Rimes v. State

Full title: DAVID LYNN RIMES, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 15, 2009

No. 05-08-01543-CR (Tex. App. Oct. 15, 2009)

Opinion

No. 05-08-01543-CR

Opinion Filed October 15, 2009. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the County Court at Law, Kaufman County, Texas, Trial Court Cause No. 26521CC.

Before Justices WRIGHT, RICHTER, and FILLMORE.

OPINION

Opinion By Justice FILLMORE.

David Lynn Rimes was convicted of felony driving while intoxicated and sentenced to 43 years in prison. In three issues, he claims: (1) the trial court erred in not granting a mistrial; (2) there was insufficient evidence to establish the trial court's jurisdiction; and (3) the punishment assessed by the trial court was outside the authorized statutory range. We affirm the trial court's judgment.

Factual Background

On the night of December 26, 2007, Forney police officer Matthew Hutchins was dispatched to the scene of a one car accident on the service road of Highway 80 in Kaufman County, Texas. It appeared to Hutchins that the vehicle involved in the accident had been traveling westbound on the highway when it crossed the median between the highway and the service road, spun clockwise, and then landed in a ditch. Appellant exited the driver's side of the vehicle when Hutchins arrived at the scene. There was a strong smell of alcohol emanating from appellant, and appellant told Hutchins that he had consumed "two beers." Hutchins also noticed that appellant had "great difficulty" walking and standing, and that his speech was slurred. Hutchins asked appellant to perform several field sobriety tests, which he did, and appellant failed these tests. An inspection of the crash scene revealed that several cold, full beer cans had been thrown into a pasture near appellant's vehicle. Hutchins placed appellant under arrest. The results of two intoxilyzer tests conducted at the jail showed appellant had an alcohol concentration of 0.191 and 0.187, respectively. Appellant was indicted for driving while intoxicated (DWI), enhanced to a third degree felony because appellant had two prior DWI convictions. See Tex. Penal Code Ann. § 49.04(a), § 49.09(b)(2) (Vernon 2003 and Vernon Supp. 2008). In addition, the indictment alleged habitual offender status, based on prior felony convictions for burglary of a habitation and DWI, for purposes of punishment enhancement. See id. § 12.42(d) (Vernon Supp. 2008). Appellant pleaded not guilty to the indictment but stipulated true to the two prior DWIs that were alleged for purposes of jurisdictional enhancement. He pleaded not true to the burglary of a habitation and felony DWI offenses that were alleged in the indictment for purposes of punishment enhancement. The jury found appellant guilty of felony DWI and the trial court, upon finding the habitual offender punishment enhancements true, assessed punishment at 43 years in prison.

Discussion Motion for Mistrial

In his first issue, appellant claims the trial court erred by not granting appellant's motion for mistrial when the jury "heard evidence of a prior DWI(s)" [sic]. Background Hutchins' police cruiser was equipped with a dashboard camera and DVD recorder that captured video images and sound at the scene of the accident. The State intended to play the DVD recording for the jury and, at a hearing held shortly before the start of trial, appellant and the State agreed to mute a portion of the DVD recording where the police dispatcher can be heard telling one of the officers at the accident scene that appellant has "numerous entries for DWI." After the DVD recording was played for the jury, the following exchange occurred:

THE COURT:. . . . We are outside the presence of the jury. Mr. Russell [defense counsel], you had a sidebar with the Court after we had published the video to the members of the jury, and you wanted to make some motion outside the presence of the jury on the record. What is that, Counsel?

[DEFENSE COUNSEL]: Yes, ma'am. As previously stated, the State and I had agreed to suppress a twenty second portion of the video, the audio that references Mr. Rimes saying he had a lot of prior DWIs. Unfortunately, during the first playing of it, the District Attorney played that exact portion in front of the jury, and we believe that that's had a prejudicial effect, and we would move for a mistrial based on that.

THE COURT: Response?

[PROSECUTOR]: The actual portion of it, it was actually played. However, only a small portion of it was and what portion of it was I don't believe is comparable error in this case. I believe the word, DWI, was heard and then after that everything else was muted, it didn't have a chance to cap the entire phrase.

THE COURT: I heard the term — what I heard was DWI, I didn't hear lots of DWIs. What did you hear, Mr. Russell?

[DEFENSE COUNSEL]: Judge, to be honest, I heard DWI. I don't know of [sic] the jury heard lots of DWI or not, I don't know.

