Victoriano Hernandez Rodriguez v. State

NOS. 12-07-00081-CR 12-07-00082-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS VICTORIANO HERNANDEZ RODRIGUEZ, § APPEAL FROM THE 217TH APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § ANGELINA COUNTY, TEXAS MEMORANDUM OPINION Victoriano Hernandez Rodriguez appeals his convictions for felony driving while intoxicated. On appeal, Appellant argues that the evidence is legally insufficient to sustain his guilty pleas. We affirm. Background Appellant was charged by indictment with felony driving while intoxicated (DWI) that occurred on November 20, 2005.1 In order to obtain felony jurisdiction, the indictment alleged that Appellant had been previously convicted twice for the offense of DWI.2 Additionally, the indictment alleged that Appellant had been convicted in Angelina County of the offense of felony DWI, thus enhancing his offense to a second degree felony.3 Appellant was also charged by indictment with felony DWI that occurred on July 7, 2005. The second indictment included the same jurisdictional and enhancement paragraphs as the first indictment. On January 4, 2007, Appellant entered an open plea of guilty to the offenses charged in the two indictments. In both cases, Appellant signed written plea admonishments, waivers, and stipulations, consenting to oral and written stipulations of evidence and written guilty pleas in which he swore and confessed his guilt “to having committed each and every element of the offense alleged in the indictment or information.” He also pleaded “true” to the enhancement paragraph in both cases. The trial judge, the attorney for the State, and Appellant’s attorney approved the plea agreements, waivers, and stipulations made by Appellant. During his plea hearing, Appellant also pleaded “true” to both jurisdictional paragraphs. The trial court adjudged Appellant guilty of both offenses and, after a sentencing hearing, assessed his punishment at ten years of imprisonment for each offense to be served concurrently. This appeal followed. Evidentiary Sufficiency In two issues, Appellant argues that the evidence is legally insufficient to support his guilty pleas in accordance with article 1.15 of the Texas Code of Criminal Procedure. More specifically, he contends that there is insufficient evidence to show that the offense alleged in one of the jurisdictional paragraphs, a 1988 Uvalde County offense, was a final conviction, which is a necessary element of felony DWI. The State argues that Appellant’s judicial confessions and guilty pleas provide sufficient evidence to support his convictions. Standard of Review According to article 1.15 of the Texas Code of Criminal Procedure, no person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless he, upon entering a plea, has in open court in person waived his right of trial by jury in writing. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). Article 1.15 also requires the State to introduce evidence into the record showing the guilt of the defendant and “in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.” Id. This evidence may be stipulated if the defendant 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. Id. If the defendant elects to stipulate to evidence against him, his stipulation is a kind of judicial admission, a “formal confession[ ] in the pleadings in the case or stipulations by a party or counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005) (quoting John W. Strong, et al., McCormick on Evidence § 255 (5th ed. 1999)). Although a plea of guilty is an admission of guilt of the offense charged, it does not authorize a conviction in a bench trial upon such plea unless there is evidence offered to support the plea and the judgment to be entered. Dinnery v. State, 592 S.W.2d 343, 351 (Tex. Crim. App. 1979). A judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea and to satisfy the requirements of article 1.15. Id. at 353. Reviewing the sufficiency of the evidence to support a judgment under article 1.15 upon a plea of guilty requires that an appellate court apply a different standard of review than when it reviews legal sufficiency under the standard required by Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Keller v. State, 125 S.W.3d 600, 604-05 (Tex. App.–Houston [1st Dist.] 2003, pet. dism’d, improvidently granted). Instead, the supporting evidence must simply embrace every essential element of the offense charged. McGill v. State, 200 S.W.3d 325, 330 (Tex. App.–Dallas 2006, no pet.). Applicable Law A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a). An offense under section 49.04 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted two times of any other offense relating to the operating of a motor vehicle while intoxicated. Tex. Penal Code Ann. § 49.09(b)(2). A conviction for an offense under section 49.04 that occurs on or after September 1, 1984 is a final conviction, whether the sentence for the conviction is imposed or probated. See Tex. Penal Code Ann. § 49.09(c)(1)(C), (d) (Vernon 2003 & Supp. 2007); Act of May 27, 1983, 68th Leg., R.S., ch. 303 § 3, 1983 Tex. Gen. Laws 1568, 1574-76. The prior intoxication related offenses serve the purpose of establishing whether the instant offense qualifies as a felony DWI. Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). These prior offenses are elements of the offense of DWI, define the offense as a felony, must be proven, and are admitted into evidence as part of the State’s proof during the guilt-innocence stage of a trial. Id.; see also Hollen v. State, 117 S.W.3d 798, 801 (Tex. Crim. App. 2003). Analysis Appellant contends that the State did not prove that the 1988 Uvalde County conviction was final because there is no evidence showing when it occurred, specifically, that it occurred on or after January 1, 1984. In the plea papers for both cases, Appellant pleaded guilty and “confessed” his guilt to “having committed each and every element of the offense alleged in the indictment.” He also pleaded “true” to the enhancement paragraph. Further, he consented to oral and written stipulations of evidence. At the plea hearing, Appellant pleaded guilty to both offenses and pleaded “true” to a 1988 conviction for DWI in Uvalde County, along with a 1992 conviction for DWI in Uvalde County and a 2001 felony DWI conviction in Angelina County. The 1988 Uvalde County order granting probation that was admitted into evidence did not contain the date the offense was committed. However, because the allegations of two prior DWI convictions are elements of the offenses, Appellant’s judicial confessions provided sufficient evidence to support his convictions. See Ramirez v. State, 139 S.W.3d 731, 732-33 (Tex. App.–Fort Worth 2004, pet. ref’d). Further, Appellant argues that in his oral pleas, the trial court did not distinguish his pleas of “true” to the prior convictions between the two convictions being used for jurisdictional purposes and the felony conviction being used to enhance his punishment. As such, he appears to argue that we should treat his prior Uvalde County convictions as enhancements, not as elements of the offenses, and thus subject to a challenge to the sufficiency of the evidence. Although we regard the 1988 Uvalde County conviction as an element of the charged offenses, we note that, as a general rule, when a defendant pleads true to an enhancement paragraph, the State is relieved of the burden of proving the enhancements, and the defendant cannot complain on appeal that the evidence is insufficient to support the enhancements. Mikel v. State, 167 S.W.3d 556, 559 (Tex. App.–Houston [14th Dist.] 2005, no pet.). A narrow exception to this rule occurs if the record affirmatively reflects that a prior conviction was not final. Id. If so, that conviction cannot be used to enhance punishment. Id. In these cases, it is not apparent from the record that the 1988 Uvalde County conviction was not final or, more specifically, that it occurred before January 1, 1984. Further, the 1988 Uvalde County conviction was not used to enhance Appellant’s punishments, but to enhance the offenses. See Gibson, 995 S.W.2d at 696. Because Appellant’s judicial confessions provided sufficient evidence to support his guilt and the 1988 Uvalde County conviction was an element of the offenses, not an enhancement of punishment, we overrule Appellant’s first and second issues. Disposition The judgments of the trial court are affirmed. SAM GRIFFITH Justice Opinion delivered October 31, 2007. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 1 See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). 2 An offense under section 49.04 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted two times of any other offense relating to the operating of a motor vehicle while intoxicated. Tex. Penal Code Ann. § 49.09(b)(2) (Vernon 2003). 3 If it is shown on the trial of a third degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for second degree felony. Tex. Penal Code Ann. § 12.42(a)(3) (Vernon 2003).