                                      NUMBER 13-05-00132-CR

                                      COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG
_________________________________________________________

RUDY GONZALES,                                                                                    Appellant,

                                                         v.

THE STATE OF TEXAS,                                 Appellee.
__________________________________________________________

             On appeal from the 24th District Court
                   of Jackson County, Texas.
__________________________________________________________

                     MEMORANDUM OPINION ON REMAND

                     Before Justices Yañez, Rodriguez, and Garza
                       Memorandum Opinion by Justice Yañez

           A jury convicted appellant, Rudy Gonzales, of felony driving while intoxicated

(“DWI”).1 The jury assessed punishment at six years’ imprisonment and a $5,000 fine, and

recommended that the trial court suspend both. The trial court sentenced appellant to six

years’ imprisonment, suspended the sentence and the $5,000 fine, and placed appellant
1
    See T EX . P EN AL C OD E A N N . § 49.04 (Vernon 2003), § 49.09(b)(2) (Vernon Supp. 2010).
on community supervision for a period of ten years.2 By two issues, appellant contends:

(1) the trial court erred in permitting his 1987 DWI conviction to be used to enhance the

present offense to felony DWI because it was too remote3; and (2) the trial court erred in

allowing the State to ask a highly prejudicial hypothetical question. We affirm.

          On direct appeal, this Court held that appellant's 1987 conviction “was not a final

conviction and could not be used to enhance the current offense to a felony offense.”                             4


Despite the language of the 1987 judgment explicitly stating that, "the finding of guilty

herein shall not be final, that no judgment be rendered thereon," the court of criminal

appeals held that when "read in its proper context," the words in the judgment "do not

pertain to the finality of the conviction for enhancement purposes" and this Court therefore

erred in holding that the 1987 offense was not a final conviction.5 The court of criminal

appeals remanded the appeal for us to consider: (1) the possible remoteness of the 1987

conviction; and (2) the admissibility of the State's allegedly "highly prejudicial hypothetical

question" at trial.




2
  See T EX . C OD E C R IM . P R O C . A N N . art. 42.12, § 4 (Vernon Supp. 2010). W e note that appellant was
sentenced under a prior version of the statute, but because the revisions are not pertinent to this appeal, we
cite to the current version of the statute.


3
  Appellant argues that m ore than ten years elapsed between Novem ber 22, 1989, when his two-year
probation for the 1987 offense ended, and January 18, 2000, the date of his second DW I conviction.
4
 See Gonzales v. State, No. 13-05-132-CR, 2008 Tex. App. LEXIS 2326, at **1-2 (Tex. App.–Corpus Christi
Apr. 3, 2008) (m em o op., not designated for publication), rev’d and remanded, 309 S.W .3d 48, 52 (Tex. Crim .
App. 2010).

5
    See Gonzales, 309 S.W .3d at 52.




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                              I. Remoteness of 1987 Conviction

        By his first issue, appellant contends the trial court erred in overruling his motion to

quash the indictment based on his assertion that the 1987 DWI conviction was too remote

to be used for enhancement. The State's indictment alleges: (1) the DWI offense in the

present case occurred on February 16, 2002; and (2) appellant had two prior DWI

convictions—one in November 1987 and a second in January 2000.6 In his pre-trial motion

to quash, and on appeal, appellant argued that the 1987 offense was too remote and was

unavailable for enhancement because his two-year period of community supervision for

the 1987 offense ended on November 22, 1989; therefore, according to appellant, there

was a lapse of more than ten years between November 22, 1989 and his January 18, 2000

conviction.

        The State argued that appellant's community supervision for the 1987 offense did

not terminate on November 22, 1989, but instead, terminated on July 24, 1991—the date

appellant was actually discharged from community supervision. According to the State,

a motion to revoke was filed on November 21, 1989, prior to the expiration of appellant's

community supervision; the filing of the motion effectively extended the period of

community supervision until appellant's actual discharge on July 24, 1991. Thus, because

the date of discharge—July 24, 1991—was within ten years of appellant's January 18,




6
  To elevate the current DW I offense to a felony, the State was required to prove appellant had two prior
convictions. See T EX . P EN AL C OD E A N N . § 49.09(b)(2).


