In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00085-CR
____________________
PATRICK OTTO BAKER, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 12-01-00528-CR
________________________________________________________ _____________
MEMORANDUM OPINION
Patrick Otto Baker appeals his conviction for the felony offense of driving
while intoxicated, enhanced by a prior felony conviction. On appeal, Baker raises
two issues. First, he contends the trial court erred in denying his pre-trial motion to
suppress, and second, he claims the conviction is invalid because the trial court
failed to elicit an oral plea on the record from Baker in violation of the
requirements of article 27.13 of the Texas Code of Criminal Procedure. See Tex.
1
Code Crim. Proc. Ann. art. 27.13 (West 2006). We overrule both issues and affirm
the trial court’s judgment.
BACKGROUND FACTS
Around 2:10 a.m. on January 14, 2012, Conroe policeman Lieutenant Jon
Buckholtz (“Officer Buckholtz” or “Buckholtz”) witnessed a black Chevrolet
Corvette traveling at an excessive rate of speed on Interstate 45 in Conroe, Texas.
Buckholtz’s radar indicated the vehicle was traveling ninety-three miles per hour in
a sixty-five-mile-per-hour zone. Buckholtz pursued the speeding vehicle. At the
suppression hearing, he testified that he had to drive about 130 miles per hour to
catch the Corvette and initiate a traffic stop.
Officer Buckholtz further testified that after he activated his siren and
overhead lights, he witnessed the Corvette weave in its lane, slow down to about
ten miles per hour when exiting, and pass “numerous” locations where the driver
could have stopped. Buckholtz testified that the Corvette’s driver, later identified
as Baker, appeared to be looking back at Buckholtz instead of pulling over, and
that Baker passed an open roadway, failed to stop on the shoulder, and ultimately
turned and stopped on a side street after exiting I-45.
Officer Buckholtz stated that after the vehicle stopped, he approached the
vehicle on foot. Baker did not roll down his window, but instead raised his hands
2
up and shrugged his shoulders at Buckholtz as if to ask, by gesturing, “What do
you want?” Buckholtz opened the car door and asked Baker for his driver’s license
and proof of insurance. At that time, Buckholtz testified that he immediately
noticed “an overwhelming smell of cologne,” and he could see a bottle of cologne
on the floor board between Baker’s legs. Buckholtz believed Baker was attempting
to conceal the smell of an “alcoholic beverage” on his breath or the “smell of
marijuana or some other type of contraband.” Buckholtz also believed Baker
placed the bottle of cologne between his legs during the stop, because the cologne
bottle would not have otherwise remained in that location.
Baker’s speech was slow and deliberate, and the officer noticed that Baker’s
eyes “were glassy and extremely red.” Buckholtz further testified that Baker had
difficulty locating his insurance card, that he handed the officer documents other
than the insurance information, that it took Baker approximately seven minutes to
locate his insurance card, that he stumbled slightly when he exited the vehicle, that
after exiting the vehicle he leaned against the vehicle and used it “for a rest[,]” and
that he appeared to sway when he was standing unassisted.
Officer Brett Irvine (“Officer Irvine” or “Irvine”) also testified at the
suppression hearing. Irvine arrived at the scene to assist Officer Buckholtz after the
initial stop. From the time the stop occurred until the moment that Buckholtz
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handed Baker the clipboard with a speeding ticket, camera footage demonstrated
that approximately twenty minutes elapsed. At some point during the detention,
information from the dispatcher indicated that Baker had a prior DWI. Buckholtz
testified that Baker initially said he was coming home from work, but subsequently
told Irvine that he was coming home from a party.
Buckholtz testified that after he handed Baker the citation that Baker
“resisted” signing it and “became somewhat belligerent[.]” Baker finally signed the
citation, but the officer continued his investigation. Buckholtz asked Baker “more
than once” if he had “anything illegal, alcohol, weapons in the vehicle[.]” Baker
refused to consent to a search of the vehicle. Buckholtz testified that Baker put his
hands in his pockets, even though the officers had instructed him not to do so, and
then Baker raised his hands in the air. Buckholtz then performed a Terry frisk on
Baker. See Terry v. Ohio, 392 U.S. 1 (1968). Officer Buckholtz testified that when
he did the Terry frisk, Buckholtz noticed for the first time a faint odor of alcohol
over the smell of the cologne. Baker refused to take a field sobriety test and he was
arrested for driving while intoxicated.
