Schulz v. State

LESLIE ROBERT SCHULZ, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-20-00057-CR

Court of Appeals of Texas, Fifth District, Dallas

September 21, 2021

Do Not Publish TEX. R. APP. P. 47.2(b)

On Appeal from the 296th Judicial District Court Collin County Texas Trial Court Cause No. 296-83859-2018

Before Justices Molberg, Goldstein, and Smith

MEMORANDUM OPINION

BONNIE LEE GOLDSTEIN JUSTICE.

Leslie Robert Schulz appeals his conviction for driving while intoxicated (DWI) 3rd offense or more, based upon two prior misdemeanor DWI convictions, a third-degree felony offense.^[1] Schulz pled "not guilty" to the charged offense and did not stipulate to the prior DWI related offenses. A jury found Schulz guilty of DWI 3rd and the trial court assessed punishment pursuant to the parties' agreement to suspend the ten-year prison sentence, placing Schulz on probation for five years. Schulz presents two issues on appeal, first contending the trial court erred by refusing to quash a Florida conviction used as a jurisdictional enhancement, and next contending the trial court erred by refusing to suppress the results of Schulz's blood-alcohol test. We affirm the trial court's judgment.

I. Factual Background

Lavon Police Officer Flohr made a traffic stop based upon radar showing Schulz's motorcycle traveling 70 miles per hour in a 50 miles per hour zone. Schulz admitted he was returning home from a bar and gave inconsistent answers as to the number of drinks he consumed and whether he was at the bar with friends or alone. Officer Flohr, observing signs of Schulz's intoxication-slow, slurred speech, heavy eyes balance issues, the smell of alcohol, and an inability to focus-called for backup. Schulz refused to perform standardized field sobriety tests (SFSTs). Sargent Aaron arrived as backup, observed signs of Schulz's intoxication, and sought his consent to a breath test and SFSTs. Schulz, stating he was nervous, refused both. Officer Flohr arrested Schulz for driving while intoxicated, determining Schulz lacked normal use of his mental or physical faculties.

Upon arrest, Schulz was handcuffed, searched, placed in the back of Officer Flohr's patrol car, read his DIC-24 statutory warnings and provided a copy. Officer Flohr's bodycam video reflected the request for a blood specimen and Schulz's response "Okay, you can take my blood." Officer Flohr verified "So you're giving permission to consent for us to take your blood?" and Schulz replied "Yes." Prior to taking Schulz to a hospital, Officer Flohr asked Schulz a third time "you still consent to taking your blood?" and he said "yes." Schulz's blood was drawn by a registered nurse, placed into evidence and tested. Schulz's blood alcohol concentration was .221, which is two- and one-half times over the .08 legal limit.

Two prior misdemeanor DWIs were offered as jurisdictional enhancements, one from Collin County, Texas in 2012 and one from Lee County, Florida in 2014. Defense counsel objected that the Florida conviction was insufficient under Texas law to support a jurisdictional enhancement and moved to quash the Florida enhancement allegation in Schulz's indictment. The trial court overruled counsel's objections and denied the motion to quash.

II. Motion to Quash Jurisdictional Enhancement

In Issue One, Schulz contends the trial court erred in denying his motion to quash the portion of his indictment alleging a prior Florida conviction as a jurisdictional enhancement. The sufficiency of an indictment is a question of law that is reviewed de novo unless the resolution of the question of law turns on an evaluation of the credibility or demeanor of witnesses. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

Schulz collaterally attacks the Florida conviction as void because of the record's failure to reflect that he waived his right to a jury trial. A prior conviction that was alleged for enhancement may be collaterally attacked if it is void or if it is tainted by a constitutional defect. Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. 1979). Lesser infirmities in a prior conviction, such as irregularities in the judgment or sentence, may not be raised by a collateral attack, even if they would have resulted in a reversal had they been presented on appeal. Id.

A. State's Burden: Prima Facie Showing

A DWI offense may be enhanced to a third-degree felony if the State proves that the person has two prior convictions for certain DWI offenses. TEX. PENAL CODE ANN. § 49.09(b)(2). An offense relating to the operation of a motor vehicle while intoxicated includes an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated. Id. § 49.09(c)(1)(F). The prior convictions are jurisdictional allegations that define the offense and are essential elements of felony DWI that must be plead and proven at the guilt-innocence phase of trial. See TEX. PENAL CODE ANN. § 49.09(b); TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1); State v. Duke, 59 S.W.3d 789, 790 (Tex. App.-Fort Worth 2001, pet. ref'd) (op. on reh'g).

