NO. 07-12-00105-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 28, 2013
JOSE ANGEL REYES, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A18888-1108; HONORABLE ROBERT W. KINKAID JR., JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant Jose Angel Reyes appeals from his conviction of the offense of driving
while intoxicated, third offense or more and enhanced, 1 and the resulting sentence of
fifty years of imprisonment. Through one issue, appellant contends the evidence is
insufficient to support his conviction. We will sustain appellant’s issue and modify the
judgment of conviction to reflect a conviction for Class A misdemeanor DWI. As
modified, we will affirm the finding of guilt, reverse the portion of the judgment imposing
sentence, and remand the cause to the trial court for a new punishment hearing.
1
Tex. Penal Code Ann. §§ 49.04; 49.09; 12.42(d) (West 2012).
Background
Appellant was charged via indictment with driving while intoxicated, third offense
or more. The indictment also contained enhancement paragraphs describing two
additional final convictions for driving while intoxicated. Appellant plead not guilty to the
charged offense and entered a plea of “not true” to the enhancement paragraphs.
Appellant was tried by jury in February 2012.
The State presented evidence to show appellant, driving a red Camaro, was
stopped by a Plainview police officer in the early morning hours of June 18, 2011.
When he made contact with appellant, the officer saw appellant fumbling with his wallet.
Appellant appeared to be lethargic and had glassy blood-shot eyes. When appellant
got out of the car, the officer smelled alcohol on appellant’s breath and noted his speech
was slurred. The officer arrested appellant for driving while intoxicated and took him to
a local hospital for a blood draw. The results of the test indicated appellant had a blood
alcohol concentration of 0.26 grams of alcohol per 100 milliliters of blood.
The State also presented during the guilt/innocence phase of trial, without
objection, two judgments. The first was a 1991 judgment revoking probation in Cause
No. 9004-B10501-CR, in the 242nd District Court of Hale County, and was styled State
of Texas v. Jose Angel Reyes. 2 The second was a 1989 judgment of conviction in
Cause No. 89-08-B-10,331-CR, in the 242nd District Court of Hale County, also styled
State of Texas v. Jose Angel Reyes.
2
The 1991 judgment revoking probation was offered to prove appellant was
convicted of DWI in June 1990 for an offense committed April 8 of that year.
2
The jury found appellant guilty as charged in the indictment, found the two
enhancement paragraphs to be “true” and assessed punishment as noted. Appellant
timely filed notice of appeal.
Analysis
Through one issue, appellant argues the evidence was insufficient to support his
conviction because the State failed to prove that the Jose Angel Reyes convicted in
1989 of driving while intoxicated in Cause No. 89-08-B-10,331-CR (State’s Exhibit 3)
was the same Jose Angel Reyes charged and convicted in the current case or the same
Jose Angel Reyes whose probation was revoked in 1991 in Cause No. 9004-B10501-
CR (State’s Exhibit 2).
During the guilt/innocence phase of trial, the State presented the testimony of its
investigator. He testified he took appellant’s fingerprints on a fingerprint card. The card
was admitted into evidence without objection. The investigator then testified the 1991
judgment revoking probation, State’s Exhibit 2, contained fingerprints made, in his
opinion, by appellant. The 1989 judgment, State’s Exhibit 3, however, did not contain
fingerprints. The investigator expressed no opinion concerning whether appellant was
the person convicted in 1989.
We review the legal sufficiency of the evidence by viewing the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Brooks v.
State, 323 S.W.3d 893 (Tex.Crim.App. 2010); Clayton v. State, 235 S.W.3d 772, 778
(Tex.Crim.App. 2007).
3
A person may be charged with felony DWI if he has two previous convictions for
DWI. Tex. Penal Code Ann. § 49.09(b)(2) (West 2012). The two prior DWI convictions
are elements of the offense of felony DWI. Martin v. State, 200 S.W.3d 635, 640-41
(Tex.Crim.App. 2006). Evidence that a defendant has been convicted of a prior offense
must establish beyond a reasonable doubt that (1) the prior conviction exists, and (2)
the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 922
(Tex.Crim.App. 2007). The State may prove a prior conviction in a number of different
ways. Id. at 921-23. The State is not required to produce a specific document or specific
proof because "[t]here is no 'best evidence' rule in Texas that requires that the fact of a
prior conviction be proven with any document, much less any specific document."
Flowers, 220 S.W.3d at 921-23. See also Jobe v. State, No. 09-11-00024-CR, 2012
Tex.App. LEXIS 8478 (Tex.App.—Beaumont Oct. 10, 2012, no pet.) (mem. op., not
designated for publication) (noting same). Whatever form the State’s proof takes,
however, it must be sufficient to prove the defendant’s prior conviction beyond a
reasonable doubt. Flowers, 220 S.W.3d at 923.