Baker filed a motion to suppress any evidence relating to the traffic stop,
detention, and arrest. At the hearing on the motion to suppress, the trial court
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considered the officers’ testimony and the videotaped recordings of the traffic stop
and arrest. The trial court denied Baker’s motion.
The record indicates that after the trial court denied Baker’s motion to
suppress, Baker pleaded guilty under an open plea to the charge of felony driving
while intoxicated, and elected to have the trial court assess punishment. The trial
court adjudicated Baker guilty of felony driving while intoxicated. Baker pleaded
true to an enhancement paragraph. The trial court sentenced Baker to ten years in
prison and assessed a $1500 fine. The trial court suspended the imposition of the
sentence and placed Baker on community supervision for ten years. Baker
appealed.
MOTION TO SUPPRESS
In his first issue, Baker challenges the trial court’s ruling denying his motion
to suppress. Baker argues that although the initial stop was reasonable, his
continued detention past the issuance of the citation for speeding was unreasonable
and violated his Fourth Amendment right against unreasonable search and seizure,
and any evidence obtained after that point was the product of an illegal detention.
The Fourth Amendment to the United States Constitution, made applicable to the
States through the Due Process Clause of the Fourteenth Amendment, states that
“‘[t]he right of the people to be secure in their persons . . . against unreasonable . . .
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seizures, shall not be violated.’” Amador v. State, 275 S.W.3d 872, 878 (Tex.
Crim. App. 2009) (quoting U.S. Const. amend. IV).
On a motion to suppress, the defendant bears the initial burden of producing
some evidence that rebuts the presumption of proper police conduct. Abney v.
State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013); Amador, 275 S.W.3d at 878.
However, once the defendant establishes the search or seizure was warrantless,
then the burden shifts to the State to prove it was prompted by reasonable
suspicion. Abney, 394 S.W.3d at 547. In reviewing a trial court’s ruling on a
motion to suppress, we use a bifurcated standard of review to evaluate the totality
of the circumstances and to determine whether reasonable suspicion exists. “First,
the courts must give ‘almost total deference to a trial court’s determination of
historical facts that the record supports,’ and second, the courts review de novo the
trial court’s application of the law to facts, which do not turn on credibility and
demeanor.” Id. At a suppression hearing, the trial judge “‘is the sole trier of fact
and judge of the credibility of the witnesses and the weight to be given their
testimony[.]’” Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007)
(quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)); Amador,
275 S.W.3d at 878. The trial court’s ruling on a motion to suppress will be upheld
if it is “‘reasonably supported by the record and is correct under any theory of law
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applicable to the case.’” Amador, 275 S.W.3d at 878-79 (quoting Ramos v. State,
245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008)). In the case at bar, the trial court
did not make explicit findings of fact, so we review the evidence in the light most
favorable to the trial court’s ruling and assume that the trial court made implicit
findings of fact supported by the record. Balentine v. State, 71 S.W.3d 763, 768
(Tex. Crim. App. 2002) (citing Carmouche, 10 S.W.3d at 327-28). Therefore, we
assume the trial court implicitly concluded that the State carried its burden of proof
of demonstrating under the totality of the circumstances that Buckholtz’s continued
detention of Baker for a DWI offense was reasonable. Our task is to “determine
whether the trial court, in so concluding, abused its discretion.” Amador, 275
S.W.3d at 879.
A police officer is permitted to stop and temporarily detain a person in order
to conduct an investigation if the officer has a reasonable suspicion that an
individual is violating the law. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim.
App. 2005) (citing Balentine, 71 S.W.3d at 768). “Routine traffic stops are
analogous to investigative detentions and are governed by Terry v. Ohio.” St.
