                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-17-00141-CR
                            ____________________

                   RICHARD EARL MITCHELL, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________             ______________

                     On Appeal from the 1A District Court
                            Tyler County, Texas
                           Trial Cause No. 12,971
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Richard Earl Mitchell appeals from a final judgment, based on a jury’s verdict,

finding him guilty of driving while intoxicated. Mitchell raises three issues in his

appeal. In issue one, he argues that the trial court abused its discretion by allowing

the State to prosecute him for felony DWI without first requiring the State to present

evidence that he had previous convictions for driving while intoxicated. In issue two,

Mitchell argues the trial court abused its discretion by allowing the jury to consider

evidence about the results of his blood test when police failed to obtain a warrant to

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draw his blood. In issue three, Mitchell complains that his trial counsel provided him

with ineffective assistance because his trial attorney failed to move to suppress or to

object to the evidence showing the results the crime lab obtained from the tests that

were performed on his blood. We affirm.

          Convictions Authorizing Mitchell’s Prosecution for Felony DWI

      Before the parties selected a jury, Mitchell stipulated that he has two prior

misdemeanor convictions for DWI. 1 Mitchell also stipulated that he has two prior

felony DWIs. 2 In the charge, the trial court informed the jury that “[t]he parties have

stipulated that the defendant has been two times previously convicted of being

intoxicated while operating a motor vehicle in a public place.” Following

deliberations, the jury answered an issue finding Mitchell “guilty of the offense of

Driving While Intoxicated 3rd or More[.]”

      In his appeal, Mitchell contends that the State failed to read the stipulation

that his attorney made with the prosecutor about his prior convictions into the record



      1
      The stipulation reflects that the misdemeanor convictions were in Cause
Numbers 98-315 and 01-167, rendered in the County Court of Tyler County.
      2
         As to the prior felony DWIs, the stipulation that Mitchell made with the
State addresses felony judgments rendered in Cause Number 9365 by the 1A District
Court of Tyler County and in Cause Number 08-03764 by the Criminal District
Court of Jefferson County. Mitchell’s indictment relies on Mitchell’s felony
convictions for DWI.
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when the case was tried. He concludes that without evidence before the jury about

the stipulation, the State failed to meet its burden of proving that he had at least twice

before been convicted for DWI. Mitchell concludes that his case should be reversed,

and that on remand, the trial court should be required to enter a judgment of acquittal

on the felony DWI and to then retry Mitchell’s punishment based on the punishment

available for a misdemeanor DWI.

      Mitchell fails to appreciate fully the affect the stipulation he entered into with

the prosecutor had on his case. A stipulation is a judicial admission, which waives

the defendant’s right to require the government to prove the elements of the crime

covered by the stipulation. Bryant v. State, 187 S.W.3d 397, 400, 402 (Tex. Crim.

App. 2005).

      The record shows that Mitchell stipulated to committing more than two prior

DWIs on the first day of his trial. Thus, the stipulation addressed the predicate

convictions required to justify a prosecution for a felony DWI. Because Mitchell’s

indictment alleges the prior felony DWIs, the State could have (but did not have to)

read the stipulation into evidence during the trial. See Martin v. State, 200 S.W.3d

635, 640 (Tex. Crim. App. 2006). And in jury selection, the State could have elected

to question the potential jurors about their attitudes on the punishments available for

felony and misdemeanor DWIs. Id. Regardless of the strategy decisions the

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prosecutor may have made, the stipulation is not required to be included in the

evidence the State introduced at trial. Id.

         Here, the jury charge informed the jury that Mitchell had two convictions for

committing previous DWIs. In the charge, the trial court informed the jury that

Mitchell stipulated that he had twice before been convicted for “being intoxicated

while operating a motor vehicle in a public place.” Because Mitchell stipulated to

the two prior felony convictions, as they are alleged in the indictment, the stipulation

effectively removed the State’s burden to present evidence during the trial proving

that Mitchell had two prior DWIs. Id. at 641.

         We hold that Mitchell waived his right to contest whether the State presented

evidence in the trial proving that Mitchell has two prior felony DWIs. He stipulated

to them before the trial. Bryant, 187 S.W.3d at 401. We overrule Mitchell’s first

issue.

