                                                                                     ACCEPTED
                                                                                 05-15-00078-CR
                                                                      FIFTH COURT OF APPEALS
                                                                                 DALLAS, TEXAS
                                                                           10/27/2015 9:49:20 PM
                                                                                      LISA MATZ
                                                                                          CLERK




                                                                                                        5th Court of Appeals
                                                                                                         FILED: 12-7-15
                                                                                     Lisa Matz, Clerk
                            No. 05-15-00078-CR

                                 IN THE                       RECEIVED IN
                                                        5th COURT OF APPEALS
                                                             DALLAS, TEXAS
                        FIFTH COURT OF APPEALS          10/27/2015 9:49:20 PM
                                                               LISA MATZ
                                                                 Clerk
                                OF TEXAS

                            AT DALLAS, TEXAS
                      ______________________________

                          JUSTIN COLE DRYMAN

                                    V.

                             STATE OF TEXAS
                      ______________________________

                  On Appeal from the County Court at Law,
             Kaufman County, Texas, in Cause Number 12CL-0355
                   _______________________________

                     BRIEF OF THE STATE OF TEXAS
                     _______________________________

Counsel of Record:

                                        ERLEIGH NORVILLE WILEY
                     KAUFMAN COUNTY CRIMINAL DISTRICT ATTORNEY

                                                          SUE KORIOTH
                                         ASSISTANT DISTRICT ATTORNEY
                                                          SBN# 11681975
                                                      100 W. MULBERRY
                                                KAUFMAN, TEXAS 75142
                                                             972 932-0260
ATTORNEYS FOR THE APPELLEE,                              fax 972 932-0357
THE STATE OF TEXAS                                    suekorioth@aol.com
                 IDENTITY OF PARTIES AND COUNSEL:

                       Appellant: Justin Cole Dryman

        APPELLANT’S TRIAL COUNSEL: Joseph Russell (plea) and
                   William Bratton III (revocation)

      APPELLANT’S COUNSEL ON THIS APPEAL: Brandi Fernandez



                    APPELLEE: THE STATE OF TEXAS

  APPELLEE’S TRIAL COUNSEL: Erleigh Norville Wiley, Kaufman County
     Criminal District Attorney, and Assistant Criminal District Attorneys
                        Gabe Garcia and Phil Williams

APPELLEE’S COUNSEL ON THIS APPEAL: Erleigh Norville Wiley, Kaufman
  County Criminal District Attorney; Sue Korioth, Assistant Criminal District
                                  Attorney




                                     -ii-
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iii-
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

STATE'S COUNTERPOINT
    Appellant’s attempt to appeal from the original plea hearing is untimely,
    and in addition, appellant waived appeal of his guilty plea and
    conviction; in any event, nothing in the record before this Court
    supports appellant’s present claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

STATEMENT OF PERTINENT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

STATE'S COUNTERPOINT, restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

RULE 9.4 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . -13-




                                                      -iii-
                                      INDEX OF AUTHORITIES
CASES

Blank v. State,
      172 S.W.3d 673 (Tex. App. - San Antonio 2005, no pet.). . . . . . . . . . . . -12-

Gibson v. State,
     995 S.W.2d 693 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . -11-

Leach v. State,
     170 S.W.3d 669 (Tex. App. - Fort Worth 2005, pet. ref’d). . . . . . . . . . . . -7-

Mapes v. State,
     187 S.W.3d 655 (Tex. App. - Houston [14th Dist.] 2006,
     pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-,-12-

State v. Cooley,
       401 S.W.3d 748 (Tex. App. -Houston [14th Dist.] 2013, no pet.). . . . . . -10-

Vance v. State,
     970 S.W.2d 130 (Tex. App. - Dallas 1998, no pet.). . . . . . . . . . . . . . . . . -12-

Wise v. State,
      394 S.W.3d 594 (Tex. App. Dallas 2012, no pet.) . . . . . . . . . . . . . . . . . -12-

STATUTES

Tex. Penal Code section 12.21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-

Tex. Penal Code section 12.43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-, -10-

Tex. Penal Code section 49.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-, -9-

Tex. Penal Code section 49.09(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-, -8-




                                                        -iv-
                               No. 05-15-00078-CR

                                      IN THE

                          FIFTH COURT OF APPEALS

                                    OF TEXAS

                             AT DALLAS, TEXAS
                       ______________________________

                            JUSTIN COLE DRYMAN

                                         V.

