Michael Ray Johnson v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-90-005-CR

MICHAEL RAY JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 89-569-C

O P I N I O N

Appellant was convicted of felony driving while intoxicated. See Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), (e) (Vernon Supp. 1991). Paragraph two of the indictment, the enhancement paragraph, contained allegations that Appellant had previously been convicted of driving while intoxicated on September 27, 1985, and January 6, 1983. At trial he did not dispute these prior convictions. However, his only point on appeal concerns the penitentiary packet introduced into evidence that revealed he was convicted of "DWI felony" on September 27, 1985. Appellant argues that, because "DWI felony" is not a crime, the evidence was insufficient to show the requisite prior felony convictions. See id. at art. 6701l-1(e). The State urges us to take judicial notice that "DWI felony" is the equivalent of felony driving while intoxicated. We will affirm.

Judicial notice takes the place of proof and is of equal force. Legg v. State, 594 S.W.2d 429, 432 (Tex. Crim. App. [Panel Op.] 1980). And, when "a fact is well known by all reasonably intelligent people in the community or its existence is so easily determinable with certainty from sources considered reliable, it would not make good sense to require formal proof." Holloway v. State, 666 S.W.2d 104, 108 (Tex. Crim. App. 1984); Tex. R. Crim. Evid. 201(b). Furthermore, an appellate court can take judicial notice for the first time on appeal. See Legg, 594 S.W.2d at 432; Tex. R. Crim. Evid. 201(f).

Throughout the trial, Appellant's counsel and the prosecutor used "DWI" and "driving while intoxicated" interchangeably. Furthermore, reasonably intelligent people in this community commonly use DWI as an acronym for driving while intoxicated. Accordingly, to require formal proof that "DWI felony" and driving while intoxicated felony are identical would not make good sense. We, therefore, take judicial notice that "DWI felony" means the felony offense of driving while intoxicated. Accordingly, the State proved that Appellant had been previously convicted on September 27, 1985, of a felony offense of driving while intoxicated.

Based on the record as a whole, any rational trier of fact could have found beyond a reasonable doubt the elements of the offense alleged in the indictment. See Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). We overrule point one and affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 18, 1991

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