                             COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                 NO. 02-09-00347-CR


JEROMY GADDY                                                         APPELLANT

                                          V.

THE STATE OF TEXAS                                                         STATE


                                       ----------

           FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                      ------------

                    DISSENTING OPINION ON REMAND


       I must respectfully dissent from the majority opinion because I believe that

it is constitutionally infirm.

       After we issued our opinion in this case, 1 attached as an appendix, the

Texas Court of Criminal Appeals held in Bowen v. State that it may be unjust to

       1
       Gaddy v. State (Gaddy I), No. 02-09-00347-CR, 2011 WL 1901972, at *12
(Tex. App.—Fort Worth 2011) (mem. op., not designated for publication, pet.
granted), vacated, No. PD-1118-11, 2012 WL 4448757 (Tex. Crim. App. 2012)
(not designated for publication) (Gaddy II).
acquit if an issue first raised on appeal affects the sufficiency of the evidence of

the aggravating element. 2 The Bowen majority reasoned,

        In Collier, a plurality of this Court held that an appellate court does
        not have the authority to reform a judgment to reflect a conviction of
        a lesser-included offense if it was neither requested nor submitted in
        the jury charge. Judge Mansfield’s lead opinion, joined by three
        judges, was based on the rationale that allowing the reformation of
        judgments would encourage the State to use a “go for broke” trial
        strategy of not requesting a lesser-included offense instruction in
        order to make it more likely to obtain a conviction for the charged
        offense. The four-judge plurality decided that:

              A court of appeals may reform a judgment of conviction
              to reflect conviction of a lesser included offense only if
              (1) the court finds that the evidence is insufficient to
              support conviction of the charged offense but sufficient
              to support conviction of the lesser included offense and
              (2) either the jury was instructed on the lesser included
              offense (at the request of a party or by the trial court sua
              sponte) or one of the parties asked for but was denied
              such an instruction. 3

        The three dissenting judges in Bowen reasoned that Judge Keasler’s

concurring opinion in Collier v. State was actually the governing rationale for the

rule:

        Judge Keasler’s position in Collier was contingent, in turn, upon the
        language of Rule 43.2(c) of the Texas Rules of Appellate Procedure.
        His argument was that a court of appeals’s authority to “render”
        judgment on appeal is limited to what it concludes “the trial court
        should have rendered.” In a jury trial, unless the jury is authorized to
        convict a defendant of a lesser-included offense as well as the
        greater-inclusive offense, it cannot be said that, when the evidence

        2
        374 S.W.3d 427, 432 (Tex. Crim. App. 2012).
        3
        Id. at 429 (citations omitted).



                                           2
      proves insufficient to establish the greater offense but sufficient to
      establish the lesser, the trial court “should have rendered” a
      conviction for the lesser-included offense—because the jury could
      not have done so. And when it is not the case that the “trial court
      should have rendered” a judgment of conviction for the lesser-
      included offense, an appellate court is not authorized under Rule
      43.2(c) to do so. This logic led Judge Keasler to conclude that an
      appellate court cannot reform a trial court’s judgment to reflect
      conviction of a lesser-included offense in a jury trial unless the jury
      was expressly authorized by the jury charge to convict the defendant
      for that lesser-included offense. In Haynes, we embraced this
      rationale as controlling law. 4

      Rule 43.2(c) of the Texas Rules of Appellate Procedure limits an appellate

court’s authority to “render” judgment on appeal to what it concludes “the trial

court should have rendered.” 5      Further, the trial court is not required to sua

sponte instruct the jury on potential lesser-included offenses, defensive issues, or

evidentiary issues because these “frequently depend upon trial strategy and

tactics.” 6 In the case now before this court, the trial court could not have and

should not have rendered a judgment of conviction of the lesser-included

misdemeanor offense of a first-offense misdemeanor DWI because neither side

requested the lesser-included offense instruction and because no lesser-included




      4
       Id. at 433 (Price, J., dissenting) (citations omitted).
      5
       Tex. R. App. P. 43.2(c); Bowen, 374 S.W.3d at 433 (Price, J., dissenting).
      6
       Bowen, 374 S.W.3d at 434 n.5 (Price, J., dissenting) (citing Delgado v.
State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)); see also Tolbert v. State,
306 S.W.3d 776, 781 (Tex. Crim. App. 2010).



                                           3
offense instruction was submitted to the jury. 7 The right to a jury trial reaffirmed

in Ring and Apprendi prohibits such a usurpation of the jury’s function. 8

Consequently, because the jury in the trial court was not authorized to convict

Appellant of a first-offense misdemeanor DWI, as Judge Keasler explained, we

likewise lack that authority. 9

      Additionally, the policy-based reasoning of Bowen is not applicable to this

case. In Bowen, the State apparently did not realize at trial that the value of trust

assets owned by the complainant was an issue. 10 Consequently, the State had

no reason to request an instruction on the lesser-included offense of the

misapplication of a smaller portion of the trust assets. 11 A jury may only be

instructed on a lesser-included offense if there is evidence that the defendant, if

guilty, is guilty only of the lesser-included offense. 12 The Bowen court held that if

the validity of the aggravating element is not raised at trial, it may be unjust to




      7
       See Tex. R. App. P. 43.2(c); Delgado, 235 S.W.3d at 250; see also
Tolbert, 306 S.W.3d at 781.
      8
      See Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 2443 (2002);
Apprendi v. New Jersey, 530 U.S. 466, 483, 120 S. Ct. 2348, 2359 (2000).
      9
       See Tex. R. App. P. 43.2(c).
      10
          See Bowen, 374 S.W.3d at 432.
      11
          See id.
      12
          See Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011).



                                          4
acquit if an issue first raised on appeal affects the sufficiency of the evidence of

the aggravating element. 13

      But the record in the case before us does not reflect that Appellant took

unfair advantage of the State. This case is not like Bowen. In the case now

before this court, the State had ample notice that the validity of the New Mexico

offenses was at issue. Appellant raised the issue pretrial, and the State filed a

pretrial motion in limine regarding the validity of the New Mexico offenses. The

State did not claim below and does not claim here that it was blindsided because

it did not realize that the validity of the New Mexico convictions was at issue. At

trial, Appellant objected to the jury charge on the basis that the general verdict

did not allow the jury to determine the validity of each of the New Mexico

convictions. The State argued at trial that because the New Mexico convictions

were not enhancement paragraphs but “jurisdictional prayers,” the general

verdict was proper. On appeal, the State argued that Appellant’s objection to the

general verdict was a request for an instruction on the lesser-included offense of

misdemeanor DWI.       As we stated in our original opinion, the record clearly

reflects that neither side requested an instruction on a lesser-included offense. 14

Appellant clearly explained why he believed the New Mexico convictions were

infirm, and the State argued that they were not.

      13
        Bowen, 374 S.W.3d at 432.
      14
        Gaddy I, 2011 WL 1901972, at *12–13.



                                         5
      The State here knew the consequences of not instructing the jury on the

lesser-included misdemeanor DWI. Nevertheless, the State made the conscious,

strategic decision to “go for broke,” knowing that if Appellant prevailed in his

challenge to the New Mexico offenses on appeal, the law required entry of a

judgment of acquittal. The State was not blindsided or even surprised by the

challenge to the New Mexico offenses on appeal. Because the record reveals

that the State knowingly employed the “go for broke” strategy in this case, as

opposed to making a pure mistake of law as the prosecutor apparently did in

Bowen, the Bowen rule does not apply to the case now before this court. Not

only would it not be unjust to acquit in the case now before this court, but it is

unjust to apply the Bowen rule retroactively to such a case tried more than two

and one-half years before the creation of the rule when the case is completely

distinguishable on the facts.

