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Terry Levon Nall v. State ( 2007 )


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  • Affirmed and Memorandum Opinion filed September 4, 2007

    Affirmed and Memorandum Opinion filed September 4, 2007.

     

     

     

    In The

     

    Fourteenth Court of Appeals

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    NO. 14-06-00345-CR

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    TERRY LEVON NALL, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the 23rd District Court

    Brazoria County, Texas

    Trial Court Cause No. 49281

     

      

     

    M E M O R A N D U M   O P I N I O N

    Appellant, Terry Levon Nall, appeals his conviction for felony Driving While Intoxicated (ADWI@). Tex. Pen. Code Ann. '' 49.04, 49.09(b)(2) (Vernon 2003).[1] Pursuant to the habitual felony offenders statute, appellant was sentenced to twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice and was fined $7,000.00. Tex. Pen. Code Ann. ' 12.42(a)(3) (Vernon 2003). We affirm.

    Factual and Procedural Background

    Early on the morning of April 16, 2005, appellant drove into the Buc-ee=s convenience store in Alvin, Texas. Appellant pulled his vehicle into the parking lot and parked at an inappropriate angle blocking the pedestrian walk space directly in front of the store=s entrance. Appellant exited his vehicle and entered the store.

    There were two store clerks on duty at Buc-ee=s when appellant arrived: Peggy Landry and Rhonda Feely.  Both clerks testified at trial. According to the clerks, appellant staggered into the store.  Appellant told Landry he had been in a bar drinking, could not make his own coffee, and asked her to make him a cup of coffee.  Appellant also told Feely he was drunk. Landry moved to within a couple of feet of appellant, who was leaning on the coffee counter, and showed him where the coffee was located.  Landry asked appellant if he needed her to call for transportation.  At that point, appellant became profane and Feely left the store to call the police. Appellant then paid for his coffee, exited Buc-ee=s without his coffee, and got back in his vehicle.  Appellant drove out of Buc-ee=s parking lot without stopping.  Appellant continued through two red lights, forcing another vehicle off the road.  Both clerks testified that appellant was clearly intoxicated.  Both Landry and Feely testified they could smell the odor of alcohol on appellant, that he was unsteady on his feet, and he had red eyes.

    Officer Aaron Kincaid, a patrol officer with the Alvin Police Department, was dispatched to Buc-ee=s in response to Feely=s call regarding an intoxicated person at the store.  While en route to Buc-ee=s, Officer Kincaid was advised the intoxicated person had left the premises.  Officer Kincaid was also informed of the color of the intoxicated person=s vehicle and its license plate number.  Officer Kincaid spotted the suspect=s vehicle and activated his patrol car=s lights.  Initially, the suspect increased his speed as if he was trying to evade Officer Kincaid.  However, the suspect slowed down and pulled over into a school parking lot, hitting the curb on his way in to the parking lot.  Upon stopping, appellant exited his vehicle and approached Officer Kincaid=s patrol car.  Officer Kincaid ordered appellant to stop and place his hands on the trunk of his vehicle, which he did.  Upon making contact with appellant, Officer Kincaid noted that appellant=s speech was slurred, his eyes were red and glassy, and he had a strong odor of alcoholic beverages.  When asked for his driver=s license, appellant informed Officer Kincaid that he did not have a driver=s license; however, he did produce an identification card.[2] Appellant refused to move in front of Officer Kincaid=s patrol vehicle and refused to submit to field sobriety tests.  Officer Kincaid then placed appellant under arrest for suspicion of driving while intoxicated.  At that point, appellant began to passively resist Officer Kincaid by refusing to place his right hand behind his back to be handcuffed, by turning his body, and by stiffening his right arm.  Eventually, Officer Kincaid was able to handcuff appellant and place him in the backseat of his patrol car.

    Officer Kincaid transported appellant to the Alvin Police Station where appellant continued his passive resistance.  Once appellant was inside the jail facility located in the police department building and was being booked into the facility, Detention Officer Olivia Culpepper came around the booking counter to assist Officer Kincaid in removing appellant=s personal items. As she came around the counter, appellant kicked Officer Culpepper in the wrist.  At that point, Officer Kincaid applied one burst of pepper spray into appellant=s eyes.  This calmed appellant down and he ceased his resistance to the booking process.  Officer Kincaid allowed appellant to wash the pepper spray out of his eyes, and after allowing appellant fifteen to twenty minutes to compose himself, Officer Kincaid provided appellant a copy of the DICB24 Statutory Warning[3] and requested that appellant read it along with Officer Kincaid.  Officer Kincaid then asked appellant for a breath sample.  Appellant refused to give a breath sample and also refused to sign the warning.