                              STATE OF TEXAS
                       ______________________________

TO THE HONORABLE JUDGES OF SAID COURT:

      The State of Texas, appellee herein, respectfully submits this brief in response

to appellant’s brief, and would show the Court:

                          STATEMENT OF THE CASE

      Appellant Justin Cole Dryman was convicted on May 23, 2013, on his guilty

plea to the information which alleged driving while intoxicated with a prior

conviction for driving while intoxicated (DWI-2nd). His punishment was assessed

by the court at confinement for one year in county jail; his sentence was suspended,

and he was placed on community supervision for a period of two years. (CR: 21).

After the State filed a motion to revoke appellant’s probation, the court heard the



                                         -1-
motion and revoked his probation on December 3, 2014, and sentenced appellant to

serve eleven months in county jail. (CR: 86). Appellant gave notice of appeal of his

conviction to this Court. 1

                                STATE'S COUNTERPOINT
    APPELLANT’S ATTEMPT TO APPEAL FROM THE ORIGINAL PLEA HEARING IS
UNTIMELY, AND IN ADDITION, APPELLANT WAIVED APPEAL OF HIS GUILTY PLEA AND
   CONVICTION; IN ANY EVENT, NOTHING IN THE RECORD BEFORE THIS COURT
                  SUPPORTS APPELLANT’S PRESENT CLAIM.

                         STATEMENT OF PERTINENT FACTS

       Appellant does not contest sufficiency of the evidence to support revocation

of his probation, nor does he complain of any procedural error relating to the

revocation. Appellant’s complaint is to the judgment of conviction entered at his

original plea hearing in May 2013, but that plea hearing is not included in the record

on this appeal.

       Appellant’s summary of the relevant portions of the record is materially

misleading. The complaint and information in this case charged appellant with

“driving while intoxicated 2nd.” (CR: 8-9). The information alleged that defendant


       1
         Appellant sent a letter to the court in which appellant indicated his desire to appeal and
requested counsel for appeal dated January 5, 2015, which was more than 30 days after sentence
was pronounced on December 3, 2014, and his letter was received by the county clerk on January
12, 2015. (CR: 88). The trial court appointed counsel on January 12, 2015, and counsel filed a
formal notice of appeal on January 14, 2015. (CR: 89, 91). Appellant did not file a motion for
new trial until January 16, 2015. (CR: 94). Upon appellant's motion for extension of time to file
his notice of appeal filed with this Court on January 16, 2015, this Court granted appellant's
extension of time to file notice of appeal and deemed appellant's notice filed timely on February
2, 2015.

                                                -2-
did:

       operate a motor vehicle in a public place while the said defendant was
       intoxicated.
       And it is further presented In and to said Court that, prior to the
       commission of the aforesaid offense, on the 25th day of February, 2010,
       in the County Court at Law of Kaufman County, Texas, in cause number
       09CL-1756, the defendant was convicted of an offense relating to the
       operating of a motor vehicle while intoxicated.

(CR: 8-9).

       The bond information form from the jail indicated that appellant was held on

the charge of “DRIVING WHILE INTOXICATED 2ND.” (CR: 11). The Bail Bond

executed by appellant and his surety was for the charge of “DWI 2nd.” (CR: 14). The

first appearance letter from the county clerk to appellant advised him that he was

charged with the offense of “DRIVING WHILE INTOXICATED 2ND.” (CR: 15).

       The judgment of conviction entered by the court on May 23, 2013, indicated

“Offense for which Defendant Convicted: DRIVING WHILE INTOXICATED 2ND.”

(CR: 21). The judgment further stated that the “statute for offense” was “§49.09(a),”

and that the degree of offense was “Class A misdemeanor.” (CR: 21). The judgment

further provided that the court assessed punishment at “one year” of confinement in

county jail, which was suspended for two years. (CR: 21).

       The conditions of community supervision signed by appellant state that the

offense of conviction was “DWI 2nd.” (CR: 25-28). The court’s admonitions within



                                         -3-
the plea agreement stated that appellant was charged with “driving while intoxicated

2nd,” and that the punishment range would be for a class A misdemeanor. (CR: 30).

In the plea agreement, defendant stated that “I admit and judicially confess than I

committed the offense of DRIVING WHILE INTOXICATED 2ND on 12/13/2011

exactly as alleged in the charging instrument and/or any amendments thereto.” (CR:

31).

