Opinion
04-20-00356-CR
06-15-2022
John Stewart MUELLER, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CR-19-0000009 Honorable M. Rex Emerson, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Patricia O. Alvarez, Justice, Beth Watkins, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
Appellant John Stewart Mueller pled guilty to felony DWI as a habitual offender and reserved the right to appeal. We will modify the trial court's judgment and affirm it as modified.
Background
On August 3, 2018, Bandera County Deputy Marshal Jimmy Allen was dispatched to a motor shop in Bandera, Texas in response to reports of a man causing a disturbance. While headed north towards the shop, Allen received information that the man, later identified as Mueller, had driven away from it on a white motor scooter. Allen saw Mueller driving south and pulled him over. Allen thought that Mueller was intoxicated, and when Mueller refused to do any field sobriety tests, Allen arrested him for DWI. Allen later obtained a warrant for a blood draw and Mueller tested over the legal limit.
Mueller was charged with felony DWI. The original indictment included a deadly weapon allegation, but no enhancement paragraphs. Mueller entered a non-negotiated guilty plea to felony DWI as a habitual offender and the trial court ordered a pre-sentence investigation. The PSI reflected that Mueller previously had been convicted of multiple felony and misdemeanor DWIs. The trial court sentenced Mueller as a habitual offender to fifty years in prison. Mueller appealsraising four issues: (1) the judgment contains an erroneous deadly weapon finding; (2) the evidence is insufficient to support the fifty-year sentence; (3) the State failed to plead, in any form, prior convictions to be used to enhance the sentence; and (4) the evidence is insufficient to support the assessment of court-appointed attorney's fees.
Mueller's first court-appointed appellate attorney filed a brief containing a professional evaluation of the record in accordance with Anders v. California, 386 U.S. 738 (1967). After reviewing the briefs and the record, we concluded there were arguable grounds for appeal, including whether Mueller's sentence was properly enhanced, and whether the deadly weapon finding in the judgment was in error. We ordered the trial court to appoint new counsel on appeal to present those and any other arguable grounds of error. Mueller v. State, No. 04-20-00356-CR, 2021 WL 3377601, at *2 (Tex. App.-San Antonio Aug. 4, 2021, no pet.) (mem. op.).
Analysis
The Deadly Weapon Finding
Applicable Law
This court has the authority to reform a judgment "to make the record speak the truth when the matter has been called to its attention by any source." French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). If the State agrees to forbear and relinquish a deadly weapon finding, the proper remedy is to delete the finding from the judgment. Del Rio v. State, 943 S.W.2d 62, 64 (Tex. App.-San Antonio 1997, pet. ref'd).
Application
A colloquy between defense counsel and the prosecutor at the plea hearing shows that the parties agreed that the State would abandon the deadly weapon allegation. Despite this, the judgment includes a deadly weapon finding. On appeal, the State agrees that the "judgment should be reformed to remove the deadly weapon finding." We therefore sustain Mueller's first issue, and reform the trial court's judgment to delete the deadly weapon finding so that the record speaks the truth of the parties' agreement. Tex.R.App.P. 43.2(b); Del Rio, 943 S.W.2d at 64.
The Sufficiency to Prove Habitual Status
Standard of Review
When a defendant waives his right to a jury trial and pleads guilty or nolo contendere to a felony, article 1.15 of the Texas Code of Criminal Procedure requires the State to introduce evidence into the record showing the guilt of the defendant to serve as the basis for the trial court's judgment. Tex. Code Crim. Proc. Ann. art. 1.15. "Evidence offered in support of a guilty plea may take many forms." Menefee v. State, 287 S.W.3d 9, 13-14 (Tex. Crim. App. 2009). "The statute expressly provides that the defendant may consent to the proffer of evidence in testimonial or documentary form, or to an oral or written stipulation of what the evidence against him would be, without necessarily admitting to its veracity or accuracy; and such a proffer or stipulation of evidence will suffice to support the guilty plea so long as it embraces every constituent element of the charged offense." Id. at 13. Caselaw recognizes "that the defendant may enter a sworn written statement, or may testify under oath in open court, specifically admitting his culpability or at least acknowledging generally that the allegations against him are in fact true and correct; and again, so long as such a judicial confession covers all of the elements of the charged offense, it will suffice to support the guilty plea." Id. "However, a stipulation of evidence or judicial confession that fails to establish every element of the offense charged will not authorize the trial court to convict." Id. at 14.