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2000 conviction, the 1987 offense is available to enhance the present offense. The trial

court agreed with the State and overruled appellant’s motion to quash.7

                           A. Standard of Review and Applicable Law

           The two prior intoxication-related offenses referred to in section 49.09(b)(2) are

elements of the offense of felony DWI.8 Proof of the prior misdemeanor convictions was

essential in proving the felony, and in its absence, the evidence was insufficient to support

the felony conviction.9 To carry its burden of establishing the two prior convictions, the
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State was required to make a prima facie showing of the validity of the prior convictions.                           1


To make such a prima facie showing, the State must prove that the prior convictions were

reflected in final judgments entered pursuant to article 42.01 of the code of criminal

procedure.11 Because appellant is challenging the use of his 1987 conviction—an essential

element of his conviction for felony DWI—we construe his claim as a challenge to the

sufficiency of the evidence supporting his conviction.12 Evidence is insufficient if, when

viewed in a light most favorable to the verdict, a rational jury could not have found each



7
 At the m otion to quash hearing on February 7, 2005, appellant’s counsel cited Getts v. State, 155 S.W .3d
153 (Tex. Crim . App. 2005).

8
  Martin v. State, 200 S.W .3d 635, 641 (Tex. Crim . App. 2006) (“The law that applies to any felony DW I
offense includes the jurisdictional elem ent of two prior DW I convictions.”); Gibson v. State, 995 S.W .2d 693,
696 (Tex. Crim . App. 1999); Mapes v. State, 187 S.W .3d 655, 658 (Tex. App.–Houston [14th Dist.] 2006, pet.
ref’d); Uriega v. State, 136 S.W .3d 258, 259 (Tex. App.–San Antonio 2004, pet. ref’d); State v. Kindred, 773
S.W .2d 766, 768 (Tex. App.–Corpus Christi 1989, no pet.).

9
    See Mosqueda v. State, 936 S.W .2d 714, 717 (Tex. App.–Fort W orth 1996, no pet.).

10
     Id. at 716.

11
 See T EX . C OD E C R IM . P R O C . A N N . art. 42.01 (Vernon 2006) (listing the requirem ents of a judgm ent);
Mosqueda, 936 S.W .2d at 716.

12
     See Mosqueda, 936 S.W .2d at 717.


                                                        4
element of the offense beyond a reasonable doubt.13 The sufficiency of the evidence is

measured against the elements of the offense as defined by a hypothetically correct jury
                            4
charge for the case.            1


           The “ten-year rule” contained in former section 49.09(e) of the penal code prohibited

the use of a prior DWI conviction for enhancement if the defendant committed the charged

DWI more than ten years after the judgment date of the prior DWI and if the person was

not convicted of another DWI within that ten-year period.15 The date of the judgment for

the previous conviction is one of four possible times from which the ten-year periods are

measured. Former section 49.09(e), applicable to appellant, provided:

                     (e)    Except as provided by Subsection (f), a conviction
                            may not be used for purposes of enhancement under
                            this section if:

                            (1)     the conviction was a final conviction under
                                    Subsection (d);

                            (2)     the offense for which the person is being tried
                                    was committed more than 10 years after the
                                    latest of:

                                    (A)      the date on which the judgment was
                                             entered for the previous conviction;

                                    (B)      the date on which the person was
                                             discharged from any period of
                                             community supervision on which the
                                             person was placed for the previous
                                             conviction;


13
     Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jones v. State, 944 S.W .2d 642, 647 (Tex. Crim . App. 1996).

14
     Malik v. State, 953 S.W .2d 234, 240 (Tex. Crim . App. 1997).

15
  See Act of June 13, 2001, 77th Leg., R.S., ch. 648, § 2, 2001 Tex. Sess. Law Serv. 1141-42, repealed by
Act of June 18, 2005, 79th Leg., R.S., ch. 996, § 3, 2005 Tex. Sess. Law Serv. 3365, 3366.


                                                         5
                                     (C)   the date on which the person
                                           successfully completed any period of
                                           parole on which the person was
                                           released after serving a portion of the
                                           term to which the person was sentenced
                                           for the previous conviction; or

                                     (D)   the date on which the person completed
                                           serving any term for which the person
                                           was confined or imprisoned for the
                                           previous conviction; and

                          (3)        the person has not been convicted of an
                                     offense under Section 49.04, 49.05, 49.06,
                                     49.065, 49.07, or 49.08 or any offense related
                                     to operating a motor vehicle while intoxicated
                                     within 10 years of the latest date under
                                     Subdivision (2).[16

           In Getts, the Texas Court of Criminal Appeals explained the application of the ten-

year rule in former section 49.09(e).17 In order to exclude a prior conviction from use for

enhancement, the three conditions of section 49.09(e) must be met:                    (1) the prior

conviction must be final; (2) the current offense must have been committed more than ten

years after the latest date determined under subdivision 49.09(e)(2); and (3) the defendant

must not have been convicted of any other intoxication-related offense within ten years of

the latest date under subdivision (2).18 The latest date under subdivision (2) is the later of

the date of judgment of the prior conviction, the date of discharge from community




