Frances Mae Adams v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-95-073-CR

FRANCES MAE ADAMS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 30,296

O P I N I O N

A jury convicted appellant, Frances Mae Adams, of driving while intoxicated. The trial court, pursuant to an agreement between Adams and the State, assessed punishment at 25 years' incarceration in the Texas Department of Criminal Justice - Institutional Division. Adams raises seven points on appeal: (1) the trial court erred in convicting her under a version of the Penal Code that was not in effect at the time of the alleged offense; (2) and (3) the trial court erred in allowing the State to read the enhancement paragraphs of the indictment to the jury during its opening statement; (4) the trial court erred in allowing the State to use the driving-while-intoxicated enhancement paragraphs for impeachment purposes on its cross-examination of her; (5) the indictment was defective for not providing a definition of intoxication; (6) the trial court erred at sentencing in using the felony enhancement paragraphs because there was no indication in the indictment that the enhancement paragraphs involved felonies; and (7) the trial court erred in using one of the enhancement paragraphs because the offense indicated therein had been dismissed by the court of record.

In her fifth point of error, Adams argues that her indictment was defective because it failed to specify the substance she consumed to make her intoxicated. Adams, however, did not object to the indictment. Therefore, she failed to preserve her complaint for our review. Tex. Crim. Proc. Code Ann. art. 1.14(b) (Vernon Supp. 1996) ("If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding."); see also Fisher v. State, 887 S.W.2d 49, 54-55 (Tex. Crim. App. 1994) (on rehearing); Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). Her fifth point is overruled.

We now turn to Adams' first, second, third, and sixth points, which all concern the application of the proper enhancement statute to her conviction.

Adams' indictment indicates that the State charged her with several prior offenses: (1) driving while intoxicated in January 1991 in Bosque County; (2) driving while intoxicated in October 1985 in McLennan County; (3) felonious driving while intoxicated in March 1986 in Robertson County; (4) the felony of aggravated assault of a police officer in September 1978 in Bosque County; and (5) felonious theft in October 1974 in Bell County.

At the commencement of trial, but outside the presence of the jury, Adams plead true to offenses one and two. She was not asked to plead to the latter three offenses at that time. The State then read to the jury the allegations in the indictment concerning the first and second offenses; the trial court, however, would not allow the State to inform the jury of the remaining three offenses.

At the beginning of the punishment phase, after the jury found Adams guilty of the primary offense, the trial court admonished Adams the she faced a sentence of 25 to 99 years, or life, if the court should find any two of the latter three convictions to be true. Adams then plead "true" to each of the latter three prior-offense allegations, and the court assessed punishment at 25 years' confinement.

Adams argues that the State should not have been allowed to read to the jury the allegations concerning offenses one and two for two reasons: (1) they were ostensibly used to enhance her punishment under Tex. Penal Code Ann. 49.09(b) (Vernon Supp. 1996) but, because such statute was not yet in effect at the time of the alleged offense, they could not have been used to enhance her punishment; and (2) enhancement paragraphs as a matter of law are not to be read to the jury at any time during guilt-innocence.

When Adams was informed at punishment that the punishment range she faced was 25 to 99 years, or life, the trial court essentially indicated that it was going to sentence her under section 12.42(d) of the Penal Code. Act of June 16, 1983, 68th Leg., R.S., ch. 339, 1, 1983 Tex. Gen. Laws 1750 (current version at Tex. Penal Code Ann. 12.42(d)(1) (Vernon Supp. 1996)) (providing for enhanced punishment at 25 to 99 years, or life, when felony conviction is enhanced by two prior felony convictions); see Jones v. State, 796 S.W.2d 183, 185 (Tex. Crim. App. 1990); Phifer v. State, 787 S.W.2d 395, 396-97 (Tex. 1990) (felonious driving while intoxicated conviction could be enhanced under section 12.42(d) provided the two priors were for felonies unrelated to driving, flying, or boating while intoxicated). However, before the court was able to utilize the enhancement provisions of section 12.42(d), Adams first had to be convicted of felonious driving while intoxicated in the primary offense. See Act of June 16, 1983, 68th Leg., R.S., ch. 303, 3, 1568, 1575 (current version at Tex. Penal Code Ann. 49.04 (Vernon 1994 & Supp. 1996)) (driving while intoxicated, unenhanced, is a misdemeanor); see also Tex. Penal Code Ann. 1.07(a)(31) (Vernon 1994) (defining "misdemeanor"). Adams appears to contend that the only mechanism by which the trial court could have considered her conviction in the primary offense to be a felony was if the court enhanced the offense under Tex. Penal Code Ann. 49.09(b) (driving-while-intoxicated conviction enhanced by two prior driving-while-intoxicated convictions is a third-degree felony).