      In State v. Mercado, the Texas Court of Criminal Appeals stated the

obvious principle of fairness, “Ordinary notions of procedural default should apply

equally to the defendant and the State.” 15     Further, as Judge Cochran has

explained, “The purpose of the contemporaneous-objection rule is to provide

both the trial judge and the opposing party an opportunity to avoid or correct


      15
        972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (citing State v. Gonzales, 850
S.W.2d 672 (Tex. App.—San Antonio 1993, pet. ref’d) (refusing defendant’s
request to affirm an order suppressing evidence based on new grounds not
raised in the trial court)).



                                        6
potential errors and thus avoid a procedurally improper conviction and a

subsequent retrial.” 16 Additionally,

       fairness to all parties requires a litigant to advance his complaints at
       a time when there is an opportunity to respond to them or cure them;
       . . . reversing for error not raised in the trial court permits the losing
       party to second-guess its tactical decisions after they do not produce
       the desired result. 17

       After Bowen, the Texas Court of Criminal Appeals handed down Thornton

v. State, an opinion that appears to lay down a bright-line rule that when the

State proves only the unenhanced offense, the appellate court must modify the

judgment to convict of the lesser-included offense whether the jury is instructed it

may convict of the lesser-included offense or instructed only on the greater

offense. 18       Laying aside the Ring/Apprendi issues, felony DWI trials present an

additional problem.

       Under the guise of having to prove jurisdictional allegations, the State is

allowed to inform a jury during the guilt phase of the trial that the defendant has

twice before been convicted of the very same offense for which he is being tried.

If the State fails to prove jurisdiction, after gaining the advantage of informing the


       16
       Flores v. State, 245 S.W.3d 432, 443 & n.7 (Tex. Crim. App. 2008)
(Cochran, J., concurring).
       17
            Id.
       18
         No. PD-0669-13, 2014 WL 1302039, at *5–6 (Tex. Crim. App. April 2,
2014).




                                            7
jury, essentially, that “here he goes again,” under Thornton and Bowen, it is of no

legal consequence. The State pursues the felony without allowing the jury the

opportunity to convict of the misdemeanor. If the gamble fails, we are to fix it by

doing what the jury was not permitted to do.

      But if the enhancing prior DWI offenses alleged in the indictment are truly

jurisdictional, it is not the proof that establishes jurisdiction in district court but,

rather, the pleading. As the Texas Court of Criminal Appeals explained in Ex

parte Sparks, “[t]his pleading invoked the jurisdiction of the district court for the

felony that was alleged, and that jurisdiction extended to the misdemeanor

offenses that were included in the indictment.” 19 Apparently, the State has no

need to prove jurisdiction once it has been pled. Why, then, must the issue of

the prior convictions be presented to the jury during the guilt phase of the trial?

Certainly not to protect any right of a defendant.

      In Tarrant County, as in certain other counties, there is an additional

consideration. District courts have concurrent misdemeanor jurisdiction. They

have jurisdiction over all DWIs, whether pled as felonies or misdemeanors. Yet

courts have consistently applied the same rule of presenting “jurisdictional” prior

conviction allegations to the trial jury in the guilt phase of the trial. How does

concurrent misdemeanor/felony jurisdiction of those courts affect DWIs tried in

those counties? No one seems to know.

      19
        Ex parte Sparks, 206 S.W.3d 680, 682 (Tex. Crim. App. 2006).



                                           8
       In the case now before this court, unlike the prosecutors in Bowen, the

State pled facially infirm New Mexico convictions to elevate the DWI allegations

from a misdemeanor to a felony. The jury was informed from the very beginning

of the trial that Appellant had twice before been convicted of DWI. If the State is

allowed to tell the jury of prior convictions in the guilt phase of the trial, then the

State benefits. No one could claim a DWI defendant benefits from the jury’s

hearing that he has already been twice convicted of the offense for which he is

on trial.

       The State and the defense each chose its strategy, based on the law as it

existed at the time of trial, and both were fully aware of the consequences of their

choices of strategy. The National Football League (NFL) is considering doing

away with the extra point, or points, after a touchdown. 20 Just as it would be

fundamentally unfair for the NFL’s Rules Committee to change the scoring

system retroactively to affect the outcome of the Super Bowl played two years

ago, applying the Bowen rule to this case unfairly rescues one side from the

consequences of its failed strategy.

       Were this an appeal from a bench trial, I would join the majority because

there would be no unfair advantage gained from informing the jury that Appellant

had twice previously been convicted of the offense for which he was now on trial

       20
       NFL Reportedly Considering Proposal to Eliminate Extra Points,
Foxnews.com (Jan. 21, 2014), http://www.foxnews.com/sports/2014/01/21/nfl-
considering-proposal-to-eliminate-extra-points/ (last visited May 12, 2014).



                                          9
when the State was aware of the challenge to the prior convictions that were

“jurisdictional.” Modifying the judgment would not usurp the role of the jury, nor

would it deprive the defendant of a jury trial, because the trier of fact would have

been the trial court and not a jury. Modifying the judgment would comply with

rule 43.2(c) of the Texas Rules of Appellate Procedure because this court would

act within our authority to “render” judgment on appeal that “the trial court should

have rendered.” But Appellant appeals from a jury trial and not a bench trial. For

this court to pull the State’s bacon out of the fire and usurp Appellant’s right to a

jury trial violates the state and federal constitutional guarantees of that right. I

must, therefore, respectfully dissent.



                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PUBLISH

DELIVERED: May 15, 2014




                                         10
                                   APPENDIX




                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                               NO. 02-09-00347-CR


JEROMY GADDY                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


                                     ----------

          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                    ------------

      MEMORANDUM OPINION 1 ON STATE’S PETITION FOR
               DISCRETIONARY REVIEW
                                    ------------

      Pursuant to rule of appellate procedure 50, we have reconsidered our

previous opinion upon reviewing the State's petition for discretionary review. 2

We withdraw our March 3, 2011 memorandum opinion and judgment, and we

substitute the following.


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. R. App. P. 50.
      A jury convicted Appellant Jeromy Gaddy of felony driving while intoxicated

(DWI) and assessed his punishment at three years’ confinement. The trial court

sentenced him accordingly. Appellant brings two issues on appeal, arguing that

the trial court erred by admitting into evidence convictions that were void and that

the evidence is insufficient to sustain his conviction for felony DWI. Because we

hold that the evidence is insufficient to show that Appellant was twice (or even

once) previously convicted of DWI in the State of New Mexico, we sustain

Appellant’s second issue, reverse the trial court’s judgment, and render

judgment of acquittal.

I. Statement of Facts

      On June 14, 2008, Denton police officer Lisa Martin arrested Appellant for

DWI. Appellant was subsequently charged with felony DWI. The indictment

alleged that Appellant had been twice previously convicted in “the Municipal

Court of Hobbs, New Mexico” of DWI.

      In his opening statement at trial, Appellant’s counsel stated that Appellant

would testify about the prior New Mexico convictions and that he had no lawyer

in those proceedings in violation of his rights. In its oral motion in limine, the

State asked the trial court to prohibit Appellant from bringing up in front of the jury

whether his rights were violated in the two prior New Mexico proceedings

because it was a legal issue for the court.

      At trial, the State offered the testimony of Tim Phillips, an investigator for

the Denton County District Attorney’s office. He testified that he obtained prior


                                          2
judgments related to Appellant from the Denton County District Attorney’s intake

division. Phillips testified that he also ordered a “driver’s license packet.” He

described State’s Exhibit 6 as a certified copy of a Texas Department of Public

Safety driving record.