16
     Id.

17
     Getts, 155 S.W .3d at 156-57.

18
     Id.



                                                     6
supervision, the date of completion of parole, or the date the defendant completed serving

a term of confinement or imprisonment for the prior conviction.19

                                   B. Analysis

      The sole question, under (2)(B) of the former statute, is what is "the date on which

[appellant] was discharged" from community supervision for the 1987 offense? Appellant

argues he was "discharged" when his community supervision ended on November 22,

1989; therefore, the 1987 offense is unavailable for enhancement. The State contends

appellant was discharged on the date of actual discharge—July 24, 1991—and the 1987

offense is therefore available for enhancement.

      Appellant argues that the only effect of the filing of the State's motion to revoke prior

to the expiration of his two-year period of community supervision was to extend the trial

court's "limited jurisdiction to hear and potentially revoke probation based upon the

allegations of the State's motion to revoke." According to appellant, the State moved to

dismiss its motion to revoke on July 12, 1991, and the trial court granted the State's motion

to dismiss on July 15, 1991. Appellant contends that when the State's motion to revoke

was dismissed, the effect was to "sever that limited jurisdiction retained by the filing of the

motion to revoke," and that "[a]ll actions thereafter [by the trial court] were a nullity."

We are unpersuaded by appellant's argument. The State's July 12, 1991 motion to dismiss

the motion to revoke states that one of the bases alleged in the motion to revoke was that

appellant had failed to complete payment of fines, court costs, and probation fees. The


19
   Id. at 156; see Act of June 13, 2001, 77th Leg., R.S., ch. 648, § 2, 2001 Tex. Sess. Law Serv. 1141-42
(repealed 2005).




                                                   7
motion to dismiss states that by July 12, 1991 (the date of the motion), appellant had paid

fines and court costs in the amount of $740.50 and probation fees in the amount of

$380.00.        Because appellant had completed these payments, the State requested

dismissal of its earlier motion to revoke. The State's motion to dismiss was granted on July

15, 1991, and shortly thereafter, appellant was discharged from community supervision on

July 24, 1991.

        As the court of criminal appeals noted in Getts, "[w]hen discerning the meaning of a

statute, we begin with its plain language."20 The plain meaning of the word "latest" means

the most recent or near to the present time.21 The latest date under section 49.09(e)(2) for

measuring the expiration of more than ten years is either the date of judgment of the prior

conviction, the date of discharge from community supervision, the date of completion of

parole, or the date the defendant completed serving a term of confinement or

imprisonment for the prior conviction.22 Where the relevant dates of prior convictions are

within ten years of each other, they are appropriate for enhancement, regardless of their

remoteness from the charged offense.23

        Here, the "latest" date under the statute is appellant's actual discharge date for the

1987 offense—July 24, 1991—which is within ten years of appellant's January 18, 2000



20
     See Getts, 155 S.W .3d at 155.

21
     See State v. Celaya, 205 S.W .3d 736, 738 (Tex. App.–Am arillo 2006, no pet.).

22
  See Getts, 155 S.W .3d at 156; Read v. State, No. 02-06-065-CR, 2007 Tex. App. LEXIS 2547, at *12 (Tex.
App.–Fort W orth Mar. 29, 2007, pet. dism 'd) (m em . op., not designated for publication).

23
  See Getts, 155 S.W .3d at 158; Basurto v. State, No. 14-05-419-CR, 2006 Tex. App. LEXIS 7980, at *5
(Tex. App.–Houston [14th Dist.] Sept. 7, 2006, pet. ref'd) (m em . op., not designated for publication).


                                                      8
conviction. Thus, all three conditions of the prior statute were met: (1) the 1987 conviction

is a final conviction; (2) the 2002 offense was committed more than ten years after the

1987 offense; and (3) appellant was convicted of another alcohol-related offense (the

January 18, 2000 offense) within ten years of the latest date in subdivision (2) of the

statute relating to the 1987 offense (July 24, 1991). We therefore conclude that the 1987

and January 18, 2000 offenses were available for enhancement purposes.24 Accordingly,

the trial court did not err in denying appellant's motion to quash. We overrule appellant's

first issue.

                               II. Hypothetical Question

      By his second issue, appellant contends that the trial court erred in permitting the

State to ask a hypothetical question that was not based on the facts of the case.

