



 







In The
Court of Appeals
For The
First District of Texas
____________

NO.  01-02-00117-CR
____________

TRACY LEE ST. CLAIR., Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 01CR0799 




O P I N I O NA jury found appellant, Tracy Lee St. Clair, guilty of the felony offense of
driving while intoxicated (DWI), and assessed punishment at two years’ confinement. 
In two points of error, appellant challenges the legal sufficiency of the evidence
supporting his conviction.  We affirm.Standard of Review
          In reviewing the legal sufficiency of the evidence, we view the evidence in the
light most favorable to the verdict to determine if any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.  King v. State,
29 S.W.3d 556, 563 (Tex. Crim. App. 2000).
DWI
          A person commits the offense of DWI if the person is intoxicated while
operating a motor vehicle.  Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003).  Section
49.09(b) provides that a DWI defendant may be tried as a felon if he has two prior
convictions for DWI.  Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon 2003).  The prior
intoxication-related offenses are elements of the offense of felony DWI.  Gibson v.
State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999).  Section 49.09(e) contains a
remoteness limitation that requires one of the prior convictions to have been
committed within 10 years of the offense for which the defendant is on trial.  Tex.
Pen. Code Ann. § 49.09(e)(1-2) (Vernon 2003).
          Appellant argues that the State presented legally insufficient evidence of felony
DWI because (1) there was no evidence that one of the two prior DWI convictions
was for an offense committed within 10 years of the date the instant offense, and (2)
one of the alleged convictions upon which the State relied to enhance the instant
offense was not a final conviction.  The State contends that because appellant
stipulated to the two previous DWI convictions, it was not required to produce the
evidence appellant now claims is insufficient.  A close examination of the record
reveals that, although appellant stipulated that he was the individual named in State’s
Exhibit 2 and 3, he did not stipulate that he had two prior DWI convictions.  The
following discussions occurred on the record before trial:
[Counsel for the State]: Your Honor, I believe we have two
stipulations.
The Court: These stipulations relate to what?
[Counsel for the State]: The judgments of the prior
convictions of DWI that are alleged in the indictment or the
actual judgments.  He is stipulating that he is the individual
that has been convicted.  He is stipulating that he’s been
twice convicted of DWI.
The Court: Does that stipulation go to the judgments
themselves?
[Defense Counsel]: Right.  When he enters them, I’m not
going to say that isn’t him.
The Court: Then the stipulation is more specifically that
you will stipulate that the man named in the judgments that
the State intends to introduce showing the previous
convictions alleged in the indictment, that you will
stipulate to the identity, that that is the same person who
was convicted.
[Defense Counsel]: That’s correct.
 
When the State introduced State’s Exhibits 2 and 3 into the record counsel for the
State said the following, 
For the record, it’s my understanding that the defense will
stipulate to the fact that in State’s No. 2 Tracy Lee St. Clair
[appellant] is one and the same Tracy Lee St. Clair who’s
the defendant in this particular case.  And in State’s No. 3
the Tracy Lee St. Clair on that judgment is also one and the
same Tracy St. Clair that’s the defendant in this case. 
 
Appellant stipulated that he was the person named in the documents, but did not
stipulate that he had been convicted of DWI on two previous occasions.  Appellant’s
stipulation did not relieve the State of its burden of proof.  Therefore, we consider
each of appellant’s arguments in turn.
          In his first point of error, appellant contends that the State failed to prove that
appellant committed an intoxication offense within 10 years of the date the present
offense was committed.  The State introduced evidence that appellant was convicted
of a DWI offense that was committed on May 30, 1986.  The State also introduced
evidence that appellant was convicted of a DWI offense on August 24, 1994. 
Appellant argues that because State’s Exhibit 2 is a conviction that is more than 10
years old and because State’s Exhibit 3 does not include the date the offense was
committed, the evidence was insufficient to prove that he committed an intoxication
offense within 10 years of committing the present offense.
          The Court of Criminal Appeals has held that because section 49.09(e) is not an
element of the offense, the State need not submit proof of the intervening conviction
to the jury.  Weaver v. State, 87 S.W.3d 557, 561 (Tex. Crim. App. 2002); see also,
Bowers v. State, 77 S.W.3d 514, 518 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d).  However, at some point during its case-in-chief, the State must submit proof
of the intervening conviction to the trial court.
 Weaver, 87 S.W.3d at 561.  By
introducing evidence of two prior convictions, the State complied with the
requirements of section 49.09(e).
          If the State had attempted to use a stale DWI conviction in an enhancement
paragraph, appellant could have moved to quash the indictment.  Bowers, 77 S.W.3d
at 518. At trial, appellant’s remedy would have been to timely object, based on
section 49.09(e), to the admission of the convictions and/or request an instruction on
the lesser included offense of misdemeanor DWI.  Id.  Appellant took none of the
above actions.  
          We, therefore, overrule appellant’s first point of error.
          In his second point of error, appellant contends that the State presented legally
insufficient evidence of felony DWI because State’s Exhibit 3 is not a final
conviction.  State’s Exhibit 3 consists of a plea form, a commitment paper, and a
docket sheet.  The plea form indicates that appellant pled nolo contendere.  A plea of
nolo contendere has the same legal effect as a plea of guilty.
 Tex. Code Crim.
Proc. Ann. art. 27.02(5) (Vernon Supp. 2003).  The commitment paper indicates that
on August 25, 1994, judgment was rendered against appellant, and it commands
appellant to pay $500 and serve 90 days in the county jail.  The docket sheet contains
similar information.  From this evidence, we conclude that a rational trier of fact
could have found beyond a reasonable doubt that appellant  was finally convicted of
a DWI in August of 1994.  
          We, therefore, overrule appellant’s second point of error.  
Conclusion
          The trial court’s judgment is affirmed.
                                                                        /s/
                                                                        Adele Hedges
                                                                        Justice
Panel consists of Justices Hedges, Jennings, and Alcala.
Publish.
