TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00731-CR
Stephen Allen Dwight, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 53,062, HONORABLE JOE CARROLL, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Stephen Allen Dwight was charged with the felony offense of driving while
intoxicated. See Tex. Pen. Code Ann. §§ 49.04(a) .09(b) (West 2003). Appellant pleaded guilty,
and his written confession was admitted as evidence. The district court found appellant guilty and
assessed punishment at nine years in prison. Raising two issues, appellant contends that (1) because
erroneous allegations regarding a previous offense exist in the indictment, the indictment failed to
properly charge two valid prior convictions and the district court was without jurisdiction to find
appellant guilty of the felony offense of driving while intoxicated; and (2) the evidence was
insufficient to show that appellant had twice been previously convicted of driving while intoxicated
offenses. We will affirm the district court’s judgment.
For the first time on appeal, appellant contends that the following portion of the
indictment alleging a previous offense was erroneous:
[2] In Cause Number 679216 of the 351st Judicial District Court of Coryell County,
Texas, on the 8th day of February, 1994, for the felony offense of Driving While
Intoxicated, Subsequent Offense as charged in the information filed therein.
Appellant contends that because the 351st Judicial District Court is not located in Coryell County,
but in Harris County, the indictment cannot support his conviction. Appellant relies upon Adams
v. State, 301 S.W.2d 101 (Tex. Crim. App. 1957), a case rendered before the enactment of article
1.14(b) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 1.14(b)
(West Supp. 2003). Appellant failed to present his objection to the district court and therefore has
not preserved this complaint for appellate review. Id.; Tex. R. App. P. 33.1(a). Appellant’s first
issue is overruled.
Appellant also contends that insufficient evidence supports his conviction because
it is impossible to prove that he was previously convicted of driving while intoxicated in the 351st
District Court of Coryell County because the 351st District Court is located in Harris County. The
relevant portion of appellant’s written confession, which was admitted as evidence, states that he was
convicted
[i]n Cause Number 679216 of the 351st Judicial District Court of Coryell County,
Texas, on the 8th day of February, 1994, for the felony offense of Driving While
Intoxicated, Subsequent Offense as charged in the Information filed therein.
In Fuller v. State, the court noted that only a material variance between the indictment
and the proof renders the judgment improper. 73 S.W.3d 250, 253 (Tex. Crim. App. 2002) (citing
Golihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001)). The materiality inquiry requires a
determination of whether the variance deprived the defendant of notice of the charges or whether the
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variance subjects the defendant to the risk of later being prosecuted for the same offense. Id. (citing
Golihar, 46 S.W.3d at 257). We hold that here the county of the court that previously convicted
appellant is not a statutory element nor a material allegation related to the offense with which
appellant was charged. See Fuller, 73 S.W.3d at 252-53. Appellant’s written confession proved that
he was previously convicted in the 351st District Court of driving while intoxicated. Appellant’s
second issue is overruled.
The district court’s judgment is affirmed.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Affirmed
Filed: May 30, 2003
Do Not Publish
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