Specifically, appellant complains that during cross-examination, the prosecutor asked him

a hypothetical question that was "outside the record" and "was meant to lower the State's

burden of proof."

      The State argues that appellant failed to preserve any issue for review because: (1)

his objection was neither timely nor specific; and (2) his claim on appeal—that the

hypothetical was not based on the facts of the case—does not comport with the objection

made at trial.25

      Appellant complains of the following exchange:


24
  See Getts, 155 S.W .3d at 158; see also Constante v. State, No. 04-07-455-CR, 2008 T ex. App. LEXIS
5429, at *5 (Tex. App.–San Antonio July 23, 2008, no pet.) (m em . op. not designated for publication).

25
   See Coleman v. State, 802 S.W .2d 394, 396 (Tex. App.–Dallas 1990, no pet.) ("An objection stating one
legal basis m ay not be used to support a different legal basis on appeal.").


                                                   9
Q [by Prosecutor]:           Okay. Do you have any children?

A [Appellant]:               No, sir.

Q:                           I want you to assume you have a daughter right
                             now, okay? I want you to assume with me that
                             there's a bouncing ball that your little six-year-
                             old daughter is following as it goes into the
                             street and that there's an individual driving
                             down that street. And for our purposes, let's
                             say whose vision is somewhat obscured by
                             other traffic parked on the side of the road.

[Appellant's counsel]:       Judge, may we approach?

(At the Bench, off the record.)

Q [Prosecutor]:              I want you to assume an individual that has
                             drank [sic] the amount of alcohol that you drank
                             over the period of time that you drank, okay?
                             So that I don't want to change any facts other
                             than what applied to you from your testimony.
                             And that that person had worked the hours you
                             worked and was fatigued like you were and had
                             drank two beers over the period of time. Would
                             you be comfortable, sir, with your daughter
                             chasing that bouncing ball into the street and
                             somebody driving that vehicle, having drank as
                             much as you did and having been fatigued as
                             much as you did, or would you rather that driver
                             have had no alcohol? What's your answer?

A:                           Well, sir, I mean, I couldn't answer that. I
                             mean, if there's a car coming, she's running out
                             there, I mean it's what's . . . . I don't
                             understand what you . . .

Q:                           Yes, you do, Mr. Gonzales. It's a simple
                             question. Rudy Gonzales behind the wheel,
                             having drank the alcohol that you drank, over
                             the period of time that you drank, fatigued to
                             the point you were, would you be comfortable
                             with your daughter following a bouncing ball
                             into the street with that person driving or would


                                        10
                                               you prefer that person to not have been
                                               drinking and driving at all? Which would you
                                               prefer?

          [Appellant's counsel]:               Judge, I'm going to call this is [sic] inflammatory
                                               and I think it's irrelevant and I think it calls for
                                               speculation.

          [the Court]:                         Overruled.

         To preserve a complaint for appellate review, a party must make a specific and timely

objection, motion, or request to the trial court.26 "The complaint is timely only if the party

makes the complaint as soon 'as the grounds for it become apparent.'"27 As the court of

criminal appeals has noted,

                An objection should be made as soon as the ground for objection
          becomes apparent. In general, this occurs when the evidence is admitted.
          Therefore, if a question clearly calls for an objectionable response, a
          defendant should make an objection before the witness responds. If he fails
          to object until after an objectionable question has been asked and answered,
          and he can show no legitimate reason to justify the delay, his objection is
          untimely and error is waived.[28]

         Here, appellant's counsel did not object until after appellant had attempted to answer

the question and the question was asked a second time. Appellant's counsel offered no

explanation for failing to object before appellant attempted to answer the question. We




26
     See T EX . R. A PP . P. 33.1; Neal v. State, 256 S.W .3d 264, 279 (Tex. Crim . App. 2008).

27
     Neal, 256 S.W .3d at 279 (citing Gillenwaters v. State, 205 S.W .3d 534, 537 (Tex. Crim . App. 2006)).

28
     Dinkins v. State, 894 S.W .2d 330, 355 (Tex. Crim . App. 1995) (internal citations om itted).




                                                        11
hold that by failing to make a timely objection, appellant failed to preserve any issue for

review.29 We overrule appellant's second issue.

                                                III. Conclusion

         We affirm the trial court's judgment.




                                                        LINDA REYNA YAÑEZ
                                                        Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the
16th day of December, 2010.




29
     See T EX . R. A PP . P. 33.1; Dinkins, 894 S.W .2d at 355.



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