                                                                         ACCEPTED
                                                                    03-14-00729-CR
                                                                           4042749
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                                2/5/2015 4:04:58 PM
                                                                  JEFFREY D. KYLE
                                                                             CLERK
              No. 03-14-00729-CR
                    IN THE
             COURT OF APPEALS                  FILED IN
                                        3rd COURT OF APPEALS
 OF THE THIRD SUPREME JUDICIAL DISTRICT     AUSTIN, TEXAS
 ____________________________________________
                                        2/5/2015 4:04:58 PM
                                               JEFFREY D. KYLE
            CLIFTON CARL LAMAR,                     Clerk
                  Appellant,

                       v.

               STATE OF TEXAS
 ____________________________________________

             Appeal in Cause No. 72785
            in the 264th District Court of
                 Bell County, Texas
 _____________________________________________

BRIEF FOR APPELLANT CLIFTON CARL LAMAR
 _____________________________________________




                            JOHN A. KUCHERA
                            210 N. 6th St.
                            Waco, Texas 76701
                            (254) 754-3075
                            (254) 756-2193 (facsimile)
                            SBN 00792137
                            johnkuchera@210law.com
                            Attorney for Appellant
                   Identity of Judge, Parties, and Counsel

Honorable Martha J. Trudo, 264th District Court, P.O. Box 324, Belton, Texas
76513; Trial Judge

Terry E. Clark, Assistant District Attorney, Bell County, Texas, P.O. Box 540,
Belton, Texas 76513; State’s Trial Counsel

Jon McDurmitt, P.O. Box 855, Belton, Texas 76513, Appellant’s Trial Counsel

Bob D. Odom, Assistant District Attorney, P.O. Box 540, Belton, Texas 76513,
State’s Appellate Counsel

John A. Kuchera, 210 N. 6th St., Waco, Texas, 76701, Appellant’s Appellate
Counsel

Clifton Carl Lamar, Appellant, TDCJ # 01965079, Hutchins State Jail, 1500 East
Langdon Road, Dallas, Texas 75241




                                                                              ii
                                  Table of Contents
                                                                              Page
Identity of Parties and Counsel                                               ii

Table of Contents                                                             iii-iv

Index of Authorities                                                          v-ix

Issues Presented                                                              x

Statement of the Case                                                         2

Statement of Facts                                                            2-3

Summary of the Argument                                                       4

Argument and Authorities

  1. The trial court erred in accepting Lamar’s guilty plea because the       5-21
   evidence offered by the State in support of the plea was insufficient to
   satisfy article 1.15 of the Code of Criminal Procedure.

   (a) Felony DWI                                                             5-6
   (b) Lamar’s plea papers                                                    6-7
   (c) Article 1.15 and standard of review                                    7-8
   (d) Article 1.15 methods of proof                                          9
   (e) Defendant’s sworn written statement admitting his culpability or       9-10
       acknowledging that allegations in the charging instrument are true
       and correct
   (f) Defendant may testify under oath in open court admitting his           11-13
       culpability or acknowledging that allegations in the charging
       instrument are true and correct
   (g) Defendant consents to proffer of evidence in documentary form          13-14
   (h) Defendant consents to an oral or written stipulation of what           14-16
       evidence against him would be
   (j) Jones v. State                                                         16-20
   (k) Only evidence from the guilty plea proceeding can cure article         20
       1.15 proof deficiencies
   (l) Summary                                                                20-21


                                                                                       iii
 2. Alternatively, assuming arguendo that Lamar’s sentencing evidence           21-24
   can be used to satisfy article 1.15, the evidence established at most that
   he had only one prior DWI conviction.
   (a) Article 1.15 and sentencing/punishment evidence                          21
   (b) Lamar’s indictment                                                       22
   (c) Sentencing testimony                                                     22-23
   (d) Lamar’s enhancement DWI conviction cannot serve as a                     23-24
       jurisdictional prior
   (e) Remedy                                                                   24


 3. Alternatively, Lamar did not plead True to the alleged jurisdictional       25-27
   prior DWI convictions.

   (a) Analysis                                                                 26
   (b) Remedy                                                                   26-27


 4. The written judgment should be corrected to reflect that Lamar did not 27
   plead guilty pursuant to a plea bargain.


Prayer for Relief                                                               27-28

Certificate of Service                                                          29

Certificate of Compliance                                                       30




                                                                                     iv
                                         Table of Authorities

                                                                                                      Page(s)

Cases
Alexander v. State,
   No. 03-95-00362-CR, 1997 WL 45127 (Tex.App.—Austin Feb. 6,
   1997, pet. ref’d) (unpublished) ........................................................................... 19
Ayers v. Target Nat. Bank,
   No. 14-11-00574-CV, 2012 WL 3043043 (Tex. App.—Houston
   [14th Dist.] July 26, 2012, no pet.) ..................................................................... 13

Baggett v. State,
  342 S.W.3d 172 (Tex.App. – Texarkana 2011, no pet.)....................................... 7
Bass v. State,
  160 S.W.3d 604 (Tex.App.—Waco 2005, no pet.) ............................................ 25
Beaty v. State,
  466 S.W.2d 284 (Tex. Crim. App. 1971) ........................................................... 10
Bender v. State,
  758 S.W.2d 278 (Tex. Crim. App. 1988) ............................................................. 8

Bisby v. State,
   907 S.W.2d 949 (Tex.App.—Fort Worth 1995, pet. ref’d) ................................ 19

Bowen v. State,
  374 S.W.3d 427 (Tex. Crim. App. 2012) ........................................................... 24

Britain v. State,
   412 S.W.3d 518 (Tex. Crim. App. 2013) .....................................................24, 26

Bryant v. State,
   187 S.W.3d 397 (Tex. Crim. App. 2005) ........................................................... 15
Chavis v. State,
  No. 08-10-00025-CR, 2011 WL 3807747 (Tex.App.—El Paso
  Aug. 26, 2011, pet. ref’d) (unpublished) ............................................................ 10



                                                                                                               v
Chindaphone v. State,
  241 S.W.3d 217 (Tex.App.—Fort Worth 2007, pet. ref.) .................................. 10
Degay v. State,
  455 S.W.2d 205 (Tex. Crim. App. 1970) ........................................................... 10

Dinnery v. State,
   592 S.W.2d 343 (Tex. Crim. App. 1979) (op. on reh’g) ..............................17, 18

Garza v. State,
  996 S.W.2d 276 (Tex.App.—Dallas 1999, pet. ref’d)........................................ 14