THE COURT: Well, I heard the audio and it said — I heard when it came onto DWI but, I did not hear lots of DWI, I am going [sic] not grant your Motion for Mistrial, at this point. I am going to deny your Motion for Mistrial.

[DEFENSE COUNSEL]: Yes, ma'am.

Appellant did not ask the trial court for an instruction that the jury disregard the alleged "DWI" reference, and no such instruction was given. Standard of Review and Applicable Law A trial court's decision to deny a motion for mistrial is reviewed under an abuse of discretion standard. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). In reviewing a trial court's ruling on a motion for mistrial, an appellate court must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Archie, 221 S.W.3d at 699 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77. As a general rule, a defendant need not request a curative instruction, such as an instruction to disregard, to preserve error. Barnett v. State, 161 S.W.3d 128, 134 (Tex. App.-Fort Worth 2005), affirmed, 189 S.W.3d 272, 278 (Tex. Crim. App. 2006); see also Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2004). However, a defendant who requests a mistrial without first requesting a curative instruction forfeits appellate review of that class of events that could have been cured by such an instruction. Id. at 70; Barnett, 161 S.W.3d at 134. An exception to this rule may arise when an instruction to disregard could not have cured the harm caused. Young, 137 S.W.3d at 70; see also Barnett, 189 S.W.3d at 278. Various courts have concluded that isolated, un-muted videotaped comments concerning a defendant's criminal history that are played to a jury constitute the type of error that may be cured by an instruction to disregard. See Russell v. State, No. 02-05-00346-CR, 2006 WL 2925126, at *7 (Tex. App.-Fort Worth Oct. 12, 2006, no pet.) (citing Hayes v. State, No. 02-03-00515-CR, 2005 WL 1994178, at *1-2 (Tex. App.-Fort Worth Aug. 18, 2005)); see also Cloud v. State, No. 14-07-00847-CR, 2008 WL 2520826, at *3-4 (Tex. App.-Houston [14th Dist.] June 24, 2008, pet. ref'd). Analysis It is not entirely clear from the record whether the jury heard the full statement that appellant had "numerous entries for DWI", or just heard the term "DWI." The record shows that appellant, the prosecutor, and the court heard only the term "DWI," not the phrase "numerous entries for DWI." But in any event, we conclude the type of error alleged here could have been cured by an instruction to disregard. See Young, 137 S.W.3d at 70; Russell, 2006 WL 2925126, at *7. As a result, the lack of a request for an instruction to disregard forfeits appellate review of any error resulting from isolated comments on the DVD recording concerning appellant's criminal history. See Young, 137 S.W.3d at 70; Russell, 2006 WL 2925126, at *7; see also Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (stating that "[o]rdinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses"). We overrule appellant's first issue.

Jurisdictional Enhancements

Appellant's second issue claims the evidence was insufficient for the trial court to obtain felony jurisdiction over this case "because one of the jurisdictional enhancing DWIs was subsequently used as enhancement in the punishment phase of the trial." Background The offense of DWI is a class B misdemeanor. See Tex. Penal Code Ann. § 49.04(b) (Vernon 2003). This offense becomes a third degree felony when the State proves "the person has previously been convicted . . . two times of any other offense relating to the operating of a motor vehicle while intoxicated. . . ." See Tex. Penal Code Ann. § 49.09(b)(2) (Vernon Supp. 2008). "[A]ny felony DWI conviction has used two prior DWI convictions as elements of the new offense (jurisdictional enhancement)." Carroll v. State, 51 S.W.3d 797, 800 (Tex. App.-Houston [14th [Dist.] 2006, pet. ref'd). In other words, elevating a DWI from a misdemeanor to a felony offense by using previous DWI convictions does not enhance punishment, but creates an entirely new offense that vests the district court with jurisdiction. See Harris v. State, 204 S.W.3d 19, 27-28 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd); Perez v. State, 124 S.W.3d 214, 216 (Tex. App.-Fort Worth 2002, no pet.); Carroll, 51 S.W.3d at 799-801. In this case, appellant and the State stipulated in writing to the two following prior DWI convictions, which raised the instant DWI offense from a misdemeanor to a felony: (1) cause number F85-75452, judgment dated July 29, 1985; and (2) cause number F92-69700, judgment dated June 30, 1993 (jurisdictional enhancements). The written stipulation, which was agreed upon and signed by both parties, reads in part as follows: I, David Lynn Rimes (hereafter referred to as "Defendant"), stipulate for all purposes that:

On the 29th day of July, 1985, in cause number F85-75452-JN in the 195th Judicial District Court of Dallas County, Texas, the defendant was convicted of an offense relating to the operating of a motor vehicle while intoxicated.

