Belle v. State

Full title: CHRISTOPHER BELLE, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Jul 27, 2006

No. 14-05-01111-CR (Tex. App. Jul. 27, 2006)

Opinion

No. 14-05-01111-CR

Memorandum Opinion filed July 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(B).

On Appeal from the 212th District Court, Galveston County, Texas, Trial Court Cause No. 02CR1736. Affirmed.

Panel consists of Justices HEDGES, YATES, and GUZMAN.

MEMORANDUM OPINION

EVA M. GUZMAN, Justice.

Appellant Christopher Belle appeals a conviction for felony driving while intoxicated (DWI) on the grounds that: (1) one of the convictions used to increase the offense to a felony was not final; and (2) the court's instruction to the jury that it "may consider the defendant's refusal to submit to a breath test as evidence in this case" is an improper comment on the weight of the evidence. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 4, 2002, appellant failed to stop at a traffic light and caused an accident. When a police officer investigated the accident, he observed appellant's speech was slurred, and he detected an odor of alcohol emanating from appellant. The officer requested that appellant perform several field sobriety tests. After appellant's performance of those tests, the officer formed the opinion that appellant was intoxicated, and transported him to the police station. At the police station, appellant refused to give a sample of his breath. Because the offense was appellant's third DWI, he was indicted for, and convicted of, felony DWI.

II. ANALYSIS

A. Felony Driving While Intoxicated In his first issue, appellant contends the State did not prove appellant was guilty of felony DWI because one of the prior convictions used to elevate the offense to a felony was not final. Specifically, appellant contends State's Exhibit 5 did not show proof of a final conviction. State's Exhibits 4 and 5 reflect that on September 19, 1995, appellant entered a plea of nolo contendere to the offense of misdemeanor DWI. The trial court sentenced appellant to six months in jail, but suspended the sentence and placed appellant on probation for twelve months. Appellant argues that because he was placed on probation, the conviction is not final and cannot be used to elevate the instant case to felony DWI. Ordinarily, a prior conviction is not final for enhancement purposes if the defendant received probation or community supervision that was never revoked. See TEX. PENAL CODE ANN. § 12.42 (Vernon Supp. 2005); see also Jordan v. State, 36 S.W.3d 871, 875 (Tex.Crim.App. 2001). However, the DWI statute defines a final conviction differently. Section 49.09(b) of the Penal Code provides that a defendant commits felony DWI if he commits a DWI offense and "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) (Vernon Supp. 2005). For the purposes of felony DWI, a prior DWI conviction for an offense that occurs on or after September 1, 1994, is a final conviction whether the sentence for the conviction is imposed or probated. TEX. PENAL CODE ANN. § 49.09(d) (Vernon Supp. 2005). Appellant argues the State did not prove that the conviction on September 19, 1995, in Cause No. 153998, was a final conviction for the purposes of section 49.09 because appellant was placed on probation for that offense. In this case, State's Exhibit 4 contains a final judgment of conviction in Cause No. 153988. That judgment reflects that appellant was found guilty of misdemeanor DWI, and sentenced to six months in jail and a $600 fine. The exhibit also contains an order suspending appellant's sentence and granting him probation for twelve months. Under section 49.09(b), State's Exhibits 4 and 5 reflect a final conviction for purposes of a subsequent DWI prosecution. See Ex parte Serrato, 3 S.W.3d 41, 43 (Tex.Crim.App. 1999) (holding that a probated conviction could be used to elevate DWI to a felony).

Appellant also relies on the docket sheet in Cause No. 153988, which contains the following stamped entry: "This cause dismissed though period of probation not having been satisfactorily completed. Judge County Court No. 2[.]" Although appellant implies that the docket entry establishes that Cause No. 153988 did not result in a final conviction, we cannot give the docket entry the dispositive effect appellant suggests. As has long been recognized, docket sheet entries are inherently unreliable, and do not become part of the record in the cases they describe. See State v. Shaw, 4 S.W.3d 875, 878 (Tex.App.-Dallas 1999, no pet.) ("Docket sheet entries are not part of the record because they are inherently unreliable, lacking the formality of orders and judgments."). It does not constitute a signed, written order, nor is it a final judgment. See In re K.M.B., 148 S.W.3d 618, 622 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (explaining that a docket-sheet entry does not constitute a signed, written order); Espeche v. Ritzell, 123 S.W.3d 657, 664 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) ("The docket sheet entry may not stand as an order."). It "may supply facts in certain situations, but it cannot be used to contradict or prevail over a final judicial order.".

Hernandez v. State, 84 S.W.3d 26, 32 n. 3 (Tex.App.-Texarkana 2002, pet. ref'd) (quoting N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977)). We hold the evidence of appellant's prior final DWI convictions is sufficient to support elevation of the charged offense to a felony DWI. Appellant points to no credible evidence purporting to vacate or reverse the prior convictions. Accordingly, appellant's first issue is overruled.

B. Jury Charge Instruction

In his second issue, appellant contends the trial court improperly commented on the weight of the evidence by giving the following instruction in the jury charge: "You are instructed that you may consider the defendant's refusal to submit to a breath test as evidence in this case." Appellant argues the trial court commented on the weight of the evidence by singling out the testimony of appellant's refusal to submit to a breath test. The trial court must submit a charge that sets forth the law applicable to the case without expressing any opinion as to the weight of the evidence. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon Supp. 2005). A charge that assumes the truth of a controverted issue is a comment on the weight of the evidence. Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App. 1986) (en banc). A jury instruction that identifies evidence requiring special consideration under the law, and that sets out the law governing such consideration, does not violate the prohibition against judicial comment, so long as it does not intimate that the jury should resolve any fact question in a certain way or that any of the evidence bearing upon such a fact question should be given greater weight or credibility than other evidence bearing on the same question. Atkinson v. State, 923 S.W.2d 21, 25 (Tex.Crim.App. 1996) (en banc), overruled on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App. 2002). The court's instruction in this case is a correct statement of the law. See TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999); Finley v. State, 809 S.W.2d 909, 913 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd). The instruction in this case was neutral in that it did not direct the jury to draw any particular inference from the fact that appellant refused the breath test. The trial court merely instructed the jury it could consider appellant's refusal as evidence. By not requiring any particular inference to be drawn, the instruction does not assume the truth of the controverted issue and is not a comment on the weight of the evidence. See Atkinson v. State, 923 S.W.2d at 25 (holding that a similar jury instruction was presented without suggesting to the jury how it should be resolved). Appellant's second issue is overruled. Accordingly, the judgment of the trial court is affirmed.