We agree with Adams that the trial court erred if it sentenced her under section 49.09(b). Adams' indictment alleges that the offense occurred on or about August 3, 1994. Section 49.09 did not become effective until September 1, 1994. Act of June 19, 1993, 73rd Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3586, 3696-97, 3766 (codified at Tex. Penal Code Ann. 49.09(b)); Therefore, because section 49.09(b) was not in effect at the time of her offense, the trial court erred if it sentenced her under it.

However, what Adams fails to consider is whether section 49.09(b) was preceded by a similar driving-while-intoxicated enhancement statute. Prior to September 1, 1994, article 6701l-1(e) of the Revised Civil Statutes provided an enhanced punishment for drunk-driving offenders who, similar to section 49.09(b), had been convicted previously of two other drunk-driving offenses. Act of June 16, 1983, 68th Leg., R.S., ch. 303, 3, 1568, 1576 (providing an enhanced sentencing range of (1) a mandatory $500 to $2,000 fine and (2) jail-confinement for 30 days to two years or incarceration in the state penitentiary for 60 days to five years when there were two prior drunk-driving convictions of any grade). The Court of Criminal Appeals has expressly held that article 6701l-1(e) is a third-degree felony for section 12.42(d) enhancement purposes. Jones, 796 S.W.2d at 185; Phifer, 787 S.W.2d at 397. Therefore, notwithstanding Adams' citations to the record where both her trial counsel and counsel for the State referred to section 49.09 at various points throughout the trial, we conclude that the trial court enhanced her driving-while-intoxicated conviction under article 6701l-1(e).

We will now address Adams' complaint that the trial court erred in permitting the State to read to the jury the portion of the indictment concerning offenses one and two. "When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held[.]" Tex. Crim. Proc. Code Ann. art. 36.01(a)(1) (Vernon Supp. 1996). Adams contends that, because offenses one and two were used to enhance her punishment, the trial court erred under article 36.01(a)(1) in permitting the State to read those allegations to the jury. The State counters that the driving-while-intoxicated convictions were necessary to confer jurisdiction on the district court over an offense that would otherwise be a misdemeanor.

The trial court would not have had jurisdiction over this cause unless the primary offense was a felony. Tex. Crim. Proc. Code Ann. art. 4.05 (Vernon Supp. 1996); Ex parte Watson, 601 S.W.2d 350, 351 (Tex. Crim. App. 1980) (district courts have criminal jurisdiction only over felonies, misdemeanors involving official misconduct, and misdemeanors transferred to the district court under Tex. Crim. Proc. Code Ann. art. 4.17 (Vernon Supp. 1996)). Therefore, the State needed to prove-up the driving-while-intoxicated convictions to invoke the jurisdiction of the trial court. Pope v. State, 802 S.W.2d 418, 421 (Tex. App. Austin 1991, no pet.); State v. Wheeler, 790 S.W.2d 415, 416 (Tex. App. Amarillo 1990, no pet.); see Porter v. State, 921 S.W.2d 553, 558 n.3 (Tex. App. Waco 1996, no pet.). The trial court did not err in permitting the State to read to the jury the allegations in the indictment concerning offenses one and two. Adams' first, second, third, and sixth points are overruled.

In her seventh point, Adams complains the trial court erred in using a misdemeanor conviction for driving-while-intoxicated to enhance her punishment. She fails, however, to cite any authority in support of her argument; therefore, we overrule her point of error. Tex. R. App. P. 74(f); Garcia v. State, 919 S.W.2d 370, 390 (Tex. Crim. App. 1996) (on rehearing).

Adams in her fourth point complains the trial court erred in permitting the State to use the driving-while-intoxicated convictions from the indictment, offenses one, two, and three, to impeach her when she took the stand at guilt-innocence. She also complains that the trial court compounded the error by denying her motion for a limiting instruction that would have permitted the jury to consider the prior-offense evidence only for impeachment purposes. We hold that the court did not err in permitting the State to use offense three and that Adams failed to preserve her complaint against the State's use of offenses one and two. We further hold that Adams failed to preserve her limiting-instruction complaint on all three of the driving-while-intoxicated convictions.

