                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-14-00266-CR


                         DUSTIN CHARLES WILMER, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 81st District Court
                                     Atascosa County, Texas
               Trial Court No. 12-07-0129-CRA, Honorable Stella Saxon, Presiding

                                          April 21, 2015

                                           OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, Dustin Charles Wilmer, appeals the trial court’s judgment by which he

was convicted of driving while intoxicated (DWI), a third or greater offense, and received

a seven-year suspended sentence and community supervision.1 On appeal from that

judgment, he contends the evidence is insufficient to prove that he was previously

convicted of two prior instances of DWI. We will affirm.




      1
          See TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2014).
                             Factual and Procedural History


       Following his collision with a tractor trailer in Atascosa County, Texas, and

obvious signs of intoxication, which were confirmed by later test results revealing blood

alcohol levels of .238 and .243, appellant was arrested for and charged with a third or

greater offense of DWI, a third-degree felony. At trial, the State introduced four exhibits

in an effort to prove appellant’s two prior DWI convictions.        The trial court found

appellant guilty of felony DWI as charged, imposed a seven-year sentence, suspended

that sentence, and placed appellant on community supervision. On appeal from that

conviction, appellant contends that the evidence was insufficient to prove the necessary

element of two prior DWI convictions.


                                   Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate


                                             2
question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


                                      Applicable Law


       A person may be charged with felony DWI if he has two previous convictions for

DWI. See TEX. PENAL CODE ANN. § 49.09(b)(2). The two prior DWI convictions are

elements of the offense of felony DWI. See Martin v. State, 200 S.W.3d 635, 641 (Tex.

Crim. App. 2006); Reyes v. State, 394 S.W.3d 809, 811 (Tex. App.—Amarillo 2013, no

pet.). When, as here, proof of a prior conviction is a jurisdictional element, the fact of

the prior conviction, including the accused’s identity, must be proved beyond a

reasonable doubt. See Zimmer v. State, 989 S.W.2d 48, 50 (Tex. App.—San Antonio

1998, pet. ref’d). To establish that a defendant has been convicted of a prior offense,

the State must prove beyond a reasonable doubt that (1) a prior conviction exists and

(2) the defendant is linked to that conviction. 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).


       Generally, a certified copy of a judgment is not sufficient, standing alone, to link a

defendant to a prior conviction. Beck, 719 S.W.2d at 210. Instead, the State bears the

burden of proving that link with independent evidence showing that the defendant is the

same person named in the prior conviction.         See id.   The State is not required to


                                             3
produce a specific document or specific proof because “[t]here is no ‘best evidence’ rule

in Texas that requires that the fact of a prior conviction be proven with any document,

much less any specific document.” Flowers, 220 S.W.3d at 921. The State may prove

both that a prior conviction exists and that the defendant is linked to that conviction in a

number of different ways. See id. at 921–22. “Regardless of the type of evidentiary

puzzle pieces the State offers to establish the existence of a prior conviction and its link

to a specific defendant, the trier of fact determines if these pieces fit together sufficiently

to complete the puzzle.” Id. at 923. “If these two elements can be found beyond a

reasonable doubt, then the various pieces used to complete the puzzle are necessarily

legally sufficient to prove a prior conviction.” Id. The Texas Court of Criminal Appeals

has provided the following means as examples of ways in which the State may prove

both of these elements: (1) the defendant’s admission or stipulation, (2) testimony by a

person who was present when the person was convicted of the specified crime and can

identify the defendant as that person, or (3) documentary proof (such as a judgment)

that contains sufficient information to establish both the existence of a prior conviction

and the defendant’s identity as the person convicted. See id. at 921–22.


       In Flowers, the Texas Court of Criminals Appeals was called on to determine

whether the intermediate appellate court had erred “in holding a computer printout to be

the functional equivalent of a judgment and sentence constituting proof beyond a

reasonable doubt of a valid final conviction.” Id. at 920.       Flowers had been charged

with DWI, and the State had alleged a prior DWI conviction in an enhancement




                                              4
paragraph.2     See id.     In response to the State’s request for certified copies of the

judgment, information, revocation, orders, and fingerprints in the enhancement offense,

the county clerk’s office explained that the file was missing and sent, in lieu of the

requested documents, a certified computer printout of appellant’s conviction record. Id.