       Appellant waived his right to appeal and right to file a writ of habeas corpus

as part of the plea agreement. (CR: 31). Appellant signed a stipulation of evidence

which provided that he did “commit the offense(s) as alleged in the above referenced

cause number and any amendments thereof.” (CR: 33).             The certification of

defendant’s right of appeal entered by the trial court on the May 2013 plea provided

that the case was a plea bargained case from which appellant had no right of appeal

and that appellant had waived his right to appeal. (CR: 34). The capias and motion

to revoke filed in the case listed the offense of conviction as “driving while

intoxicated 2nd.” (CR: 38-39). The judgment revoking community supervision

indicated that the offense of conviction was “driving while intoxicated 2nd,” that the

"statute for offense" was "§49.09(a)," and that the degree of offense was "Class A

misdemeanor." (CR: 86). Judgment revoking the community supervision was

entered on December 3, 2014. (CR: 86).



                                         -4-
      The single volume of reporter’s record reflects that when the hearing

commenced on the motions to revoke in this case and a second case, the trial court

began with:

      Let's start with Cause number 12CL-0355, that one is styled the State of
      Texas versus Justin Dryman. It appears that back on May the 23rd,
      2013, Mr. Dryman pled either guilty or no contest to the charge of
      driving while intoxicated, second offense. At which point and time he
      was found guilty, accessed punishment of 365 days in Kaufman County
      Jail. That was probated for 2 years, assessed zero fine and Court cost
      and typical terms and conditions of probation. Mr. Dryman, do you
      remember pleading either guilty or no contest to this charge back on that
      date?

(RR: 7).

      Appellant responded that he remembered pleading guilty as stated by the court.

(RR: 8). Appellant also confirmed that he recalled being placed on probation for the

term described by the court. (RR: 8). Appellant pleaded not true to each motion to

revoke, and the State proceeded to prove its allegations. (RR: 9-10).

      At the hearing on the motion to revoke, the trial court held, in regard to the

offense on appeal, that:

            On Cause number 12CL-0355, the driving while intoxicated
      second offense, on that case, I find that both allegations have been
      proven by preponderance of the evidence. I am going to grant the State's
      Motion and I am going to assess punishment at 11 months in the
      Kaufman County Jail.

(RR: 77).



                                         -5-
                        SUMMARY OF THE ARGUMENT

      The State contends that the issue sought to be appealed is not properly before

this Court on this appeal from revocation of community supervision. The State

alternatively contends that the record adequately reflects that appellant was convicted

of driving while intoxicated, second offense, under Tex. Penal Code section 49.09(a)

and that the sentence imposed was therefore within the range of punishment.

                       STATE'S COUNTERPOINT, restated
    APPELLANT’S ATTEMPT TO APPEAL FROM THE ORIGINAL PLEA HEARING IS
  UNTIMELY, AND IN ADDITION, APPELLANT WAIVED APPEAL OF HIS GUILTY PLEA
       AND CONVICTION; IN ANY EVENT, NOTHING IN THE RECORD BEFORE
             THIS COURT SUPPORTS APPELLANT’S PRESENT CLAIM.

      Appellant complains in his sole issue on appeal that the record does not support

appellant’s conviction of DWI, second offense, because the May 23, 2013, judgment

of conviction does not contain a separate “true” finding regarding an enhancement

paragraph. That judgment reflects that appellant pleaded guilty to and was convicted

of “driving while intoxicated 2nd” pursuant to Tex. Penal Code §49.09(a), and that the

trial court assessed punishment within the legal range for a Class A misdemeanor.

The State contends that any complaint regarding the form of the judgment was

waived at the time appellant entered his guilty plea and waived his right to direct

appeal and to the writ of habeas corpus.

      In addition, appellant ought to have asserted the claim when the judgment was



                                           -6-
entered in May 2013. As the Fort Worth Court has explained,

      The failure to timely appeal from a conviction resulting in community
      supervision waives the right to appeal. See Tex. Code Crim. Proc. Ann.
      art. 42.12, § 23(b) (Vernon Supp. 2004–05); Hoskins v. State, 425
      S.W.2d 825, 828–29 (Tex. Crim. App. 1967) (op. on reh'g); Anthony v.
      State, 962 S.W.2d 242, 245–46 (Tex. App.-Fort Worth 1998, no pet.).
      Article 42.12, section 23(b) states,
             The right of the defendant to appeal for a review of the
             conviction and punishment, as provided by law, shall be
             accorded the defendant at the time he is placed on
             community supervision. When he is notified that his
             community supervision is revoked for violation of the
             conditions of community supervision and he is called on to
             serve a sentence in a jail or in the institutional division of
             the Texas Department of Criminal Justice, he may appeal
             the revocation.
             Tex.Code Crim. Proc. Ann. art. 42.12, § 23(b).

