                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00138-CR


MICHAEL WAYNE BARTEE                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                        MEMORANDUM OPINION1
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                                   Introduction

      Appellant Michael Wayne Bartee appeals his conviction and sentence for

his seventh driving while intoxicated (DWI) conviction imposed after he pleaded

guilty and true to enhancement and habitual offender paragraphs in the

indictment.   In two issues, he contends that the State improperly used for




      1
       See Tex. R. App. P. 47.4.
enhancement two prior felony convictions that became final on the same date

and that his attorney’s representation was constitutionally ineffective. We affirm.

                  Background Facts and Procedural History

      Appellant went to prison in 1971 after he pleaded guilty to robbery with

firearms. He made parole after serving five years of a ten-year sentence. In

1985, he committed his first DWI and was granted probation. He pleaded guilty

to his second DWI in 1987 and again received probation.

      Appellant committed his third DWI in 1990 and his fourth DWI in 1991. He

pleaded guilty to both and received probated sentences in each.

      In 1993, while still on probation, Appellant committed his fifth DWI. Again,

his sentence was probated.

      Appellant committed his sixth DWI while on probation for two of his

previous DWIs. On January 6, 1998, the trial court revoked the two probations

and ordered Appellant confined for five years on each. Also on that date, the trial

court accepted Appellant’s guilty plea on his sixth DWI and sentenced him to

eight years’ confinement to run concurrently with the two five-year sentences

imposed for the revocations. Appellant served four of the eight years.

      On March 14, 2009, Appellant committed his seventh DWI, and the State

charged him as a habitual offender.2 Appellant pleaded guilty to the charge and

true to the enhancements.      After hearing evidence on punishment, including


      2
       See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2010).


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Appellant’s testimony admitting the prior convictions, the jury assessed his

punishment at ninety-nine years’ confinement.           The trial court sentenced

Appellant accordingly. Appellant now brings two issues on appeal.

                                  Enhancements

      In Appellant’s first issue, he contends that the evidence is insufficient to

support the verdict because the State improperly relied on two prior felony

convictions for enhancement––his fifth and sixth DWIs––that both became final

on January 6, 1998, when Appellant was convicted of the latter and had his

probation revoked on the former.

      The law concerning sufficiency of the evidence to prove enhancement for

habitual felony offenders is well settled. Ex parte Miller, 330 S.W.3d 610, 624

(Tex. Crim. App. 2009) (op. on reh’g).          Section 12.42(d) of the penal code

provides, in pertinent part,

      [I]f it is shown on the trial of a felony offense other than a state jail
      felony . . . that the defendant has previously been finally convicted of
      two felony offenses, and the second previous felony conviction is for
      an offense that occurred subsequent to the first previous conviction
      having become final, on conviction he shall be punished by
      imprisonment in the Texas Department of Criminal Justice for life, or
      for any term of not more than 99 years or less than 25 years.

Tex. Penal Code Ann. § 12.42(d).

      Thus, the statute requires the State to prove this chronological sequence

of events:

      (1) the first conviction becomes final;

      (2) the offense leading to a later conviction is committed;


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      (3) the later conviction becomes final;

      (4) the offense for which the defendant presently stands accused is
      committed.

Miller, 330 S.W.3d at 624; Jordan v. State, 256 S.W.3d 286, 290–91 (Tex. Crim.

App. 2008); Tomlin v. State, 722 S.W.2d 702, 705 (Tex. Crim. App. 1987); see

Valdez v. State, 218 S.W.3d 82, 84 (Tex. Crim. App. 2007).

      The State may properly allege all prior convictions tallied against a

particular defendant. Carter v. State, 676 S.W.2d 353, 355 n.3 (Tex. Crim. App.

1984), overruled on other grounds by Bell v. State, 994 S.W.2d 173, 175 (Tex.

Crim. App. 1999); Turner v. State, 750 S.W.2d 48, 51 (Tex. App.––Fort Worth,

1988, no pet.). When the State alleges a combination of more than two prior

felonies for enhancement purposes, juror unanimity is not required on any two

specific felonies out of the combination, only on whether the defendant had

committed a subsequent felony after a prior felony had become final. Valdez,

218 S.W.3d at 84.

      The court of criminal appeals has long held that a probated sentence is not

a final conviction for enhancement purposes unless it is revoked.          Ex parte

White, 211 S.W.3d 316, 319 (Tex. Crim. App. 2007); Ex parte Langley, 833

S.W.2d 141, 143 (Tex. Crim. App. 1992). If a defendant is placed on probation,

has his probation revoked, and then is sent to prison, his conviction is final on the

date his probation is revoked. Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim.