    Officer Kincaid testified that based on his observations of appellant in the school parking lot, while he was transporting appellant, and in the jail facility, it was his opinion that appellant was intoxicated and had lost the normal use of his mental faculties as a result of the introduction of alcohol into his body.

    Officer Culpepper also testified at trial.  She testified that appellant had the smell of alcoholic beverages on him, his speech was slurred, and he did not have the normal use of his mental or physical faculties.  Officer Culpepper testified that, in her opinion, based on her experience and observations of appellant, appellant was intoxicated the morning of April 16, 2005.

    Officer Richard Sepolio, Jr., a patrol officer with the Alvin Police Department, testified at trial.  Officer Sepolio was dispatched to back-up Officer Kincaid when Officer Kincaid initially reported his belief that appellant was attempting to evade.  Officer Sepolio was present in the school parking lot and came into close proximity with appellant.  Officer Sepolio observed appellant=s slurred speech and also detected the odor of alcoholic beverages on appellant.  In Officer Sepolio=s opinion, appellant was intoxicated.

    The final witness to testify for the State was Marcy Barnshaw, an Automated Fingerprint Identification SystemBLatent Print Examiner for the Brazoria County Sheriff=s Department. Barnshaw testified that she took fingerprints from appellant.  These fingerprints were introduced into evidence as State=s Exhibit 10. Barnshaw also testified that while she was fingerprinting appellant, he identified himself to her as Terry Nall, with a date of birth of December 3, 1962.  Through Barnshaw, the State introduced into evidence five exhibits containing documentary evidence of appellant=s prior DWI convictions.  State=s Exhibits 11 and 12, containing certified court documents of DWI convictions on February 28, 2000 and April 7, 1997 respectively, were admitted into evidence without objection by appellant.  The State also sought to admit State=s Exhibit 14, containing certified court documents of a February 16, 1993 DWI conviction.  Appellant objected to State=s Exhibit 14 arguing that because there was no fingerprint on the judgment of conviction there was insufficient evidence connecting appellant to the conviction. However, State=s Exhibit 14 did contain fingerprints, which Barnshaw testified matched the known prints of appellant, on a bail bond and an order of community service.  The trial court overruled appellant=s objection and State=s Exhibit 14 was admitted into evidence.

    The State also sought to admit State=s Exhibits 13 and 15, containing certified court documents of DWI convictions on March 2, 1995 and August 16, 1985 respectively.[4] Neither exhibit contained fingerprints.  To establish that the Terry Levon Nall found in Exhibits 13 and 15 was the same as appellant, the State sought to admit State=s Exhibit 5.  State=s Exhibit 5 is a certified copy of a driving record from the Texas Department of Public Safety for a Terry Levon Nall, birth date December 3, 1962, driver=s license number 02721701.  State=s Exhibit 5 lists numerous DWI convictions, including the August 16, 1985 and March 2, 1995 convictions.  Appellant lodged two objections to Exhibit 5.  First, appellant objected that Exhibit 5, which appellant argued contained only a name and date of birth, was insufficiently tied to appellant.  Appellant=s second objection was that State=s Exhibit 5 contained extraneous information.  The trial court overruled appellant=s first objection and the State agreed to redact all extraneous information contained in the exhibit.  The redacted exhibit, labeled State=s Exhibit 5A, was then admitted into evidence.  The State also had Barnwell point out that in the Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession contained in State=s Exhibit 12, which did include appellant=s fingerprint, appellant had stipulated to the August 15, 1985 and March 2, 1995 DWI convictions.  Arguing the State had already met its jurisdictional burden with the admission of the earlier exhibits, appellant objected to Exhibits 13 and 15 on the grounds that they were irrelevant and that their prejudicial effect outweighed their probative value.  The trial court overruled the objections and State=s Exhibits 13 and 15 were admitted into evidence.

