


 
IN THE
TENTH COURT OF
APPEALS










 

No. 10-03-00285-CR
 
Ricky Dale Bass,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 
 

From the 278th District Court
Leon County, Texas
Trial Court # CM-02-157
 

Opinion

 
          A
jury convicted Ricky Dale Bass of felony driving while intoxicated.  The court assessed Bass’s punishment at seven
years’ imprisonment.  Bass contends in
his sole issue that the evidence is legally insufficient to prove the he has
two or more prior DWI convictions because the State failed to prove that any of
Bass’s prior DWI convictions was for an offense committed within 10 years of
the date he committed the present offense and because his attorney’s verbal
stipulation did not establish the requisite timing for the prior convictions.  We will affirm.
          The
indictment alleges that Bass committed the present offense on or about February 6,
 2001; that Bass had
prior DWI convictions in 1985, 1992, and 1995; and that the 1985 and 1995
convictions were for offenses which were “committed within ten (10) years from
the date of the commission of the primary offense.”  Before voir dire, the parties discussed
whether the prior convictions should be mentioned during voir dire and whether
Bass would stipulate to them.  Bass’s
counsel stated that Bass would “stipulate to the two misdemeanors” (the 1985
and 1992 convictions).
          When
the prosecutor read the indictment to the jury, he omitted the allegation
regarding the 1995 felony DWI conviction. 
Bass pleaded “not guilty” to the primary charge but pleaded “true” to
the allegations of prior misdemeanor convictions.  No further mention was made of the prior
convictions until Bass took the stand in his own defense.
          Bass
began his testimony by admitting that he had been convicted of misdemeanor DWI
in 1985 and in 1992 and that he was convicted of felony DWI in 1995.  On cross-examination, the prosecutor showed
him a copy of the penitentiary packet for the 1995 conviction and confirmed
that it reflected his February 1995 conviction for felony DWI.  Because of the pretrial stipulation, the
State did not offer the judgments for the prior convictions in evidence.  Nor did the parties enter a written
stipulation in evidence.
          Bass
contends in his sole issue that the evidence is legally insufficient because
the State failed to prove that at least one of his prior DWI convictions was
for an offense “committed [within] 10 years before the offense for which [he
was] being tried was committed.”  See Act of May 30, 1999, 76th Leg., R.S., ch. 1364, § 12, 1999 Tex.
Gen. Laws 4606, 4610 (amended 2001) (current version at Tex. Pen. Code Ann. § 49.09(e) (Vernon 2003)).
          The
Court of Criminal Appeals has determined that a defendant who stipulates to
prior DWI convictions in a felony DWI prosecution “has lost the ability to
complain about the remoteness of the prior conviction[s].”  Smith
v. State, No. 0755-04, 2005 Tex. Crim. App. LEXIS 151, at *5-6 (Tex. Crim. App. Feb. 2, 2002). 
Nevertheless, Bass contends that the “stipulation” in his case is
ineffective because it does not comply with the requirements for stipulations
set out in article 1.15 of the Code of Criminal Procedure.
          Article
1.15 requires a defendant’s written consent for the stipulation of evidence.[1]  See
Tex. Code Crim. Proc. Ann. art.
1.15 (Vernon Supp. 2004–2005).  “By its plain language [however], Article
1.15 applies only to cases in which a jury trial has been waived.”  Wright
v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000).  Because Bass’s case was tried to a jury,
article 1.15 does not apply.  Id.
          We
also note that Bass pleaded “true” to the prior DWI allegations.  This plea relieved the State of its burden to
prove the enhancement allegations.  See Harvey v. State, 611 S.W.2d 108, 111
(Tex. Crim. App. 1981); Manning v. State,
112 S.W.3d 740, 744 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).
          Accordingly,
we overrule Bass’s sole issue and affirm the judgment.
 
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed February
 16, 2005
Publish
[CR25]




    [1]           Article
1.15 provides:
 
                   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.  The evidence may be stipulated if the
defendant in such case consents in writing, in open court, to waive the
appearance, confrontation, and cross-examination of witnesses, and further
consents either to an oral stipulation of the evidence and testimony or to the
introduction of testimony by affidavits, written statements of witnesses, and
any other documentary evidence in support of the judgment of the court.  Such waiver and consent must be approved by
the court in writing, and be filed in the file of the papers of the cause.
 
