Kenny Dwain Alexander v. the State of Texas ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00041-CR
Kenny Dwain Alexander, Appellant
v.
The State of Texas, Appellee
FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY
NO. B-21-0737-SB, THE HONORABLE BEN WOODWARD, JUDGE PRESIDING
MEMORANDUM OPINION
The trial court convicted Kenny Dwain Alexander of the third-degree felony
offense of driving while intoxicated (DWI) third or more. See Tex. Penal Code §§ 49.04(a),
.09(b). In his sole appellate issue, Alexander argues that the evidence is insufficient to
substantiate his guilty plea and the trial court’s judgment of conviction based on his guilty plea.
Because we conclude that the evidence is sufficient, we affirm the judgment of conviction.
BACKGROUND
Following a traffic stop that occurred in the early morning hours of June 12, 2021,
Alexander was charged with the third-degree felony offense of DWI with two previous DWI
convictions—one in January 2006 and one in June 2007. The indictment included an
enhancement paragraph alleging that Alexander had been convicted of the felony offense of
burglary of a building in February 1994.
The bench trial occurred on October 27, 2022. On that day, Alexander signed
admonishments, waivers, and a Waiver and Stipulation of Evidence (the Stipulation). In the
Stipulation, Alexander judicially confessed to the facts alleged in the indictment and agreed and
stipulated that the facts were “true and correct and constitute evidence in this case,” including
that he operated a motor vehicle in a public place in Tom Green County while he was
intoxicated; that he had been convicted of offenses relating to the operation of a motor vehicle
while intoxicated in January 2006 and June 2007; that he had been convicted of the felony
offense of burglary of a building in February 1994; and that he was “the identical person named
in the indictment in the above styled and numbered cause and that all the facts and allegations
insofar as stated above are true and correct.” In addition to Alexander’s signature, the trial court,
defense counsel, and the prosecutor approved and signed the Stipulation.
At the beginning of the plea colloquy, the trial court questioned Alexander about
his understanding of the indictment and the “five-page package” that described his rights and
confirmed that Alexander understood the documents and waived a jury trial. The trial court then
asked Alexander how he pleaded to the charged offense and enhancement paragraph in the
indictment, and Alexander entered an open plea of guilty and pleaded true to the enhancement
paragraph. After additional questions to Alexander to confirm his understanding, the trial court
accepted Alexander’s plea and addressed the admission of the Stipulation:
The Court: All right. I’m going to accept your plea as given freely and
voluntarily. There is no recommendation, but I do have a Waiver and Stipulation
of the Evidence. This document is basically your statement that you committed
the crime and that you’ve got a prior felony conviction. You have the right to
remain silent and not say anything. You have the right to confront witnesses
concerning these allegations, and you have the right to present evidence on your
own behalf, which I’m going to allow you to do in punishment. But as far as the
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crime itself is concerned, it won’t be necessary if I admit this into evidence. You
understand that you waived the rights that I just described when you signed this?
Alexander: Yes, Your Honor.
The Court: Okay. Does the State offer the stipulation?
Prosecutor: State offers, Your Honor.
Defense Counsel: And no objection, Judge. And, Judge, if I may, I would
like to put on the record, without going into the details, though, but there was a
plea offer made on this case. I have discussed it thoroughly with Mr. Alexander
and he declined the plea offer. And we discussed it as much—or as recently as
yesterday afternoon, and several times this week and the last few weeks. And so
he wants to go forward with an open plea, and I explained to him the entire range.
The Court: Okay. Thank you. Is that correct, Mr. Alexander?
Alexander: Yes. Your Honor.
After the trial court confirmed with Alexander that he had declined the plea offer, the trial court
then proceeded to hear the evidence on punishment.
The State’s evidence included exhibits of Alexander’s prior judgments and
associated documents of conviction and testimony from the officer who conducted the traffic
stop on Alexander’s vehicle in this case. The officer testified that he initiated the traffic stop
because Alexander was speeding, driving eighty-seven miles per hour in a sixty-five miles per
hour speed zone. The officer smelled “the odor of alcohol emitting from the vehicle” and
observed that Alexander’s “body movements were slow and sluggish,” that his speech was
slurred, and that he dropped his phone when he stepped out of the vehicle. 1 The officer testified
that Alexander admitted to having “a couple” of drinks “earlier.” The officer performed field
sobriety tests on Alexander and “clues” from those tests indicated that Alexander was
1 The officer explained that dropping a phone is “another common indicator of someone
who is intoxicated and has lost their dexterity in their hands.”