    Appellant was charged with felony DWI with two prior DWI convictions as the jurisdictional enhancements.  The State also sought sentence enhancement pursuant to section 12.42(a)(1) of the Texas Penal Code, the habitual felony offender statute.  The jury found appellant guilty as charged and sentenced him to twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice and fined him $7,000.00.  This appeal followed.

    Discussion

    Appellant asserts four issues on appeal.  In his first issue, appellant raises a two-pronged challenge to the trial court=s admission of State=s Exhibits 13 and 15.  Initially, appellant contends the trial court abused its discretion when it admitted the exhibits because they were not relevant.  Second, assuming the exhibits were relevant, appellant argues the  exhibits should not have been admitted as, in appellant=s view, their probative value was substantially outweighed by the danger of unfair prejudice.  In his second and third issues, appellant asserts the trial court abused its discretion in admitting State=s Exhibits 5A, 13, and 15 as there was insufficient evidence linking the exhibits to appellant.  In his fourth issue, appellant contends he received ineffective assistance of counsel.

     

    A.      Did the Trial Court Abuse its Discretion When it Admitted Exhibits 13 and 15?

    I.        Were Exhibits 13 and 15 Relevant?

    a.       Standard of Review

    Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.  Massey v. State, 933 S.W.2d 141, 154 (Tex. Crim. App. 1996) (quoting Tex. R. Evid. 401).  A trial court=s Rule 401 rulings will not be reversed absent an abuse of discretion.  Id.  In other words, we must uphold the trial court=s ruling if it was within the zone of reasonable disagreement.  Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

    b.       Because They Were Relevant, the Trial Court Did Not Abuse Its Discretion When It Admitted Exhibits 13 and 15

    Apparently seeking to bring his situation within the rule established in Tamez v. State, appellant, while admitting he did not stipulate to any prior DWI convictions, contends that because he did not object to Exhibits 11 and 12, and did not seriously contest the admission of Exhibit 14, this was tantamount to a stipulation of the jurisdictional requirements of felony DWI thus rendering Exhibits 13 and 15 irrelevant and inadmissible.  See Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim. App. 2000) (holding the prosecution should not read or prove defendant=s prior convictions to the jury as long as the defendant stipulates to two prior DWI convictions as the prior DWI convictions have no probative value and can serve only to improperly prove the defendant=s Abad character@ and inflame the jury=s prejudice).  We disagree.

    Before the rule in Tamez will foreclose the prosecution from introducing evidence of a defendant=s prior DWI convictions, the defendant must actually offer to stipulate to the relevant prior convictions.  Id. at 202B03.  A stipulation is a formal concession that has the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.  Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005).  Simply not objecting, or only lodging minimal objections to an exhibit, does not rise to the level of a stipulation.  See id. (explaining that a stipulation acts as a kind of judicial admission that has the effect of withdrawing a fact from issue and dispensing entirely with the need for evidence to prove that fact).  In the absence of a stipulation, judgments from prior convictions are relevant to show the existence of those prior convictions.  Robles v. State, 85 S.W.3d 211, 212 (Tex. Crim. App. 2002).  Thus, Exhibits 13 and 15, consisting of certified copies of judgments in two of appellant=s prior DWI convictions, were relevant and the trial court did not abuse its discretion in admitting them.

    II.       Was the Probative Value of Exhibits 13 and 15 Substantially Outweighed by the Danger of Unfair Prejudice?

    a.       Standard of Review

    A trial court=s ruling on a Rule 403 objection will also not be overturned absent an abuse of discretion.  State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).  The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable, and we must uphold the admissibility decision when it is within the zone of reasonable disagreement.  Id. at 439B40.  The opponent of the evidence has the burden to demonstrate that the prejudicial effect substantially outweighs the probative value of the evidence.  Montgomery v. State, 810 S.W.3d 372, 377 (Tex. Crim. App. 1990).

    b.       The Probative Value of Exhibits 13 and 15 Was Not Substantially Outweighed by the Danger of Unfair Prejudice