The State also requested and received a certified copy of Flowers’s driver’s license

record from the Texas Department of Public Safety (DPS). Id. The DPS record was

admitted as Exhibit 10 and included appellant’s name, sex, date of birth, age, address,

driver’s license number, and a copy of his driver’s license photograph.                     Id. It also

identified a DWI conviction by date, county, convicting court, and docket number. See

id. As Exhibit 11, the State offered the clerk’s office’s certified computer printout of

Flowers’s conviction record. Id. This record included Flowers’s name, date of birth,

address, social security number, date of arrest, charged offense, finding of guilt,

sentence, and the judicial case identification number. Id. at 921. The court noted that

the information included on Exhibits 10 and 11 matched. See id. An investigator for the

State testified that the information on the records matched and that both exhibits

referred to the same individual.             See id.       On appeal, Flowers challenged the

admissibility of the certified computer printout from the clerk’s office and also maintained

that the evidence was insufficient to prove his prior conviction. See id.


        The Flowers court distinguished a case on which Flowers relied: Gentile v. State,

848 S.W.2d 359 (Tex. App.—Austin 1993, no pet.) (per curiam). See Flowers, 220

S.W.3d at 923–24. The court noted that, in Gentile, the State offered only a certified

        2
         We recognize the apparent distinction between Flowers and the instant case in that Flowers
reviewed the sufficiency of the evidence to prove an enhancement allegation rather than, as in the instant
case, an element of felony DWI. We note, however, that the same burden of proof applies below and the
same standard of review applies on appeal.

                                                    5
driver’s license report as proof of a prior conviction whereas, in Flowers, the State

offered a driver’s license report in addition to the certified printout of his conviction

record from the clerk’s office, the custodian of the original judgment for the prior DWI

conviction. See id. at 924. Flowers also distinguished Blank v. State, 172 S.W.3d 673

(Tex. App.—San Antonio 2005, no pet.) (op. on reh’g), in which the State had offered

only a printout of a cryptic case synopsis to prove a prior, out-of-state conviction. See

Flowers, 220 S.W.3d at 924 & n.21.         Flowers noted that the San Antonio court

concluded that “nothing in the record supports the State’s contention that the synopsis

represents a judgment of conviction.” See id. at 924 (quoting Blank, 172 S.W.3d at

675). While careful to note that a certified copy of a judgment is not the only means of

proving a prior conviction, the court in Blank concluded that the case synopsis was

insufficient on its own to prove the prior conviction alleged as punishment enhancement.

See Blank, 172 S.W.3d at 675–76.


      Emphasizing the matching identification information on the two exhibits and the

photograph that the trial court could use to compare to the person standing before it, the

Flowers court ultimately concluded that a reasonable trier of fact could view Exhibits 10

and 11 and, based on the information therein, find beyond a reasonable doubt that (1)

the alleged prior DWI conviction existed and (2) this prior conviction is linked to

appellant. See Flowers, 220 S.W.3d at 924–25.


                                        Analysis


      Here, there are two prior DWI convictions alleged as jurisdictional elements of

the felony offense of DWI. We will refer to them as the Harris County conviction and the


                                            6
Bexar County conviction. Introduced as Exhibit 4 in this case is a certified copy of the

Harris County information and judgment, which identifies appellant by his full name, his

date of birth, and his address and which contains the date of the judgment and offense,

the trial court cause number, and an imprint of appellant’s fingerprint. Introduced as

Exhibit 5 is the DPS’s certified driver’s license record which contains the following data:

appellant’s full name, address, date of birth, sex, personal descriptor of eye color, and

driver’s license number.     This record also lists all of the events associated with

appellant’s driving history, including a reference to the Harris County DWI conviction,

which identifies the conviction by offense date, judgment date, cause number, location,

and convicting court. Introduced as State’s Exhibit 6 is a certified copy of booking

information from the Bexar County Sheriff’s Office, at the top of which is a very clear

color photograph of appellant and which goes on to identify the date of appellant’s

arrest, booking number, full name, date of birth, age, driver’s license number, gender,

race, height, weight, eye color, hair color, other personal descriptors, address, phone

number and includes a full set of fingerprints and full prints of both hands. State’s

Exhibit 7 is a certified copy of the judgment, information, complaint, docket sheet, plea

bargain terms, guilty plea admonitions, and trial court’s certification of right to appeal in

the Bexar County DWI conviction.         Exhibit 7 contains appellant’s full name, cause

number, charged offense, date of the offense, date of the judgment, date of birth, and a

specific reference to the Harris County conviction by way of an allegation in the

information of a prior DWI conviction.