      The State also offered State’s Exhibits 4 and 5, documents purporting to

show that Appellant was twice previously convicted of DWI in the municipal court

of Hobbs in the State of New Mexico. The trial court conducted a hearing outside

the jury’s presence on the admissibility of the exhibits.

      State’s Exhibit 4, which purports to be a copy of a June 23, 1997 judgment

and sentence from a municipal court of Hobbs, New Mexico, provides that

Appellant pleaded nolo contendere to, among other things, DWI in a municipal

court in Hobbs, New Mexico. The judgment states that “the defendant appeared

in person and with ______________, his attorney, and ______________

appeared on behalf of the City.” The space for the name of the defense attorney

is blank, as is the name of the attorney appearing on behalf of the city.

      Handwritten notations appear in several places on the exhibit, but it is

unclear what they mean. Appellant was apparently charged with five offenses:

(1) “CONSUME/POSS ALCOHOL–OPEN CONTAINER IN MOTOR,” to the right

and slightly above which “(35+18PA)” appears in handwriting; (2) “DRIVING

WHILE UNDER INFLUENCE OF INTOXICAT[illegible]”; to the right of which

“(500+75PF+35BA+18PA) 30 days” appears in handwriting; (3) “STOP OR

YIELD SIGN,” to the right of which appears “(20+18PA)” in handwriting; (4)


                                          3
“DRIVERS MUST BE LICENSED,” to the right of which “(25+18PA)” appears in

handwriting; and (5) “EXPIRED PLATES,” to the right of which “(25+18)” appears

in handwriting.

      At the top of the following page are at least two signatures, maybe three.

One signature has the word “Judge” printed underneath it. Although illegible,

another appears to be similar, but it is unclear why a judge would sign the

document twice.      Although difficult to read, the second signature is not

inconsistent with a stamped signature.         Nowhere is there a signature that

purports to be that of Appellant. At the bottom of the page is a certification by the

purported clerk of the municipal court certifying that “this is a true and correct

copy of the original document filed in the City of Hobbs Municipal Court on

___________,” but the date is blank. The date of the certification is August 7,

2008, weeks after the date of Appellant’s arrest in Denton County, Texas.

Nowhere does the purported judgment state that the defendant was tried to a jury

or waived a jury trial, nor does it state that the defendant was advised of his right

to counsel or waived his right to counsel.

      State’s Exhibit 5 contains a purported copy of another Hobbs, New Mexico

municipal court judgment. The purported judgment indicates that on December

18, 1997, Appellant pled guilty to DWI, also in Hobbs. As with State’s Exhibit 4,

the purported judgment in State’s Exhibit 5 contains unfilled blanks for the names

of Appellant’s attorney and of the attorney for the city.




                                          4
      In handwriting is a notation, “DWI–(500+75P[illegible]+65BA)–18PA).”

Underneath is the handwritten notation, “[E]xpired license–(25+12PA).”             A

checkmark next to a typed line indicates that defendant had entered a plea of

guilty and that “the court finds the defendant guilty of the following charges.” In

the blank next to the typed text is “DWI, Expired license” in handwriting. On that

same page is a certification providing that “this is a true and correct copy of the

original document filed in the City of Hobbs Municipal Court on ____________.”

A signature by a person purporting to be the municipal clerk then appears, and

underneath that a date of “8/7/08,” again, weeks after Appellant’s arrest in

Denton County, Texas.

      Another checkmark appears under a sentence stating, “IT IS THE

SENTENCE of this Court that the defendant pay a fine to the City of Hobbs in the

sum of 701 dollars ($701).” A signature of “Bill Fowler” fills a blank over “Judge”

appearing near the bottom of the page.          At the very bottom of the page,

“Attorney” followed by a name appears in handwriting, but there is no indication

who placed the notation on the document, when it was placed there, or what it

means. Nowhere does the purported judgment state that the defendant was tried

to a jury or waived a jury trial, nor does it state that the defendant was advised of

his right to counsel or waived his right to counsel.

      The third page of State’s Exhibit 5 is a separate document that purports to

be a waiver of counsel in the municipal court of Hobbs and that names Appellant

as the defendant, but the document bears no cause number. Beneath the title of


                                          5
the document, a typed notation provides, “(To be used only if, upon conviction,

the defendant may be deprived of his liberty).” No indication of the offense with

which the person is charged appears, although the text states,

      I understand that I am charged with a felony offense(s):
      ___________ (strike inapplicable words or parts) which (is) (are)
      (misdemeanor(s)) (felony(ies)) under the law and that if I am found
      guilty I can be given a severe punishment, including imprisonment in
      (the New Mexico State Penitentiary) (in the _________ (City)
      (County) jail) and a fine.

Nothing shows the case in which this purported waiver was entered, what

Appellant was purportedly charged with, or the date on which he purportedly

executed the document. And, although text underneath the signature purported

to be Appellant’s states, “I find that the defendant, knowingly, voluntarily and

intelligently with full awareness of his rights, has waived his right to counsel,” this

text is unaccompanied by any judge’s signature or date in the corresponding

blanks. Additionally, a line providing, “Approval for District,” also has a blank

signature line.

      Like the other pages in the exhibit, this page is also certified filed on an

unknown date in the Hobbs municipal court.

      Neither State’s Exhibit 4 nor State’s Exhibit 5 contains a fingerprint or a

photograph of the defendant. Both documents contain a date of birth for the

defendant of March 8, 1974.

      State’s Exhibit 6 purports to be from the Texas Department of Public

Safety.   The first two pages are certified on the third page.          Following the



                                          6
certification are two additional pages. The State urged the trial court to consider

the two additional pages. They contain a photograph of Appellant with a date of

birth of February 8, 1974, but no fingerprints. A Texas driving record included in

the exhibit shows an accumulation of points but no DWI conviction.

      Phillips testified that the March 8, 1974 birthdates appearing on the Hobbs

municipal court documents were “alias” dates of birth that Appellant used.

Phillips gave no basis for this testimony.

      Appellant objected to the admission of State’s Exhibit 4 on the ground that

the purported judgment was not entitled to a presumption of regularity because

the record was silent about whether Appellant had waived his right to an attorney

in that proceeding. He objected to State’s Exhibit 5 on the grounds that the

purported waiver of counsel was not approved by a judge and the record

contained no finding by a judge that Appellant had voluntarily and intelligently

waived his right to counsel. The trial court overruled Appellant’s objections and

admitted the exhibits into evidence outside the jury’s presence. The trial court

further ruled that Appellant would not be allowed to collaterally attack the

convictions. That is, although the enhancement allegations were elements of the

offense alleged, Appellant was not allowed to challenge the State’s evidence.

      The trial court allowed Appellant to make a bill of exceptions, and

Appellant testified that he did not have an attorney in the New Mexico

proceedings, that he did not have the money to hire an attorney, and that the trial

judge in those cases did not admonish him about his right to an attorney or that


                                         7
he could have an attorney appointed if he was indigent. Appellant testified that

he did not recall ever seeing the waiver of counsel form and did not sign anything

at either of his New Mexico court appearances. On cross-examination, Appellant

testified that Barry Crutchfield, the name that the prosecutor stated appears on

the bottom of the judgment in State’s Exhibit 5, had represented him when he

had been pulled over for driving with a revoked license but that Crutchfield did

not represent him in either of the DWI cases. Appellant concluded his bill and

again argued that he had the right to collaterally attack the judgments. The trial

court declined to change its position, and Appellant moved for a mistrial, which

the trial court denied.