    Under Texas Rule of Evidence 401, evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence.  Tex. R. Evid. 401.  There is a presumption of admissibility of relevant evidence.  See Tex. R. Evid. 402; Erazo v. State, 144 S.W.3d 487, 499 (Tex. Crim. App. 2004).  Relevant evidence may still be excluded by the trial court under Rule 403 Aif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.@  Tex. R. Evid. 403.  When a trial court balances the probative value of the evidence against the danger of unfair prejudice, a presumption exists that favors the evidence=s probative value.  Feldman v. State, 71 S.W.3d 738, 754B55 (Tex. Crim. App. 2002).  The relevant criteria for determining whether the prejudice of admitting the evidence substantially outweighs the probative value include, but are not limited to, the following: (1) the probative value of the evidence; (2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (3) the time needed to develop the evidence; and (4) the proponent=s need for the evidence to prove a fact of consequence.  Mechler, 153 S.W.3d at 440.  If the record reveals one or more of these considerations led to a risk that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, then an appellate court should conclude the trial court abused its discretion in admitting the evidence.  See Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000).

    1.       Probative Value

    We start with an examination of the probative value of the evidence.  Appellant, recognizing the contested exhibits serve to establish jurisdiction in the district court, concedes the exhibits are highly probative.

    2.       Indelible Impression

    The second criteria used to determine whether the prejudice of admitting the evidence substantially outweighed the probative value is whether the evidence has the potential to impress the jury in an irrational but nevertheless indelible way.  Rule 403 does not exclude all prejudicial evidence, if it did, all of the State=s evidence would be excluded as that is the  purpose behind all of the State=s evidence. Instead, Rule 403 focuses only on the danger of unfair prejudice and the tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.  Mechler, 153 S.W.3d at 440.  While the exhibits were certainly prejudicial to appellant, they were offered to prove the jurisdictional requirement of two prior DWI convictions when there was no stipulation from appellant to those prior convictions.  Appellant=s failure to stipulate to the jurisdictional prior convictions takes appellant out of the Tamez rule.  We find that Exhibits 13 and 15 do not have a great potential to impress the jury in an irrational way and would not tempt the jury into a finding of guilt on improper grounds.

    3.       Time to Develop

    The third criteria used to determine whether the prejudice of admitting the evidence substantially outweighs the probative value is the amount of time needed to develop the contested evidence, during which the jury will be distracted from the indicted offense.  Id. at 441.  The time involved in the disputed testimony was short, encompassing five pages in the reporter=s record of the trial, and was thus unlikely to distract the jury from considering the charged offense.  We find that this factor does not weigh against admitting the evidence.

    4.       The Need for the Evidence

    The last factor used to determine whether the prejudice in admitting the evidence substantially outweighs the probative value focuses on the proponent=s need for the evidence to prove a fact of consequence.  This factor encompasses whether the proponent has other evidence establishing this fact and whether this fact is related to a disputed issue.  Id. When proof of a prior conviction is a jurisdictional element, such as in a felony DWI case, the fact of the prior conviction must be proven beyond a reasonable doubt.  Zimmer v. State, 989 S.W.2d 48, 50 (Tex. App.CSan Antonio 1998, pet. ref=d). While the State introduced evidence of three of appellant=s other prior DWI convictions, this does not compel the trier of fact to accept that evidence.  Read v. State, 955 S.W.2d 435, 436 (Tex. App.CFort Worth  1997, pet. ref=d).  Section 49.09(b) of the Texas Penal Code does not limit the State to pleading or proving no more than two prior DWI convictions.  Id. at 437.  Since there was no offer to stipulate to two prior DWI convictions, thus removing this case from the Tamez rule, we find this factor does not weigh against admitting the evidence.

    Evaluating the above four factors and balancing the prejudicial nature of the evidence against its probative value, we conclude appellant has not met his burden to show the  probative value of the evidence substantially outweighs its prejudicial effect.  Accordingly, the trial court did not abuse its discretion by admitting Exhibits 13 and 15.  Therefore, we overrule appellant=s first issue on appeal.

    B.      Was There Sufficient Evidence Linking Appellant to State=s Exhibits 5A, 13, and 15?

    In his second and third issues, appellant contends the trial court abused its discretion when it admitted State=s Exhibits 5A, 13, and 15 because there was insufficient evidence connecting appellant to those exhibits.[5] Because the issues are so closely related, we address them together.

    I.        Standard of Review

    Once again, the standard of review for a trial court=s ruling on the admissibility of evidence is abuse of discretion.  Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999).  We must uphold the trial court=s ruling if it was within the zone of reasonable disagreement.  Weatherred, 15 S.W.3d at 542.

