Opinion
No. 05-08-01496-CR
Opinion Filed January 27, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-80562-08.
Before Justices O'NEILL, RICHTER, and LANG-MIERS.
OPINION
Appellant Adam Dean Shelley was charged with third-degree felony driving while intoxicated and waived his right to a jury trial. After a nonjury trial, the trial court found appellant guilty, sentenced appellant to two years in prison, suspended the sentence, and placed appellant on three years of community supervision. Appellant raises two issues on appeal relating to his traffic stop and the indictment's second enhancement paragraph. We resolve appellant's issues against him and affirm the trial court's judgment.
Appellant's Motion to Suppress
Plano police officer Kris Tyler testified about the circumstances surrounding appellant's arrest. On direct examination by the State, Office Tyler testified that he witnessed appellant swerve out of his lane while driving northbound on Central Expressway at approximately 1:30 a.m. on December 29, 2007. Appellant's failure to maintain a single lane created a dangerous situation because there were two other vehicles nearby. Officer Tyler pulled appellant over and "observed a strong odor of alcoholic beverage on his breath." After appellant failed several field-sobriety tests, Officer Tyler arrested appellant. During Officer Tyler's direct examination, the State also introduced into evidence, and played for the trial court, the video recording of appellant's traffic stop and field-sobriety tests recorded by the camera in Officer Tyler's patrol car. On cross examination, appellant's counsel asked Officer Tyler if appellant "was in the center lane, changed into the left lane of traffic and then went back into the center lane," and Officer Tyler answered, "That's correct, sir." Officer Tyler also testified that appellant was "weaving on the roadway" and an 18-wheeler and pickup truck had to brake to avoid hitting him. After this testimony, appellant's counsel made an oral motion to suppress, as follows:Your Honor, under Hernandez v. State and Ford v. State, I think that the officer's testimony would not establish probable cause to stop the vehicle. Obviously, the motion was not on the videotape. If he made some kind of subjective opinion that it was unsafe, that's not sufficient under Ford and Hernandez for a single change of lane to constitute a traffic offense, and we would urge the Court that the stop should be suppressed.The trial court denied appellant's motion. On appeal, appellant argues that the trial court erred when it denied his oral motion to suppress because "the record fails to reveal any objective facts justifying the stop." As a threshold issue, we must determine whether appellant has preserved his complaint for appellate review. See, e.g., Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009) ("Preservation of error is a systemic requirement of every appeal.") (citing Tex. R. App. P. 33.1). Because it is a specialized objection to the admissibility of evidence, a motion to suppress must meet all of the requirements of an objection-i.e., it must be timely and sufficiently specific to inform the trial court of the complaint. Krause v. State, 243 S.W.3d 95, 102 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). "To be timely, a motion to suppress must be presented before the evidence is admitted into evidence." Dixon v. State, No. 14-08-01081-CR, 2010 WL 318088, at *1 (Tex. App.-Houston [14th Dist.] Jan. 28, 2010, no pet.) (mem. op.) (not designated for publication) (citing Nelson v. State, 626 S.W.2d 535, 536 (Tex. Crim. App. 1981), and Sims v. State, 833 S.W.2d 281, 284 (Tex. App.-Houston [14th Dist.] 1992, pet. ref'd)). In this case, appellant did not urge his oral motion to suppress based on an alleged unlawful stop until after Officer Tyler testified about the circumstances surrounding appellant's arrest and the videotape of the stop was admitted into evidence and played for the trial court. As a result, appellant failed to preserve his complaint for appellate review. See Rodriguez v. State, No. 05-98-01932-CR, 2000 WL 146808, at *1 (Tex. App.-Dallas Feb. 11, 2000, no pet.) (mem. op.) (not designated for publication) (because evidence was admitted without objection, subsequent oral motion to suppress was untimely and preserved nothing for appellate review); Moody v. State, No. 08-01-00030-CR, 2002 WL 1340959, at *2 (Tex. App.-El Paso June 20, 2002, no pet.) (not designated for publication) (defendant failed to preserve error on motion to suppress because he "urged his oral motion to suppress after the evidence had been admitted into evidence"). We resolve appellant's first issue against him.