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App. 2001); Cockrell v. State, 632 S.W.2d 664, 667 (Tex. App.––Fort Worth

1982, pet. ref’d).

      It is undisputed in this case that Appellant was on trial for a felony offense

other than a state jail felony. The State alleged two prior misdemeanor DWIs

and one prior felony DWI in the jurisdictional paragraphs to elevate his latest

offense to a third-degree felony.    See Tex. Penal Code Ann. § 49.09(b)(2)

(Vernon Supp. 2010). In addition to these jurisdictional prior convictions, the

State’s indictment alleged three prior felony convictions in two enhancement

paragraphs and in a habitual count. The first enhancement paragraph set out

Appellant’s sixth felony DWI conviction, and the second paragraph set out his

fifth. The habitual count alleged his prior robbery conviction. That conviction

was final in 1971.

      Before a jury, Appellant pleaded guilty to the charged offense and true to

both enhancement paragraphs and to the habitual count.           Furthermore, the

evidence showed that Appellant was finally convicted of all three prior felonies:

the 1971 robbery and two felony DWIs, which became final in 1998. During the

punishment phase, the trial court admitted documentary evidence of the prior

felony convictions in the form of judgments and pen packets.         And from the

witness stand, Appellant acknowledged that he had committed the robbery and

no less than four felony DWI’s.

      To support Appellant’s sentencing as a habitual offender, the evidence had

to show that he committed a felony after being finally convicted of a previous


                                         5
felony.   See Tex. Penal Code. Ann. § 12.42(d).      The evidence showed that

Appellant’s previous felony conviction was the robbery that became final in 1971,

and that his subsequent felony was his fifth or sixth DWI, which he committed

decades later. The indictment in this case comports with the requirement for the

proper chronology of previous felony convictions. There were two enhancement

paragraphs, either of which would support the range of punishment submitted.

Appellant pleaded true to each. The habitual count alleged that Appellant was

convicted of robbery with firearms and that the conviction was final prior to each

of the offenses contained in the two enhancement paragraphs. Again, Appellant

pleaded true. The indictment does not allege habitual status based on the two

enhancement paragraphs alone as Appellant contends.

      Because the State alleged and the evidence proved two prior felonies,

both of which became final on January 6, 1998, because both of these offenses

were committed after the robbery had become final, and because the jury need

not have been unanimous on which subsequent DWI the State proved, we hold

that the evidence is sufficient to support the verdict. See Miller, 330 S.W.3d at

624; Jordan, 256 S.W.3d at 290–91; Valdez, 218 S.W.3d at 84. Accordingly, we

overrule Appellant’s first issue.

                         Effective Assistance of Counsel

      In his second issue, Appellant claims that his trial counsel provided

ineffective representation.




                                        6
      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988

S.W.2d 770, 770 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel’s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel’s conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63.   A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at

740; Thompson, 9 S.W.3d at 813–14. ―In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.‖ Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d


                                        7
at 63). To overcome the presumption of reasonable professional assistance,

―any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.‖ Id. (quoting

Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to

simply infer ineffective assistance based upon unclear portions of the record.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

an appellant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

      Here, Appellant specifically contends that his trial counsel provided

ineffective assistance because counsel did not investigate Appellant’s prior

offenses, did not file pretrial motions, did not object to key pieces of evidence that

lacked proper foundation, insisted that Appellant testify, and refused to call other

witnesses on Appellant’s behalf.

      Although Appellant asserts in his brief that his attorney insisted Appellant

take the stand in his defense at trial, he provides no argument to support this


                                          8
assertion in his brief. Accordingly, we will consider this contention no further.

See Tex. R. App. P. 38.1(i); Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim.

App. 2005), cert. denied, 548 U.S. 926 (2006); Tong v. State, 25 S.W.3d 707,

710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001).

      The complaints for which Appellant provides argument in his brief are as

follows:

      (1) counsel did not file pretrial motions;

      (2) counsel called no witnesses other than Appellant;

      (3) counsel did not investigate Appellant’s prior convictions; and

      (4) counsel did not object to evidence of the prior convictions that
      the State introduced without having first laid the proper foundation
      for admission.