    II.       The Trial Court Did Not Abuse Its Discretion When it Admitted State=s Exhibits 5A, 13, and 15

    To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction.  Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).  No specific document or mode of proof is required to prove these two elements.  Id.  The State may prove both of these elements in a number of different ways, including documentary proof that contains sufficient information to establish both the existence of a prior conviction and the defendant=s identity as the person convicted.  Id. at 921B22.  Any type of evidence, documentary or testimonial, might suffice to prove this connection.  Id. at 922.  The proof that is adduced to establish this connection resembles a jigsaw puzzle.  Id. at 923 (citing Human v. State, 749 S.W.2d 832, 835B36 (Tex. Crim. App. 1988) (op. on reh=g)).  The trier of fact fits the pieces together, weighs the credibility of each piece, and determines if the pieces fit together sufficiently to complete the puzzle.  Id.

    a.       State=s Exhibit 5A

      State=s Exhibit 5A is a redacted version of a certified copy of a driving record prepared by the Texas Department of Public Safety for a person named Terry Levon Nall,  a male with brown eyes, born on December 3, 1962, with a Texas Driver=s License Number of 02721701.  Appellant argues this driving record is insufficiently linked to him and thus the trial court abused its discretion when it admitted the exhibit into evidence.  We disagree.

    Initially, Officer Kincaid testified without objection that, even though appellant did not produce a driver=s license, he was able to determine, prior to his arrest of appellant, that appellant=s driver=s license number was 02721701.[6]  In addition, Barnshaw testified that while she was fingerprinting appellant, he identified himself to her as Terry Nall, with a date of birth of December 3, 1962.  This unobjected to testimony, is sufficient to link appellant to State=s Exhibit 5A.  Flowers, 220 S.W.3d at 922.  Accordingly, the trial court did not abuse its discretion in admitting State=s Exhibit 5A.

    b.       State=s Exhibit 13

    State=s Exhibit 13 is a certified copy of a March 2, 1995 DWI conviction in Harris County, Texas, of a Terry Levon Nall, in Cause Number 9508570.  To link State=s Exhibit 13 with appellant, the State compared Exhibit 13 with paragraph six of State=s Exhibit 5A, which reveals that appellant was convicted in Harris County, Texas of DWI on March 2, 1995 in Cause Number 9508570.  In addition, the State linked appellant to State=s Exhibit 13 through State=s Exhibit 12, containing certified copies of court documents of an April 7, 1997 DWI conviction.  In the Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession contained in State=s Exhibit 12, which did include appellant=s fingerprint, appellant had stipulated to the March 2, 1995 DWI conviction.  Appellant argues the State could not rely on the stipulation found in State=s Exhibit 12 because the cause number found there is 950857, while the cause number for the conviction in State=s Exhibit 13 is 9508570. This argument is without merit as the variance between the cause numbers is neither material nor has appellant shown he was prejudiced by the variance.  See Human, 749 S.W.2d at 837 (holding that a transpositional error in cause numbers is not a fatal error as it would not prevent the defendant from finding the record of the prior conviction and presenting a defense).  The documentary evidence presented by the State is sufficient to link appellant to State=s Exhibit 13 and the trial court did not abuse its discretion when it admitted the exhibit into evidence.  Flowers, 220 S.W.3d at 922.  We overrule appellant=s second issue.

     

    c.       State=s Exhibit 15

    State=s Exhibit 15 is a certified copy of an August 16, 1985 DWI conviction in Harris County, Texas, of a Terry Levon Nall, date of birth of December 3, 1962, in Cause Number 847019.  To link State=s Exhibit 15 with appellant, the State compared Exhibit 15 with paragraph four of State=s Exhibit 5A, which reveals that appellant was convicted in Harris County, Texas of DWI on August 16, 1985 in Cause Number 847019.  Appellant contends the State could not rely on State=s Exhibit 5A to link appellant with State=s Exhibit 15 because there is a variance between the cause numbers.  Appellant argues the cause number shown in State=s Exhibit 15 is 8470191.  However, a careful examination of State=s Exhibit 15 reveals that the second 1 found in the blank for the cause number is actually a stray mark.  This is confirmed on page three of the exhibit, an October 16, 1986 Order Dismissing Cause/Order Terminating Probation, as it lists the cause number as 847019.  In addition, even if there was a variance between the numbers, this would not be a fatal error preventing the admission of the exhibit into evidence as appellant has not shown he was prejudiced by the variance.  See Human, 749 S.W.2d at 837.  The documentary evidence presented by the State sufficiently links appellant to State=s Exhibit 15 and the trial court did not abuse its discretion when it admitted the exhibit into evidence.  Flowers, 220 S.W.3d at 922.  We overrule appellant=s third issue.

