Opinion
No. 05-03-01193-CR
Opinion filed August 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F03-00909-VL. Affirmed.
Before Justices MOSELEY, O'NEILL, and RICHTER.
OPINION
Following his plea of not guilty, a criminal district court jury convicted Bernardo Medina of third-degree felony driving while intoxicated (DWI). At the punishment phase, the trial court found two enhancement paragraphs true and sentenced appellant to thirty years' confinement. Challenging his conviction in four points of error, appellant contends the trial court erred by denying his motion to quash the indictment; his counsel's failure to offer to stipulate to jurisdictional enhancements constituted ineffective assistance; the trial court erred by defining "reasonable doubt" in the jury charge; and the evidence is legally insufficient to sustain the jury's verdict. We overrule all appellant's points of error and affirm the trial court's judgment. BACKGROUND The caption of the indictment stated that appellant was charged with "DWI 3RD/3RD." The indictment's first paragraph charged that appellant unlawfully operated a motor vehicle in a public place while intoxicated, and he did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, or a drug of combination of substances. The indictment also included four paragraphs asserting that Medina had four prior convictions: (1) a conviction in F96-43299-JS for DWI; (2) a conviction in F92-73573-JN for DWI; (3) a final conviction in F90-34522-SW for felony DWI; and (4) a final conviction in F87-84980-MK for felony DWI. At the beginning of the trial's guilt/innocence phase, the trial court read the first three paragraphs of the indictment (regarding the offending conduct and the prior convictions in cause numbers F96-43299-JS and F92-73573-JN). Appellant pled not guilty to the indictment. During the trial, the State presented evidence supporting appellant's guilt as to the offending conduct, as well as evidence concerning the first two of the prior convictions set forth in the indictment. The jury convicted appellant of felony DWI. At the beginning of the trial's sentencing phase, the trial court arraigned appellant on the last two paragraphs of the indictment (i.e., the two prior final convictions for felony DWI); appellant pled not true to those paragraphs. The State presented, inter alia, evidence that appellant was the person convicted of the offenses stated in those paragraphs. The trial court found those paragraphs true and sentenced appellant to thirty years' confinement. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2004). This appeal followed. MOTION TO QUASH THE INDICTMENT A discussion of appellant's first point of error requires an understanding of the statutes affecting DWI and sentencing for repeat offenses. A person commits the misdemeanor offense of DWI if he is intoxicated while operating a motor vehicle in a public place. Id. § 49.04(a) (Vernon 2003). However, DWI is a third-degree felony if the State proves during the guilt/innocence phase of trial that the person has two prior DWI convictions. Id. § 49.09(b) (Vernon Supp. 2004). Moreover, when prior convictions are used to elevate a DWI to felony status, they must be pled in the indictment for the trial court to gain jurisdiction. Tamez v. State, 11 S.W.3d 198, 201 (Tex.Crim.App. 2000). Another section of the penal code, section 12.42, affects the penalties that may be assessed for repeat and habitual felony offenders. As pertinent to this case, if it is shown on the trial of a felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequently to the first previous conviction having become final, on conviction he shall be punished by imprisonment for life, or for any term of not more than ninety-nine years or less than twenty-five years. Tex. Pen. Code Ann. § 12.42(d). A prior conviction can be used to elevate a DWI to felony status, or it may be used to enhance punishment under Subchapter D, Chapter 12 of the penal code (e.g., sections 12.41 and following), but it cannot be used for both purposes. Id. § 49.09(g) (Vernon Supp. 2004). A provision in the code of criminal procedure governs what charges are read to the jury and when. Article 36.01 states: "When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment . . . shall not be read [to the jury] until the hearing on punishment is held. . . ." Tex. Code of Crim. Proc. Ann. art. 36.01(a)(1) (Vernon Supp. 2004). Article 36.01 suggests by negative implication that jurisdictional elements (e.g., prior offenses necessary for jurisdiction) may be read to the jury at the beginning of the guilt/innocence phase of the trial. See Tamez, 11 S.W.3d at 201. With that statutory background in mind, we address appellant's first point of error, in which he contends that the trial court erred by denying his motion to quash the indictment. Appellant asserts that the indictment is improper because it alleged four prior DWI convictions, but did not segregate them as to those alleged as elements of the offense of felony DWI (under section 49.09(b) of the penal code) and those alleged for purposes of enhancing punishment (under section 12.42(d) of the penal code). Initially, we address the State's argument, relying on article 1.14(b) of the code of criminal procedure, that appellant waived his argument on appeal by not presenting his motion to quash before the announcement of ready. Pertinent to this appeal, article 1.14(b) provides: If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding. Tex. Code of Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2004). Here, appellant filed his motion to quash on June 2, 2003. The trial court heard the motion at the hearing on pretrial motions on June 2, 2003, and voir dire was conducted that same day. The jury was sworn in and the guilt/innocence phase of the trial began on June 3, 2003. In Rivera v. State, 957 S.W.2d 636, 638 (Tex. App.