      When the State rested, Appellant moved for a judgment of acquittal,

arguing that because the two purported New Mexico judgments were void, the

State had failed to prove that there had been two prior convictions. The trial

court denied Appellant’s motion. Appellant then asked the court to allow him “to

show that [he had] received an unfair trial” in the prior proceedings. The trial

court sustained the State’s objection that testimony to that effect was irrelevant

and inadmissible.

      During Appellant’s testimony, his attorney questioned him about his

representation and his guilt with respect to the New Mexico convictions.

Appellant testified that he was guilty in “the first case” and that he did not

challenge the accuracy of the judgment in “the first case” but that he was not

guilty “[o]n the second case.” Specifically, the following exchange occurred:


                                        8
Q.   Who was your lawyer?

A.   Didn’t have one.

      [PROSECUTOR]:         Objection, Your Honor, according to the
Court’s earlier ruling.

     THE COURT: Sustained.

       [DEFENSE COUNSEL]: It doesn’t show a lawyer on here; is
that correct, on this judgment?

      [PROSECUTOR]:         State objects.   This is a violation of the
Court’s earlier ruling.

     THE COURT: Sustained.

Q.    [By DEFENSE COUNSEL]             Mr. Gaddy, you pled guilty on
these, didn’t you?

A.   No contest.

Q.   Were you guilty, the first case?

A.   The first case, yes.

Q.   Were you driving a vehicle?

A.   Yes.

Q.    Now, this judgment’s accurate though, right?          You don’t
challenge it, do you?

A.   No.

Q.   On the second case were you guilty?

A.   No.

Q.   You’re sitting in the car smoking a cigarette?

      [PROSECUTOR]: Objection to getting outside the scope of
what the defense is allowed to get into with collateral facts.



                                   9
              [DEFENSE COUNSEL]: Well, Your Honor[,] he is allowed to
      testify to his convictions, surely.

             THE COURT: You’re aware of the Court’s rulings. . . .

             [DEFENSE COUNSEL]: I am.

             THE COURT: Then stay within those rulings.

             [DEFENSE COUNSEL]: I am staying within those rulings.

            [PROSECUTOR]: We would ask the jury be instructed to
      disregard the questions and the responses.

            THE COURT: The jury is instructed to disregard the questions
      and the responses.

      The State objected to Appellant’s “getting outside the scope of what the

defense is allowed to get into with collateral facts” and asked that “the jury be

instructed to disregard the questions and the responses.”           The trial court

sustained the State’s objections and instructed the jury “to disregard the

questions and the responses.”

      At the jury charge conference, Appellant requested that the jury be

instructed that if it concluded that Appellant had not waived his right to an

attorney with respect to the prior convictions, then it should not consider the prior

judgments as evidence. The trial court did not include the requested instruction.

The jury charge submitted instructed the jury that it should find Appellant guilty if

it found beyond a reasonable doubt that he was driving while intoxicated on June

14, 2008, and that he “had been twice convicted of the offense of [DWI], to wit:

(1) On the 23rd day of June, 1997, . . . [in] Hobbs County, [sic] New Mexico, and;



                                         10
(2) On the 18th day of December, 1997, . . . [in] Hobbs County, [sic]       New

Mexico,” although the indictment alleged that Appellant was previously convicted

in the municipal court of Hobbs, New Mexico.

      We take judicial notice that the city of Hobbs, New Mexico is in Lea County

and that no such county as Hobbs County exists in New Mexico.

II. The Enhancement Allegations

      Appellant argues that State’s Exhibits 4 and 5 were improperly admitted to

prove prior convictions because there is no indication that he had an attorney,

was properly admonished regarding his right to be represented by counsel, or

knowingly or voluntarily waived his right to be represented by counsel. He also

argues that the evidence is insufficient to support his felony DWI conviction

because the evidence is insufficient to show that he was twice previously

convicted of DWI in New Mexico as alleged in the indictment.

      The State must prove each and every element of the offense charged

beyond a reasonable doubt. 3 The offense of DWI enhanced by two previous

DWI convictions becomes a third degree felony. 4 The two prior DWI convictions

are jurisdictional elements of a felony DWI offense, and they must be proved as


      3
       Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989), overruled on
other grounds by Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991),
overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim.
App. 2000).
      4
      Tex. Penal Code Ann. § 49.09(b)(2) (Vernon Supp. 2010).



                                       11
alleged to obtain a felony DWI conviction. 5 A prior DWI accusation that has not

resulted in a final conviction may not be used as a jurisdictional enhancement to

elevate DWI to a felony offense. 6

      A defendant in a criminal case may collaterally attack a prior misdemeanor

conviction as void, but not voidable, 7 even if the sentence was probated. 8

Additionally, when, as here, a prior DWI conviction is alleged as an element of

the offense of felony DWI, the State bears the burden of proving each and every

element of its allegations beyond a reasonable doubt. A defendant has the right

to put the State to its proof and to challenge the evidence offered by the State.

The Texas Court of Criminal Appeals reminds us that “[p]roof of the

misdemeanor conviction being an essential element of the felony driving while

intoxicated conviction, it follows that the felony conviction is also void.    The

petitioner’s conviction . . . cannot be permitted to stand since a prior void felony

conviction was utilized.” 9



      5
       Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001).
      6
        State v. Wilson, 288 S.W.3d 13, 16 (Tex. App.—Houston [1st Dist.] 2008),
aff’d, 324 S.W.3d 595 (Tex. Crim. App. 2010).
      7
       Rhodes v. State, 240 S.W.3d 882, 887 (Tex. Crim. App. 2007); New v.
State, 583 S.W.2d 781, 782 (Tex. Crim. App. 1979).
      8
       Tatum v. State, 846 S.W.2d 324, 327 (Tex. Crim. App. 1993); see also Ex
parte Harrington, 310 S.W.3d 452, 456–57 (Tex. Crim. App. 2010).
      9
       Ex parte Woodard, 541 S.W.2d 187, 188 (Tex. Crim. App. 1976).



                                        12
      Although the State has some latitude in the method by which it may prove

the prior DWI convictions for the purpose of enhancing a misdemeanor DWI to a

felony, the State must, nevertheless, prove the existence and finality of the prior

convictions beyond a reasonable doubt. The only evidence that Appellant was

finally convicted in New Mexico in two separate cases of an offense that Texas

would classify as DWI is the documents that the State offered from the Hobbs,

New Mexico municipal court, the Texas driving record, Appellant’s testimony

(much of which the court held inadmissible and instructed the jury not to

consider), and the testimony of the State’s investigator.          No evidence was

admitted concerning New Mexico law.

      To support a conviction of felony DWI by using foreign DWI convictions for

enhancement, the State must prove the foreign DWI statute is essentially the

same as that of Texas. As the Texas Court of Criminal Appeals has explained,

      When a foreign conviction is involved, in absence of proof of the
      laws of the other state, this Court will presume that its law is the
      same as that of the State of Texas. In fact, in McKinney v. State, we
      applied such a presumption to the law of Kansas regarding juvenile
      offenders in absence of any contrary proof.

            When an out of state pen packet has been introduced as
      evidence of [a] prior criminal record at the punishment phase, the
      State, as proponent of evidence must establish, either by proof, or
      request that the trial court take judicial notice of, what our sister state
      considers sufficient documentary proof of a final conviction. In
      absence of such evidence or judicial notice, we will presume Kansas
      and Texas law is the same. 10
      10
         Langston v. State, 776 S.W.2d 586, 587–88 (Tex. Crim. App. 1989)
(internal citations omitted).