George v. State, 197 S.W.3d 806, 815 (Tex. App.—Fort Worth 2006), aff’d, 237
S.W.3d 720 (Tex. Crim. App. 2007). “Thus, our framework for determining the
reasonableness of an investigative detention based on a traffic stop is provided by
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Terry, under which police officers may stop and briefly detain persons reasonably
suspected of criminal activity on less information than is constitutionally required
for probable cause to arrest.” Id. (citing Terry, 392 U.S. at 21-22).
The State bears the burden of establishing the reasonableness of a
warrantless arrest or temporary detention. See Young v. State, 283 S.W.3d 854, 872
(Tex. Crim. App. 2009) (arrest); Ford, 158 S.W.3d at 492 (detention). The two-
pronged Terry analysis requires the court to determine the reasonableness based
upon: (1) whether the officer’s action was justified at its inception; and (2) whether
it was reasonably related in scope to the circumstances that justified the
interference in the first place. Terry, 392 U.S. at 19-20; Davis v. State, 947 S.W.2d
240, 242 (Tex. Crim. App. 1997). Baker concedes the initial stop was reasonable
and that Officer Buckholtz’s stop was valid because he saw Baker commit a traffic
violation. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).
Nevertheless, Baker contends that Officer Buckholtz’s search and continued
detention and subsequent arrest fails to meet the second prong in that it was not
reasonably related to the speeding violation.
Under the second Terry prong, an investigative detention must be temporary
and last no longer than necessary to effectuate the purpose of the stop. See Florida
v. Royer, 460 U.S. 491, 500 (1983); Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim.
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App. 2004); Davis, 947 S.W.2d at 243. Once an officer concludes the investigation
of the conduct that initiated the stop, a continued detention is permitted only if
there is reasonable suspicion to believe another offense has been or is being
committed. Saldivar v. State, 209 S.W.3d 275, 282 (Tex. App.—Fort Worth 2006,
no pet.); see also Davis, 947 S.W.2d at 243-45. “‘Reasonable suspicion’ exists if
the officer has specific articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably suspect that a particular
person has engaged or is (or soon will be) engaging in criminal activity.” Garcia v.
State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). After making a stop for a
traffic violation, an officer may rely on all of the facts ascertained during the
course of his or her contact with the defendant to develop articulable facts that
would justify a continued detention. Sims v. State, 98 S.W.3d 292, 295 (Tex.
App.—Houston [1st Dist.] 2003, pet. ref’d); Mohmed v. State, 977 S.W.2d 624,
628 (Tex. App.—Fort Worth 1998, pet. ref’d).
Relying on Davis, Baker argues that once “the initial purpose of the
investigative detention – the speeding citation – had been completed[,]” Officer
Buckholtz should not have continued the detention because a detention cannot last
longer than is necessary to effectuate the purpose of the stop. See Davis, 947
S.W.2d at 245. Baker’s reliance upon Davis is misplaced. In Davis, officers
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stopped Davis on suspicion of driving while intoxicated. 947 S.W.2d at 241.
Although the officers concluded Davis was not intoxicated, they continued to
question and investigate him. Id. at 241, 245. The Court of Criminal Appeals held
there was no reasonable suspicion to justify the continued detention because, once
the officers determined Davis was not intoxicated, the purpose of the detention was
complete and the continued detention was not based on articulable facts which,
taken together with rational inferences from those facts, would cause a reasonable
person to believe continued detention was justified. Id. at 245-46. Unlike the facts
in Davis, Officer Buckholtz stopped Baker for speeding and thereafter observed
various articulable facts during and after the traffic stop which, when considered
together with rational inferences therefrom, justified the officers’ continued
detention of Baker and their suspicion that Baker was intoxicated.
This case is more analogous to the facts in Amador. In Amador, the
defendant was stopped for speeding, and the evidence adduced at the suppression
hearing from the testimony of the arresting officer was similar to the case at bar.