-Corpus Christi 1997, pet. ref'd), the appellant objected to the "dual use" of prior convictions on appeal, but made no such objection at trial. The Rivera court observed that "[a] defect that renders a sentence void, nevertheless, may be raised at any time" and considered the challenge. Id. (citing Ex parte Beck, 922 S.W.2d 181, 182 (Tex.Crim.App. 1996)). Accordingly, even assuming appellant's motion to quash the indictment was untimely pursuant to article 1.14(b), a matter we need not decide, we consider the merits of appellant's complaint. We review a motion to quash pursuant to an abuse of discretion standard. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App. 1980) (op. on reh'g). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside the zone within which reasonable minds could disagree. State v. Gonzalez, 855 S.W.2d 692, 695 n. 4 (Tex.Crim.App. 1993). Appellant argues that alleging a prior offense in an indictment constitutes "use" of the prior offense within the meaning of section 49.09(g), even if proof of that offense is not attempted during the guilt/innocence phase of the trial and the offense is not read to the jury until after the guilt/innocence phase is complete. Thus, appellant asserts the State's inclusion of the two prior, final, felony DWI convictions in the indictment and its use of them during the penalty phase of the trial constitutes their "dual use," in violation of section 49.09(g). To avoid this purported dual use, appellant contends the indictment itself should have segregated the prior convictions between those the State intended to use to establish felony jurisdiction and those the State intended to use enhance punishment. We disagree. Section 49.09(g) does not say "used to allege." Rather, it says "used for purposes of enhancement." See Tex. Pen. Code Ann. § 49.09(g). Further, nothing in section 49.09(g) requires the State to specify in the indictment which prior convictions it will "use" to enhance the underlying felony under the DWI statute or to enhance punishment under the habitual offender statute. Accordingly, the plain language of the statute does not support appellant's argument. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991) (when construing statutes, focus is on "literal text"). Moreover, the State may allege more than the required number of prior DWI convictions but prove only the requisite number to obtain a felony DWI conviction. See May v. State, 350 S.W.2d 924, 925 (Tex.Crim.App. 1961); Wesley v. State, 997 S.W.2d 874, 876-77 (Tex. App.-Waco 1999, no pet.); Read v. State, 955 S.W.2d 435, 436-37 (Tex. App.-Fort Worth 1997, pet. ref'd); Biederman v. State, 724 S.W.2d 436, 437 (Tex. App.-Eastland 1987, pet. ref'd). Here, the State alleged four prior DWI convictions. Two of them were read at the guilt/innocence phase of the trial, and the State offered proof of only those two during that phase of the trial. Appellant relies on Rivera to support his argument that the indictment used the same prior felony DWI conviction to allege jurisdiction as well as habitual offender status. In Rivera, the State alleged three prior convictions for felony DWI in the indictment. Rivera, 957 S.W.2d at 637. The State alleged one of those prior convictions in relation to both the underlying DWI charge and to habitual felony offender status. Id. The court sustained appellant's issue that asserted that the State was not permitted to use a prior conviction more than once in the same prosecution. Id. at 637-38. In contrast, here the State alleged four separate prior DWI convictions. Two prior convictions were read to the jury at the guilt/innocence phase, and the State offered proof of them. Subsequently, during the punishment phase, appellant was arraigned on two separate prior convictions and proof of those two convictions was presented. Accordingly, this case is distinguishable from the "dual use" circumstances in Rivera. We reject appellant's argument that section 49.09(g) requires the State to segregate in the indictment the prior convictions it intends to use for purposes of enhancement under the DWI statute from those it intends to use for enhancement under the habitual offender statute. We overrule appellant's first point of error. LEGAL SUFFICIENCY Appellant's fourth point of error is related to his complaint regarding the pleading and proof of the four prior DWI convictions. Specifically, appellant contends that the evidence is legally insufficient to sustain the jury's verdict because the State pled four prior DWI convictions in the indictment but proved only two at trial. Appellant argues that the State must prove what it alleged in the indictment. Appellant argues from the proposition that, without segregating the prior convictions as to jurisdiction or as to establishing habitual offender status at the punishment phase, a defendant must guess as to the purpose of pleading the prior convictions and must read the indictment as pleading four jurisdictional enhancement convictions and no punishment enhancement convictions. As noted above, the indictment alleged four prior DWI convictions. At the guilt/innocence phase, only two were read, and the State offered proof only of those two prior convictions. The jury was charged only as to those two prior convictions. Appellant concedes that the State proved these two convictions to prove jurisdiction pursuant to section 49.09(b) of the penal code. As noted above, the State may allege more than the required number