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intoxicated. Based on his observations and the field sobriety tests, the officer arrested Alexander
for DWI.
The defense witnesses were Alexander, his sisters, and a community supervision
officer, who testified about Alexander’s probation records concerning one of his prior felony
convictions. Alexander testified that after the traffic stop, he had not been drinking or driving
and asked the trial court to give him probation. He also testified about his actions when he
previously had been on probation and what he had been doing leading up to the traffic stop and
admitted that “[i]t was a mistake” to drive after he had been drinking. Alexander’s older sister
testified about her interaction with Alexander at the scene of the traffic stop and his conduct
when he was on probation. She testified that when she picked up his vehicle from the scene, she
did not think that Alexander was intoxicated but that she was aware that Alexander had prior
DWIs and a prior criminal conviction. Alexander’s other sister testified about Alexander’s
current circumstances, including that he was the primary caretaker of their parents, who had
significant health issues.
After hearing the evidence on punishment and closing arguments, the trial judge
explained his reasons to Alexander for “what I have to do,” including that “I’ve heard the
testimony. I’ve weighed it. I’ve reviewed the file, the records that were admitted into evidence.”
The trial judge then found Alexander guilty of DWI third or more and the enhancement
paragraph true and sentenced him to eleven years’ confinement. See Tex. Penal Code §§ 12.33
(setting punishment range for second-degree felony), .42(a) (enhancing punishment range in trial
of third-degree felony when defendant has been previously convicted of felony other than state
jail felony). Alexander filed a motion for new trial, which was overruled by operation of law,
and this appeal followed.
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ANALYSIS
In his sole appellate issue, Alexander argues that the evidence was insufficient to
substantiate his guilty plea and the trial court’s judgment of conviction based on his guilty plea.
When a defendant enters an open plea of guilty in a non-capital felony case, it
remains 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. art. 1.15; see Menefee v. State, 287 S.W.3d 9, 13, 18 (Tex. Crim. App.
2009) (stating that when defendant enters guilty plea, State is required to provide independent
evidence to substantiate defendant’s guilt). A written stipulation of the evidence that covers the
charged offense’s elements satisfies this statutory requirement and is sufficient to support a
guilty plea and the trial court’s judgment based on the guilty plea. See Tex. Code Crim. Proc.
art. 1.15; Menefee, 287 S.W.3d at 13.
Alexander does not contend that the Stipulation did not cover the charged
offense’s elements to satisfy article 1.15 but rather that it may not be considered to substantiate
his guilty plea and the judgment of conviction because the trial court did not admit it into
evidence at trial. The Stipulation was filed in the clerk’s record, but it was not formally admitted
at trial and does not appear as an exhibit in the reporter’s record. Alexander argues that
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documents in the clerk’s record are not evidence unless the trial court takes judicial notice of
them or they are offered into evidence, that the trial court did not take judicial notice of the
case’s file or record, and that the Stipulation “was not referred to or mentioned again” after the
prosecutor offered it and Alexander’s counsel responded that he did not object. In support of this
argument, Alexander relies on Chindaphone v. State, 241 S.W.3d 217, 219–20 (Tex. App.—Fort
Worth 2007, pet. ref’d). In that case, our sister court stated that “when the trial court takes
judicial notice of a judicial confession, the State is not required to introduce the judicial
confession into evidence” and cited McDougal v. State, 105 S.W.3d 119, 120–121 (Tex. App.—
Fort Worth 2003, pet. ref’d) (recognizing that “‘[t]he contents of the clerk’s record are not
evidence unless the trial court takes judicial notice of them or they are offered into evidence’”). 2
The Texas Court of Criminal Appeals, however, has held that “[a]n appellate
court may consider evidence that was not formally admitted if it is treated as admitted by the trial
court.” Ex parte Napper, 322 S.W.3d 202, 208 n.5 (Tex. Crim. App. 2010) (citing Kissinger
v. State, 501 S.W.2d 78, 79 (Tex. Crim. App. 1973); Richardson v. State, 475 S.W.2d 932, 933
(Tex. Crim. App. 1972)). In Kissinger, the Texas Court of Criminal Appeals considered the
2 To the extent that Alexander relies on the statement in McDougal v. State that the
contents of the clerk’s record are not evidence, we observe that this statement was dicta and that
the facts that were before our sister court are distinguishable from those that are before us. See
McDougal v. State, 105 S.W.3d 119, 120–121 (Tex. App.—Fort Worth 2003, pet. ref’d). In that
case, the defendant had signed a judicial confession and waived the making of a reporter’s record
but then challenged the sufficiency of the evidence to support his guilty plea, arguing that the
judicial confession form was not itself sufficient and that without a reporter’s record, there was
nothing to show that his judicial confession was offered or admitted into evidence. Id. at 120. In
affirming the trial court’s judgment, our sister court explained that “[a] criminal defendant may
not waive the making of a record and then, on appeal, rely on the absence of evidence to support
reversal of his conviction” and that “an appellant in a criminal case must bring forth a complete
record of the evidence before the factfinder and bears the burden of demonstrating that the State
failed to satisfy the evidentiary requirements of article 1.15.” Id. at 121. In contrast with the
lack of a record before our sister court, we have a reporter’s record that shows that the trial court
and the parties treated the judicial confession as having been admitted without objection.
