) and Rule 26.2(b) set forth the time in which the State must file a notice of appeal when it appeals from a court=s order pursuant to Article 44.01(a) and (b), neither Article 44.01 nor the Rules of Appellate Procedure regarding criminal appeals requires the State to file a written notice of appeal Ato appeal a ruling on a question of law [when] the defendant is convicted in the case and appeals the judgment.@ Mizell, 70 S.W.3d at 163, quoting Tex.Code Crim.Proc.Ann. art. 44.01(c); Tex.R.App.P. 25.2(a)‑(b)(2), 26.2(b). Do we assume, then, that there is no deadline for the State=s notice of appeal? Or does the absence of a filing deadline indicate that it is unnecessary for the State to file a notice of appeal when raising a cross-point under Article 44.01(c)? An analysis of the approach taken in civil appeals indicates that the latter answer is more reasonable. In civil appeals, it is abundantly clear that any party seeking to alter the trial court=s judgment must file a notice of appeal. See Tex.R.App.P. 25.1(c).[4] However, a separate notice of appeal is not required where a party does not seek to alter the trial court=s judgment but merely presents an alternate ground for affirmance. See Helton v. Railroad Commission of Texas, 126 S.W.3d 111, 119-20 (Tex.App.‑-Houston [1st Dist.] 2003, pet. denied)(holding that separate notice of appeal not required because cross-point presented alternate ground for affirmance of order); Dean v. Lafayette Place (Section One) Council of Co‑Owners, Inc., 999 S.W.2d 814, 817-18 (Tex.App.‑-Houston [1st Dist.] 1999, no pet.)(distinguishing cross‑points that require a separate notice of appeal from those that merely seek to raise alternate grounds opposing recovery by the appealing party, and consequently, do not require separate notice of appeal). If this were a civil case, the State would not be required to file a separate notice of appeal because the State, by its cross-point, is not attempting to alter the trial court=s judgment but rather seeks to uphold it. I would therefore conclude that the Court has jurisdiction to consider the State=s cross-appeal even though the State did not file its own notice of appeal. Reformation of the Judgment Even assuming the majority opinion is correct in its resolution of the previous two issues, it is nevertheless incorrect in its decision to render a judgment of acquittal. Upon a finding that the evidence is legally insufficient to support a conviction, the appropriate disposition is usually a reversal of the judgment of conviction and rendition of a judgment of acquittal. Bryant v. State, 135 S.W.3d 130, 135 (Tex.App.--Waco 2004, pet. granted), citing Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). However, a judgment must be modified to reflect a conviction for a lesser‑included offense if: (1) the jury was charged on the lesser offense; or (2) a party requested a charge on the lesser offense which the trial court denied. Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App. 1999); Bryant, 135 S.W.3d at 135; Hicks v. State, 999 S.W.2d 417, 424 (Tex.App.‑-Waco 1999, pet. ref=d). Misdemeanor DWI is a lesser‑included offense of felony DWI. Bryant, 135 S.W.3d at 136. The court=s charge omitted the enhancements from the jury=s consideration and effectively submitted the case to the jury as a misdemeanor. The jury found beyond a reasonable doubt that Appellant had committed each and every element of the primary DWI offense and Appellant has not challenged the sufficiency of the evidence to support any of those elements. Under these circumstances, reformation to reflect a conviction of misdemeanor DWI, rather than acquittal, is the proper disposition. The case would be remanded for a new punishment hearing. See Tex.Code Crim.Proc.Ann. art. 44.29(b)(Vernon Supp. 2004-05). Because the majority concludes otherwise, I must offer my dissent. February 10, 2005 ANN CRAWFORD McCLURE, Justice [1] The trial court reviewed Robles v. State, 85 S.W.3d 211 (Tex.Crim.App. 2002) and Hollen v. State, 87 S.W.3d 151 (Tex.App.--Fort Worth 2002), rev=d, 117 S.W.3d 798 (Tex.Crim.App. 2003). Appellant=s trial occurred prior to the Court of Criminal Appeals= decision in Hollen. [2] In Strong, the Dallas Court of Appeals states that this Court held in Gelo v. State, 1 S.W.3d 703, 705 (Tex.App.--El Paso 1999, no pet.) that the State is not required to file a notice of appeal in order to appeal under Article 44.01(c). That is not the holding of Gelo. In Gelo, the defendant complained that the Court had refused to allow him to present cross-points in a previous appeal by the State. The Court did not address whether the State is required to file a notice of appeal when pursuing an appeal under Article 44.01(c). [3] In its opinion affirming the court of appeals= decision in Mizell, the Court of Criminal Appeals declined to address the issue. [4] There is no counterpart to Rule 25.1(c) in criminal appeals.