                                          13
         The Texas Court of Criminal Appeals relaxed this holding to some extent in

Flowers v. State, 11 citing rule 902(4) of the rules of evidence and pointing out that

rule 902 permits computer printouts under certain circumstances:

                Further, in this modern era of computer-stored data, electronic
         files, and “paperless” court records, the day may come in which
         written judgments are largely obsolete. For this reason, Rule 902 of
         the Texas Rules of Evidence explicitly allows for the self-
         authentication of certified copies of public records, “including data
         compilations in any form certified as correct” by their custodian. A
         computer-generated compilation of information setting out the
         specifics of a criminal conviction that is certified as correct by the
         county or district clerk of the court in which the conviction was
         obtained is admissible under Rule 902. 12

         Although evidentiary rule 902 permits computer printouts under certain

circumstances, those circumstances do not apply to the case now before this

court.        The documents in the challenged exhibits purport to be records of

something that occurred in municipal court.         The documents mention traffic

violations but are so deficient that we cannot tell what they are or what events

they seek to memorialize, if, indeed, they do.




         11
          220 S.W.3d 919 (Tex. Crim. App. 2007).
         12
        Id. at 922–23 (footnotes omitted); see also id. at 923 n.14 (distinguishing
Langston because it concerned the admission of a pen packet and explaining
that a “pen packet custodian cannot attest to the correctness” of “the original
judgment or data compilation relating to a defendant’s . . . conviction”).



                                          14
       Importantly, under Texas law, municipal courts have no jurisdiction over

DWI offenses. 13 Municipal courts in Texas have jurisdiction only over criminal

cases that are punishable by fine only and not by incarceration. 14 An initial

misdemeanor DWI, absent an open container, is a Class B misdemeanor and is

punishable by incarceration. 15

       Jurisdiction of misdemeanor DWI properly lies in county court. 16        The

Texas Code of Criminal Procedure provides,          “The county courts shall have

original jurisdiction of all misdemeanors of which exclusive original jurisdiction is

not given to the justice court, and when the fine to be imposed shall exceed five

hundred dollars.” 17 Because we presume that New Mexico law is the same as

Texas law, a defendant cannot be lawfully convicted of DWI in a municipal

court. 18

       13
         See Tex. Code Crim. Proc. Ann. art. 4.14 (Vernon Supp. 2010); Tex.
Gov’t Code Ann. § 29.003 (Vernon Supp. 2010); Tex. Dep’t of Pub. Safety v.
Hamilton, 304 S.W.2d 719, 722 (Tex. App.—Eastland), writ ref’d n.r.e., 157 Tex.
616, 306 S.W.2d 712 (1957); see also State v. Xoticas-Laredo, Inc., No. 04-03-
00584-CR, 2004 WL 33054, at *1 (Tex. App.—San Antonio Jan. 7, 2004, no pet.)
(mem. op., not designated for publication) (holding that municipal court lacked
jurisdiction over violation of municipal ordinance regulating sexually oriented
business because punishment included confinement).
       14
            Tex. Code Crim. Proc. Ann. art. 4.14.
       15
            Tex. Penal Code Ann. § 49.04(b).
       16
            Tex. Code Crim. Proc. Ann. art. 4.07 (Vernon 2005).
       17
            Id.
       18
            See Langston, 776 S.W.2d at 587–88.


                                           15
      It is well established law that jurisdiction cannot be created by waiver or by

agreement. 19 As the Texas Court of Criminal Appeals has explained,

      The void judgment exception recognizes that there are some rare
      situations in which a trial court’s judgment is accorded no respect
      due to a complete lack of power to render the judgment in question.
      A void judgment is a “nullity” and can be attacked at any time. If the
      original judgment imposing probation was void, then the trial court
      would have no authority to revoke probations, since, with no
      judgment imposing probation (because it is a nullity), there is nothing
      to revoke. . . .

             But a judgment is void only in very rare situations—usually
      due to a lack of jurisdiction. In civil cases, a judgment is void only
      when there was “no jurisdiction of the parties or property, no
      jurisdiction of the subject matter, no jurisdiction to enter a particular
      judgment, or no capacity to act as a court.” This rule is essentially
      paralleled in criminal cases. A judgment of conviction for a crime is
      void when (1) the document purporting to be a charging instrument
      (i.e. indictment, information, or complaint) does not satisfy the
      constitutional requisites of a charging instrument, thus the trial court
      has no jurisdiction over the defendant, [and] (2) the trial court lacks
      subject matter jurisdiction over the offense charged, such as when a
      misdemeanor involving official misconduct is tried in a county court
      at law . . . . 20

      Although State’s Exhibits 4 and 5 contain a sheet designated “Complaint,”

there is no charging instrument that complies with Texas law. This is not to say

that the State must offer the charging instrument in order to prove the legitimacy

of a lawful judgment. But under Texas law, a valid information is a prerequisite to


      19
        Puente v. State, 71 S.W.3d 340, 343 (Tex. Crim. App. 2002); Garcia v.
Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980) (orig. proceeding).
      20
        Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001) (footnotes
omitted).



                                         16
prosecution of misdemeanor DWI.21 An “information” is a written statement filed

and presented on behalf of the State by the district or county attorney, charging

the defendant with an offense which may by law be so prosecuted. 22              The

requisites of a valid information are statutory, but the requirement of the

information for the purpose of conferring jurisdiction and providing sufficient

notice to the defendant is constitutional. 23

      An information is sufficient if it has the following requisites:

            1. It shall commence, “In the name and by authority of the
      State of Texas”;

             2. That it appear to have been presented in a court having
      jurisdiction of the offense set forth;

             3.   That it appear to have been presented by the proper
      officer;

           4. That it contain the name of the accused, or state that his
      name is unknown and give a reasonably accurate description of him;

             5. It must appear that the place where the offense is charged
      to have been committed is within the jurisdiction of the court where
      the information is filed;

             6. That the time mentioned be some date anterior to the filing
      of the information, and that the offense does not appear to be barred
      by limitation;

             7. That the offense be set forth in plain and intelligible words;

      21
       Tex. Const. art. V, § 17; Bender v. State, 171 Tex. Crim. 628, 353
S.W.2d 39, 39 (Tex. Crim. App. 1962).
      22
        Tex. Code Crim. Proc. Ann. art. 21.20 (Vernon 2009).
      23
        Tex. Const. art. V, § 12(b); Tex. Code Crim. Proc. Ann. art. 21.21.



                                          17
             8. That it conclude, “Against the peace and dignity of the
       State”; and

               9. It must be signed by the district or county attorney,
       officially. 24

       A valid information must be based upon a sworn complaint:

              No information shall be presented until affidavit has been
       made by some credible person charging the defendant with an
       offense. The affidavit shall be filed with the information. It may be
       sworn to before the district or county attorney who, for that purpose,
       shall have power to administer the oath, or it may be made before
       any officer authorized by law to administer oaths. 25

       The purported complaints in State’s Exhibits 4 and 5 contain no jurat or

any other writing that would comply with the Texas requirement of an affidavit.

       Nothing in the record suggests that New Mexico law is different from that

of Texas; we therefore presume that they are the same. 26 We cannot conclude

from the documents that Appellant was properly convicted in New Mexico of

DWI.

       Nor do the New Mexico documents satisfy the requirements of Texas law

regarding the form and contents of a judgment in a criminal case or waiver of

counsel in a criminal case:

             Sec. 1. A judgment is the written declaration of the court
       signed by the trial judge and entered of record showing the
       conviction or acquittal of the defendant. The sentence served shall
       24
        Tex. Code Crim. Proc. Ann. art. 21.21.
       25
        Id. art. 21.22.
       26
        See Langston, 776 S.W.2d at 587–88.