Harris v. State,
  204 S.W.3d 19. 27-28 (Tex.App.—Houston [14th Dist.] 2006), pet.
  ref’d ....................................................................................................................... 5
Hatton v. State,
  No. 03-06-00453-CR, 2007 WL 924741 (Tex.App.—Austin Mar.
  27, 2007, pet. ref’d, untimely filed) .................................................................... 21

Hill v. State,
   No. 07-10-00281-CR, 2010 WL 4478389 (Tex.App. – Amarillo
   Aug. 31, 2011, pet. ref’d) (not designated for publication) ................................ 21

Jackson v. State,
   139 S.W.3d 7 (Tex.App.—Fort Worth 2004, pet. ref’d) .................................... 14

Jones v. State,
   373 S.W.3d 790 (Tex.App.—Houston [14th Dist.] 2012, no pet.) .................... 21

Jones v. State,
   857 S.W.2d 108 (Tex.App.—Corpus Christi 1993, no pet.) ........................16, 18

Killion v. State,
   503 S.W.2d 765 (Tex. Crim. App. 1973) ........................................................... 10

King v. State,
   No. 12-12-00020-CR, 2013 WL 2407198 (Tex.App.—Tyler May
   31, 2013, no pet.) ................................................................................................ 11

Knight v. State,
  481 S.W.2d 143 (Tex. Crim. App. 1972) .....................................................13, 17


                                                                                                                              vi
Lambert v. Lambert,
  No. 05-08-00397-CV, 2009 WL 1493009 (Tex.App.—Dallas May
  29 2009, no pet.) ................................................................................................. 14

Ex parte Martin,
   747 S.W.2d 789 (Tex.Crim.App.1988) ................................................................ 8

Martin v. State,
  200 S.W.3d 635 (Tex.Crim.App.2006) ................................................................ 5
McClain v. State,
  730 S.W.2d 739 (Tex. Crim. App. 1987) (en banc) ............................................. 7

Menefee v. State,
  287 S.W.3d 9 (Tex. Crim. App. 2009) .............................. 7, 9, 11, 12, 16, 17, 20
Messer v. State,
  729 S.W.2d 694 (Tex. Crim. App. 1986) ........................................................... 15
Potts v. State,
   571 S.W.2d 180 (Tex. Crim. App. 1978) ........................................................... 17
Pritchett v. State,
   733 S.W.2d 661 (Tex.App.—San Antonio 1987, no pet.) ................................. 15

Ricondo v. State,
   Ricondo v. State, 634 S.W.2d 837, 840 (Tex. Crim. App. 1982) ....................... 25

Rodriguez v. State,
  375 S.W.2d 289 (Tex. Crim. App. 1964) ........................................................... 18
Rodriguez v. State,
  442 S.W.2d 376 (Tex. Crim. App. 1968) ........................................................... 18

Rosenkrans v. State,
  758 S.W.2d 388 (Tex.App.—Austin 1988, pet. ref’d) .................................14, 15

Scott v. State,
   80 S.W.3d 184 (Tex.App.—Waco 2002, pet. ref’d) .......................................... 19

Sexton v. State,
   476 S.W.2d 320 (Tex. Crim. App. 1972) .....................................................11, 17


                                                                                                                     vii
Smith v. State,
  158 S.W.3d 463 (Tex. Crim. App. 2005) (en banc) ........................................... 15
Smith v. State,
  422 S.W.2d 475 (Tex. Crim. App. 1968) ........................................................... 15

Soto v. State,
   456 S.W.2d 389 (Tex. Crim. App. 1970) .................................................9, 13, 17

Sprinkle v. State,
   456 S.W.2d 387 (Tex. Crim. App. 1970) .....................................................15, 17

Stewart v. State,
   12 S.W.3d 146 (Tex.App. – Houston [1st Dist.] 2000, no pet.) ......................... 21

Stone v. State,
   919 S.W.2d 424 (Tex. Crim. App. 1996) ............................................................. 8

Stone v. State,
   919 S.W.2d 4245 (Tex. Crim. App. 1996) ......................................................... 14

Thornton v. State,
  601 S.W.2d 340 (Tex.Cr.App.1980)..................................................................... 8
Tindel v. State,
   830 S.W.2d 135 (Tex. Crim. App. 1992) ........................................................... 25
Torres v. State,
   391 S.W.3d 179 (Tex.App.—Houston [1st Dist.] 2012, pet. ref’d) ................... 26
United States v. Escandar,
  465 F.2d 438 (5th Cir. 1972) .............................................................................. 18

United States v. Fiore,
  443 F.2d 112 (2d Cir. 1971) ............................................................................... 20
United States v. Hawkins,
  76 F.3d 545 (4th Cir. 1996) ................................................................................ 19

Vandyne v. State,
  No. 10-07-00328-CR, 2009 WL 1478699 (Tex.App. – Waco May
  27, 2009, no pet.) (not designated for publication) ............................................ 21


                                                                                                             viii
Waage v. State,
  456 S.W.2d 388 (Tex. Crim. App. 1970) ........................................................... 17
Ex parte Williams,
   703 S.W.2d 674 (Tex. Crim. App. 1986) ............................................................. 8

Young v. State,
  8 S.W.3d 656 (Tex. Crim. App. 2000) ................................................................. 8

Statutes
Tex. Crim. Proc. Code Ann. art. 1.15 . .... 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18,
  20, 21
Tex. Crim. Proc. Code Ann. art. 1.17 ...................................................................... 19

Tex. Penal Code Ann. § 49.01(2) .............................................................................. 5
Tex. Penal Code Ann. § 49.04(a)............................................................................... 5

Tex. Penal Code Ann. § 49.04(b) ............................................................................ 27
Tex. Penal Code Ann. § 49.09(a)............................................................................. 23

Tex. Penal Code Ann. § 49.09(b)(2) .......................................................................... 5
Tex. Penal Code Ann. § 49.09(g) ............................................................................ 23

Other Authorities
Tex. Const. art. I, § 5................................................................................................ 19

Fed. R. Evid. 603 ..................................................................................................... 18
Tex. R. Evid. 603 ..................................................................................................... 19

Black's Law Dictionary (6th ed. 1990) ............................................................... 9, 13




                                                                                                                        ix
                                 Issues Presented

1. Whether the trial court erred in accepting Lamar’s guilty plea because the
evidence offered by the State in support of the plea was insufficient to comply with
article 1.15 of the Code of Criminal Procedure.



2. Alternatively, whether, assuming arguendo that Lamar’s sentencing hearing
evidence can be used to satisfy article 1.15, the evidence was sufficient to support
anything more than a Class A misdemeanor.



3. Alternatively, whether Lamar actually plead True to the alleged jurisdictional
prior DWI convictions.


4. Whether the written judgment should be corrected to reflect that Lamar did not
plead guilty pursuant to a plea bargain.




