Angel Levario Diaz v. The State of Texas--Appeal from 358th District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ANGEL LEVARIO DIAZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-02-00389-CR

Appeal from the

358th District Court

of Ector County, Texas

(TC# D-29,347)

MEMORANDUM OPINION

This is an appeal from a jury conviction for the offense of felony driving while intoxicated. The court assessed punishment at ten years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

At trial, Eddie Mancha of the Ector County Sheriff s Office testified that on May 25, 2001 at about midnight, he was transporting two individuals in his patrol car when he saw Appellant s vehicle stopped in the roadway. Mancha approached Appellant and inquired if he was alright. When Appellant got out of his vehicle he fell and Mancha placed him back in the car and removed the keys. Mancha could smell the odor of alcohol about Appellant s person and Appellant had difficulty standing. Mancha formed the opinion that Appellant was intoxicated. Mancha turned the investigation over to a Department of Public Safety trooper named Fred Whisenant.

Trooper Whisenant testified that when he had Appellant exit his vehicle, he stumbled. He performed a horizontal gaze nystagmus test on Appellant and he exhibited six clues of intoxication. Appellant was unable to perform any other field sobriety tests that Whisenant tried to administer. The officer testified that in his opinion, Appellant was intoxicated. Appellant was taken to jail. There it was determined that Appellant had been convicted of two other DWI related offenses and he had been arrested for DWI on thirteen prior occasions.

Kelly Smith testified that she was a fingerprint examiner for the Ector County Sheriff s Office. She testified regarding State s Exhibits Two through Four. State s Exhibit Two is a certified penitentiary packet. It contains a picture of Appellant and a copy of a judgment dated February 25, 1985 indicating that Appellant pleaded guilty to felony DWI. Also contained in the exhibit is a judgment revoking Appellant s probation and a fingerprint card which has a date of birth and a physical description of Appellant. Exhibit Three is a penitentiary packet containing a copy of a judgment and conviction entered on January 11, 1994 indicating that Appellant was convicted of felony DWI and received a five-year probated sentence and a $1,500 fine. Thumb prints are contained in this exhibit. Exhibit Four is a fingerprint card of Appellant s fingerprints taken by Kelly Smith on August 8, 2002.

Kelly Smith testified that she compared the prints contained in State s Exhibits Two and Three with the prints she obtained in State s Exhibit Four. She was able to match Appellant s fingerprints in State s Exhibit Three with the prints she obtained in Exhibit Four. However, she was unable to compare the prints in State s Exhibit Two with Appellant s fingerprints in Exhibit Four. She stated that the penitentiary packets were obtained from the penitentiary and they came in the same envelope. The court admitted Exhibit Two over Appellant s objection. Appellant stated that he had no objection to Exhibits Three and Four. II. DISCUSSION

In Appellant s sole issue, he asserts that the court erred in admitting State s Exhibit

Two. Specifically, Appellant contends that the exhibit was inadmissible because there was no independent evidence that the Appellant was the same individual convicted of the offense referenced in Exhibit Two.

Regarding the offense of driving while intoxicated, one commits an offense if he is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. 49.04(a) (Vernon 2003). Though the offense is generally a class B misdemeanor, id. 49.04(b), it becomes a felony of the third degree if it is shown . . . that the person has previously been convicted . . . two times of any other offense relating to the operating of a motor vehicle while intoxicated. . . . Id. 49.09(b)(2) (Vernon Supp. 2004-05). In other words, the statute permits the enhancement of the charge to a felony if the accused was twice finally convicted of DWI before. The two prior convictions must be demonstrated in order for the district court to have felony jurisdiction over the case. Tamez v. State, 11 S.W.3d 198, 201 (Tex. Crim. App. 2000).

In order to prove jurisdiction, the State could prove the prior convictions by offering certified copies of the judgments and sentences, along with independent evidence showing Appellant was the same person named in the previous convictions. See Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986). Such independent evidence could include expert testimony matching Appellant s fingerprints to the fingerprints on the judgments, testimony of a witness who knew Appellant and knew of the prior convictions, or a judicial stipulation. Id.; Zimmer v. State, 989 S.W.2d 48, 50 (Tex. App.--San Antonio 1998, pet. ref d). It could also include photographs of the convicted individual for comparison with Appellant or identification information such as name, gender, height, eye color, hair color, and date of birth. Williams v. State, 946 S.W.2d 886, 895 (Tex. App.--Waco 1997, no pet.). The State did not attempt to show that the photograph in Exhibit Two was of Appellant. But the jury, as the trier of fact, was capable of comparing Appellant s appearance in court and his photograph in Exhibit Two. Id.; Tyson v. State, 873 S.W.2d 53, 59 (Tex. App.--Tyler 1993, pet. ref d); Yeager v. State, 737 S.W.2d 948, 952 (Tex. App.--Fort Worth 1987, no pet.). Given the photograph and the physical description contained in Exhibit Two, the jury was capable of making comparisons linking Appellant as the individual convicted of the offense referenced in that exhibit. See Yeager, 737 S.W.2d at 951-52. The court did not abuse its discretion in admitting Exhibit Two. Accordingly, Appellant s sole issue is overruled.

Having overruled Appellant s sole issue on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

November 24, 2004

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)