Opinion
No. 04-04-00243-CR
Delivered and Filed: April 6, 2005.
Appeal from the County Court at Law No. 1, Bexar County, Texas, Trial Court No. 861206, Honorable al Alonso, Judge Presiding.
Reversed and Rendered.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
OPINION
A jury found defendant, Aaron Blank, guilty of driving while intoxicated, second offense. The trial court assessed punishment at ten months' confinement. On appeal, defendant challenges the State's use of an Illinois court "Case Synopsis," which the State contends proves a prior conviction. Because we determine the State failed to prove a prior conviction, we reverse and render.
DISCUSSION
The information charged defendant with the misdemeanor offense of driving while intoxicated. Ordinarily, a driving while intoxicated offense under Penal Code section 49.04 is a Class B misdemeanor. See Tex. Pen Code Ann. § 49.04 (Vernon 2003). A section 49.04 offense may be enhanced to a Class A misdemeanor under Penal Code section 49.09 if "it is shown on trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated." See id. § 49.09(a); see also State v. Morgan, 110 S.W.3d 512, 514 (Tex.App.-Beaumont 2003) (holding that "in order to prosecute a misdemeanor DWI defendant as a Class A `enhanced offense' offender, the State must properly allege the one intoxication-related prior conviction as an element of the offense, and prove the said prior conviction in its case-in-chief beyond a reasonable doubt. In short, the one intoxication-related prior conviction is an element of the `enhanced offense' of DWI — Class A."), rev'd on other grounds, 2004 WL 948332 (Tex.Crim.App. May 5, 2004) (reversing on determination that court of appeals did not have jurisdiction over State's appeal); cf. Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999) (prior intoxication-related offenses are elements of the offense of DWI, they define the offense as a felony and are admitted into evidence as part of the State's proof of its case-in-chief during the guilt-innocence stage of the trial). In this case, the information contained an additional paragraph alleging defendant had been convicted in 1993 of the offense of driving while intoxicated in Illinois. On appeal, defendant asserts the trial court erred in allowing the State's use of a computer-generated "Case Synopsis" as proof of the 1993 conviction. According to defendant, the Case Synopsis is not a judgment of conviction; therefore, absent the use of the synopsis, the evidence is legally insufficient to support the jury's verdict. We agree.
A prior conviction may be proven by certified copies of a judgment and sentence and authenticated copies of records from the Texas Department of Corrections or other correctional institution, including fingerprints, supported by expert testimony matching them to the defendant. Littles v. State, 726 S.W.2d 26, 28 (Tex.Crim.App. 1984); Zimmer v. State, 989 S.W.2d 48, 50 (Tex.App.-San Antonio 1998, pet. ref'd). However, this is not the only method by which the State may prove a prior conviction. The State also may offer: (1) testimony from a witness who personally knows the defendant and the fact of his prior conviction; (2) the defendant's stipulations or judicial admissions; or (3) the defendant's photograph in a penitentiary packet or other official record. Littles, 726 S.W.2d at 31; Zimmer, 989 S.W.2d at 50.
Here, the State relied on a computer print-out entitled "Case Synopsis," which it contends is a judgment. However, the synopsis is not entitled "Judgment," does not indicate the name of the court, and does not identify the presiding judge. The synopsis contains the following information, which the State argues establishes the 1993 conviction for driving while intoxicated:
CNT DATE CHARGE
1 02/21/1993 DRVG UNDER INFLU OF ALCOHOL
07/12/1993 GUILTY BENCH TRIAL
07/12/1993 FINE
1 02/21/1993 DRVG UNDER INFLU OF ALCOHOL
11/10/1993 TERMINATED S BENCH TRIAL
The synopsis indicates defendant was charged with the offense of driving while intoxicated. However, the notation of "guilty" may indicate defendant's plea or it may, as the State alleges, indicate a guilty verdict. In either event, it does not indicate whether defendant was actually convicted of any offense, much less which offense. There is no evidence in the record that the synopsis is "a writing authorized by law to be recorded or filed and [was] in fact recorded or filed in a public office, or [is] a purported public record, report, statement, or data compilation, in any form, . . . from the public office where items of this nature are kept." See Tex. R. Evid. 901(b)(7). The synopsis bears the seal of the Lake County, Illinois Circuit Court of the Nineteenth Judicial Circuit, and it contains a certification by the clerk of the court that "the above [is] correct." However, there is no evidence that the synopsis is a "copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed in a public office, including data compilations in any form. . . ." Id. 902(4). Nothing in the record supports the State's contention that the synopsis represents a judgment of conviction. The State introduced no other evidence of the 1993 conviction, and the defendant repeatedly denied such a conviction. For these reasons, we conclude the evidence is legally insufficient to support the jury's verdict on a Class A misdemeanor; therefore, we must reverse the conviction for a Class A misdemeanor driving while intoxicated and render a judgment of acquittal.
The appendix to defendant's brief contains a copy of a Agreed Order Nunc Pro Tunc, which states that "the official record and Circuit Court Clerk's minutes shall be corrected in order to reflect the following: Pursuant to a negotiated plea, the charges in the above entitled matter were reduced from the offense of Driving Under the Influence to the Offense of Reckless Driving on July 12, 1993." However, an appellate court must determine a case on the record as filed and cannot consider documents attached as exhibits or appendices to briefs or motions. Tex.R.App.P. Rule 34.1.