On the 30th day of June, 1993, in cause number F92[-]69700-MW in the 363rd Judicial District Court of Dallas County, Texas, the defendant was convicted of an offense relating to the operating of a motor vehicle while intoxicated.

Based on the stipulation of the parties, the instant offense would therefore be a third degree felony punishable by two to ten years in prison. See Tex. Penal Code Ann. § 12.34, § 49.09(b) (Vernon 2003 and Vernon Supp. 2008). But the State also sought to enhance the punishment range for this offense by alleging the following prior felony convictions: (1) cause number C74-3397-Q, burglary of a habitation, judgment dated March 10, 1977; and (2) cause number F93-27193, DWI, judgment dated October 22, 1993 (punishment enhancements). Section 12.42 of the penal code provides enhanced penalties for repeat and habitual felony offenders. See id. § 12.42 (Vernon Supp. 2008). In particular, section 12.42(d) provides that the applicable range of punishment for a third degree felony DWI may be increased to 25-99 years if the State proves the defendant has been convicted of two felony offenses and the second felony conviction was for an offense that occurred after the first felony offense became final. See id. § 12.42(d). However, the same conviction may not be used for both jurisdictional and punishment enhancement. See id. § 49.09(g) ("[a] conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D."). The Parties' Claims Appellant argues that there was an impermissible use of the F85-75452 and F92-69700 DWI convictions for both jurisdictional enhancement under section 49.09(b) and punishment enhancement under section 12.42(d), in violation of section 49.09(g). To support this assertion, appellant appended to his brief copies of the indictments from cause numbers F85-75452 (exhibit A), F92-69700 (exhibit B), and F93-27193 (exhibit C). According to appellant, exhibit C shows that the felony DWI offense in cause number F93-27193 (one of the two punishment enhancements) was elevated to felony status by the prior DWI convictions in cause numbers F85-75452 and F92-69700 (the jurisdictional enhancements). The State responds that (1) appellant was estopped from bringing this complaint because he stipulated to the two jurisdictional enhancements; (2) there is no evidence in the record to support appellant's claim that the two jurisdictional enhancements were also used to enhance appellant's punishment; and (3) even if there were evidence in the record to support appellant's claim, it fails on the merits. We will address each of these arguments in turn. The Stipulation A party may stipulate to any fact or to any element of an offense. See Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005). When a criminal defendant does so, the stipulation is a "kind of a judicial admission" and he will not be heard to question the stipulated fact on appeal. Id. In Smith v. State, 158 S.W.3d 463 (Tex. Crim. App. 2005), for example, the defendant stipulated to two prior convictions that were the jurisdictional predicate for a felony DWI allegation. Id. One of those convictions was too remote in time to be used for enhancement purposes, and the evidence of jurisdiction would have been insufficient without it. See id. at 464.¹ Affirming the conviction, the court of criminal appeals noted that the timing of the prior convictions was not an element of the offense and that the defendant's stipulation to the prior convictions meant he lost the ability to complain about the remoteness of the prior conviction. Id. at 465. The court added in a footnote that "stipulating to the priors to avoid the introduction of damaging evidence arguably rises to the level of estoppel, when it comes to challenging the legitimacy of using those priors." Id. at 465 n. 14 (citations omitted). The court reached a similar conclusion in Bryant. See Bryant, 187 S.W.3d at 400. The court concluded that a stipulation had the "effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact." Id. The court also noted that "once a stipulation is entered, even in a criminal case, the government is relieved of its burden to prove the fact which had been stipulated by the parties." Id. at 401 (citing United States v. Branch, 46 F.3d 440 (5th Cir. 1995)). No one in this case alleges that the stipulation agreed to by the parties was ambiguous. It was simply a written