    C.      Did Appellant Receive Ineffective Assistance of Counsel?

    In his fourth issue, appellant contends his trial counsel was ineffective because he did not stipulate to two jurisdictional prior convictions, which allowed the jury to hear evidence of five prior DWI convictions during the guilt-innocence stage of the trial.  In reviewing claims of ineffective assistance of counsel, we apply a two-prong test.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).  To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Id.  A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  

    When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  There is a strong presumption that counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  To overcome the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson, 9 S.W.3d at 814.  When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  When the record is silent as to the reasons for counsel=s conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court. Stults, 23 S.W.3d at 208. Absent specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

    Appellant argues his trial counsel was ineffective because he was not instructed to stipulate to two jurisdictional prior convictions, which allowed, under Tamez, the jury to hear evidence of five prior DWI convictions during the guilt-innocence stage of the trial.  The State responds that appellant=s trial counsel=s decision not to stipulate to the two prior DWI convictions could have been as a result of appellant=s participation in the decision to not stipulate or a trial strategy to avoid shocking the jury during the punishment phase of the trial.  We agree.  See Stafford v. State, 758 S.W.2d 663, 673 (Tex. App.CHouston [1st Dist.] 1988, no pet.), rev=d on other grounds, 813 S.W.2d 503 (Tex. Crim. App. 1999) (stating that the decision to stipulate to prior convictions is a classic example of trial strategy).  Appellant has not directed this court to any portion of the record containing an explanation for his counsel=s decision not to stipulate to the prior DWI convictions.  Therefore, absent a contrary showing in the record, it must be presumed that appellant=s counsel=s failure to stipulate to the prior DWI convictions was part of a valid, considered trial strategy, and did not constitute deficient performance.  See Thompson, 9 S.W.3d at 813B14 (holding allegations of ineffective assistance of counsel must be firmly founded in the appellate record).

    We hold that appellant has failed to show that he received ineffective assistance of counsel.  We overrule his fourth issue on appeal.

    Conclusion

    Having overruled each of appellant=s issues on appeal, we affirm the judgment of the trial court.

     

     

     

     

    /s/      John S. Anderson

    Justice

     

     

    Judgment rendered and Memorandum Opinion filed September 4, 2007.

    Panel consists of Justices Anderson, Fowler, and Seymore.

    Do Not Publish C Tex. R. App. P. 47.2(b).

     


    [1]  Appellant was also convicted of assault on a public servant and sentenced to two years= confinement in the Institutional Division of the Texas Department of Criminal Justice and fined $2,000.00.  Tex. Penal Code Ann. ' 22.01(b)(1) (Vernon 2003).  Appellant has not challenged this conviction in this appeal.

    [2]  Officer Kincaid testified without objection, that, even though appellant did not produce a driver=s license, he was able to determine, prior to his arrest of appellant, that appellant=s driver=s license number was 02721701.

    [3]  The DICB24 Statutory Warning informs a person suspected of operating a motor vehicle while intoxicated that, in the event they refuse to allow the taking of a breath or blood specimen, their driver=s license will be suspended for a minimum of 180 days.

    [4]  The cause number for Exhibit 13, the March 2, 1995 conviction, was 9508570.  The cause number for Exhibit 15, the August 15, 1985 conviction, was 847019.

    [5]  Throughout his brief, appellant refers to State=s Exhibit 5.  However, the trial court did not admit State=s Exhibit 5 but instead admitted the redacted version, State=s Exhibit 5A.  For this reason, we will assume appellant is actually referring to State=s Exhibit 5A under issues 2 and 3.

    [6]  In addition, a copy of appellant=s Texas Driver=s License is found in State=s Exhibit 14.  This license also establishes that appellant=s Texas Driver=s License number is 02721701.