Schulz did not plead "true" to the jurisdictional enhancements or stipulate to the prior convictions. Where a defendant has not pled "true" to an enhancement allegation, the State must prove the enhancement allegation beyond a reasonable doubt. Wood v. State, 486 S.W.3d 583, 588 (Tex. Crim. App. 2016) (holding State cannot solely rely upon presumption of regularity applied to judgment recital of "true" plea to an enhancement allegation, finding State met its evidentiary burden to prove prior conviction). To establish a prior conviction for purposes of enhancement, the State must produce evidence demonstrating the existence of a prior conviction and the defendant's link to it. Henry v. State, 509 S.W.3d 915, 918 (Tex. Crim. App. 2016) (citing Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007)).

To make its prima facie showing, the State introduced, and the Court admitted over objection, State's Exhibit 8, the Florida penitentiary packet consisting of certified copies of the Florida judgment and sentence, fingerprint card, order/commitment form, first appearance court order, arrest warrant, and sheriff's alcohol influence report, all containing Schulz's name and the same case number.^[2]The judgment indicates Schulz entered a plea of nolo contendere to DUI, in open court, signed by the Judge, placed on 12 months' probation, with a blank signature line acknowledging receipt of the order. The order/commitment form ("plea form") reflects Schulz was "Present by Attorney" and that a plea of nolo contendere was made "in absentia." The plea form reflects a sentence of twelve months' probation with the same conditions of probation as the judgment.

If the State provides prima facie evidence of an enhancement conviction, we presume the regularity of the judgment related to that prior conviction. Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007); Wise v. State, 394 S.W.3d 594, 598 (Tex. App.-Dallas 2012, no pet.). We find the State met its evidentiary burden to link Schulz to the prior Florida DUI conviction, and therefore we presume the regularity of the Florida conviction for enhancement purposes. Once the State links a defendant to a prior judgment, the burden then shifts to the defendant, who must affirmatively show a defect in the judgment that would render it void. See Wise, 394 S.W.3d at 598; see also Sample v. State, 405 S.W.3d 295, 301 (Tex. App.-Fort Worth 2013, pet. ref'd); Williams v. State, 309 S.W.3d 124, 129 (Tex. App.- Texarkana 2010, pet. ref'd).

B. Burden Shifts to Schulz - Presumption of Regularity

During the punishment phase of trial, Schulz moved to quash the Florida penitentiary packet produced by the State for enhancement purposes. Schulz contends that the face of the Florida judgment contains false statements and therefore is not entitled to the presumption of regularity. Noting that neither Schulz nor his attorney signed the judgment or plea form, Schulz argues that recitals in the judgment indicating Schulz was present before the court, entered a nolo contendere plea, and was admonished that his probation may be rescinded are false, as they conflict with the plea form that reflects Schulz did not appear in person and that his plea was made in absentia. The State argues, reading the judgment and plea form together, that Schulz was present before the court through his attorney's representation, noting that Florida procedural rules allow a misdemeanor defendant to be tried in absentia at their own request, upon leave of court. See FLA. R. CRIM. P. 3.180(d). In addition to reflecting that Schulz made a plea in absentia and was "Present by Attorney," the plea form contains defense counsel's name, and the same date, plea, case number, and sentence details as the judgment. The first appearance court order, recites, among others, that Schulz 1) was to be provided a copy of the order upon release from jail, 2) lived in Texas, 3) acknowledged he had been advised of his right to be represented by an attorney and of the rights on the plea form, and 4) the conviction may be used on a subsequent felony score sheet. Similar to cases likening such evidence to pieces of a jigsaw puzzle, we find the details of Schulz's appearance and plea through counsel reflected on the plea form and other documents are pieces of the puzzle that supplement, rather than conflict, with the judgment. Flowers, 220 S.W.3d at 923 (although each piece alone may have little meaning, evidence is legally sufficient to prove a prior conviction when the evidence considered together forms a picture showing a defendant is the person who committed the alleged prior offense); see also Wood, 486 S.W.3d at 589-90. Properly considering...