admission that appellant had been convicted in cause numbers F85-75452 and F92-69700 of offenses "relating to the operation of a motor vehicle while intoxicated." The stipulation was a judicial admission that removed the need for proof of the specified convictions. By entering into that stipulation, appellant relinquished his right to put the State to its proof. Bryant, 187 S.W.3d at 402. Accordingly, appellant may not now contest facts to which he has stipulated. Appellant has lost the ability to complain that the evidence was insufficient to vest the trial court with jurisdiction. Exhibits A, B, and C Regarding the State's second argument, we note that the indictments (exhibits A, B, and C) attached to appellant's brief were not filed with the clerk and were not admitted at trial. Nor is there any other evidence before this Court, apart from the documents attached to appellant's brief, to support his argument that the two jurisdictional-enhancement DWIs were also used to enhance appellant's punishment. An appellate court must determine a case based on the record as filed and cannot consider documents attached as exhibits or appendices to briefs or motions. See Sur. Ins. Co. of Cal. v. State, 556 S.W.2d 329, 331 (Tex. Crim. App. 1977); Blank v. State, 172 S.W.3d 673, 675 n. 1 (Tex. App.-San Antonio 2005, no pet.); James v. State, 997 S.W.2d 898, 901 n. 5 (Tex. App.-Beaumont 1999, no pet.); see also Wright v. State, 178 S.W.3d 905, 916-17 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (appellate court could not consider DVD attached to motion for new trial because it was not introduced at new trial hearing). Consequently, the record before us contains no evidence that cause numbers F85-75452 and F92-69700 were used to elevate the offense in cause number F93-27193 to felony status. Appellant has failed to show, in other words, that cause numbers F85-75452, F92-69700, and F93-27193 were not separate and distinct offenses. See Harris, 204 S.W.3d at 27-28; Perez, 124 S.W.3d at 215-16; Carroll, 51 S.W.3d at 799-801. Separate and Distinct Offenses Even if appellant retained the ability to contest jurisdiction and presented a sufficient record, his argument fails on the merits. The State points out that an argument very similar to the one appellant is raising here was rejected in Harris, Perez, and Carroll. In each of those cases, the appellants complained that the State could not use a prior misdemeanor DWI conviction for jurisdictional enhancement because that same DWI had also been used to enhance the prior felony DWI that was alleged for punishment enhancement. See Harris, 204 S.W.3d at 27-28; Perez, 124 S.W.3d at 215-16; Carroll, 51 S.W.3d at 799-801. The courts rejected this argument, concluding that each final conviction was a separate and distinct offense. See Harris, 204 S.W.3d at 27-28; Perez, 124 S.W.3d at 215-16; Carroll, 51 S.W.3d at 799-801. The prior misdemeanor convictions, in other words, were not used for punishment enhancement because the State, under section 12.42(d), was not required to prove the underlying misdemeanor conviction in order to show a valid felony conviction for punishment enhancement purposes. See Harris, 204 S.W.3d at 27-28; Perez, 124 S.W.3d at 215-16; Carroll, 51 S.W.3d at 799-801. Appellant attempts to distinguish Harris, Perez, and Carroll by noting that misdemeanor convictions were used in all three cases for jurisdictional and punishment enhancement, whereas the disputed offenses in the present case are, according to appellant, felonies. But this is a misreading of Harris, Perez, and Carroll because the rationale in those cases, i.e., that each DWI conviction is a separate and distinct offense and the State is not required to plead or prove any underlying offense, applies with equal force to the instant case. In this case, the State did not use the DWI offenses in F85-75452 and F92-69700 for both jurisdictional and punishment enhancement when it alleged F93-27193 in the indictment for punishment enhancement purposes because the felony DWI in F93-27193 constitutes a separate and distinct offense, and the State is not required to plead or prove any underlying DWI offenses in order to use F93-27193 to enhance appellant's punishment. See Harris, 204 S.W.3d at 27-28, Perez, 124 S.W.3d at 215-16, Carroll, 51 S.W.3d at 799-801. We therefore overrule appellant's second issue.