                                                                                   x
                                     IN THE
                             COURT OF APPEALS

           OF THE THIRD SUPREME JUDICIAL DISTRICT
   _____________________________________________________________


CLIFTON CARL LAMAR,
     Appellant,

     v.                                                 No. 03-14-00729-CR


STATE OF TEXAS

    ____________________________________________________________
                       Appeal in Cause No. 72785
                      in the 264th District Court of
                           Bell County, Texas
    ____________________________________________________________

           BRIEF OF APPELLANT CLIFTON CARL LAMAR
    ____________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      NOW COMES CLIFTON CARL LAMAR, Appellant, by and through

undersigned counsel, and submits this brief pursuant to the provisions of the Texas

Rules of Appellate Procedure.




                                                                                  1
                              Statement of the Case

      On May 21, 2014, Clifton Carl Lamar (“Lamar”) was charged by indictment

with the (normally) third degree felony offense of Driving While Intoxicated

(“DWI”), enhanced. CR 4.

      On October 24, 2014, Lamar purportedly entered an open plea of guilty to the

charged offense and a plea of “true” to the enhancement paragraph. 3 RR 6-7; CR

29. At the conclusion of a sentencing hearing, which took place immediately

thereafter, the trial court sentenced Lamar to ten years in prison and a $750 fine. 3

RR 1, 34; CR 45-46.

      The trial court certified Lamar’s right to appeal. CR 52. Lamar timely filed

his notice of appeal October 27, 2014. CR 43. Trial counsel was allowed to

withdraw and undersigned counsel was appointed to represent Lamar on appeal. CR

39, 56.

                                Statement of Facts

      Lamar’s guilty plea colloquy included the following exchanges, during which

time Lamar was not placed under oath:

 Court: Mr. Lamar, you have two paragraphs in your indictment. The first
  paragraph charges you with the offense of driving while intoxicated having been
  previously convicted two or more times. And that’s a third-degree felony. It’s
  punishable by two to ten years in the penitentiary[.]
  Now, there is a second paragraph alleging that you were previously convicted in

                                                                                    2
   1991 in Williamson County for DWI, so that enhances the punishment range to
   that of a second degree, 2 to 20 years in the penitentiary[.] Do you understand
   that?
 Lamar: Yes, ma’am.
3 RR 4-5.
 Court: To the offense in paragraph 1, how do you plead? Guilty or not guilty?
 Lamar: Guilty.
 Court: And to the offense in paragraph 2 alleging you were previously convicted
  in Williamson County, how do you plead? True or not true?
 Lamar: True.
3 RR 6.
 Court: You’re pleading guilty because you committed the offense as alleged and
  you were previously convicted as alleged; is that right?
 Defendant: That’s true, Your Honor.
3 RR 7.
 Court: I’ll accept the defendant’s plea of guilty and true.
 State: Your Honor, the State requests the Court take judicial notice of the
  defendant’s stipulation and signed confession contained in the plea papers in this
  case.
 Court: I will.
 State: State rests as to guilt or innocence.
 Court: I find the evidence sufficient to find you guilty and find the second
  paragraph true.
3 RR 7-8.




                                                                                  3
                            Summary of the Argument

      First issue: Lamar’s plea papers were unsworn. They were therefore not

competent evidence to satisfy the State’s burden under article 1.15. Lamar was not

put under oath during his purported guilty plea. Furthermore, although he pled

guilty, he never affirmed that the allegations in the indictment were true. Thus,

neither were his oral statements competent evidence to satisfy the State’s burden

under article 1.15. The State put on no other evidence during the plea proceeding to

cure the article 1.15 deficiencies.

      Second issue: Assuming that Lamar’s sworn testimony from the sentencing

hearing can be considered in curing article 1.15 deficiencies, that testimony

establishes at most that he committed a Class A misdemeanor – not a felony.

      Third issue: Because Lamar never pled “true” to either of the jurisdictional

prior DWI convictions alleged in the indictment for the purpose of elevating his

charge to a felony, he was in fact convicted of only a Class B misdemeanor.

      Fourth issue: The written judgment indicates that Lamar entered his guilty

plea pursuant to a plea bargain. He did not – his plea was an open plea.




                                                                                   4
                            Argument and Authorities

1. The trial court erred in accepting Lamar’s guilty plea because the evidence
offered by the State in support of the plea was insufficient to satisfy article 1.15
of the Code of Criminal Procedure.


      (a) Felony DWI

      “A person commits an offense if the person is intoxicated while operating a

motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a) (West Supp.

2014). “Intoxicated” means:

      Not having the normal use of mental or physical faculties by reason of
      the introduction of alcohol, a controlled substance, a drug, a dangerous
      drug, a combination of two or more of those substances, or any other
      substance into the body; or
      Having an alcohol concentration of 0.08 or more.
Tex. Penal Code Ann. § 49.01(2) (West 2011).

      An offense under Section 49.04 . . . is a felony of the third degree if it
      shown on the trial of the offense that the person has previously been
      convicted . . . two times of any other offense relating to the operating
      of a motor vehicle while intoxicated[.]
Tex. Penal Code Ann. § 49.09(b)(2) (West Supp. 2014). The two prior DWI

convictions are jurisdictional elements of felony DWI. Martin v. State, 200 S.W.3d

635, 640–41 (Tex.Crim.App.2006); Harris v. State, 204 S.W.3d 19. 27-28

(Tex.App.—Houston [14th Dist.] 2006), pet. ref’d) (“Elevating a misdemeanor to

felony offense by using a previous DWI conviction does not enhance punishment,



                                                                                   5
but instead creates an entirely new offense and vests the district court with

jurisdiction.”).



          (b) Lamar’s plea papers

          The document relied upon by the State to satisfy article 1.15 (and which the

State asked the trial court to take judicial notice of), is generic and boiler-plate (with

interlineations and strike-throughs), and is styled “Written Plea Agreement.” CR

29. Of course, there was no plea agreement – under “Recommendation” the word

“open” appears. CR 29. Nonetheless, in the concluding paragraph of the document,

the following sentence appears: “The Court takes judicial notice of this Written Plea

Agreement.” CR 36. The fill-in-the-blank “Judicial Confession” includes the

following language:

          Upon my oath I swear my true name is Clifton Carl Lamar and I am 57
          years of age; I have read the indictment or information filed in this case
          and I committed each and every act alleged therein, except those acts
          waived by the State. All facts alleged in the indictment or information
          are true and correct. I am guilty of the instant offense as well as all
          lesser included offenses. All enhancement and habitual allegations set
          forth in the indictment or information are true and correct, except those
          waived by the State. . . . All other affirmative findings to be made by
          the Court pursuant to this Written Plea Agreement are true and correct.1
          I swear to the truth of all the foregoing and further, that all testimony I
          give in the case will be the truth, the whole truth and nothing but the
          truth, so help me God.