       We have before us most, if not all, the same items of information and

identification that the Flowers court was called on to evaluate. See id. at 920–21. And,


                                             7
much like the puzzle pieces in Flowers, the information contained in these exhibits is

internally consistent. In the puzzle before us, we have certified copies of documents

that link appellant by date of birth, driver’s license number, and physical description to

both the Harris County and Bexar County DWI convictions in a manner that is

consistent with the relevant dates and cause numbers of those offenses. Notably, we

also have a clear color photograph of appellant, which includes said identifying data and

descriptors and which the trial court could use to compare to the individual standing

before it. See id. at 925. Unlike the case in Flowers, we do not have testimony from an

investigator that information on the records matched and that both exhibits referred to

the same individual. See id. at 921. However, our own review of the record leads us to

that same conclusion, as would a reasonable trier of fact’s own review of the evidence.

Based on the four exhibits introduced without objection as evidence of appellant’s two

prior DWI convictions, we conclude that a reasonable trier of fact could find that (1) the

alleged prior DWI convictions exist and (2) these prior DWI convictions are linked to

appellant.   See id. at 924–25.      Accordingly, we overrule appellant’s contention on

appeal.


                                 Modification of Judgment


       Before we dispose of this appeal, however, we call attention to the fact that the

trial court’s original judgment of conviction—signed May 13, 2014—in the record before

us reflects that appellant pleaded guilty to the allegations in the instant case. The

reporter’s record reveals that this is inaccurate, that appellant, in fact, pleaded not guilty

to the allegations. Additionally, the judgment erroneously refers to conditions of a plea

bargain when it appears from the remainder of the record that this was a contested case

                                              8
in which no plea bargain was reached. This Court has the authority to modify the

judgment to make the record speak the truth when the matter has been called to our

attention from any source. French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992) (en banc); see TEX. R. APP. P. 43.2(b).        An appellate court may correct the

judgment on appeal when it has the necessary data and evidence before it for doing so.

See Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986).              Therefore, we

hereby modify the trial court’s original judgment of conviction to reflect that appellant

pleaded not guilty to the allegations lodged against him and to delete the reference to

terms of a plea bargain.


       Further, the clerk’s record before us includes a subsequent order nunc pro

tunc—signed June 11, 2014—in which the trial court grants the State’s motion seeking

a correction to the original judgment regarding the sentence imposed, asking that the

record reflect that appellant was sentenced to an eight-year term which was then

suspended, rather than a seven-year term. This is, indeed, a perplexing development in

light of the reporter’s record which clearly indicates that the trial court orally pronounced

a seven-year suspended sentence, not an eight-year suspended sentence. When the

oral pronouncement of sentence and the written judgment differ, the oral

pronouncement controls. Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App.

2005) (en banc); Sauceda v. State, 309 S.W.3d 767, 769 (Tex. App.—Amarillo 2010,

pet. ref’d). The original judgment appears to accurately reflect the trial court’s oral

pronouncement of the term of punishment, and the order nunc pro tunc appears to

erroneously “correct” the original judgment of conviction. That said, we modify the nunc

pro tunc order to reflect the seven-year suspended sentence as indicated on the original


                                             9
judgment and as confirmed by the trial court’s oral pronouncement of punishment. See

French, 830 S.W.2d at 609.


                                      Conclusion


       Having overruled appellant’s sole point of error and with the modifications

aforementioned so reflected, we affirm the trial court’s judgment of conviction. See TEX.

R. APP. P. 43.2(b).




                                                Mackey K. Hancock
                                                    Justice


Publish.




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