Applicable Law
To expose an individual to the punishment range of felony for what would otherwise be a misdemeanor, a DWI indictment must allege at least two prior DWI convictions. Tex. Penal Code Ann. § 49.09(b)(2). "The two prior DWI convictions, whether they are felonies or misdemeanors, [serve to] elevate the misdemeanor DWI to a third-degree felony" Ex parte Rodgers, 598 S.W.3d 262, 271-72 (Tex. Crim App. 2020) (Walker, J., concurring). These prior convictions are jurisdictional elements because they shift subject matter jurisdiction from a misdemeanor court to a felony court. Oliva v. State, 548 S.W.3d 518, 519 (Tex. Crim. App. 2018). Section 12.42(d), on the other hand, provides for habitual offender treatment if it is shown that a felony offender "has previously been finally convicted of two felony offenses[.]" Tex. Penal Code Ann. § 12.42(d). A prior DWI conviction can be used for jurisdictional enhancement (under section 49.09) or punishment enhancement (under subchapter D, Chapter 12), but not both. Tex. Penal Code Ann. § 49.09(g).
Application
"When the trial court assesses punishment, a defendant is not required to state an oral plea to enhancement paragraphs on the record if he has previously stipulated to the allegations in the enhancement paragraphs." Lopez v. State, 452 S.W.3d 425, 429 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd) (citing Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973)). Such a stipulation "relieves the State of its evidentiary burden to prove the enhancement allegations, unless the record 'affirmatively reflects' that the enhancements were improper." Hopkins v. State, 487 S.W.3d 583, 586 (Tex. Crim. App. 2016) (footnote omitted). Mueller argues that the record affirmatively reflects that the enhancements were improper. He argues that the indictment he pled guilty to alleged felony DWIs as jurisdictional elements under section 49.09(b)(2), and so those felony DWIs could not also be used as punishment enhancements under section 12.42(d), making the evidence insufficient to support a sentence in the habitual range. Tex. Penal Code Ann §§ 12.42(d), 49.09(b)(2), (g).
The record reflects that in the original indictment, filed January 15, 2019, the State pled two Bexar County felony DWIs as the jurisdictional elements and included a deadly weapon allegation, but did not allege punishment enhancements:
ON OR ABOUT AUGUST 3, 2018, AND BEFORE THE PRESENTMENT OF THIS INDICTMENT, IN SAID COUNTY AND STATE, DID THEN AND THERE OPERATE A MOTOR VEHICLE IN A PUBLIC PLACE WHILE THE SAID DEFENDANT WAS INTOXICATED, AND THE SAID DEFENDANT HAD PREVIOUSLY BEEN CONVICTED TWO OR MORE TIMES FOR THE OFFENSE OF DRIVING AND OPERATING A MOTOR VEHICLE IN A PUBLIC PLACE AND UPON A PUBLIC ROAD WHILE INTOXICATED, TO-WIT:
[1] IN CAUSE NO. 2001CR6941 OF 186' DISTRICT COURT OF BEXAR COUNTY, TEXAS, ON THE 6TH DAY OF MAY, 2002, AND
[2] IN CAUSE NO. 2012CR8889 OF 226' DISCTRICT COURT OF BEXAR COUNTY, TEXAS, ON THE 18' DAY OF DECEMBER, 2012
DEADLY WEAPON FINDING:
AND IT IS FURTHER ALLEGED THAT DURING THE COMMISSION OF SAID OFFENSE, THE DEFENDANT DID THEN AND THERE USE A DEADLY WEAPON, TO WIT, A VEHICLE, WHICH BY ITS USE OR INTENDED USE WAS CAPABLE OF CAUSING SERIOUS BODILY INJURY OR DEATH.