                                                                Clifton Lamar

1
    Here the signatory is apparently agreeing to findings that do not exist at the time of signing.
                                                                                                      6
Under the “Court’s Approval of Agreement,” the following sentence appears:

      In the event the Defendant has not sworn to a judicial confession, the
      Court has received sworn testimony and/or stipulation of evidence
      sufficient to show that the Defendant is guilty of the offenses beyond a
      reasonable doubt.
CR 36.

      Despite all the “I swear under oath” language in Lamar’s plea papers, no jurat

is to be found anywhere therein. Furthermore, no sworn testimony was taken during

Lamar’s guilty plea proceeding.




      (c) Article 1.15 and standard of review

      “A conviction rendered without sufficient evidence to support a guilty plea

constitutes trial error.” Menefee v. State, 287 S.W.3d 9, 14 (Tex. Crim. App. 2009).

Article 1.15 is a mandatory statute; therefore failure to object to noncompliance with

article 1.15 does not forfeit or waive error. McClain v. State, 730 S.W.2d 739, 742

(Tex. Crim. App. 1987) (en banc); see Baggett v. State, 342 S.W.3d 172, 175

(Tex.App. – Texarkana 2011, no pet.) (“We find this statutory directive falls within

the absolute or systemic requirement category[.]”). Article 1.15, in its entirety,

provides as follows:

      No person can be convicted of a felony except upon the verdict of a
      jury duly rendered and recorded, unless the defendant, upon entering a
      plea has in open court in person waived his right of trial by jury in

                                                                                    7
      writing in accordance with Articles 1.13 and 1.14; provided, however,
      that it shall be necessary for the state to introduce evidence into the
      record showing the guilt of the defendant and said evidence shall be
      accepted by the court as the basis for its judgment and in no event shall
      a person charged be convicted upon his plea without sufficient evidence
      to support the same. The evidence may be stipulated if the defendant
      in such a case consents in writing, in open court, to waive the
      appearance, confrontation, and cross-examination of witnesses, and
      further consents either to an oral stipulation of the evidence and
      testimony or to the introduction of testimony by affidavits, written
      statements of witnesses, and any other documentary evidence in
      support of the judgment of the court. Such waiver and consent must be
      approved by the court in writing, and be filed in the file of the papers
      of the cause. (emphasis added)

Tex. Crim. Proc. Code Ann. art. 1.15 (West 2005). Because a plea of guilty is an

admission of guilt to the offense charged, the state is required to introduce evidence

that “embraces every essential element of the offense charged.” Stone v. State, 919

S.W.2d 424, 427 (Tex. Crim. App. 1996). This is so there will be sufficient proof

to support the judgment. Young v. State, 8 S.W.3d 656, 660–61 (Tex. Crim. App.

2000); Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986); Thornton

v. State, 601 S.W.2d 340, 347 (Tex. Crim. App. 1980) (op. on reh’g). The supporting

evidence offered by the State does not have to prove the defendant's guilt beyond a

reasonable doubt. See Ex parte Martin, 747 S.W.2d 789, 792 (Tex. Crim. App.1988).

The remedy for insufficient evidence in the context of article 1.15 is reversal of the

conviction and remand for a new trial. Bender v. State, 758 S.W.2d 278, 280-81

(Tex. Crim. App. 1988).



                                                                                    8
      (d) Article 1.15 methods of proof

      In Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App. 2009), the Court of

Criminal Appeals listed the following methods by which evidence may be adduced

to support a guilty plea (so long as the method covers all of the elements of the

charged offense) in an article 1.15 proceeding:

   • Defendant’s sworn written statement admitting his culpability or
     acknowledging that allegations in the charging instrument are true and
     correct;
   • Defendant may testify under oath in open court admitting his culpability or
     acknowledging that allegations in the charging instrument are true and
     correct;
   • Defendant consents to proffer of evidence;
   • Defendant consents to an oral or written stipulation of what evidence against
     him would be.

Id. at 13. In the instant case, the State did not satisfy any of these methods.




      (e) Defendant’s sworn written statement admitting his culpability or
      acknowledging that allegations in the charging instrument are true and
      correct


      To “swear” means “to become bound by an oath duly administered.” Black's

Law Dictionary 1448 (6th ed. 1990). A jurat is the “[c]ertificate of officer or person

before whom writing was sworn to.” Black's Law Dictionary 852 (6th ed. 1990). A

sworn statement must therefore be sworn before a district clerk. See Soto v. State,

456 S.W.2d 389, 390 (Tex. Crim. App. 1970) (Onion, J., concurring) (A written

                                                                                    9
judicial confession must be sworn to.); Killion v. State, 503 S.W.2d 765, 766 (Tex.

Crim. App. 1973) (Written stipulations wherein defendant acknowledged his guilt

constituted proper article 1.15 evidence because they were sworn before a deputy

district clerk); Degay v. State, 455 S.W.2d 205, 206 (Tex. Crim. App. 1970) (An

admission is not a “sworn” admission unless it is “sworn to before the district clerk

by the [defendant] personally[.]”); Chindaphone v. State, 241 S.W.3d 217, 223

(Tex.App.—Fort Worth 2007, pet. ref.) (defendant’s written confession was sworn

to before a deputy district clerk); Chavis v. State, No. 08-10-00025-CR, 2011 WL

3807747 at *6 (Tex.App.—El Paso Aug. 26, 2011, pet. ref’d) (unpublished) (“The

statement was sworn before a deputy district clerk. This statement amounts to a

judicial confession and is sufficient to support the guilty plea.”).

      Lamar’s written “judicial confession” is unsworn and therefore constitutes no

evidence to support his guilty plea. See Beaty v. State, 466 S.W.2d 284, 286 (Tex.

Crim. App. 1971) (“[T]he only written statement of documentary evidence offered

was the unsworn extrajudicial written confession of the appellant which is to be

distinguished from a judicial confession.”).       Furthermore, the actual charging

language from Lamar’s indictment does not appear anywhere in his plea papers.