Amador, 275 S.W.3d at 874-75. When the officer asked Amador for his license, he
was slow to produce it, his speech was mumbled, and after he stepped out of the
car, the officer noticed the smell of alcohol. Id. at 875, 879. Even though the video
of the traffic stop in Amador seemed to contradict some of the arresting officer’s
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testimony in relation to the field sobriety test, the Court of Criminal Appeals
reminded us that the trial court is the “sole factfinder at a suppression hearing, and
it may believe or disbelieve all or any part of a witness’s testimony.” Id. at 875,
878. On review, the court should focus not on any one fact, but must consider the
‘totality of the circumstances’ facing the officers. Id. at 880.
Based upon the record and evidence adduced at Baker’s suppression hearing,
and the facts taken as a whole, we hold that the trial court could have reasonably
concluded or inferred the following: at the time in question Baker was driving at a
high rate of speed; Baker failed to pull over immediately; he fumbled for almost
seven minutes trying to find his proof of insurance and handed the officer other
items instead of his insurance; Baker’s eyes were glassy; Baker put on cologne to
cover up a smell; he swayed and stumbled; he showed mood swings; he initially
would not sign the ticket and became belligerent; and he had ingested a quantity of
alcohol and exhibited signs of intoxication. Officer Buckholtz testified that the
purpose of the traffic stop was not only to issue Baker a speeding ticket, but also to
investigate the reason for his excessive speed and his failure to pull over, and to
determine if he was attempting to conceal contraband or was destroying evidence.
Officer Buckholtz testified that he felt that the facts of the stop justified further
detention to investigate a possible driving-while-intoxicated offense. Buckholtz
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had training and expertise in recognizing signs of intoxication, and he articulated
the following facts which led to his reasonable suspicion that Baker was
intoxicated and to the subsequent arrest of Baker for a DWI: speeding in excess of
twenty or twenty-fives miles over the speed limit, the time and place Baker was
driving, slowing down to five or ten miles per hour to exit the freeway, failure to
immediately pull over, the strong smell of cologne, slow movements and deliberate
speech, red glassy eyes, inability to initially locate his insurance card and handing
Officer Buckholtz other documents besides proof of insurance, the suspect’s slight
stumbling and swaying, failure to follow instructions, mood swings, failure to
cooperate, and the smell of alcohol on Baker’s breath.
In the case at bar, on the basis of the evidence at the suppression hearing and
reasonable inferences therefrom, discussed above, the trial court could have
reasonably concluded that, at the time and place in question, Officer Buckholtz had
facts and circumstances within his knowledge sufficient to warrant a prudent
person in believing that appellant had committed, in his presence, the offense of
driving while intoxicated. The record in the case at bar supports the trial court’s
implicit finding that Officer Buckholtz had reasonable suspicion to extend Baker’s
detention and the trial court did not err in denying the motion to suppress. See
Amador, 275 S.W.3d at 880; Olivares v. State, No. 01-11-00975-CR, 2013 Tex.
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App. LEXIS 12206, **1, 6-8 (Tex. App.—Houston [1st Dist.] Oct. 1, 2013, pet.
ref’d) (mem. op., not designated for publication) (While the officer initially
stopped defendant for running a red light, the officer subsequently “learned
articulable facts which, taken together with rational inferences from those facts,
justified the defendant’s continued detention.”). Given the totality of the
circumstances, the continued detention of Baker was not unreasonable.
Accordingly, we conclude the trial court did not abuse its discretion in denying the
motion to suppress. We overrule issue one.
GUILTY PLEA
In his second issue, Baker argues that his conviction should be reversed
because the trial court failed to elicit his guilty plea as required by the Texas Code
of Criminal Procedure. Article 27.13 provides that “[a] plea of ‘guilty’ or a plea of
‘nolo contendere’ in a felony case must be made in open court by the defendant in
person; and the proceedings shall be as provided in Articles 26.13, 26.14 and
27.02.” Tex. Code Crim. Proc. Ann. art. 27.13. “If the plea is before the judge
alone, same may be made in the same manner as is provided for by Articles 1.13
and 1.15.” Id.
