Strehl v. State

486 S.W.3d 110, 2016 Tex. App. LEXIS 1221, 2016 WL 489652
CourtCourt of Appeals of Texas
DecidedFebruary 5, 2016
DocketNo. 06-15-00117-CR
StatusPublished
Cited by11 cases

This text of 486 S.W.3d 110 (Strehl 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.

Bluebook
Strehl v. State, 486 S.W.3d 110, 2016 Tex. App. LEXIS 1221, 2016 WL 489652 (Tex. Ct. App. 2016).

Opinion

OPINION

Opinion by

Chief Justice Morriss

■ Joseph Leo Strehl, III, was convicted by a jury of driving while intoxicated (DWI), third or more, and was sentenced to eighteen years’ imprisonment. On appeal, Strehl argues that the trial court erred in overruling his motion to suppress evidence obtained as a result of a traffic stop and that the evidence is insufficient to establish that he was twice previously convicted of DWI, as alleged in ¿the State’s indictment and as required to establish felony DWI.1 We conclude that, although (1) Strehl failed to preserve his .suppression issue for our review, (2) legally insufficient evidence links Strehl to the second jurisdictional prior offense. Therefore, we remand this case to the trial court to modify the judgment to reflect a conviction .for a class A [112]*112misdemeanor DWI and to conduct a new punishment trial.

(1) Strehl Failed to Preserve His Suppression Issue for Our Review

Strehl argues that the trial court erred in overruling his motion to suppress evidence obtained as a result of a traffic stop. As a threshold issue, we must determine whether Strehl has preserved this complaint for appellate review. “To preserve error, the record must show that appellant made a timely request, objection, or motion, and that the trial court ruled on it.” Garza v. State, 126 S.W.3d 79, 81-82 (Tex.Crim.App.2004); see Tex.R.App. P. 33.1(a); Tex.R. Evid. 103.

Here, while Strehl filed a motion to suppress, he failed to obtain a hearing on his motion and did not request a pretrial ruling from the trial court. At trial, the jury heard testimony from two key witnesses before Strehl brought the motion to suppress to the trial court’s attention. The first key witness was Scott Lake. Lake testified that he called 9-1-1 when he witnessed Strehl, who smelled of alcohol, drive off in an eighteen wheeler after asking a gas station clerk for directions. The jury' also heard that Josiah Napoleon Lemelin, an officer with the Henderson Police Department, responded to the 9-1-1 call, spotted Strehl weaving within his lane, and stopped him based on his suspicion that Strehl was driving while intoxicated. Lemelin testified that Strehl exited the vehicle, was unsteady on his feet, smelled of alcohol, and had bloodshot eyes. Lemelin detailed his administration of field sobriety tests, which Strehl failed. According to Lemelin, Strehl admitted to ingesting alcohol. Lemelin, concluding that Strehl was intoxicated, placed him under arrest. When the State sought to introduce the video of Lemelin’s entire encounter with Strehl, Strehl affirmatively stated that he had no objection to the video. The video confirmed Lemelin’s testimony regarding Stehl’s intoxication.

Only after the jury heard Lake’s and Lemelin’s testimony and saw the video of the arrest, Strehl obtained a ruling denying his motion to suppress. Although a ruling was secured at that time, it was untimely. Requiring a timely and specific objection is intended to afford the trial court the information and time to make its ruling and to afford opposing counsel an opportunity to deal with the objection or to provide alternate evidence. Garza, 126 S.W.3d at 82; see Resendez v. State, 306 S.W.3d 308, 312 (Tex.Crim.App.2009). Giving the trial court a chance to rule on an objection lets it decide whether the evidence is admissible. Garza, 126 S.W.3d at 82. Thus, to be timely, a motion to suppress must be presented before the evidence or testimony is admitted. Weeks v. State, 396 S.W.3d 737, 740 (Tex.App.-Beaumont 2013, pet. ref'd) (citing Stults v. State, 23 S.W.3d 198, 205-06 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd)); see Nelson v. State, 626 S.W.2d 535, 535-56 (Tex.Crim.App. [Panel Op.] 1981) (where written motions to suppress “lay dormant” without hearing or decision, oral suppression motion made after evidence admitted was untimely and did not preserve error). If the jury hears the evidence before the trial court rules on the motion to suppress, the motion is forfeited. Weeks, 396 S.W.3d at 741.

Strehl failed to present, and obtain a ruling on, the motion to suppress in a timely manner. Strehl, thereby, failed to preserve his motion by waiting to urge it until after the jury heard and saw the allegedly objectionable evidence. Because Strehl failed to preserve this issue for our review, we overrule it.

(2) Legally Insufficient ' Evidence Links Strehl to the Second Jurisdictional Prior Offense

[113]*113Strehl’s other issue is considerably more challenging. Of the two alleged jurisdictional prior DWIs, the State well proved the link between Strehl and the 1993 offense, but provided scant evidence linking him to the 2006 offense.

“In a felony DWI case, the State must prove, in addition to the ... elements of that primary offense, that the accused has twice previously, and sequentially, been convicted of DWI.” Reese v. State, 273 S.W.3d 344, 346-47 (Tex.App.-Texarkana 2008, no pet.); see Tex. Penal Code Ann. § 49.09(b)(2); Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App.2007); Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App.1986).

The indictment alleged, and the State was required to prove, the following jurisdictional priors: (1) that Strehl was previously convicted of DWI March 17,1993, in cause number M93-011485 in the County Court at.Law No. 2 of-Johnson County, Texas, and (2) that Strehl was previously convicted of DWI February 27, 2006,2 in cause number F35365 in the 18th Judicial District Court of Johnson County, Texas.3

To prove the 1993 offense, the State introduced: (1) a plea of guilty or nolo contendere, which contained Strehl’s thumbprint, (2) a certified copy of a judgment convicting “Joseph Leo Strehl, III,” of DWI and placing him on cómmünity supervision, (3) several documents signed by Strehl in that cause, and (4) a judgment revoking Strehl’s community supervision and sentencing him to two years’ confinement. The jury heard .testimony from, fingerprint expert, William Brown, that Strehl’s fingerprint matched the fingerprint affixed on the plea papers and the judgment of revocation. Strehl does not argue that the evidence is insufficient to prove this first jurisdictional prior.

The problem, however, is the scant proof linking Strehl to the 2006 offense. Attempting to link Strehl to this offense, the State introduced only a certified copy of a 2006 judgment convicting Joseph Leo Strehl, III, of DWI. This judgment contained no fingerprint, photograph, signature, or other information establishing that the person convicted in cause number F35365 was Strehl.

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Cite This Page — Counsel Stack

Bluebook (online)
486 S.W.3d 110, 2016 Tex. App. LEXIS 1221, 2016 WL 489652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strehl-v-state-texapp-2016.