                                                                                  10
       (f) Defendant may testify under oath in open court admitting his culpability
       or acknowledging that allegations in the charging instrument are true and
       correct


       First of all, as noted above, Lamar was not placed under oath at the time he

purportedly entered his guilty plea.2 See King v. State, No. 12-12-00020-CR, 2013

WL 2407198 at *6 (Tex.App.—Tyler May 31, 2013, no pet.) (mem. op., not

designated for publication) (Defendant’s plea colloquy did not constitute a judicial

confession, in part because “[t]he record does not show that [he] was placed under

oath prior to the guilty plea hearing.”); Cf. Sexton v. State, 476 S.W.2d 320, 321

(Tex. Crim. App. 1972) (Defendant’s admission constituted a “judicial admission”

because he was sworn in as a witness).

       Second, the fact that Lamar pled guilty to the indictment was not, in and of

itself, an admission that the facts alleged in the indictment were true, and was

therefore insufficient evidence to satisfy article 1.15. Menefee v. State, 287 S.W.3d

9 (Tex. Crim. App. 2009) is instructive as to what article 1.15 requires if it is going

to be satisfied by the defendant’s sworn testimony.                   The defendant therein

purportedly pled guilty to the offense of possession of cocaine with intent to deliver,

however, the written stipulation of evidence did not include the element of



2
  Lamar’s plea papers include the following provision: “I give up and waive my right not to
incriminate myself, and agree to testify under oath and judicially confess my guilt if requested by
my attorney or the State’s attorney[.]” CR 32.
                                                                                                11
possession. Id. at 10-11. Despite this deficiency, the Tyler Court of Appeals found

that the following colloquy constituted sufficient independent evidence of the

defendant’s guilt to make up for the deficiency in the written stipulation:

      Court: Mr. Menefee, in your case the grand jury returned an enhanced first
       degree felony charge of possession of a controlled substance with intent to
       deliver. The range of punishment on that particular charge is no less than
       15 years and up to 99 years or life in the penitentiary and up to a [ten]
       thousand dollar fine. You understand that’s the range of punishment?

      Defendant: Yes, sir.

      Court: Knowing that that’s the range of punishment, the paperwork that’s
       been provided to me indicates that you’ve decided to enter an open plea of
       guilty in relation to that particular charge and leave it to the Court to decide
       what type of punishment should be assessed. Is that correct?

      Defendant: That’s correct, Your Honor.

      Court: And to that charge in the indictment as we’ve just covered how do you
       plead, guilty or not guilty?

      Defendant: Guilty, Your Honor.

Menefee, 287 S.W.3d at 11-12. The Court of Criminal Appeals disagreed with the

Tyler Court:

      [W]e hold that the appellant’s sworn affirmation, in response to the trial
      court’s questioning, that he was in fact pleading guilty to the charges in
      the indictment does not constitute a judicial confession and does not
      otherwise supply evidence, in whole or in part, sufficient to support the
      plea under Article 1.15. A guilty plea entered under oath is still just a
      guilty plea. It does not provide independent evidence to substantiate
      the defendant’s guilt. (emphasis added)

Id. at 17-18.


                                                                                    12
      In contrast, the following judicial admissions from other cases, because they

admitted to facts in support of the elements of the charged offense, were deemed

sufficient to satisfy article 1.15: “On November 26, 1969, in Harris Co., I Carol

Knight, did without malice aforethought kill James Edward Knight by shooting him

with a gun”. Knight v. State, 481 S.W.2d 143 (Tex. Crim. App. 1972); “On February

16, 1968 in Harris County, Texas I did unlawfully possess a narcotic drug, to-wit,

heroin.” Soto v. State, 456 S.W.2d 389 (Tex. Crim. App. 1970).

      Lamar’s unsworn plea of guilty to the indictment did not constitute a judicial

admission that he had committed all the acts alleged against him therein.



      (g) Defendant consents to proffer of evidence in documentary form

      A “proffer” is “the production of a document and offer of the same in

evidence.” Black's Law Dictionary 1210 (6th ed. 1990). See Ayers v. Target Nat.

Bank, No. 14-11-00574-CV, 2012 WL 3043043 at *4 (Tex. App.—Houston [14th

Dist.] July 26, 2012, no pet.) (mem. op., not designated for publication) (Creditor

did not proffer the cardholder agreement or any other document establishing agreed

terms for the account).

      In the instant case, the State proffered nothing more than the signed plea

papers, discussed above. The fact that the district court took judicial notice of “the

defendant’s stipulation and signed confession contained in the plea papers in this
                                                                                   13
case” did not convert the purported confession into competent evidence to support a

guilty plea. See Jackson v. State, 139 S.W.3d 7, 21 (Tex.App.—Fort Worth 2004,

pet. ref’d) (“[W]hile a court may judicially notice the existence of the affidavit in its

file, the court may not take judicial notice of the truth of the factual contents

contained in such an affidavit because those facts are not the kinds of facts that a

court may judicially notice.”); Garza v. State, 996 S.W.2d 276, 279-80 (Tex.App.—

Dallas 1999, pet. ref’d) (“We are convinced . . . that assertions made by an

individual, even under oath, are not the type of facts that are capable of accurate and

ready determination by a source whose accuracy cannot reasonably be questioned.”);

Lambert v. Lambert, No. 05-08-00397-CV, 2009 WL 1493009, at * (Tex.App.—

Dallas May 29 2009, no pet.) (mem. op., not designated for publication) (“Even

though the trial court took judicial notice of its own file, that does not convert the

parties’ statements contained in court filings into substantive evidence.”).




      (h) Defendant consents to an oral or written stipulation of what evidence
      against him would be


      Article 1.15 stipulations can relate to what a witness would testify to or to

allegations in the indictment. Stone v. State, 919 S.W.2d 4245, 426 (Tex. Crim. App.

1996). Rosenkrans v. State, 758 S.W.2d 388 (Tex.App.—Austin 1988, pet. ref’d)

provides an example of an oral stipulation in support of a guilty plea:
                                                                                      14
       [State:] Your Honor, we’re stipulating that Jerry Wayne Rosenkrans
       on or about the 12th day of December 1986 in Travis County, Texas,
       did then and there knowingly and intentionally possess a controlled
       substance, namely: morphine, in an amount of less than 28 grams by
       actual weight including adulterants and dilutants.
Id. at 389. Smith v. State, 422 S.W.2d 475 (Tex. Crim. App. 1968) provides an

example of a written stipulation in support of a guilty plea:

       My name is Hearne Edward Smith. On the 20th day of September;
       A.D. 1966, I had Nellie B. Allen in a pickup truck which belonged to
       her with me. Sometime around midnight on the above date, I shot and
       killed the said Nellie B. Allen with a shotgun. This happened in a
       cottonfield between Wharton and El Campo in Wharton County, Texas.
Id. at 476; See also Messer v. State, 729 S.W.2d 694, 695 (Tex. Crim. App. 1986)