                                        18
be based on the information contained in the judgment.               The
judgment shall reflect:

         1. The title and number of the case;

       2. That the case was called and the parties appeared, naming
the attorney for the state, the defendant, and the attorney for the
defendant, or, where a defendant is not represented by counsel, that
the defendant knowingly, intelligently, and voluntarily waived the
right to representation by counsel;

         3. The plea or pleas of the defendant to the offense charged;

     4. Whether the case was tried before a jury or a jury was
waived;

         5. The submission of the evidence, if any;

         6. In cases tried before a jury that the jury was charged by the
court;

       7. The verdict or verdicts of the jury or the finding or findings
of the court;

       8. In the event of a conviction that the defendant is adjudged
guilty of the offense as found by the verdict of the jury or the finding
of the court, and that the defendant be punished in accordance with
the jury’s verdict or the court’s finding as to the proper punishment;

      9. In the event of conviction where death or any punishment
is assessed that the defendant be sentenced to death, a term of
confinement or community supervision, or to pay a fine, as the case
may be;

      10. In the event of conviction where the imposition of
sentence is suspended and the defendant is placed on community
supervision, setting forth the punishment assessed, the length of
community supervision, and the conditions of community
supervision;

         11. In the event of acquittal that the defendant be discharged;




                                    19
      12. The county and court in which the case was tried and, if
there was a change of venue in the case, the name of the county in
which the prosecution was originated;

      13. The offense or offenses for which the defendant was
convicted;

      14. The date of the offense or offenses and degree of offense
for which the defendant was convicted;

      15. The term of sentence;

      16. The date judgment is entered;

      17. The date sentence is imposed;

      18. The date sentence is to commence and any credit for time
served;

       19. The terms of any order entered pursuant to Article 42.08
of this code that the defendant’s sentence is to run cumulatively or
concurrently with another sentence or sentences;

      20. The terms of any plea bargain;

      ...

     22. The terms of any fee payment ordered under Article
42.151 of this code;

       23. The defendant’s thumbprint taken in accordance with
Article 38.33 of this code;

      ...

      Sec. 2. The judge may order the prosecuting attorney, or the
attorney or attorneys representing any defendant, or the court clerk
under the supervision of an attorney, to prepare the judgment, or the
court may prepare the same.




                                  20
            Sec. 3. The provisions of this article shall apply to both felony
       and misdemeanor cases. 27

       The purported New Mexico judgments are wholly inadequate under Texas

law.

       The State argues that we must hold the evidence of Appellant’s prior DWI

convictions to be sufficient because he admitted that he was the person

convicted in the Hobbs municipal court in both cases, that the convictions were

final, and that he was guilty in one case. That is, the State argues that his

acquiescence to “this judgment’s accurate though, right? You don’t challenge it,

do you?” is sufficient to connect Appellant to the Hobbs offenses. Appellant

argues that neither the judgments nor any other document reflects any waiver of

attorney or of a jury trial and offered uncontroverted evidence at trial that he

waived neither.

       We do not understand Appellant to be challenging the sufficiency of the

connection of the Hobbs purported judgments to him.            We understand his

argument to be that the convictions are void. We also note, however, that the

trial court sustained the State’s objection to the testimony the State now relies on

and instructed the jury to disregard it. It therefore does not constitute admitted

evidence.




       27
        Tex. Code Crim. Proc. Ann. art. 42.01 (Vernon Supp. 2010).



                                        21
      “It is well settled that criminal defendants in misdemeanor cases are

entitled to counsel if there exists a possibility that imprisonment may be

imposed.” 28    Deprivation of the constitutional right to counsel renders a prior

misdemeanor DWI conviction void. 29 The Texas Court of Criminal Appeals has

noted that there are limited situations in which a judgment is void; among them is

the situation that occurs when “an indigent defendant is required to face criminal

trial proceedings without appointed counsel, when such has not been waived, in

violation of Gideon v. Wainwright.” 30

      The Texas Court of Criminal Appeals has also spoken of the importance of

jury waivers:     A defendant’s absolute right to jury trial is guaranteed by the

federal constitution, the state constitution, and statutory law. 31 “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury.” 32 “The right of trial by jury shall remain inviolate.” 33 “As a matter



      28
        Empy v. State, 571 S.W.2d 526, 527 (Tex. Crim. App. 1978) (relying on,
among other authorities, Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006
(1972)).
      29
           Woodard, 541 S.W.2d at 188.
      30
        Smith v. State, 309 S.W.3d 10, 17–18 (Tex. Crim. App. 2010) (citation
omitted) (quoting Nix, 65 S.W.3d at 668).
      31
       Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009); see also
U.S. Const. amend. VI; Tex. Const. art. I, § 15; Tex. Code Crim. Proc. Ann. art.
1.12 (Vernon Supp. 2010).
      32
           U.S. Const. amend. VI; Hobbs, 298 S.W.3d at 197 n.4.



                                          22
of federal constitutional law, the State must establish, on the record, a

defendant’s express, knowing, and intelligent waiver of jury trial.” 34 Article 1.13

of the Texas Code of Criminal Procedure provides the requisites for a jury trial

waiver in Texas:

      The defendant in a criminal prosecution . . . shall have the right,
      upon entering a plea, to waive the right of trial by jury, conditioned,
      however, that such waiver must be made in person by the defendant
      in writing in open court with the consent and approval of the court,
      and the attorney representing the State. 35

      Appellant argues that waiver of counsel cannot be presumed from a silent

record, relying on Burgett v. Texas. 36     Of course, a salient question is what

constitutes a silent record. It is not simply a matter of determining whether the

State produces the actual waivers in seeking to prove a prior conviction for

enhancement purposes.       Rather, we first look to the State’s proof of a valid

judgment to determine whether the State has presented evidence that is entitled

to a presumption of regularity. 37      If it has, the burden shifts to the party

challenging the validity of the alleged prior conviction. 38 If the evidence offered is

      33
        Tex. Const. art. I, § 15; Tex. Code Crim. Proc. Ann. art. 1.12 (Vernon
2005); Hobbs, 298 S.W.3d at 197 n.4.
      34
        Hobbs, 298 S.W.3d at 197.
      35
        Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon 2005).
      36
        389 U.S. 109, 114–15, 88 S. Ct. 258, 262 (1967).
      37
        Breazeale v. State, 683 S.W.2d 446, 450–51 (Tex. Crim. App. 1984).
      38
        Id.



                                          23
not entitled to a presumption of regularity, or if the evidence does not state

whether there has been waiver, the burden does not shift but remains with the

proponent of the evidence. 39       The Texas Court of Criminal Appeals has

explained the interplay between the presumption of regularity and the burden of

proving waiver of a statutory or constitutional right:

      [I]n Samudio v. State, where the defendant was convicted of a
      misdemeanor offense, the formal judgment in that cause only
      contained the following recitation:         “No jury having been
      demanded . . . [.]” This Court agreed with the decision of the court of
      appeals in that cause that this recitation was insufficient to establish
      that the defendant had waived his right to trial by jury. Samudio,
      however, emphatically distinguished between the absence in the
      record of a demand for a jury trial and an affirmative waiver thereof,
      and held that such could be challenged on direct appeal. Because
      of the difference in the wording of the judgments in the causes
      before us, and the judgment in Samudio, Samudio is inapplicable to
      this cause.

            The recitation in the judgments of these causes complies with
      the provisions of Art. 42.01, which defines the legal term “judgment,”
      and what should be placed in the formal judgment.