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defendant’s written judicial confessions even though the reporter’s record did not show that the
trial court “formally stated that he admitted the written judicial confessions which were offered
by the State.” 501 S.W.2d at 79. The court explained that “[t]he record indicates that the Court
and the parties treated the exhibits as having been admitted” and, in that context, that the judicial
confessions were properly considered by the trial court. Id.
In an analogous situation, the Texas Court of Criminal Appeals similarly
determined that stipulations that were not admitted into evidence but filed in the record “may be
considered in support of the judgment as if they had been formally admitted.” Killion v. State,
503 S.W.2d 765, 766 (Tex. Crim. App. 1973). The court observed that the “record indicates that
the Court and the parties treated the stipulations as having been admitted into evidence” and then
considered the stipulations to hold that the evidence was sufficient to meet the requirements of
article 1.15 and to support the guilty plea. Id.; see Rexford v. State, 818 S.W.2d 494, 495–96
(Tex. App.—Houston [1st Dist.] 1991, pet. ref’d) (collecting cases holding that stipulations of
guilt were sufficient to support judgments of conviction even though they were not formally
admitted into evidence).
Informed by these decisions, we conclude that the record in this case shows that
the trial court and the parties treated the Stipulation, which was filed in the clerk’s record, as if it
had been admitted into the evidence and that the trial court considered it when finding that the
evidence supporting Alexander’s guilty plea was sufficient. The Stipulation was signed by
Alexander and signed and approved by his counsel, the prosecutor, and the trial court on the
same day as the trial. And when the prosecutor offered the Stipulation, defense counsel
responded, “And no objection, Judge.” That the trial court did not orally state “admitted” after
defense counsel stated that she did not object is understandable because defense counsel
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immediately turned the trial court’s attention to counsel’s desire “to put on the record” that
“there was a plea offer made on this case.” In response to defense counsel’s request, the trial
court proceeded to confirm with Alexander that he had declined the plea offer.
We also observe that on the criminal plea worksheet in the clerk’s record, there
are handwritten check marks in the boxes of the section addressing the Stipulation, including the
box “Admit the Stipulation,” and that before finding Alexander guilty of the charged offense and
pronouncing the sentence, the trial judge explained his reasons for “what I have to do,” including
that “I’ve reviewed the file, the records that were admitted into evidence.” At that point or at any
other point during trial, defense counsel did not object to the trial court’s consideration of the
Stipulation, which was in the trial court’s file.
On this record, we conclude that the trial court and the parties treated the
Stipulation as admitted into evidence and, thus, that it may be considered to substantiate
Alexander’s guilty plea and the judgment of conviction based on that plea. See Killion,
503 S.W.2d at 766; Kissinger, 501 S.W.2d at 79. Considering the Stipulation, we conclude that
the evidence was sufficient to substantiate Alexander’s guilty plea and the trial court’s judgment
of conviction. 3 See Tex. Code Crim. Proc. art. 1.15; Menefee, 287 S.W.3d at 13.
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In his appellate issue, Alexander also argues that because the Stipulation cannot be
considered, the evidence on punishment was insufficient because “that evidence did not embrace
every essential element of the charged offense.” For example, Alexander contends that the
officer did not testify that the traffic stop occurred in Tom Green County. Because we have
concluded that the Stipulation may be considered to support Alexander’s guilty plea and the trial
court’s judgment of conviction based on that plea, we do not further address this argument. See
Tex. R. App. P. 47.1, .4.
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CONCLUSION
For these reasons, we overrule Alexander’s sole appellate issue and affirm the
trial court’s judgment of conviction.
__________________________________________
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Kelly and Theofanis
Affirmed
Filed: February 22, 2024
Do Not Publish
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