(Parties stipulated that if State were to call its witnesses, they would testify to the

facts contained in offense report); Pritchett v. State, 733 S.W.2d 661 (Tex.App.—

San Antonio 1987, no pet.) (Appellant “orally stipulated to the testimony of officer

Robert Sugg adduced during the suppression hearing[.]”); Sprinkle v. State, 456

S.W.2d 387 (Tex. Crim. App. 1970) (Stipulated testimony read into the record that

if complaining witness were present, he would say “that he saw appellant take a suit

of clothing of the value of $120.00 from the display rack and leave the store without

paying for it and that the suit was taken without his consent”).3




3
  For an example of an oral stipulation to two prior jurisdictional DWI convictions in support of a
felony DWI plea, see Bryant v. State, 187 S.W.3d 397, 399 (Tex. Crim. App. 2005). For an
example of a written stipulation to same, see Smith v. State, 158 S.W.3d 463 (Tex. Crim. App.
2005) (en banc).
                                                                                                15
      In the instant case, despite the fact that in his plea papers, Lamar purportedly

consented “to oral and written stipulations of evidence,” CR 32, the State offered no

stipulations.



      (j) Jones v. State

      The State may counter with Jones v. State, 857 S.W.2d 108 (Tex.App.—

Corpus Christi 1993, no pet.), wherein the Corpus Christi Court held that the

defendant’s plea papers, entitled “Defendant’s Waivers and Judicial Confession”

constituted a judicial confession even though not sworn to by the defendant. Id. at

110. Jones simply cannot be the law. First of all, it is inconsistent with many Court

of Criminal Appeals’ opinions. Most recently, in Menefee v. State, 287 S.W.3d 9

(Tex. Crim. App. 2009), the Court, while noting that there are multiple ways by

which the State can satisfy the evidentiary requirements of article 1.15, made it very

clear that if the State intends to use the defendant’s written statement, that statement

must be sworn; and if the State intends to use the defendant’s oral statements, he

must be sworn in as a witness:

      Alternatively, our case law has recognized that the defendant may enter
      a sworn written statement, or may testify under oath in open court,
      specifically admitting his culpability or at least acknowledging
      generally that the allegations against him are in fact true and correct;
      and again, so long as such a judicial confession covers all of the
      elements of the charged offense, it will sufficient to support the guilty
      plea. (emphasis added)
                                                                                     16
Id. at 13. The footnote following this sentence in Menefee cites as authority six court

of criminal appeals cases, all but one4 involving either a sworn confession or

testimony given under oath. Id. at 13 n. 17. These five cases are Sprinkle v. State,

456 S.W.2d 387, 388 (Tex. Crim. App. 1970) (“The appellant was sworn and

testified”); Waage v. State, 456 S.W.2d 388 (Tex. Crim. App. 1970) (“Appellant

testified that she heard the stipulated testimony, and it was substantially true and

correct[.]”); Soto v. State, 456 S.W.2d 389, 390 (Tex. Crim. App. 1970) (“I concur

in the result reached. I would however, make it absolutely clear to the bench and

bar that this conviction is being sustained alone upon the basis of the ‘judicial

confession’ reduced to writing, sworn to and introduced into evidence.”) (Onion, J.

concurring); Sexton v. State, 476 S.W.2d 320 (Tex. Crim. App. 1972) (Appellant

was sworn and made a judicial confession); Potts v. State, 571 S.W.2d 180, 181

(Tex. Crim. App. 1978) (“Appellant took the stand and testified.”).

       In Dinnery v. State, 592 S.W.2d 343 (Tex. Crim. App. 1979) (op. on reh’g),

the Court concluded that while the defendant’s written “judicial confession” was not

adequate to comply with article 1.15, when the defendant took the stand, was placed

under oath, and testified that the allegations in the indictment were “true and



4
  In the sixth case, Knight v. State, 481 S.W.2d 143 (Tex. Crim. App. (1972), the State introduced
into evidence a written stipulation: “On November 26, 1969, in Harris Co., Texas, I Carol Knight,
did without malice aforethought kill James Edward Knight by shooting him with a gun.”
                                                                                               17
correct,” this constituted a judicial confession sufficient to satisfy article 1.15. Id. at

352. In support of its holding, the Court cited Rodriguez v. State:

      In Rodriguez v. State, 375 S.W.2d 289 (Tex.Cr.App. 1964), the
      defendant on appeal claimed the evidence offered to support his guilty
      plea to assault with intent to murder with malice was insufficient, and
      at most, could only sustain a conviction for assault with intent to murder
      without malice. In Rodriguez this court said:

             “By his own sworn testimony, appellant admitted that the
             allegations of the indictment of assault with intent to murder with
             malice aforethought, were true and correct. This was a judicial
             admission by him that the assault to murder was with malice.”

      While there was other evidence to support the fact that the offense was
      committed with malice, it is important to note that his statement under
      oath as to the allegations of the indictment were characterized as and
      held to constitute a judicial admission. (emphasis added)

Dinnery, 592 S.W.2d at 353.

      The second reason Jones cannot be the law is that it overlooks the fact that

when a defendant enters a guilty plea, he becomes a witness against himself. See

United States v. Escandar, 465 F.2d 438, 441 (5th Cir. 1972) (A guilty plea

constitutes a waiver of the privilege against compulsory self-incrimination.).

Because he is testifying against himself as a witness, this testimony must therefore

be accorded the safeguards of witness testimony; i.e., he must be put under oath.

Federal Rule of Evidence 603 provides: “Before testifying, a witness must give an

oath or affirmation to testify truthfully. It must be in a form designed to impress that

duty on the witness’s conscience.” Fed. R. Evid. 603. Texas Rule 603 reads


                                                                                        18
similarly: “Before testifying, every witness shall be required to declare that the

witness will testify truthfully, by oath or affirmation administered in a form

calculated to awaken the witness’ conscience and impress the witness’ mind with

the duty to do so.” Tex. R. Evid. 603. The Texas rule was modeled after the federal

rule. Bisby v. State, 907 S.W.2d 949, 954 (Tex.App.—Fort Worth 1995, pet. ref’d).

Article 1.17 of the Texas Code of Criminal Procedure provides: “[A]ll oaths and

affirmations shall be administered in the mode most binding upon the conscience,

and shall be taken subject to the pains and penalties of perjury.” Tex. Crim. Proc.

Code Ann. art. 1.17 (West 2005). This is a codification of article I, section 5 of the

Texas Constitution. Scott v. State, 80 S.W.3d 184, 191 (Tex.App.—Waco 2002, pet.

ref’d); Tex. Const. art. I, § 5.