              ....

             . . . [T]his Court will indulge every presumption in favor of the
      regularity of the documents in the trial court. This means that the
      recitations in the records of the trial court, such as a formal
      judgment, are binding in the absence of direct proof of their falsity.
      In this instance, neither appellant has ever attacked or challenged
      the truthfulness of the recitation that is found in each of their formal
      judgments. They rely in support of their contention, that they did not
      formally waive a trial by jury, on the absence of any such document
      in their respective appellate record. This, of course, is insufficient to
      overcome the presumption that the recital in a formal judgment, that

      39
        Id.



                                          24
      the defendant formally waived his right to trial by jury is true, and that
      such presumption attains until and unless the contrary is made to
      appear.

              While it is true that a silent record cannot support a
      presumption that the defendant formally waived his right to trial by
      jury, it is equally certain that the formal judgment of the trial court
      carries with it a presumption of regularity and truthfulness, and such
      is never to be lightly set aside. 40

      Additionally, article 1.051(f) of the code of criminal procedure requires that

waiver of counsel in a case in which incarceration is a possibility be in writing. 41

That statute also sets out the requirements of the written waiver:

             (g) If a defendant wishes to waive the right to counsel for
      purposes of entering a guilty plea or proceeding to trial, the court
      shall advise the defendant of the nature of the charges against the
      defendant and, if the defendant is proceeding to trial, the dangers
      and disadvantages of self-representation. If the court determines
      that the waiver is voluntarily and intelligently made, the court shall
      provide the defendant with a statement substantially in the following
      form, which, if signed by the defendant, shall be filed with and
      become part of the record of the proceedings:

                    “I have been advised this ______ day of
             __________, 2 ____, by the (name of court) Court of
             my right to representation by counsel in the case
             pending against me. I have been further advised that if
             I am unable to afford counsel, one will be appointed for
             me free of charge. Understanding my right to have
             counsel appointed for me free of charge if I am not
             financially able to employ counsel, I wish to waive that
             right and request the court to proceed with my case




      40
        Id. (citations omitted).
      41
        Tex. Code Crim. Proc. Ann. art. 1.051(f) (Vernon Supp. 2010).



                                         25
             without an attorney being appointed for me. I hereby
             waive my right to counsel. (signature of defendant)[.]” 42

      Appellant’s testimony that no such warning occurred is uncontroverted.

There is no evidence that the trial court made the required finding, and there is

no evidence that Appellant was represented by counsel in the Hobbs, New

Mexico municipal court. The purported judgments, in fact, support Appellant’s

testimony that he was not represented by counsel because the portion of the

document relating to counsel is blank.

      The State argues that none of this is of any importance because Appellant

did not “preserve and present the reporter’s records of the New Mexico

proceedings.” Again, no one offered proof of New Mexico law, and we have not

been asked to take judicial notice of New Mexico law. We therefore presume

that it is the same as Texas law, which has been discussed by our sister court in

Texarkana:

             A municipality may choose to have either a “municipal court”
      or a “municipal court of record,” but not both. A primary distinction
      between these types of municipal courts is that a “municipal court”
      established under Section 29.002 of the Texas Government Code is
      not a court of record. Thus, an appeal from such a municipal court is
      necessarily by trial de novo because there is no “trial record” for the
      county court to consider on appeal. 43




      42
       Id. art. 1.051(g).
      43
       Tex. Vital Care v. State, 323 S.W.3d 609, 610 n.2 (Tex. App.—
Texarkana 2010, no pet.) (citations omitted).



                                         26
      We note that the record before us includes an indication that, under Texas

law, the Hobbs municipal court is not a court of record. The purported judgment

in each case advises the defendant that “YOU MAY HAVE A NEW TRIAL IN

THE DISTRICT COURT BY FILING A NOTICE OF APPEAL WITHIN 15 DAYS

FROM THE DATE OF ENTRY OF THIS JUDGMENT AND SENTENCE.” Under

Texas law, appeals from municipal courts of record are appeals on the record

only. Appeals from municipal courts, as opposed to municipal courts of record,

are trials de novo. 44

      Nevertheless, the face of the judgment is presumed to speak the truth

unless rebutted. 45      Each judgment shows that Appellant’s lawyer was

___________________. If we take the recitations of the purported judgments as

true, Appellant was not represented by counsel and there is no statement that he

waived a jury trial. Nothing in the purported judgments suggests that he was

advised of his right to counsel or to a jury trial or that he waived those rights. The

sole document that purports to be a waiver of counsel does not comply with

Texas law. Additionally, not only do the purported judgments in the case now

before this court fail to contain the statement required in Texas judgments

regarding the right to trial by jury: “Whether the case was tried before a jury or a

jury was waived,” the form used for both purported judgments does not contain a

      44
        See id.
      45
        See Breazeale, 683 S.W.2d at 450–51.



                                         27
provision for any jury trial at all. It provides only for a court’s determination of

guilt on a plea of guilty, not guilty, or nolo contendere.

      The issue in this case is not whether the State sufficiently connected the

purported Hobbs municipal judgments to Appellant; the issue is whether the

purported judgments are sufficient to satisfy the requirements of section

49.09(b)(2). 46

      Based on all the above, we hold that the State did not satisfy its burden of

proving either alleged prior New Mexico DWI conviction beyond a reasonable

doubt. We sustain Appellant’s second issue.

III. Disposition

      The State proved the underlying Denton County, Texas, misdemeanor

DWI, and Appellant does not challenge the sufficiency of the evidence to support

that conviction except as to the enhancement allegations. In a case in which the

appellant was convicted of an offense and the appellate court determines that the

evidence is insufficient to support the conviction for that offense but sufficient to

support a conviction for a lesser included offense, the appellate court lacks

authority to modify the judgment unless (1) the jury was instructed on the lesser

included offense at trial or (2) one of the parties requested an instruction on the




      46
        Tex. Penal Code Ann. § 49.09(b)(2).



                                          28
lesser included offense and the request was denied. 47 Appellant argues that

because the jury was not instructed on the lesser included offense of

misdemeanor DWI, we must enter a verdict of acquittal.

      During the charge conference at the guilt phase of the trial, the following

exchange occurred:

              [DEFENSE COUNSEL]: The Judge of the Court has an
      obligation to provide a[n] instruction to the jury that is in compliance
      with the law. The proposed Charge of the Court that I’ve been given
      fails in a number of things.

              The first is that it has a general verdict on the back, guilty or
      not guilty. The Court actually poses a burden on the State in a DWI
      trial to prove prior convictions beyond a reasonable doubt. All the
      indictment shows is a misdemeanor offense of driving while
      intoxicated, which would have to have enhancement. If you were
      pleading to this, you would ask them as to the enhancement
      charges: How do you plead: True or untrue? It’s done every day.
      To the enhancement: How do you plead: True or untrue? Because
      that’s necessary, two different parts.

             The instructions we’ve been given here contains instructions
      about, A, the DWI portion of the trial, and then—and then if you
      further find 1 and 2 on these indictments. You do not give the jury a
      form to find 1 or 2 as true, and that is the fundamental flaw of this
      charge. And if they do not find true on 1 or 2 as raised by the
      evidence in this case, then there would be a lesser-included offense
      of misdemeanor DWI.

             So by finding him guilty on the final verdict here, you’re telling
      them you’ve got to find these are true, but you do not give them the
      opportunity to say untrue. And they could find untrue on that but
      guilty of DWI.