The Indictment's Second Enhancement Paragraph
Appellant's second issue relates to the second enhancement paragraph in appellant's indictment, in which the State alleged that appellant was convicted of the offense of driving while intoxicated in Dallas County, Texas, on October 19, 1993, in cause number MB9127009. In his second issue, appellant appears to complain that (1) the trial court denied his motion to quash that enhancement paragraph, and (2) the trial court overruled his objections to the admissibility of the State's evidence concerning appellant's 1993 Dallas County DWI conviction. Appellant asserts that the trial court erred when it denied his motion to quash the enhancement paragraph. But that conclusory statement is not supported by any argument, or citations to applicable authorities, concerning either the requirements of an indictment allegation or why the allegation in this case was improper or deficient. Likewise, with respect to the trial court's rulings on appellant's evidentiary objections, appellant notes that he objected to the admissibility of the State's documentary evidence on various grounds, and he appears to contend that the trial court erred when it overruled those objections. But appellant's apparent complaint about those rulings is not supported by any argument, or citations to applicable authority, concerning either any rule of evidence or why the State's evidence was not admissible. As a result, we conclude that appellant's complaints about the trial court's rulings are inadequately briefed, and we do not address those complaints. See Tex. R. App. P. 38.1(i). Within appellant's second issue, however, he also states that the prosecution failed to prove beyond a reasonable doubt "that a prior conviction existed and that [a]ppellant is linked to that conviction." He cites Flowers v. State, 220 S.W.3d 919 (Tex. Crim. App. 2007), and also cites other cases discussing the sufficiency of the evidence used to prove a prior conviction. As a result, in the interest of justice, we will construe appellant's second issue as a complaint about the sufficiency of the State's evidence concerning appellant's conviction for the 1993 DWI offense. See generally Tex. R. App. P. 38.1(f), 38.9. "To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) the prior conviction exists, and (2) the defendant is linked to that conviction." Flowers, 220 S.W.3d at 921. No specific document or type of proof is required. See id. Instead, "the State may prove both of these elements in a number of ways." Id. For example, the State can meet its burden by introducing multiple documents that, when read together, contain "sufficient information to establish both the existence of the prior conviction and the defendant's identity as the person convicted." Id. at 921-22. In this case, the State introduced two exhibits into evidence to prove appellant's conviction for the 1993 DWI offense: State's Exhibits 1 and 2. State's Exhibit 1 is a certified computer printout of a criminal record from the Dallas County Clerk. It lists a Rockwall, Texas address for appellant and shows the following additional information:case ID: MB9127009
name: Adam Dean Shelley
DOB: 10021971
offense: DWI
date: 060891
disposition: sentence probated
verdict date: 101993State's Exhibit 2 is a certified copy of appellant's driver's license record from the Texas Department of Public Safety. The third and final page of Exhibit 2 is a copy of appellant's driver's license. That page (1) lists a Waxahachie, Texas address for appellant, (2) shows appellant's date of birth as "100271," and (3) includes his photograph. The second page of Exhibit 2 states that the following notice of conviction has been recorded in appellant's driving record:
Date of offense 06-08-91 for DRIVING WHILE INTOXICATED — PROBATED in DALLAS County, Texas convicted on 10-19-93 at County Court, Docket Number MB9127009M.On appeal, appellant argues that the State's evidence of the 1993 Dallas County DWI conviction alleged in the second enhancement paragraph of his indictment is insufficient because "[t]here is no specific order which reflects that [a]ppellant was convicted of the offense charged." Appellant also argues that the evidence is ambiguous because (1) the addresses for appellant listed on State's Exhibits 1 and 2 do not match, and (2) State's Exhibit 1 does not include additional identifying information, such as appellant's driver's license number or social security number. As the Texas Court of Criminal Appeals explained in detail in Flowers, no particular evidence is required to prove a prior conviction. 220 S.W.3d at 921-24. Instead, the important issue is whether a reasonable trier of fact could view the evidence and find beyond a reasonable doubt that the prior conviction existed and is linked to the defendant. Id. at 924. In this case, the trial court had before it a certified copy of a computer printout from the Dallas County Clerk listing appellant's full name and date of birth, and the case number and date of appellant's 1993 Dallas County DWI conviction. It also had before it a copy of appellant's driver's license record listing the same full name and date of birth, and the same identifying information for the 1993 Dallas County DWI conviction, with the minor exception of an additional "M" at the end of the case number. Appellant's driver's license record also included a picture of appellant, which the trial court could use to compare to the person standing before it. As a result, we conclude that, when considered together, State's Exhibits 1 and 2 were sufficient to prove beyond a reasonable doubt the existence of the 1993 Dallas County DWI conviction and link it to appellant. See id. at 925 (certified copy of computer printout from Dallas County Clerk and certified driver's license record, considered together, were sufficient to prove defendant's prior DWI conviction). We resolve appellant's second issue against him.