The record reveals that, when before the State commenced its cross-examination of Adams, the State approached the bench to inform the trial court that it wished to impeach her with evidence of her convictions for offenses three, four, and five. Adams responded that offenses four and five were too old to be used for impeachment. See Tex. R. Crim. Evid. 609(b) (precluding the use of convictions more than ten years old for impeachment). The State countered that the convictions could nevertheless be used because they were alleged in the indictment as enhancement paragraphs. Adams answered that offenses four and five were still too old and that offense three (driving while intoxicated) could not be used because it neither involved a crime of moral turpitude or constituted a felony. See Tex. R. Crim. Evid. 609(a) (restricting the use of convictions for impeachment purposes to felonies or crimes involving moral turpitude). The State responded that the ten-year rule of Tex. R. Crim. Evid. 609(b) was not applicable in cases such as this where the defendant engages repeatedly in criminal behavior in intervals of less than ten years each. See Lucas v. State, 791 S.W.2d 35, 52 (Tex. Crim. App. 1989), vacated on other grounds, U.S. , 113 S. Ct. 3029 (1993). The court then recessed for the day, instructed the parties to research the relevant issues, and present their arguments, with authority, the following day. When the parties returned the next day, the following exchange occurred:

[DEFENSE]: Your Honor, the objection is to the introduction of testimony relating to the Defendant's prior convictions. It's my understanding that objection has been overruled and I requested an instruction be issued to the jury that they are not to consider that testimony as to the guilt or innocence of the Defendant, but only for purposes of determining the credibility and veracity of the Defendant. I have asked that instruction be given prior to eliciting any testimony in this matter regarding prior convictions. It's my understanding that [the court] refused to issue that instruction at this time, and will consider the instruction at a later time?

THE COURT: Yes, sir. Your request for an instruction prior to the cross-examination is denied. The [c]ourt will consider a limit[ing] instruction, either orally or in writing, at another point in the proceeding.

[DEFENSE]: Thank you.

While the preservation of a party's complaint, if not expressly indicated, may be impliedly shown on the record, there nevertheless is no indication that Adams ever objected to the State's use of offenses one and two. Once the State finally began to cross-examine Adams and asked her whether she had been convicted of these two offenses, she answered the questions affirmatively and without objection. Adams bore a duty to present to this court a record of the trial court's actions in overruling her objection to preserve her complaint for appellate review. Tex. R. App. P. 52(a); Tex. R. Crim. Evid. 103(a)(1). Within this general obligation is a further duty to present a record demonstrating to this court that her complaint on appeal is the same that was raised by her unsuccessfully to the trial court. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). The record Adams has provided us fails to indicate that her complaint to the trial court against the State using prior offenses, generally, to impeach her on the witness stand included a complaint against the State's use of offenses one and two of the indictment. Because Adams failed to meet her burden, she has left nothing for us to review in her complaint against the State's use of offenses one and two.

The record is clear, however, that Adams raised an objection to the State's use of offense three for impeachment. Nevertheless, the record indicates that Adams' conviction for offense three was of the grade of a felony and occurred less than ten years before trial. Therefore, the trial court did not err in permitting the State to use it for impeachment. Tex. R. Crim. Evid. 609(a).

We will now address Adams' complaint that the trial court erred in refusing to issue a limiting instruction that the jury consider the unspecified prior offenses for impeachment purposes only. The portion of the record quoted above, however, reveals that the trial court was only overruling Adams' objection to have the instruction issued before the evidence of the prior offenses was elicited from Adams by the State. The trial court is entrusted with the authority to control the timely and orderly receipt of evidence at trial. Tex. Gov't Code Ann. 21.001(b) (Vernon 1988); Tex. R. Crim. Evid. 610(a). Before the State began to cross-examine her, Adams expressly informed the trial court that she wished to have the instruction issued "prior to [the State's] eliciting any testimony in this matter regarding prior convictions." The court's response to Adams' request was precise: "Your request for an instruction prior to the cross-examination is denied." (Emphasis added.) The trial court made it clear to Adams that it simply would not give the limiting instruction prior to the State's actual use of the prior-offense evidence to impeach her. The court then informed Adams that it would consider her objection to the offenses at a later time. Adams, however, failed subsequently to object to the State's actual use of the prior offenses.

Adams' complaint on appeal does not comport with her complaint to the trial court. Broxton, 909 S.W.2d at 918; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App.), cert. denied, 502 U.S. 870, 112 S. Ct. 202 (1991). Her argument here is that the trial court denied her request for a limiting instruction. Her argument to the trial court was that it should issue a limiting instruction to the jury prior to the actual elicitation of the testimony. The record reveals that the trial court denied this request, but only insofar as the court apparently saw a need to control the orderly receipt of the evidence. Adams could have then renewed her request at the time the evidence was actually elicited, but she failed to do so. Therefore, she failed to preserve her complaint for our review. Tex. R. App. P. 52(a). Adams' fourth point is overruled.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 2, 1996

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