       When the safeguard of an oath is not in place, the general rule is that unsworn

testimony is not competent evidence. See United States v. Hawkins, 76 F.3d 545,

551 (4th Cir. 1996) (“[T]estimony taken from a witness who has not given an oath

or affirmation to testify truthfully is inadmissible,” citing Rule 603 of Federal Rules

of Evidence.); Alexander v. State, No. 03-95-00362-CR, 1997 WL 45127, at *5

(Tex.App.—Austin Feb. 6, 1997, pet. ref’d) (unpublished) (“As a rule, unsworn

testimony is inadmissible and is not legal evidence on which a judgment can be




                                                                                    19
based.”); United States v. Fiore, 443 F.2d 112, 115 (2d Cir. 1971) (“Wigmore

instructs that ‘for all testimonial statements made in court the oath is a requisite[.]’”).



       (k) Only evidence from the guilty plea proceeding can cure article 1.15 proof
       deficiencies

       The Menefee opinion held that article 1.15 proof deficiencies ”may be

compensated for by other competent evidence in the record.” Menefee, 287 S.W.3d

at 14. However, this sentence from Menefee is accompanied by a footnote citing the

Texas Practice Series which concludes with the following sentence: “The entire

plea proceeding is examined to determine whether there is substantiation.” Id. at 14

n. 20. Menefee therefore appears to stand for the proposition that evidence in support

of a guilty plea can only come from the “plea proceeding” itself.5



       (l) Summary

       As noted above, Lamar entered an unsworn guilty plea and the State asked the

court to take judicial notice of the unsworn plea papers. No other evidence was

offered during the guilty plea proceeding. Nothing in Lamar’s unsworn plea or the


5
 It should also be noted that Judge John F. Onion, Jr. (who wrote the special commentary to article
1.15 following its enactment), citing to the predecessor statutes upon which article 1.15 was based,
noted that the evidence satisfying article 1.15 “shall be accepted by the Court as the basis for its
verdict.” Rodriguez v. State, 442 S.W.2d 376, 380 (Tex. Crim. App. 1968) (Onion, J., dissenting).
This means the evidence must be admitted before the judge actually finds he defendant guilty – a
further indication that evidence from the later punishment phase should not be considered in
determining whether article 1.15 has been satisfied.
                                                                                                 20
plea papers establishes that on or about April 3, 2014, Lamar was operating a motor

vehicle in a public place in Bell County without the normal use of his mental or

physical faculties by reason of the introduction of alcohol into his body.   Because

the competent evidence adduced during Lamar’s guilty plea proceeding did not

satisfy article 1.15, his conviction must be vacated.




2. Alternatively, assuming arguendo that Lamar’s sentencing evidence can be
used to satisfy article 1.15, the evidence established at most that he had only one
prior DWI conviction.


      (a) Article 1.15 and sentencing/punishment evidence

      Several intermediate appellate courts, including the Austin Court, have held

that sentencing/punishment evidence can be used to cure article 1.15 deficiencies.

See Jones v. State, 373 S.W.3d 790, 793 (Tex.App.—Houston [14th Dist.] 2012, no

pet.); Stewart v. State, 12 S.W.3d 146 (Tex.App. – Houston [1st Dist.] 2000, no pet.);

Hatton v. State, No. 03-06-00453-CR, 2007 WL 924741 at *2 (Tex.App.—Austin

Mar. 27, 2007, pet. ref’d, untimely filed) (mem. op., not designated for publication);

Vandyne v. State, No. 10-07-00328-CR, 2009 WL 1478699 at *4 (Tex.App. – Waco

May 27, 2009, no pet.) (not designated for publication); Hill v. State, No. 07-10-

00281-CR, 2010 WL 4478389 at *2 (Tex.App. – Amarillo Aug. 31, 2011, pet. ref’d)

(not designated for publication).


                                                                                   21
        (b) Lamar’s indictment

        The first paragraph of Lamar’s indictment reads in pertinent part as follows:

        Carl Clifton Lamar . . . Defendant, on or about the 3rd day of April . . .
        2014 . . . while driving and operating a motor vehicle in a public place
        was then and there intoxicated; and, the said Defendant had previously
        been convicted two or more times as follows of Operating a Motor
        Vehicle in a Public Place While Intoxicated;
        [1] In Cause Number 10,446 of the County Court at Law of Williamson
        County, Texas, on the 14th day of November, 1986, for the offense of
        Operating a Motor Vehicle While Intoxicated in a Public Place; and
        [2] In Cause Number 2C13-04982 of the County Court at Law #2 of
        Bell County, Texas, on the 7th day of March, 2014, for the offense of
        Operating a Motor Vehicle While Intoxicated in a Public Place[.]
CR 4.




        (c) Sentencing testimony

        During the sentencing phase, Lamar did testify under oath (3 RR 8-9) as

follows:

 State: Do you remember what your breath test was?
 Lamar: No, sir, I never.
 State: .33 bother you at all?
 Lamar: Yes, it does.
3 RR 24-25.
 State: Now, you were convicted in March of 2014 of driving while intoxicated.
  Do you remember that?


                                                                                     22
 Lamar: Yes, sir.
 State: Okay. And then less than 30 days later, you do this. Were you driving
  drunk that night?
 Lamar: Yes, sir.
3 RR 25.

      Assuming arguendo that this testimony can somehow be construed as a

judicial admission to facts establishing (1) that Lamar committed the charged

offense, and (2) that he had one prior DWI conviction, that is still not enough to get

him to a felony. Section 49.09 of the Penal Code provides that a DWI conviction

with one prior DWI conviction is a Class A misdemeanor. Tex. Penal Code Ann. §

49.09(a) (West Supp. 2014).




      (d) Lamar’s enhancement DWI conviction cannot serve as a jurisdictional
      prior


      The enhancement paragraph of Lamar’s indictment, to which he pled “True”,

reads in pertinent part as follows:

      [O]n the 24th day of January . . . 1991 in the 26th District Court of
      Williamson County, Texas, in Cause Number 89-103-K, the said
      Clifton Carl Lamar was convicted of the felony offense of Driving
      While Intoxicated[.]
CR 4; 3 RR 6. The State may argue that when this felony DWI is added to the March

2014 DWI conviction, he has the two necessary priors to elevate the charged offense


                                                                                   23
to a felony. However, a prior DWI conviction can be used for enhancement under §

49.09 or § 12.42 of the Penal Code, but not both. Tex. Penal Code Ann. § 49.09(g)

(West Supp. 2014). Therefore Lamar’s enhancement paragraph cannot function as

a jurisdictional prior.