                              Admissibility of Blood Tests

         In issue two, Mitchell contends the trial court abused its discretion by allowing

the jury to consider evidence about the results revealed by tests performed on a

sample of his blood. Mitchell claims the evidence was inadmissible because the

police obtained the sample without a warrant.




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      The evidence in the record contradicts Mitchell’s argument that no warrant

issued allowing the police to obtain the sample at issue. Trooper Raul Narvaez

testified that after Mitchell refused to provide a breath sample, a justice of the peace

signed a warrant that authorized police to obtain a sample of Mitchell’s blood. A

nurse drew the sample after the police took Mitchell to the Tyler County Hospital.

Trooper Narvaez’s testimony ties the sample to the sample tested by the crime lab.

The report the crime lab issued about its testing shows that Mitchell had a blood-

alcohol level of 0.194 grams of alcohol per 100 milliliters of his blood.

      Mitchell did not move to suppress the evidence about the tests the crime lab

performed on the sample at issue. When the State offered the report into evidence,

Mitchell did not challenge the admissibility of the report. To preserve complaints

about the report and testimony about it for a later appeal, Mitchell needed to raise

timely objections to the evidence and to secure a ruling on them. See Tex. R. App.

P. 33.1; see also Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015)

(applying Rule 33.1 on preservation of error to a Fourth Amendment complaint).

Because Mitchell failed to preserve the complaints he raises in his second issue for

our review, it is overruled.




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                            Ineffective Assistance Claim

       In issue three, Mitchell contends his trial attorney provided ineffective

assistance because he failed to move to suppress and to object to the evidence and

report about the tests performed on his blood. To establish a claim of ineffective

assistance of counsel, the defendant must show that the performance of his attorney

fell below an objective standard of reasonableness, and that, but for counsel’s alleged

error, the outcome of the proceedings would have probably been different.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Such claims must be firmly

established in the record with evidence showing that the defendant’s attorney made

such serious errors that he failed to function as “counsel” under the Sixth

Amendment. Id. at 687. The defendant also must “show that the deficient

performance prejudiced the defense.” Id. “This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose result

is reliable.” Id.

       When making an ineffective assistance of counsel claim, the defendant bears

the burden of developing the facts needed to show that his attorney was ineffective

under the standards identified in Strickland. See Jackson v. State, 877 S.W.2d 768,

771 (Tex. Crim. App. 1994) (citing Strickland, 466 U.S. at 689). Generally, to prove

a claim of ineffective assistance, the defendant must overcome the “strong

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presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999) (citing Strickland, 466 U.S. at 690). The “allegation of ineffectiveness must

be firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness.” Id.

      To satisfy the Strickland test, Mitchell must show that a motion to suppress

the blood test report and testimony about it should have been granted. See Jackson

v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). To establish the trial court

erred in admitting this evidence, Mitchell needed to show that his blood was seized

without a valid warrant and that none of the generally recognized exceptions to the

general rule requiring police to obtain a warrant applied to the circumstances of his

case. See id. Mitchell complains that his attorney did not move to suppress the

evidence about the blood test results, but merely filing a motion that has no merit

would not have aided in Mitchell’s defense. See Yuhl v. State, 784 S.W.2d 714, 717

(Tex. App.—Houston [14th Dist.] 1990, pet. ref’d).

      Because Mitchell never claimed in the trial that the police obtained his blood

without a search warrant, the State was never required to produce the warrant that

Trooper Narvaez mentioned in his testimony. And since Mitchell did not move for




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a new trial after the trial court sentenced him, the record is undeveloped on the

strategy trial counsel employed in handling Mitchell’s defense.

      Without a fully developed record, we can but speculate about counsel’s

strategy. We cannot, however, conclude that Mitchell has defeated the strong

presumption that trial counsel’s decisions representing Mitchell were reasonable.

See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We also cannot

conclude on this record that no search warrant issued. For these reasons, we overrule

Mitchell’s third issue and affirm the trial court’s judgment.

      AFFIRMED.


                                              ________________________________
                                                       HOLLIS HORTON
                                                            Justice

Submitted on June 27, 2018
Opinion Delivered October 17, 2018
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




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