      The State agrees and the record confirms that Appellant’s counsel filed no

pretrial motions. However, the failure to file any pretrial motions generally does

not constitute ineffective assistance of counsel––particularly when Appellant

does not assert which motions should have been filed. Hayes v. State, 484

S.W.2d 922, 925 (Tex. Crim. App. 1972) (holding ineffective assistance claim

lacked merit where the appellant did not point out which pretrial motion trial

counsel should have filed); Autry v. State, 27 S.W.3d 177, 182 (Tex. App.––San

Antonio 2000, pet. ref’d).   Here, the only pretrial motion Appellant faults trial

counsel for not filing is a motion to quash the indictment regarding its inclusion of

prior convictions for enhancement purposes.        As noted above, however, the

State was entitled to allege all of Appellant’s prior convictions. See Carter, 676


                                          9
S.W.2d at n.3; Turner, 750 S.W.2d at 51. Moreover, the record is silent as to

why Appellant’s counsel did not file any pretrial motions, and a silent record as to

counsel’s thought processes will not overcome the strong presumption of

reasonably effective assistance of counsel. See Rylander v. State, 101 S.W.3d

107, 111 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813–14.

      Appellant faults his counsel for not calling family members to testify on his

behalf. But the record is silent as to whether Appellant had any family members

or other witnesses besides himself who could have or would have testified on his

behalf. Appellant does not point out who would have testified for him if counsel

had called them, what they would have testified to, or how their testimony would

have affected the verdict.    Because this allegation of ineffectiveness is not

grounded in the record, it is without merit.3 See Thompson, 9 S.W.3d at 813–14.

      Appellant also faults his counsel for not investigating his prior convictions,

arguing that had he done so, he would have discovered that two of the priors

used for enhancement became final on the same day. As we have already held

above, however, the fact that two of the prior convictions became final on the

same day is of no moment in this case because the habitual allegation was

sustained with proof of the prior robbery conviction that became final decades




      3
        Appellant filed a motion for new trial and motion in arrest of judgment.
Ineffective assistance of counsel was not raised in that motion. The record is
silent as to defense counsel’s reasons for calling or not calling witnesses.


                                        10
before either of the prior felony DWIs alleged for enhancement. Accordingly,

there is no merit to this claim of ineffectiveness.

      Finally, Appellant criticizes his trial counsel for not objecting to documents

admitted as evidence of his prior convictions because they were admitted without

the proper foundation. State’s Exhibits 10 and 11 are certified copies of records,

also known as ―pen packets,‖ from the Texas Department of Criminal Justice,

which are admissible as proof of prior convictions. See Barker v. State, 931

S.W.2d 344, 348–49 (Tex. App.––Fort Worth 1996, pet. ref’d). State’s Exhibit 10

contains copies of the judgment for Appellant’s sixth DWI and the judgments

revoking probation in his fourth and fifth DWIs, all felonies. State’s Exhibit 12 is a

certified copy of Appellant’s Texas Department of Public Safety driving record. It

was admissible under Texas Rule of Evidence 902(4). See Gibson v. State, 952

S.W.2d 569, 572 (Tex. App.––Fort Worth 1997, pet. ref’d). State’s Exhibit 13 is a

copy of the probation order for Appellant’s fourth DWI, entitled Judgment of

Guilty or Nolo Contendere Before Court Waiver of Jury Trial. It does not appear

to be a certified copy, but even if it were objectionable on that basis, its

admission was harmless because the judgment revoking probation in that cause

was properly admitted in State’s Exhibit 10. Similarly, State’s Exhibit 14, which is

the probation order for Appellant’s fifth DWI, and State’s Exhibit 15, which is the

information charging him for his sixth, are contained in State’s Exhibit 10. Finally,

State’s Exhibits 16 and 17 are certified copies of public records. See Tex. R.

Evid. 902(4).   Because all of the complained-of records were either properly


                                          11
admitted or clearly harmless at trial, counsel was not ineffective for not objecting

to them.

       Appellant has failed to meet his burden of showing by a preponderance of

the evidence that his trial counsel’s representation fell below the standard of

prevailing professional norms. See Strickland, 466 U.S. at 690, 104 S. Ct. at

2066; see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)

(―[T]rial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective.‖); Clark v. State, 324 S.W.3d 620, 633

(Tex. App.—Fort Worth 2010, pet. ref’d). We overrule Appellant’s second issue.

                                    Conclusion

       Having overruled both of Appellant’s issues, we affirm the judgment of the

trial court.



                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 14, 2011




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