James Esamu Coop v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

97-00767 Coop v State of Texas.wpd No. 04-97-00767-CR
James Esamu COOP,
Appellant
v.
The STATE of Texas,
Appellee

From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 94-CR-6785
Honorable Phil Chavarria, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Karen A. Angelini, Justice

Delivered and Filed: December 30, 1999

AFFIRMED

James Esamu Coop was convicted of felony driving while intoxicated (DWI) and sentenced to two years in prison. Coop challenges his conviction in four issues in this appeal. Because we find no reversible error, we affirm.

Indictment

By indictment, the State alleged that Coop committed the offense of felony DWI in pertinent part as follows:

. . . that prior to the commission of the aforesaid offense, hereinafter called primary offense, by the said defendant, on the 7th day of JANUARY, A.D., 1992, in COUNTY COURT AT LAW NUMBER 9, BEXAR COUNTY, TEXAS, in Cause No. 506933, the said defendant was convicted of the offense of DRIVING WHILE INTOXICATED PURSUANT TO ARTICLE 6701l-1, a misdemeanor, and said conviction became final prior to the commission of the primary offense; and it is further presented in and said Court, that prior to the commission of the primary offense by the said defendant, on the 31st day of OCTOBER, A.D., 1989, in COUNTY COURT AT LAW 9, BEXAR COUNTY, TEXAS, in Cause No. 441246, the said defendant was convicted of the offense of DRIVING WHILE INTOXICATED PURSUANT TO ARTICLE 67001l-1, a misdemeanor, and said conviction was final prior to the commission of the primary offense. . . .

Thus, the State was required to prove that Coop was convicted of DWI in Cause Nos. 506933 and 441246.

Proof of Conviction

To prove that Coop was convicted of DWI in Cause Nos. 506933 and 441246, the State called David Dunbar, identification supervisor for the Bexar County Sheriff's Department, to testify. Dunbar fingerprinted Coop on the day prior to trial. The State used the fingerprint card that Dunbar used in fingerprinting Coop to discuss certified copies of the judgments of conviction in Coop's prior DWI convictions. The fingerprints reflected on those judgments, however, were not clear enough for Dunbar to match the fingerprints he took the previous day with the fingerprints reflected on the judgments. As a result, Coop contends in his first and second issues that the State did not prove that he was convicted in Cause Nos. 506933 and 441246. To review a challenge to the legal sufficiency of the evidence, we must review all the evidence, whether direct or circumstantial, in the light most favorable to the verdict and determine whether any rational trier of fact could have found the challenged finding beyond a reasonable doubt. See Jackson v. Virginia, 99 S. Ct. 2781, 2789 (1979); Sonnier v. State, 913 S.W.2d 511, 514 (Tex. Crim. App. 1995).

Although the State typically proves prior convictions by linking the known fingerprints of the defendant to the fingerprint(s) reflected on a judgment of conviction, this method is not the only way to prove up a prior conviction. In this case, the prosecutor used Dunbar's testimony and a series of documents relating to Coop's prior convictions to prove up the priors. One of those documents was a fingerprint card that reflected the name "James Esamu Coop," the SID number (citizen's identification number) "484029," the date of arrest of 8-10-89 for DWI, and a physical description of the fingerprinted individual. A photograph of the individual was attached to the card. Dunbar testified that the fingerprints on that card matched the fingerprints he had taken from Coop. Another document, the judgment of conviction in Cause 441246, reflected the defendant's name as "James E. Coop," the offense as DWI, the date the offense was committed as 8-10-89, and that the defendant was adjudicated. The charging document attached to this judgment reflected the defendant's name as "James E. Coop," the date the offense was committed as "the 10th day of August, A.D., 1989," the SID number "484049," and "JN NO. 0419430." Another document, reflected the booking information associated with JN 04193430. That document reflected the name "James Esamu Coop," the SID number "0484029," a booking date of 08-10-89, and a physical description that matched the description from the fingerprint card discussed above. Although proof of a prior conviction in Cause No. 441246 based on these documents required the jury to trace the relevant numbers, dates, and the physical description of the individual, from one document to another, this evidence is legally sufficient in the absence of contradictory evidence. While each of these documents relates to the conviction in Cause No. 441246, parallel documents were admitted to prove the conviction in Cause No. 506933. As a result, we conclude that a rational trier of fact could have concluded beyond a reasonable doubt that Coop was convicted of DWI in Cause Nos. 506933 and 441246. Based on this finding, we overrule Coop's first and second issues.

Proof of Conviction Pursuant to Article 67001l-1

The indictment alleged that Coop was previously convicted for DWI in Cause Nos.506933 and 441246 "PURSUANT TO ARTICLE 67001l-1." This article was the prior authority for criminalizing DWI. In his third and fourth issues, Coop maintains that insufficient evidence exists to establish that he was convicted "PURSUANT TO ARTICLE 67001l-1." While Coop is correct that the State did not present any evidence of the prior convictions having been pursued under Article 67001l-1, Coop characterizes this deficiency as jurisdictional.

Section 49.09(b) of the Texas Penal Code classifies the offense of driving while intoxicated as a third degree felony upon proof that the defendant "has previously been convicted two times of an offense relating to the driving or operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, or an offense of operating a watercraft while intoxicated." As a result, the State is required to allege in the indictment at least two prior convictions "relating to the driving or operating of a motor vehicle while intoxicated [DWI], an offense of operating an aircraft while intoxicated [FWI], or an offense of operating a watercraft while intoxicated [BWI]" to invoke the jurisdiction of the district court. Here, the State included allegations of two prior convictions in the indictment. As a result, the jurisdiction of the trial court was properly invoked. Although section 49.09 also defines the term "offense" by enumerating the specific authorities which will support enhancement under the section, we interpret that enumeration as a legislative intent to classify any third or subsequent offense that relates to either DWI, FWI, or BWI, as a felony offense regardless of whether the first or second offense were obtained pursuant to either a current or superceded authority for DWI, FWI or BWI. Based on this interpretation, the State is not required to allege the authorities for the prior convictions when seeking a conviction under section 49.09. As a result, the language "PURSUANT TO ARTICLE 67001l-1" in Coop's indictment was surplusage that the State was not required to either plead or prove. See Collins v. State, 500 S.W.2d 168, 169 (Tex. Crim. App. 1973) (surplusage is language that is not legally essential to the validity of an indictment). Consequently, we overrule Coop's third and fourth issues.

Having overruled each of Coop's issues, we affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH