Ricky Dale Bass v. State , 2005 Tex. App. LEXIS 1277 ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00285-CR

Ricky Dale Bass,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 278th District Court

Leon County, Texas

Trial Court # CM-02-157

Opinion

          A jury convicted Ricky Dale Bass of felony driving while intoxicated.  The court assessed Bass’s punishment at seven years’ imprisonment.  Bass contends in his sole issue that the evidence is legally insufficient to prove the he has two or more prior DWI convictions because the State failed to prove that any of Bass’s prior DWI convictions was for an offense committed within 10 years of the date he committed the present offense and because his attorney’s verbal stipulation did not establish the requisite timing for the prior convictions.  We will affirm.

          The indictment alleges that Bass committed the present offense on or about February 6, 2001; that Bass had prior DWI convictions in 1985, 1992, and 1995; and that the 1985 and 1995 convictions were for offenses which were “committed within ten (10) years from the date of the commission of the primary offense.”  Before voir dire, the parties discussed whether the prior convictions should be mentioned during voir dire and whether Bass would stipulate to them.  Bass’s counsel stated that Bass would “stipulate to the two misdemeanors” (the 1985 and 1992 convictions).

          When the prosecutor read the indictment to the jury, he omitted the allegation regarding the 1995 felony DWI conviction. Bass pleaded “not guilty” to the primary charge but pleaded “true” to the allegations of prior misdemeanor convictions.  No further mention was made of the prior convictions until Bass took the stand in his own defense.

          Bass began his testimony by admitting that he had been convicted of misdemeanor DWI in 1985 and in 1992 and that he was convicted of felony DWI in 1995.  On cross-examination, the prosecutor showed him a copy of the penitentiary packet for the 1995 conviction and confirmed that it reflected his February 1995 conviction for felony DWI.  Because of the pretrial stipulation, the State did not offer the judgments for the prior convictions in evidence.  Nor did the parties enter a written stipulation in evidence.

          Bass contends in his sole issue that the evidence is legally insufficient because the State failed to prove that at least one of his prior DWI convictions was for an offense “committed [within] 10 years before the offense for which [he was] being tried was committed.”  See Act of May 30, 1999, 76th Leg., R.S., ch. 1364, § 12, 1999 Tex. Gen. Laws 4606, 4610 (amended 2001) (current version at Tex. Pen. Code Ann. § 49.09(e) (Vernon 2003)).

          The Court of Criminal Appeals has determined that a defendant who stipulates to prior DWI convictions in a felony DWI prosecution “has lost the ability to complain about the remoteness of the prior conviction[s].”  Smith v. State, No. 0755-04, 2005 Tex. Crim. App. LEXIS 151, at *5-6 (Tex. Crim. App. Feb. 2, 2002). Nevertheless, Bass contends that the “stipulation” in his case is ineffective because it does not comply with the requirements for stipulations set out in article 1.15 of the Code of Criminal Procedure.

          Article 1.15 requires a defendant’s written consent for the stipulation of evidence.[1]  See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004–2005).  “By its plain language [however], Article 1.15 applies only to cases in which a jury trial has been waived.”  Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000).  Because Bass’s case was tried to a jury, article 1.15 does not apply.  Id.

          We also note that Bass pleaded “true” to the prior DWI allegations.  This plea relieved the State of its burden to prove the enhancement allegations.  See Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981); Manning v. State, 112 S.W.3d 740, 744 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

          Accordingly, we overrule Bass’s sole issue and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 16, 2005

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    [1]           Article 1.15 provides:

                   No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.  The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court.  Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.

Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004–2005) (emphasis added).

ermining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that we “harbor a subjective level of reasonable doubt to overturn [the] conviction.”  Watson, 204 S.W.3d at 417.  We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided the question differently than the jury or because we disagree with the jury’s resolution of a conflict in the evidence.  Id.  We may not simply substitute our judgment for the fact-finder’s.  Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination of the weight to be given contradictory testimonial evidence because resolution of the conflict “often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.”  Johnson, 23 S.W.3d at 8.  Our deference in this regard safeguards the defendant’s right to a trial by jury.  Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008).  A factual sufficiency review of circumstantial evidence is the same as a review of direct evidence.  King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999) (reasoning that “[c]ircumstantial evidence, by itself, may be enough to support the jury’s verdict”).

It is undisputed by the testifying experts, both for the State and Latimer that the child died from blunt force trauma to the head.  The medical examiner and Dr. Coffman both testified that the blunt force trauma could not have occurred days before the child’s death because of the severity of the injury to the child’s brain.  The child did not exhibit any symptoms or odd behavior on the days before and the morning of his death. Latimer was the only adult present the morning of the child’s death.  Latimer made statements to various sources around the time of the child’s death that the child had gotten out of his play yard more than once that morning, and while she was cooking lunch, that she was exhausted because the child would get out of his play yard at night, and that the child was clingy and required a lot of one on one attention.  Other witnesses described the angry and harsh treatment of the deceased child and the other children in her home.  We find that the evidence was legally sufficient for the jury to have found beyond a reasonable doubt that Latimer caused the child’s death.

Latimer contends that statements by the two paramedics, the nurse who treated the child at the hospital, and a social worker who placed the child with Latimer gave different details at trial from that which were in written and oral statements given before trial.  Latimer contends that these inconsistencies, taken with their expert’s testimony that the child’s brain injury occurred prior to the child’s placement in Latimer’s home render the evidence factually insufficient.  However, it is the province of the jury to determine the credibility of the witnesses.  Johnson, 23 S.W.3d at 9.  We cannot say that the evidence was so weak that the fact-finder’s determination is clearly wrong and manifestly unjust or that the conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder’s determination is manifestly unjust.  See Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417.  We overrule issue five.

Conclusion

               We find no abuse of discretion by the trial court by denying Latimer’s motion for continuance.  We also find no abuse of discretion by the trial court in the admission of the expert testimony by Dr. Coffman or in the admission of the two photographs.  We find the issue regarding the testimony of the witness regarding an extraneous offense or bad act to have been waived due to inadequate briefing.  The evidence was both legally and factually sufficient to sustain the conviction.  We affirm the judgment of the trial court.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

            (Justice Davis joins the opinion in part and concurs in part.  Justice Davis joins the Court on overruling issues one, two, three and five.  Justice Davis concurs in overruling issue four on the briefing of appellant and appellee and does not find the briefing inadequate and thus, the issue not waived.)

Affirmed

Opinion delivered and filed April 28, 2010

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[1] The record is not clear as to what precisely fell over in the testimony, whether it was a display, a single can, or multiple cans of chili.