       (e) Remedy

       In Britain v. State, 412 S.W.3d 518 (Tex. Crim. App. 2013), the Court of

Criminal Appeals stated:

       [I]f he State charged someone with felony DWI and presented legally
       sufficient evidence of the DWI conduct but not of the enhancing prior
       conviction, [it would be] easy to strike the aggravating element and
       reform the judgment to reflect the crime without the enhancement.
Id. at 521; See also Bowen v. State, 374 S.W.3d 427, 431-32 (Tex. Crim. App. 2012)

(if appellate court concludes that evidence supporting conviction is insufficient, the

court may remand to the trial court for modification of judgment to reflect a lesser-

included offense). The proper remedy in Lamar’s case (as to this particular point of

error), is to remand the cause back to trial court with instructions (1) to modify the

judgment so as to reflect a conviction for a Class A misdemeanor, and (2) conduct a

new punishment hearing.




                                                                                   24
3. Alternatively, Lamar did not plead True to the alleged jurisdictional prior
DWI convictions.


      (a) Analysis

      Again, the charging paragraph in Lamar’s indictment read as follows:

      Carl Clifton Lamar . . . Defendant, on or about the 3rd day of April . . .
      2014 . . . while driving and operating a motor vehicle in a public place
      was then and there intoxicated; and, the said Defendant had previously
      been convicted two or more times as follows of Operating a Motor
      Vehicle in a Public Place While Intoxicated;
      [1] In Cause Number 10,446 of the County Court at Law of Williamson
      County, Texas, on the 14th day of November, 1986, for the offense of
      Operating a Motor Vehicle While Intoxicated in a Public Place; and
      [2] In Cause Number 2C13-04982 of the County Court at Law #2 of
      Bell County, Texas, on the 7th day of March, 2014, for the offense of
      Operating a Motor Vehicle While Intoxicated in a Public Place[.]
CR 4. The trial court did not ask Lamar to plead True to the alleged jurisdictional

priors – the court only asked for a plea to the primary April 3, 2014 DWI charge:

 Court: To the offense in paragraph 1, how do you plead? Guilty or not guilty?
 Lamar: Guilty.
3 RR 6.

      Because Lamar did not enter a plea regarding the alleged jurisdictional priors,

the burden remained with the State to prove them up. See Ricondo v. State, 634

S.W.2d 837, 840 (Tex. Crim. App. 1982) (en banc) (when defendant neither

admitted nor denied enhancement paragraphs, trial court properly entered not true

plea on defendant’s behalf) (op. on reh’g); Bass v. State, 160 S.W.3d 604, 606

                                                                                    25
(Tex.App.—Waco 2005, no pet.) (Defendant’s plea of “true” to prior DWI

allegations relieved the State of its burden to prove the allegations).

      This is not a situation where Lamar pled guilty – instead of true – to a

jurisdictional prior conviction. See Tindel v. State, 830 S.W.2d 135, 137 (Tex. Crim.

App. 1992) (a plea of “guilty” to the enhancement paragraph functions as a plea of

“true”). Lamar pled guilty to the primary DWI alleged in Count 1 – he was simply

not asked to enter any kind of plea to the jurisdictional priors alleged in Count 1.

      Nor is this a situation where Lamar entered a true plea by stipulating to his

jurisdictional priors in sworn plea papers. See Torres v. State, 391 S.W.3d 179, 183

(Tex.App.—Houston [1st Dist.] 2012, pet. ref’d) (although appellant had not orally

pled true, his written judicial confession confessing that the enhancement paragraphs

were true, constituted a plea of true). As noted above, Lamar’s plea papers were

unsworn and the allegations from the indictment of the jurisdictional DWI priors do

not appear in the plea papers.

      The State did not meet its burden.




      (b) Remedy

      For the reasons set forth above Britain v. State, 412 S.W.3d 518 (Tex. Crim.

App. 2013), Issue 2(e), the judgment should be reformed to reflect a conviction for

                                                                                  26
a Class B misdemeanor.6

4. The written judgment should be corrected to reflect that Lamar did not
plead guilty pursuant to a plea bargain.


      For the reasons set forth above in Lamar’s second and third issues, the written

judgment should be modified to reflect a conviction for either a Class A or Class B

misdemeanor. Additionally, the written judgment, under “Terms of Plea Bargain”

states “See attached – Disclosure of plea recommendations attached hereto and made

a part hereof.” CR 45. There was no plea bargain – Lamar entered an open plea. 3

RR 7; CR 29.




                                  Prayer for Relief

      Because the State did not present sufficient evidence to satisfy article 1.15,

Lamar prays that his conviction be reversed and the cause remanded for a new trial.

      Alternatively, because evidence from the sentencing phase established at most

that Lamar had one prior DWI conviction, he prays that the judgment be modified




6
 A DWI conviction with no prior DWI convictions is generally a Class B misdemeanor. Tex.
Penal Code Ann. § 49.04(b) (West Supp. 2014).
.

                                                                                     27
to reflect a conviction for a Class A misdemeanor and that his case be remanded to

the district court for resentencing.

      Alternatively, because Lamar did not plead “true” to either of the alleged

jurisdictional prior DWI convictions, he prays that the judgment be modified to

reflect a conviction for a Class B misdemeanor and that his case be remanded to the

district court for resentencing.

      Additionally, Lamar requests that the judgment be modified to reflect that he

did not plead guilty pursuant to a plea agreement.




                                       Respectfully submitted,
                                       /s/ John A. Kuchera
                                       John A. Kuchera
                                       210 N. 6th St.
                                       Waco, Texas 76701
                                       (254) 754-3075
                                       (254) 756-2193 (facsimile)
                                       SBN 00792137
                                       johnkuchera@210law.com
                                       Attorney for Appellant




                                                                                 28
                             Certificate of Service

      This is to certify that a true and correct copy of the above and foregoing

Appellant’s Brief has this day been mailed to the office of Mr. Bob D. Odom,

Assistant District Attorney, P.O. Box 540, Belton, Texas 76513.

      SIGNED this 5th day of February, 2015.

                         /s/ John A. Kuchera
                         John A. Kuchera,
                         Attorney for Clifton Carl Lamar




                                                                              29
                    Certificate of Compliance with Rule 9.4

1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4(i)
because the brief contains 6,392 words, excluding the parts of the brief exempted by
Tex. R. App. P. 9.4(i)(1).


2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) and
the type style requirements of Tex. R. App. P. 9.4(e) because the brief has been
prepared in a proportionally spaced typeface using Microsoft Word 2013 in Times
New Roman, size 14 font.



                          /s/ John A. Kuchera
                          John A. Kuchera,
                          Attorney for Clifton Carl Lamar


Dated: February 5, 2015




                                                                                 30