Punishment Enhancements

Appellant's third issue claims that "[t]he trial court erred in assessing punishment because the punishment assessed was outside the range of punishment brought about by a violation of Sect. 49.09(g) of the Texas Penal Code and Subchapter D, Chapter 12 of the Texas Penal Code." Specifically, appellant argues that F93-27193 should not have been used to increase the punishment range to 25-99 years because the DWIs that raised the offense in F93-27193 to felony status, F85-75452 and F92-69700, were improperly used for both jurisdictional and punishment enhancement. With only one felony offense — burglary of a habitation — therefore available for punishment enhancement, appellant claims he should have been sentenced under section 12.42 as a second degree felony offender, see Tex. Penal Code Ann. § 12.42(a)(3) (Vernon Supp. 2008) (previous felony conviction enhances third degree felony to second degree felony), and that his 43 year sentence was well outside the statutory sentencing range for a second degree felony offense. See id. § 12.33(a) (Vernon 2003) (second degree felony punishment is imprisonment for not more than twenty years or less than two years). The State contends that appellant waived his third issue because the complaint "concerns, in essence, whether the indictment properly contained an enhancement allegation." The State also points out that article 1.14(b) of the code of criminal procedure obligates a defendant to proffer his objections to the form and substance of an indictment before the date on which the trial on the merits commences. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). The court of criminal appeals has made it clear that, under article 1.14(b), a defect in a charging instrument is waived unless raised before trial. See Teal v. State, 230 S.W.3d 172, 177-82 (Tex. Crim. App. 2007). By failing to challenge the indictment prior to trial, the State claims that appellant failed to preserve error under rule 33.1. See Tex. R. App. P. 33.1(a) (to preserve complaint for appellate review, a party must make timely, specific objection in trial court). We reject this argument. Neither of the two cases cited by the State in support of its waiver argument, Kirkpatrick v. State, 279 S.W.3d 324, 328 (Tex. Crim. App. 2009), and Rainey v. State, 949 S.W.2d 537, 541 (Tex. App.-Austin 1997, pet. ref'd), actually support the State's contention that appellant's issue was waived under rule 33.1. In fact, neither case mentions rule 33.1 and both cases are factually distinguishable from the situation in the present case. In Kirkpatrick, for example, appellant appealed two convictions for the offense of tampering with a governmental record. Kirkpatrick, 279 S.W.3d at 324-25. Appellant argued that the district court in which she was tried did not have subject-matter jurisdiction because she was indicted for misdemeanor offenses rather than for felony offenses. Id. at 326. The court of criminal appeals concluded that appellant had adequate notice that she was charged with a felony offense and that if she was confused about whether the State intended to charge her with a felony, she could have, and should have, objected to the defective indictment before trial. Id. at 329.² In Rainey, appellant argued, among other issues, that section 19.02(d) of the penal code violated his right to a grand jury indictment and his right to know the nature and cause of the accusations against him. Rainey, 949 S.W.2d at 541. The court of appeals refused to consider this argument because it was really a challenge to the sufficiency of the indictment and appellant did not challenge the indictment in the trial court. Id. In the present case, appellant does not characterize his third issue as an attack on the indictment and, unlike the situation in either Kirkpatrick or Rainey, he does not base his issue on an alleged defect in the indictment. His argument invokes the general legal principle that punishment that is outside the statutory sentencing range is unauthorized by law and therefore illegal. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Any court with jurisdiction can notice and take action to correct an illegal or void sentence at any time, even sua sponte. Id. at 805-07. Thus, we conclude appellant's third issue was not waived. Regarding the merits of appellant's claim, we again note that the substance of this claim is based on the documents (exhibits A, B, and C) attached to his brief. However, those documents were not filed with the clerk and were not admitted at trial, nor is there any other evidence before this Court, apart from the documents attached to appellant's brief, to support his argument that the punishment imposed by the trial court was outside the statutory punishment range because the two jurisdictional enhancements were also used to enhance appellant's punishment. 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. See Sur. Ins. Co. of Cal., 556 S.W.2d at 331; Blank, 172 S.W.3d at 675 n. 1; James, 997 S.W.2d at 901 n. 5; see also Wright, 178 S.W.3d at 917. Appellant has failed to show that cause numbers F85-75452, F92-69700, and F93-27193 were not separate and distinct offenses. See Harris, 204 S.W.3d at 27-28; Perez, 124 S.W.3d at 215-16; Carroll, 51 S.W.3d at 700-801. Moreover, as noted previously, the State did not use the DWIs in F85-75452 and F92-69700 for both jurisdictional and punishment enhancement when it alleged the felony DWI in F93-27193 to enhance appellant's punishment. See Harris, 204 S.W.3d at 27-28; Perez, 124 S.W.3d at 215-16; Carroll, 51 S.W.3d at 799-801. We overrule appellant's third issue. We affirm the trial court's judgment.