Baker contends for the first time on appeal that because the trial court did
not satisfy the requirements of article 27.13, this Court should reverse his
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conviction without requiring a harm analysis, and remand this matter to the trial
court for a new trial. The State argues Baker failed to raise this complaint in the
trial court, and therefore he has not preserved error. Although we held in Costilla v.
State that this error can be raised for the first time on appeal, the Court of Criminal
Appeals declined to address whether the complaint was procedurally barred. See
Costilla v. State, 146 S.W.3d 213, 216 (Tex. Crim. App. 2004); Costilla v. State,
84 S.W.3d 361, 363 (Tex. App.—Beaumont 2002, aff’d). Assuming without
deciding that Baker’s complaint is not procedurally barred, we conclude that the
record demonstrates substantial compliance with article 27.13, and there was no
error.
Article 27.13 does not require an oral plea. See Costilla, 146 S.W.3d at 217
(Although “the better practice is to inquire of the defendant personally what his
plea is,” the statute does not require an oral plea.); Shields v. State, 608 S.W.2d
924, 927 (Tex. Crim. App. 1980). “[A]ny complaint arguing deviation from article
27.13 should be evaluated under the particular facts of that case to determine
whether the trial court complied with the applicable law.” Costilla, 146 S.W.3d at
217. Substantial compliance with article 27.13 occurs when a defendant in open
court acknowledges the plea as his, regardless of whether an oral plea is actually
entered. See Bramlett v. State, No. 06-11-00149-CR, 2012 Tex. App. LEXIS 3450,
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at *5 (Tex. App.—Texarkana May 2, 2012, pet. ref’d) (mem. op., not designated
for publication) (citing Costilla, 146 S.W.3d 213). Even when the trial court does
not secure the defendant’s spoken plea of guilty and does not interact with the
defendant at the time of the plea, if the facts point to defendant’s voluntary desire
to plead guilty, article 27.13 has been satisfied. See Costilla, 146 S.W.3d at 217.
The record in this case indicates several occasions when Baker’s guilty plea
was discussed by Baker’s attorney and by the trial court in open court and in the
presence of Baker. Baker does not argue in his brief that he was confused or that he
did not understand he was pleading guilty or that he was in any way coerced.
There is no indication during the hearing that his plea was involuntary. For
instance, after the trial court denied Baker’s motion to suppress, State’s counsel
explained that “it was a dispositive plea, Judge; and I believe [Baker] has agreed to
plea open upon the negative finding of the motion.” Baker’s attorney then stated
that she would be reserving Baker’s right to appeal the denial of the motion to
suppress. When asked by the trial court if defendant had “an open plea to the
Court[,]” defense counsel answered, “Yes, Your Honor[,]” and then agreed that a
presentence investigation report would be obtained. Baker’s attorney further
explained that the trial court had previously denied the motion to suppress. The
trial court stated, “Okay. So what are we doing?” Defense counsel answered, “It’s
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an open plea to the Court.” The witnesses were sworn, and then the following
exchange transpired:
THE COURT: . . . You’ve pled guilty and I’ve
accepted -- no, I haven’t accepted a plea, have I?
[Defense Counsel]: No, you have not, Your Honor.
THE COURT: Okay. Well, let’s go ahead and talk
about that. The allegation is driving while intoxicated,
third or more. We’ve had the suppression hearing that
I’ve ruled on. And so you’re in front of me now with
respect to a plea to the Court. And I’m assuming there is
no agreed recommendation, is what I’m reading; and, of
course, we had a dispositive motion. So does this
preserve his right to appeal the dispositive motion ruling?
[Defense Counsel]: It does, Your Honor.
....
THE COURT: Let’s go ahead and get your client to sign
there. I do have your signature.
[Defense counsel]: He signed it, Your Honor. This is the
waiver of appeal. That’s why it’s not signed.
THE COURT: Okay. He’s fixing to sign it. Waive
appeal as to -- he can appeal not his guilty plea, except to
the extent that he has rights to appeal the ruling on the
dispositive motion.
[Defense Counsel]: Yes, sir. On the certification --
THE COURT: Oh, does it make it clear?
[Defense Counsel]: It does, Your Honor.
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....