The evidence linking appellant with the 1989 conviction is limited to the
information contained on the face of the judgment. Compared with the 1991 judgment,
the judgment shows a defendant with the same full name as appellant, represented by
the same attorney, convicted in the same county for an offense committed June 11,
1989. The 1989 judgment states the offense as “DWI second offense,” while the 1991
judgment, showing an offense date of April 8, 1990, reflects a conviction for “DWI3.”
Because the judgments contain the same name and reflect a third DWI offense in April
1990 following a second such offense in June 1989 in the same county, the defendants
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are probably the same person. But, as this court has said in a similar case, for proof
beyond a reasonable doubt “probably is not good enough.” Young v. State, No. 07-99-
0238-CR, 2000 Tex.App. Lexis 2408 (Tex.App.—Amarillo April 12, 2000, no pet.) (mem.
op., not designated for publication); Cook v. State, No. 03-03-00027-CR, 2004 Tex.App.
LEXIS 2037, at *4-7 (Tex.App.—Austin March 4, 2004, no pet.) (mem. op., not
designated for publication) (similar analysis); see Jobe, No. 09-11-00024-CR, 2012
Tex.App. LEXIS 8478, at *4 (discussing means of proof showing defendant was same
person previously convicted). See also Littles v. State, 726 S.W.2d 26, 28
(Tex.Crim.App. 1984); Zimmer v. State, 989 S.W.2d 48, 50 (Tex.App.—San Antonio
1998, pet. ref'd) (also noting acceptable means of proof). The evidence presented at
the guilt/innocence stage of trial was insufficient to allow a rational trier of fact to find,
beyond a reasonable doubt, that appellant is the same individual who was the subject of
the 1989 judgment, State’s Exhibit 3. The State proved one prior DWI conviction but
not two.
In response to appellant’s contention there was no independent evidence
identifying him as the person convicted in 1989, the State insists it presented sufficient
evidence linking him with that conviction. The evidence to which the State points was
presented during the punishment stage of the jury trial. The State’s brief, in fact, draws
no distinction at all between the evidence it presented during the guilt/innocence phase
of trial and that presented on the issue of punishment.
Because the prior convictions are elements of the offense of felony DWI, the
State’s evidence of the convictions must be introduced during the guilt/innocence phase
5
of a trial that is bifurcated into a guilt/innocence phase and a punishment phase. Calton
v. State, 176 S.W.3d 231, 236 (Tex.Crim.App. 2005) (discussing similar requirements
with regard to evading arrest offense); see Zimmer, 989 S.W.2d at 50 (applying Jackson
v. Virginia standard to proof of prior convictions). The State is correct that evidence
admitted during the punishment phase of trial demonstrates that appellant was the
same person as the person convicted of the DWI offense in Exhibit 3, 3 but we cannot
consider that evidence in our evidentiary sufficiency review. See Calton, 176 S.W.3d at
234 (“[t]o sustain a conviction, all the elements of the offense must be proved at guilt”).
Misdemeanor DWI is a lesser-included offense of felony DWI. Tex. Code Crim.
Proc. Ann. art. 37.09 (West 2012); Tex. Penal Code Ann. § 49.04 (West 2012);
Mosqueda v. State, 936 S.W.2d 714, 717 (Tex.App.—Fort Worth 1996, no pet.). When
the evidence is sufficient to prove a lesser-included offense but not the alleged felony
offense, we may modify the trial court's judgment to show a conviction for the lesser-
included offense. Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim App. 1993). Under
the recent opinion in Bowen v. State, 374 S.W.3d 427, 432 (Tex.Crim.App. 2012), we
3
Indeed, appellant testified during the punishment phase and admitted that all
the convictions introduced into evidence were his. We have reviewed the potential
application of the “DeGarmo doctrine” to appellant’s evidentiary sufficiency challenge.
This court has read LeDay v. State, 983 S.W.2d 713 (Tex.Crim.App. 1998), as holding
that a challenge to the sufficiency of evidence supporting conviction is not precluded by
the defendant’s testimony on punishment confessing to the elements of the offense.
Thomas v. State, No. 07-99-0035-CR, 2003 Tex.App. Lexis 351 (Tex.App.—Amarillo
January 15, 2003, no pet.) (mem. op., not designated for publication). See also
Jacobson v. State, 343 S.W.3d 895, 897-98 (Tex.App.—Amarillo 2011, pet. granted)
(also addressing LeDay); Newsome v. State, 235 S.W.3d 341, 344 (Tex.App.—Fort
Worth 2007, no pet.) (also holding sufficiency challenge not barred by DeGarmo
doctrine). We will apply that holding in this case.
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may do so even when the lesser-included offense was not submitted to the jury. We
therefore modify the judgment of conviction to reflect a conviction for Class A
misdemeanor DWI, and, as modified, affirm the finding of guilt. We reverse the portion
of the judgment imposing sentence and remand the cause to the trial court for a new
punishment hearing.
James T. Campbell
Justice
Publish.
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