Williams v. State, No. 08-03-00083-CR (TX 2/10/2005)

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Unpublished Opinion

ARTHUR KAY WILLIAMS, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-03-00083-CR.

Court of Appeals of Texas, Eighth District, El Paso.

February 10, 2005

Do Not Publish.

Appeal from the 243rd District Court of El Paso County, Texas, (TC# 20010D04553).

Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

DAVID WELLINGTON CHEW, Justice.

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 "California 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 "other 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 "induced 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 "[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 "preclude 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...