THE COURT: Yeah. Okay. With respect to punishment,
though, he also does not have a right to appeal. If he
loses on the substantive issues, then the punishment that I
decide today, he has no right to appeal, correct or not
correct?
[Defense Counsel]: Well, he can appeal -- what he gets to
appeal is the written motion, the Court’s ruling on the
Motion to Suppress. If we are successful at the Court of
Appeals, it will be remanded --
....
THE COURT: But if you’re not, then the punishment --
the actual punishment cannot be --
[Defense Counsel]: Correct, Your Honor.
....
[Defense Counsel]: Correct. Because we’re pleading
open to the Court.
THE COURT: Okay. The Record is clear on that.
Baker then pleaded true to the enhancement paragraph and the trial court
accepted the plea to the enhancement. The trial court questioned Baker regarding
whether he would rather go to SAFPF for ten years or go to prison for ten years as
recommended by the State. Baker explained he would “like to have the ten years
[of] probation.” The trial court then assessed Baker’s punishment at ten years
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imprisonment, a $1500 fine, court costs, restitution, and confinement in jail for ten
days, but suspended the imposition of the sentence and placed Baker on
community supervision for ten years.
The clerk’s record includes “Admonitions to the Defendant for Plea to
Court” signed by Baker, Baker’s counsel, the assistant district attorney, and the
trial judge. The admonitions include a paragraph entitled “Waivers, Consent,
Judicial Confession & Plea Agreement” where Baker agreed he was “aware of the
consequences of my plea,” and he judicially confessed to the offense of driving
while intoxicated—third or more. The admonitions signed by Baker also state that
“[a] plea agreement exists in this cause” and that Baker “agrees to plead guilty” to
the offense. A handwritten note on the form states, “Open Plea to the Court with no
agreed recommendation after dispositive motion to suppress hearing[.]” The
admonitions were signed on January 11, 2013—the same day the trial court
discussed the plea with defense counsel and discussed punishment with Baker after
Baker pleaded “true” to the enhancement. The scheduling order for the case
includes a handwritten notation of “Sentencing after open plea” next to the date
“1/11/13[.]” The docket sheet entry for January 11, 2013 reflects “Deft pres w/
Atty” and “Guilty Plea: 10 Yrs Comm Supervision[.]” The judgment, dated
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January 11, 2013, and signed by the trial judge and by Baker, includes the
following:
The Defendant, having been duly arraigned, entered his
plea of Guilty. It appearing to the Court that the
Defendant was mentally competent and that his plea was
free and voluntary, and the Court having duly
admonished the Defendant as to the consequences of
such plea and the Defendant persisted in entering his plea
of Guilty. Therefore, the Court duly accepted the
Defendant’s plea.
The Texas Court of Criminal Appeals in Costilla clarified that substantial
compliance with article 27.13 occurs when a defendant acknowledges the plea as
his in open court, regardless of whether an oral plea is actually entered. Costilla,
146 S.W.3d at 214-217. Article 27.13 is satisfied, even when no oral plea is
entered, if a defendant acknowledges the plea by stipulating to the evidence,
signing plea admonishments, and by not making known at punishment that the plea
was involuntary. See Bramlett, 2012 Tex. App. LEXIS 3450, at **4-6 (citing
Costilla, 146 S.W.3d at 217). Although the record before us does not include
Baker’s oral statement on the record that he “pleads guilty to the offense of driving
while intoxicated – third or more,” an oral plea was not required, and all facts point
to his knowing and voluntary desire to plead guilty thereto. See Costilla, 146
S.W.3d at 217. The interaction between Baker’s attorney and the court, as well as
the interaction between the court and Baker, confirms Baker understood he was
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pleading guilty to the offense. See Adkison v. State, 762 S.W.2d 255, 259 (Tex.
App.—Beaumont 1988, pet. ref’d) (Interaction between trial court and defendant
indicated he fully understood the proceedings and plea.). We overrule issue two.
Having overruled both of Baker’s issues, we affirm the trial court’s judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on January 2, 2014
Opinion Delivered April 9, 2014
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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