Tex.
Code Crim. Proc. Ann.
art. 1.15 (Vernon Supp. 2004–2005) (emphasis
added).
 



ermining whether the evidence is factually
insufficient to support a conviction that is nevertheless supported by legally
sufficient evidence, it is not enough that we “harbor a subjective level of
reasonable doubt to overturn [the] conviction.”  Watson, 204 S.W.3d at
417.  We cannot conclude that a conviction is clearly wrong or manifestly
unjust simply because we would have decided the question differently than the
jury or because we disagree with the jury’s resolution of a conflict in the
evidence.  Id.  We may not simply substitute our judgment for the
fact-finder’s.  Johnson, 23 S.W.3d at 12; Cain v. State, 958
S.W.2d 404, 407 (Tex. Crim. App. 1997).  Unless the record clearly reveals that
a different result is appropriate, we must defer to the jury’s determination of
the weight to be given contradictory testimonial evidence because resolution of
the conflict “often turns on an evaluation of credibility and demeanor,
and those jurors were in attendance when the testimony was delivered.”  Johnson,
23 S.W.3d at 8.  Our deference in this regard safeguards the defendant’s right
to a trial by jury.  Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008).  A factual sufficiency review of circumstantial evidence is the same
as a review of direct evidence.  King v. State, 29 S.W.3d 556, 565 (Tex.
Crim. App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App.
1999) (reasoning that “[c]ircumstantial evidence, by itself, may be enough to
support the jury’s verdict”).
It is undisputed by the testifying experts, both
for the State and Latimer that the child died from blunt force trauma to the
head.  The medical examiner and Dr. Coffman both testified that the blunt force
trauma could not have occurred days before the child’s death because of the
severity of the injury to the child’s brain.  The child did not exhibit any
symptoms or odd behavior on the days before and the morning of his death. 
Latimer was the only adult present the morning of the child’s death.  Latimer made
statements to various sources around the time of the child’s death that the
child had gotten out of his play yard more than once that morning, and while
she was cooking lunch, that she was exhausted because the child would get out
of his play yard at night, and that the child was clingy and required a lot of
one on one attention.  Other witnesses described the angry and harsh treatment
of the deceased child and the other children in her home.  We find that the
evidence was legally sufficient for the jury to have found beyond a reasonable
doubt that Latimer caused the child’s death.
Latimer contends that statements by the two
paramedics, the nurse who treated the child at the hospital, and a social
worker who placed the child with Latimer gave different details at trial from
that which were in written and oral statements given before trial.  Latimer
contends that these inconsistencies, taken with their expert’s testimony that
the child’s brain injury occurred prior to the child’s placement in Latimer’s home
render the evidence factually insufficient.  However, it is the province of the
jury to determine the credibility of the witnesses.  Johnson, 23 S.W.3d
at 9.  We cannot say that the evidence was so weak that the fact-finder’s
determination is clearly wrong and manifestly unjust or that the conflicting
evidence so greatly outweighs the evidence supporting the conviction that the
fact-finder’s determination is manifestly unjust.  See Steadman, 280
S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417.  We overrule issue
five.
Conclusion
               We find no abuse of discretion by
the trial court by denying Latimer’s motion for continuance.  We also find no
abuse of discretion by the trial court in the admission of the expert testimony
by Dr. Coffman or in the admission of the two photographs.  We find the issue
regarding the testimony of the witness regarding an extraneous offense or bad
act to have been waived due to inadequate briefing.  The evidence was both
legally and factually sufficient to sustain the conviction.  We affirm the
judgment of the trial court.
 
                                                                        TOM
GRAY
                                                                        Chief
Justice
 
Before
Chief Justice Gray,
            Justice
Reyna, and
            Justice
Davis
            (Justice
Davis joins the opinion in part and concurs in part.  Justice Davis joins the
Court on overruling issues one, two, three and five.  Justice Davis concurs in
overruling issue four on the briefing of appellant and appellee and does not
find the briefing inadequate and thus, the issue not waived.)
Affirmed
Opinion
delivered and filed April 28, 2010
Publish
[CRPM]



[1] The record is not clear as to what precisely fell
over in the testimony, whether it was a display, a single can, or multiple cans
of chili.