      47
        Haynes v. State, 273 S.W.3d 183, 184–85 (Tex. Crim. App. 2008); Herrin
v. State, 125 S.W.3d 436, 443–45 (Tex. Crim. App. 2002).



                                         29
            THE COURT: Your response?

             [PROSECUTOR]: These are not enhancement paragraphs,
      but jurisdictional prayers. I believe it’s proper to include them this
      way in an application paragraph because we are required to prove
      the prior convictions beyond a reasonable doubt.

            [DEFENSE COUNSEL]: I don’t disagree with that.

           [PROSECUTOR]: And leave it to the Court’s discretion as to
      whether or not a lesser-included would be in the Jury Charge.

            However, Defendant took the stand, he admitted he was the
      same person convicted of both of those. So I don’t think we have
      evidence that would support a lesser-included.

            [DEFENSE COUNSEL]: The problem with this is: They have
      introduced evidence which does not show waiver of a trial by jury. It
      does not show he had a lawyer. And the jury may say, we don’t care
      about this. It’s within their purview to say, We don’t find the
      evidence is sufficient to convince us. I don’t care if he got up here
      and said, Yeah, I was the guy that did it or not. They might still find
      the other way.

            There is no such thing as to instruct a verdict of guilty which is
      what she’s asking you to do here. That’s my objection to the Charge
      and the general Verdict Form.

      The question presented is whether Appellant’s objecting that the jury was

not given the opportunity to determine whether the individual jurisdictional

enhancement allegations were true or not true was, as the State now suggests, a

request for an instruction on the lesser included offense of misdemeanor DWI.

Nowhere below did Appellant specifically request a charge on misdemeanor

DWI, and his two rejected written requests for instructions concern the two

enhancements, not a request for an instruction on a lesser included

misdemeanor DWI. The State responded to Appellant’s objections below that


                                        30
the prior DWIs were not alleged as traditional enhancement allegations but as

jurisdictional prerequisites. The State also did not request an instruction on a

lesser included misdemeanor DWI but in fact stated that such an instruction

would be in the trial court’s discretion and that the evidence would not support it.

We therefore hold that neither party requested a jury instruction of misdemeanor

DWI.

       Accordingly, because an instruction on Class B misdemeanor DWI was

neither requested nor given, we reverse the trial court’s judgment and render

judgment of acquittal.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

GABRIEL, J. filed a concurring opinion in which WALKER, J. joins.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 19, 2011




                                        31
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00347-CR


JEROMY GADDY                                                        APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

                                    ----------

     CONCURRING MEMORANDUM OPINION 1 ON STATE’S
         PETITION FOR DISCRETIONARY REVIEW

                                    ----------

      Appellant collaterally attacked foreign convictions alleged by the State to

enhance a driving while intoxicated (DWI) offense to a felony and to invoke the

district court’s jurisdiction. By doing so, Appellant had the burden to show that

they cannot be used for enhancement. Tate v. State, 120 S.W.3d 886, 888 (Tex.


      1
       See Tex. R. App. P. 47.4.
App.––Fort Worth 2003, no pet.). The narrow issue in this case is whether he

has met his burden. I concur because I agree that he has.

      No evidence of New Mexico law was introduced in this case so we

presume Texas law applies. See Langston v. State, 776 S.W.2d 586, 587 (Tex.

Crim. App. 1989); Acosta v. State, 650 S.W.2d 827, 828 (Tex. Crim. App. 1983).

Article 42.01 of the Texas Code of Criminal Procedure sets forth what should be

shown in a judgment. Tex. Code Crim. Proc. Ann. art. 42.01 (Vernon Supp.

2010); Acosta, 650 S.W.2d at 828. Among the things to be reflected are the

names of the attorneys for the State and the defendant and, if the defendant is

not represented by any counsel, “that the defendant knowingly, intelligently, and

voluntarily waived the right to representation by counsel.” Tex. Code Crim. Proc.

Ann. art. 42.01, § 1(2); Acosta, 650 S.W.2d at 828. Also, the waiver of a jury is

to be reflected in the judgment. Tex. Code Crim. Proc. Ann. art. 42.01, § 1(4);

Acosta, 650 S.W.2d at 828.

      It is well settled that an appellant’s testimony, standing alone, is insufficient

to show that he neither had nor waived representation by counsel. Disheroon v.

State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985). In Disheroon, the court of

criminal appeals held that the “‘appellant’s testimony alone was not sufficient to

disprove the recitations in court papers proffered by the State.’” Id. (quoting

Maddox v. State, 591 S.W.2d 898, 902 (Tex. Crim. App. 1979), cert. denied, 447

U.S. 909 (1980)).    This case is unlike either Disheroon or Maddox because

Appellant’s testimony was not offered to disprove the recitations in the New


                                          2
Mexico judgments. Appellant’s testimony did not stand alone but instead was

supported by the fatal inadequacies apparent from the documents themselves

that were offered by the State to prove the prior convictions.

       State’s Exhibit 4 fails on its face to meet the requirements of article 42.01

because it does not include the name of the attorneys for either the prosecution

or the defense; does not state whether the defendant knowingly, intelligently, and

voluntarily waived his right to counsel; and does not state whether the defendant

waived his right to a jury trial. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1(2),

(4).   The document is shockingly inadequate and, together with Appellant’s

testimony that he was not represented by counsel, is evidence that he was

without counsel at the time he entered his plea.

       State’s Exhibit 5 is similarly deficient. It consists of three pages, which the

State’s attorney represented to the trial court were attached to each other. The

first page is entitled “Judgment and Sentence (Commitment or Probation).” It

has blanks where the names of the prosecuting attorney and any defense

attorney should appear. No waiver of counsel or waiver of jury trial appears on

its face. See id. The second page is an unnumbered criminal complaint. The

third page is entitled “Waiver of Counsel.” It is essentially a blank check in that it

has no case number, identifies no offense, and has a blank space for a judge’s

signature below the words, “I find that the defendant, knowingly, voluntarily and

intelligently with full awareness of his rights, has waived his right to counsel.”




                                          3
Again, the document itself buttresses Appellant’s testimony that he had no lawyer

when he entered his plea.

      The United States Supreme Court has held it impermissible to presume

waiver of counsel from a silent record: “The record must show, or there must be

an allegation and evidence which show, that an accused was offered counsel but

intelligently and understandingly rejected the offer. Anything less is not waiver.”

Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890 (1962). And, as

pointed out by the State in its petition for discretionary review, in Tate we held

that a defendant collaterally attacking a judgment based on the absence of a jury

waiver could meet his burden by introducing the entire record from the prior

conviction. Tate, 120 S.W.3d at 890. Citing Tate, the State writes, “Even the

Fort Worth Court of Appeals has held that an appellant who fails to present the

entire record of the out-of-state proceeding has not met his burden of proof.”

This, however, cuts our holding short. What we actually wrote in Tate was the

following: “Because appellant failed to introduce the entire record from the prior

conviction or any evidence that he did not waive his right to a jury trial, he failed

to meet his burden.” Id. (emphasis added).

      The record in this case establishes that Appellant met his burden of proof

to show by his testimony and, most convincingly, by the documents themselves

that these judgments fail to meet the requirements of the Texas Code of Criminal

Procedure. The prior convictions are elements of felony DWI, which the State

must prove at trial. Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001);


                                         4
Alami v. State, 333 S.W.3d 881, 891 (Tex. App.––Fort Worth 2011, no pet.). The

State’s evidence is insufficient. For these reasons I respectfully concur in the

original holding in this case.



                                                 LEE GABRIEL
                                                 JUSTICE

WALKER, J. joins.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 19, 2011




                                       5
