Ramirez v. State

Court of Appeals of Texas

Ramirez v. State

139 S.W.3d 731, 2004 Tex. App. LEXIS 5397, 2004 WL 1353259

CourtCourt of Appeals of Texas

DecidedJune 17, 2004

Docket2-03-435-CR

StatusPublished

Cited by14 cases

This text of 139 S.W.3d 731 (Ramirez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ramirez v. State, 139 S.W.3d 731, 2004 Tex. App. LEXIS 5397, 2004 WL 1353259 (Tex. Ct. App. 2004).

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OPINION

LEE ANN DAUPHINOT, Justice.

Appellant James Joe Ramirez a/k/a Jamie Joe Ramirez entered a negotiated plea of guilty to felony DWI pursuant to a plea bargain agreement, reserving his right to appeal his motion to quash the indictment. On appeal, Appellant contends that the State failed to introduce sufficient evidence into the record of the prior DWI convictions.

Rule 25.2 of the Texas Rules of Appellate Procedure governs the perfection of appeal in criminal cases and requires that the trial court certify an appellant’s right to appeal.¹ Appellants in plea-bargained cases are limited to appealing pretrial rulings on written motions unless the trial court otherwise grants permission to appeal.²

There is no evidence in the record that the trial court ruled on Appellant’s pretrial motion to quash, and even Appellant’s brief provides only that the trial court was “aware of the motion.” At the time of Appellant’s plea on the record, however, the trial court gave Appellant the “right to appeal the issue of [his] motion to quash on the enhancement.”³ On the written [732]*732certification form, the trial court did not check the category addressing pretrial rulings on -written motions but instead checked the category indicating that he had given permission to appeal and specified that Appellant has the “right of appeal on Motion to Quash Enhancement.” Appellant contended in his motion to quash that one of the prior convictions alleged in the indictment was not final, that the State had to prove two prior final DWI convictions to prove Appellant guilty of felony DWI, and that because one of the prior convictions alleged was not final, the trial court should dismiss the indictment for want of jurisdiction. Similarly, on appeal, Appellant contends that the State’s failure to prove the same prior conviction was final makes the evidence legally insufficient to support his felony DWI conviction. Based on the record, we construe the trial court’s permission to appeal to encompass Appellant’s complaint.

Article 1.15 of the Texas Code of Criminal Procedure provides that:

No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be 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.⁴

In the case now before this court, Appellant was charged by indictment with felony DWI.⁵ That is, he was charged with driving while intoxicated and it was further alleged .that he was twice previously convicted of DWI. The judgment recites that Appellant was convicted of the felony offense of driving while intoxicated, but it also recites that no enhancements were found.

Although we note that the legislature refers to the predicate prior convictions “used for purposes of enhancement,”⁶ the Texas Court of Criminal Appeals instructs us to the contrary, stating,

The prior intoxication-related offenses, whether they are felonies or misdemeanors, serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated. The prior intoxication-related offenses are elements of the offense of driving while intoxicated. They define the offense as a felony and are admitted into evidence as part of the State’s proof of its case-in-chief during the guilt-innocence stage of the trial.⁷

Appellant testified by means of his written judicial confession that he committed each and every allegation in the indictment. He orally pled guilty in open court to felony DWI. Similarly, his written guilty plea is to the allegations contained in the indictment. Appellant specifically excluded a plea of true to enhancement allegations. Because the allegations of two prior DWI convictions are allegations of elements of the offense, not punishment enhancement provisions,⁸ Appellant’s judicial [733]*733confession provided sufficient evidence to support his conviction.⁹ We therefore overrule Appellant’s sole point and affirm the trial court’s judgment.

LIVINGSTON, J. filed a concurring opinion.

McCOY, J. filed a concurring and dissenting opinion.

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OPINION

LEE ANN DAUPHINOT, Justice.

Appellant James Joe Ramirez a/k/a Jamie Joe Ramirez entered a negotiated plea of guilty to felony DWI pursuant to a plea bargain agreement, reserving his right to appeal his motion to quash the indictment. On appeal, Appellant contends that the State failed to introduce sufficient evidence into the record of the prior DWI convictions.

Rule 25.2 of the Texas Rules of Appellate Procedure governs the perfection of appeal in criminal cases and requires that the trial court certify an appellant’s right to appeal.¹ Appellants in plea-bargained cases are limited to appealing pretrial rulings on written motions unless the trial court otherwise grants permission to appeal.²

There is no evidence in the record that the trial court ruled on Appellant’s pretrial motion to quash, and even Appellant’s brief provides only that the trial court was “aware of the motion.” At the time of Appellant’s plea on the record, however, the trial court gave Appellant the “right to appeal the issue of [his] motion to quash on the enhancement.”³ On the written [732]*732certification form, the trial court did not check the category addressing pretrial rulings on -written motions but instead checked the category indicating that he had given permission to appeal and specified that Appellant has the “right of appeal on Motion to Quash Enhancement.” Appellant contended in his motion to quash that one of the prior convictions alleged in the indictment was not final, that the State had to prove two prior final DWI convictions to prove Appellant guilty of felony DWI, and that because one of the prior convictions alleged was not final, the trial court should dismiss the indictment for want of jurisdiction. Similarly, on appeal, Appellant contends that the State’s failure to prove the same prior conviction was final makes the evidence legally insufficient to support his felony DWI conviction. Based on the record, we construe the trial court’s permission to appeal to encompass Appellant’s complaint.

Article 1.15 of the Texas Code of Criminal Procedure provides that:

No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be 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.⁴

In the case now before this court, Appellant was charged by indictment with felony DWI.⁵ That is, he was charged with driving while intoxicated and it was further alleged .that he was twice previously convicted of DWI. The judgment recites that Appellant was convicted of the felony offense of driving while intoxicated, but it also recites that no enhancements were found.

Although we note that the legislature refers to the predicate prior convictions “used for purposes of enhancement,”⁶ the Texas Court of Criminal Appeals instructs us to the contrary, stating,

The prior intoxication-related offenses, whether they are felonies or misdemeanors, serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated. The prior intoxication-related offenses are elements of the offense of driving while intoxicated. They define the offense as a felony and are admitted into evidence as part of the State’s proof of its case-in-chief during the guilt-innocence stage of the trial.⁷

Appellant testified by means of his written judicial confession that he committed each and every allegation in the indictment. He orally pled guilty in open court to felony DWI. Similarly, his written guilty plea is to the allegations contained in the indictment. Appellant specifically excluded a plea of true to enhancement allegations. Because the allegations of two prior DWI convictions are allegations of elements of the offense, not punishment enhancement provisions,⁸ Appellant’s judicial [733]*733confession provided sufficient evidence to support his conviction.⁹ We therefore overrule Appellant’s sole point and affirm the trial court’s judgment.

LIVINGSTON, J. filed a concurring opinion.

McCOY, J. filed a concurring and dissenting opinion.

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139 S.W.3d 731, 2004 Tex. App. LEXIS 5397, 2004 WL 1353259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramirez-v-state-texapp-2004.

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