of prior DWI convictions but prove only the requisite number to obtain a felony DWI conviction. See May, 350 S.W.2d at 925, Wesley, 997 S.W.2d at 876-77; Read, 955 S.W.2d at 436-37; Biederman, 724 S.W.2d at 437. Appellant's reliance on Langston v. State, 855 S.W.2d 718 (Tex.Crim. App. 1993), is misplaced. In that criminal trespass case, the State alleged that property belonged to a specific individual. Id. at 721. Although ownership was not an element of criminal trespass, the court of criminal appeals held that "[b]ecause the State elected to prosecute appellant on an 'unnecessarily specific allegation,'" the issue of ownership was "germane" to that case. Id. (quoting Chavez v. State, 843 S.W.2d 586, 588 (Tex.Crim.App. 1992)). Here, two prior convictions were "germane" to guilt/innocence, and two other prior convictions were "germane" to punishment, and were so "used" at trial. See Tex. Pen. Code Ann. § 49.09(g); Tamez, 11 S.W.3d at 201. Thus, Langston is distinguishable from this case. We overrule appellant's fourth point of error. INEFFECTIVE ASSISTANCE OF COUNSEL In his second point of error, appellant asserts he was denied effective assistance of counsel. Specifically, appellant argues counsel's failure to stipulate to two prior felony DWI convictions used to establish jurisdiction in the district violated appellant's Sixth Amendment right to effective counsel. Appellant further argues a reasonable probability existed that, but for counsel's unprofessional errors, the results of both proceedings would have been different. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). In reviewing an ineffective assistance of counsel claim, we indulge a strong presumption that counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Generally, before we can conclude counsel's performance was deficient, we must have a record showing the reasons for counsel's actions. Id. at 813-14; see Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim. App. 2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim. App. 1994). Because the trial record is created in the context of determining the issues of guilt or innocence and punishment, a record focused specifically on the conduct of counsel, such as a record of a hearing on a motion for new trial in which ineffective assistance of counsel was raised, is generally needed. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). We recognize that "[t]here may be cases in which trial counsel's ineffectiveness is so apparent from the record that appellate counsel will consider it advisable to raise the issue on direct appeal." Massaro v. United States, 123 S.Ct. 1690, 1696 (2003); see Freeman v. State, 125 S.W.3d 505, 507 (Tex.Crim.App. 2003); Kemp, 892 S.W.2d at 115. However, by justifying its holding that failure to raise the claim of ineffective assistance of counsel on direct appeal did not bar the claim from being brought in a later habeas proceeding under title 28, section 2255 of the United States Code on grounds of judicial efficiency, the Supreme Court recognized that such cases are few and far between. Massaro, 123 S.Ct. at 1696. Here, the record is silent as to counsel's strategy. See Freeman, 125 S.W.3d at 506-07 (declining to find ineffectiveness apparent from the record where counsel failed to move to recuse allegedly impartial trial judge). Given the record before us, we cannot conclude counsel was deficient. See Thompson, 9 S.W.3d at 814 (silent record insufficient to show counsel's performance deficient for failing to object to admission of inadmissible hearsay); Robinson v. State, 22 S.W.3d 631, 636 (Tex. App.-Waco 2000, pet. ref'd) (silent record insufficient to show counsel's performance deficient for failing to file motion to suppress). We overrule appellant's second point of error. "REASONABLE DOUBT" DEFINITION In his third point of error, appellant contends that the trial court erred by defining "reasonable doubt" in the jury charge. Specifically, appellant contends that the following sentence impermissibly defines "reasonable doubt" because the court of criminal appeals in Paulson v. State, 28 S.W.3d 570, 572-73 (Tex.Crim. App. 2000), held that no definition was to be given: "It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt." In O'Canas v. State, No. 05-02-01638-CR, 2003 WL 22701240 (Tex. App.-Dallas Nov. 17, 2003, pet. ref'd), this Court considered the submission of this sentence in light of Paulson. In O'Canas, this Court pointed out that the court of criminal appeals in Paulson never stated that this sentence defined "beyond a reasonable doubt" despite having the issue squarely before it. Id. at *7. Instead, this Court concluded that this sentence "simply states the legally correct proposition that the prosecution's burden is to establish proof beyond a reasonable doubt and not all possible doubt." Id. This Court stated that this sentence "does not define reasonable doubt." Id. Accordingly, pursuant to O'Canas, we overrule appellant's third point of error. CONCLUSION Having overruled appellant's four points of error, we affirm the trial court's judgment.
The briefs cite section 49.09(f). However, in 2001, the legislature renumbered section 49.09(f) as section 49.09(g), but made no substantive change. Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 21, 1995 Tex. Gen. Laws, 2734, 2742, amended by Act of May 25, 2001, 77th Leg., R.S., ch. 648, § 2, 2001 Tex. Gen. Laws 1213, 1214 (current version at Tex. Pen. Code Ann. § 49.09(g) (Vernon Supp. 2004)). The 2001 amendment was effective September 1, 2001. Therefore, at the time of the underlying offense on September 8, 2001, the section of the penal code at issue here was section 49.09(g).