Leach v. State, 170 S.W.3d 669, 676 (Tex. App. - Fort Worth 2005, pet. ref’d). The

Court in Leach went on to explain that the appellate court could not address an issue

relating to the original conviction on the appeal from revocation of community

supervision and that Leach’s issue therefore had to be dismissed for lack of

jurisdiction. Appellant waived any complaint regarding the sufficiency of the

evidence to support his plea, as well as any complaint regarding the trial court’s

method of memorializing his conviction of driving while intoxicated, second offense,

by failing to appeal the issues at the time his conviction was entered and he was

placed on community supervision.

      In any event, the record before this Court is sufficient to permit the Court to

                                         -7-
find that appellant was in fact charged with and convicted of DWI, second offense,

pursuant to Tex. Penal Code section 49.09, and that his sentence was within the

authorized range of punishment. Driving While Intoxicated is proscribed by Tex.

Penal Code section 49.04, which provides that the offense is generally a Class B

misdemeanor. Tex. Penal Code section 49.09, Enhanced Offenses and Penalties,

provides in pertinent part that:

      (a) Except as provided by Subsection (b), an offense under Section
      49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a
      minimum term of confinement of 30 days, if it is shown on the trial of
      the offense that the person has previously been convicted one time of an
      offense relating to the operating of a motor vehicle while intoxicated, an
      offense of operating an aircraft while intoxicated, an offense of
      operating a watercraft while intoxicated, or an offense of operating or
      assembling an amusement ride while intoxicated.

Tex. Penal Code section 49.09.

      Appellant was charged with “driving while intoxicated 2nd,” and the

information and complaint alleged that he committed driving while intoxicated and

that he had previously been convicted of an offense related to driving while

intoxicated. (CR: 8-9). Appellant pleaded guilty to the offense of “driving while

intoxicated 2nd,” (CR: 30-31), he was convicted of “driving while intoxicated 2nd,"

and all of the documents in the file refer to the offense as DWI 2d, describe the

offense as a Class A misdemeanor, and indicate that the range of punishment

extended to up to one year in county jail. (CR: 11, 14, 15, 21, 25, 28, 30, 31, 33, 38-

                                          -8-
39). Nothing in the record before this Court indicates that appellant ever believed he

was charged with an uncomplicated Class B misdemeanor DWI pursuant to Tex.

Penal Code 49.04. Nothing in the record before this Court indicates that the trial

court intended to convict appellant of an uncomplicated Class B misdemeanor DWI

pursuant to Tex. Penal Code 49.04. The only conclusion to be drawn from the

documents in the court’s file as well as the comments of counsel and appellant at the

commencement of the revocation hearing (RR: 7-8) is that appellant pleaded guilty

to the entirety of the information, including the prior conviction which made this case

a “driving while intoxicated second offense” pursuant to section 49.09. He judicially

confessed to all of the allegations of the information, the court convicted him of

driving while intoxicated second offense, as set out in the judgment, and the court

sentenced him to the maximum one year sentence permitted by Tex. Penal Code

section 12.21 for a Class A misdemeanor, which the court then suspended.

      Appellant would apparently have this Court find that the trial court was

required to treat the prior conviction as a separate punishment issue pursuant to Tex.

Penal Code section 12.43, “Penalties for Repeat and Habitual Misdemeanor

Offenders.” Section 12.43, however, provides that after conviction of a Class B

misdemeanor, if the trial court finds a defendant was previously convicted of a Class

A or B misdemeanor, the court shall assess punishment of “(1) a fine not to exceed



                                          -9-
$2,000; (2) confinement in jail for any term of not more than 180 days or less than

30 days; or (3) both such fine and confinement.” Tex. Penal Code section 12.43(b).

Section 12.43 is inapplicable, however, to offenses charged under Tex. Penal Code

section 49.09. See Tex. Penal Code section 12.43(d) (“If the punishment scheme for

an offense contains a specific enhancement provision increasing punishment for a

defendant who has previously been convicted of the offense, the specific

enhancement provision controls over this section.”). When – as here – a defendant

pleads guilty to an information alleging driving while intoxicated, second offense,

and the court accepts the defendant’s plea of guilty and signs a judgment convicting

appellant of driving while intoxicated, second offense, the Class A punishment range

as provided in section 49.09(a) is the applicable punishment range. See State v.

Cooley, 401 S.W.3d 748, 751 (Tex. App. -Houston [14th Dist.] 2013, no pet.). And

where the defendant pleads guilty and judicially confesses to “driving while

intoxicated second offense,” and the court convicts him of “driving while intoxicated

second offense,” this Court should presume that the trial court found appellant’s

confession sufficient to prove both that he drove while intoxicated and that he had a

prior DWI-related conviction.