During a June 12, 2019 hearing, the State explained that it had filed a motion to amend the indictment to substitute two misdemeanor DWIs as the jurisdictional elements. See Tex. Code Crim. Proc. Ann. arts. 28.10, 28.11. The State explained that the two felony DWIs originally alleged would appear in its forthcoming "motion to enhance" and stated:
What we discovered is that if you see the two priors, two jurisdictional priors in the indictment right here, those are both, in fact, two felony DWIs, and if you read- we haven't filed it yet, but you have got it in our motion to enhance, we have the same two felonies written there, so we substituted jurisdictional.
Defense counsel requested time to look over the motion, "Just say until Monday. If I don't file anything by Monday [June 17], then no objection." On June 17, 2019, the State filed the amended indictment and defense counsel never filed an objection to it. In the amended indictment, the State pled two misdemeanor DWIs (one from Bexar County and one from Comal County) as the jurisdictional elements, again included a deadly weapon allegation, but again did not allege punishment enhancements:
ON OR ABOUT AUGUST 3, 2013, AND BEFORE THE PRESENTMENT OF THIS INDICTMENT, IN SAID COUNTY AND STATE, DID THEN AND THERE OPERATE A MOTOR VEHICLE IN A PUBLIC PLACE WHILE THE SAID DEFENDANT WAS INTOXICATED, AND THE SAID DEFENDANT HAD PREVIOUSLY BEEN CONVICTED TWO OR MORE TIMES FOR THE OFFENSE OF DRIVING AND OPERATING A MOTOR VEHICLE IN A PUBLIC PLACE AND UPON A PUBLIC ROAD WHILE INTOXICATED. TO-WIT;
[1] IN CAUSE NO. 715739 OF COUNTY COURT NO. 8 OF BEXAR COUNTY, TEXAS, ON THE 10TH DAY OF AUGUST, 1999; AND
[2] IN CAUSE NO. 86-754 OF COUNTY COURT AT LAW OF COMAL COUNTY, TEXAS, ON THE 7th DAY OF MAY, 1997.
DEADLY WEAPON FINDING:
AND IT IS FURTHER ALLEGED THAT DURING THE COMMISSION OF SAID OFFENSE, THE DEFENDANT DID THEN AND THERE USE A DEADLY WEAPON, TO WIT, A VEHICLE, WHICH BY ITS USE OR INTENDED USE WAS CAPABLE OF CAUSING SERIOUS BODILY INJURY OR DEATH.(highlighting added).
On July 22, 2019, the trial court heard Mueller's plea of guilty to the offense of felony DWI. The trial court discussed the plea papers and indictment with Mueller. The State attached, as Exhibit A to the plea papers, a copy of the original indictment alleging the two Bexar County felony DWIs as the jurisdictional elements, but with the deadly weapon allegation struck through:
ON OR ABOUT AUGUST 3, 2018. AND BEFORE THE PRESENTMENT OF THIS INDICTMENT, IN SAID COUNTY AND STATE, DID THEN AND THERE OPERATE A MOTOR VEHICLE IN A PUBLIC PLACE WHILE THE SAID DEFENDANT WAS INTOXICATED, AND THE SAID DEFENDANT HAD PREVIOUSLY BEEN CONVICTED TWO OR MORE TIMES FOR THE OFFENSE OF DRIVING AND OPERATING A MOTOR VEHICLE IN A PUBLIC PLACE AND UPON A PUBLIC ROAD WHILE INTOXICATED, TO-WIT:
[1] IN CAUSE NO. Z001CR6941 OF 186' DISTRICT COURT OF BEXAR COUNTY, TEXAS, ON THE 6TH DAY OF MAY, 2002. AND
[2] IN CAUSE NO. 2012CR8889 OF 226' DISCTRICT COURT OF BEXAR COUNTY, TEXAS, ON THE 18th DAY OF DECEMBER, 2012
(Image Omitted) (highlighting added). Mueller averred that he was pleading guilty to a felony offense, and that he faced a punishment as a habitual offender, "a term of life or any term of not more than 99 years or less than 25 years."
At the plea hearing, defense counsel questioned whether the attached indictment was the correct one. After a discussion both on and off the record, the prosecutor and defense counsel represented to the trial court that the indictment attached to the plea paperwork was the correct one. Mueller therefore seemingly pled guilty to a second amended indictment-which alleged the two Bexar County felony DWIs as the jurisdictional elements-without the deadly weapon allegation. See Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000) ("[w]hen the State produced a copy of the original indictment, [and] it was interlineated and incorporated into the court clerk's file, all with appellant's specific knowledge and express approval," it "became the 'official' indictment in the case.").
Nevertheless, nearly a year later, the trial court held the sentencing hearing with no discussion of which indictment controlled. The trial court and the parties proceeded as if Mueller had pled to the amended indictment filed on June 17, 2019. The probation department employee charged with drafting the PSI testified that Mueller acknowledged the validity of the two felony DWIs alleged as jurisdictional elements in the January 15, 2019 indictment and the two misdemeanor DWIs alleged as jurisdictional elements in the June 17, 2019 indictment.
Defense counsel acknowledged Mueller faced "25 years minimum" and argued that 25 years was a harsh sentence for driving a motor scooter while intoxicated. The trial court ordered 50 years' confinement. The trial court's judgment reflects a conviction for "Driving While Intoxicated 3rd or More-Habitual Offender" and specifically references Texas Penal Code 12.42. Under these unique circumstances, where Mueller pleaded guilty to felony driving while intoxicated as a habitual offender, we hold that the June 17, 2019 amended indictment was the "official" indictment in this case, leaving the felony DWIs available to support the habitual sentence. We therefore overrule Mueller's second issue.
Notice that the State will Attempt to Prove Habitual Offender Status
Applicable Law
A defendant is entitled to notice of the State's intention to use prior convictions for enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). "[P]rior convictions used as enhancements must be pled in some form, but they need not be pled in the indictment- although it is permissible and perhaps preferable to do so." Id. at 34. The pleading requirement for enhancements is a "right to notice rooted in due process," not one flowing from statutory provisions relating to the indictment, and the ultimate question is whether constitutionally adequate notice was given. Villescas v. State, 189 S.W.3d 290, 293-94 (Tex. Crim. App. 2006).
Application
At the June 12, 2019 hearing the State explained that it had filed a motion to amend the indictment to substitute two misdemeanor DWIs as the jurisdictional elements. The prosecutor explained that the two felony DWIs originally alleged would be in the forthcoming "motion to enhance." The referenced motion to enhance is not contained in the clerk's record, but on June 17, 2019, the State filed the amended indictment, listing one Bexar County misdemeanor DWI and one Comal County misdemeanor DWI as the jurisdictional elements. At that point, defense counsel had notice of the felony cause numbers the State intended to use to support a habitual sentence because they were listed in the original indictment. We conclude Mueller received the constitutionally adequate notice to which he was entitled here. See id. Mueller does not claim his defense was impaired by the timing of or mistakes in the State's pleading. Mueller has never argued, either in the trial court or on appeal, that he was surprised by the fact of the habitualized sentence as opposed to the length of it. See Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010). We therefore overrule Mueller's third issue.
Assessment of Attorney's Fees
Applicable Law
Article 26.05(g) allows the trial court to order a defendant to reimburse the costs of court-appointed legal counsel if the court finds the defendant is able to pay. Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013); see also Tex. Code Crim. Proc. Ann. art. 26.05(g). A "defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees." Cates, 402 S.W.3d at 251 (internal quotation marks omitted). "[A] defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Id.; see also Tex. Code Crim. Proc. art. 26.04(p).
Application
The record contains a finding that Mueller is indigent and does not indicate a material change in his financial circumstances has occurred. Cates, 402 S.W.3d at 251. The State agrees that the "judgment should be reformed to remove the assessment of attorney's fees."
The judgment lists $3,385.00 in reimbursement fees, but it also contains a finding that "all fines and costs" are "waived in full (not including restitution)." The bill of costs likewise reflects "all fees waived except restitution." In an abundance of caution, we sustain Mueller's fourth issue and modify the judgment to delete the assessment of $3,385.00 in reimbursement fees. See Tex. R. App. P. 43.2(b); Wilmurth v. State, 419 S.W.3d 553, 554-55 (Tex. App.-San Antonio 2013, no pet.).
Conclusion
We modify the judgment of the trial court to delete the deadly weapon finding and to subtract the attorney fees. The judgment of the trial court is affirmed as modified.