      The Court of Criminal Appeals contrasted the enhanced offenses set out in

section 49.09 with the punishment enhancements set out in Chapter 12 of the Penal



                                        -10-
Code in Gibson v. State. In holding that section 49.09 provides for “enhanced

offenses” rather than “enhanced punishment,” the court noted that:

      There are three grades of the offense of driving while intoxicated. The
      difference between the grades is set by the number of prior convictions
      for certain intoxication related offenses. The offense of driving while
      intoxicated, without any alleged prior intoxication-related convictions,
      is a Class B misdemeanor. TEX. PENAL CODE § 49.04(b) & (c). If the
      State can prove a defendant had previously been convicted of one
      offense related to operating a motor vehicle, aircraft or watercraft while
      intoxicated, the driving while intoxicated offense becomes a Class A
      misdemeanor. TEX. PENAL CODE § 49.09(a).

Gibson v. State, 995 S.W.2d 693, 695 (Tex. Crim. App. 1999). Although Gibson was

an appeal from a felony DWI, its explanation of the structure of section 49.09 is

applicable here. See Mapes v. State, 187 S.W.3d 655, 659-60 (Tex. App. - Houston

[14th Dist.] 2006, pet. ref’d).

      Even assuming that appellant can complain now about the sufficiency of the

evidence to support the original conviction in May 2013 – which the State disputes

– appellant has failed to produce the record of that May 2013 plea hearing and has

failed to point out (accurately) anything in the record which is before this Court

which would even suggest that appellant pleaded guilty or confessed only to

commission of a Class B driving while intoxicated offense. In addition, appellant has

not produced any authority which would require the trial court to obtain a “true” plea

to the prior DWI alleged in the information rather than accepting appellant’s “guilty”



                                         -11-
plea to the offense of “driving while intoxicated, second offense,” which includes the

allegation of the prior DWI offense. See Mapes, 187 S.W.3d at 659-60.

      None of the cases relied upon by appellant is persuasive. Wise v. State, 394

S.W.3d 594 (Tex. App. - Dallas 2012, no pet.) is a theft case in which the judgment

recited pleas of “true” but the record at the bench trial affirmatively reflected that

Wise was convicted of felony theft on a not-guilty plea, then sentenced without

entering any plea on the prior offenses. In Wise, the prosecutor did not offer any

evidence to support the prior convictions, and there was no stipulation admitting

them. Wise is inapplicable to the instant case.

      Appellant also relies upon Blank v. State, 172 S.W.3d 673 (Tex. App. San

Antonio 2005, no pet.), but Blank was an appeal from a jury trial on Blank’s not-

guilty plea, and the Court of Appeals merely considered the evidence to support the

prior conviction and found the out-of-state clerk’s record to be insufficient to prove

the conviction. Blank has no application to the instant appeal.

      Similarly, in Vance v. State, 970 S.W.2d 130 (Tex. App. Dallas 1998, no pet.),

the issue was whether an enhancement had to be submitted to a jury where the

defendant pleaded “true” to the enhancement after being convicted of DWI by the

jury on her not-guilty plea; the Court held that the issue did not have to be submitted

when it was not in dispute. It is inapposite to the instant appeal. Appellant has failed



                                          -12-
to demonstrate any reversible error in his conviction or sentence.

                                  CONCLUSION

      WHEREFORE, PREMISES CONSIDERED, there being legal and competent

evidence sufficient to justify the verdict and no reversible error appearing in the

record of this case, the State requests that this Honorable Court will affirm the the

judgment of the Trial Court below.

Respectfully submitted,                        ___/s/ Sue Korioth ______
                                               SUE KORIOTH,
ERLEIGH NORVILLE WILEY                            State Bar No. 11681975
CRIMINAL DISTRICT ATTORNEY                     Asst. Criminal District Attorney
KAUFMAN COUNTY, TEXAS                          100 W. Mulberry Street
                                               Kaufman, Texas 75142
                                               (972) 932-4331 ext. 1264
ATTORNEYS FOR THE STATE                        FAX (972) 932-0357
                                               suekorioth@aol.com

                          CERTIFICATE OF SERVICE

      The undersigned does hereby certify that on the 27th day of October 2015, a
copy of the foregoing will be served on Brandi Fernandez, attorney for appellant, by
e-service if available, or by email to her email address.

                                               ___/s/ Sue Korioth ______


                  RULE 9.4 CERTIFICATE OF COMPLIANCE

     Using the Wordperfect 7 word count utility, I have determined that this
document contains 2960 words, TRAP 9.4(I).

                                               /s/ Sue Korioth



                                        -13-
