Opinion filed March 20 , 2015



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 13

- 00055

- C R

__________ DAVID LEE CLEMENT, J R. , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 271st District Court
Wise County, Texas
Trial Court Cause No. CR16160

O P I N I O N After a bench trial, the trial court convicted David Lee Clement, Jr. of felony driving while intoxicated (DWI)

. See T EX

. P ENAL C ODE A NN . § 49.09(b) (West Supp. 2014 ). The trial court assessed his punishment at confinement for four years in the Institutional Division of the Texas Department of Criminal Justice. Appellant asserts three issues on appeal . In his first issue , Appellant argues that
the trial court erred when it denied his motion to suppress because the investigating officer lacked probable cause to arrest him for DWI . Appellant alleges in his2 second issue that the trial court erred when it denied his motion to quash the
indictment because the indictment “ alleged a void judgment ” as one of Appellant’s prior DWI convictions. In his third issue, Appellant asserts that the evidence was insufficient to prove that Appellant had been convicted of two prior DWI offenses.
We uphold the trial court’s denial of Appellant’s motion to quash the indictment.
Ho wever, we reverse the trial court’s judgment and remand the case be cause we conclude that the trial court should have granted Appellant’s motion to suppress

. 1 Background Facts Appe llant was charged with DWI , which was alleged to have occurred on or about January 30, 2011. The indictment alleged two previous DWI convictions
, one in 2010 from Wise County and one in 199 3 from Tarrant County
, to enhance the 2011 offense to felony DWI under Section 49.09(b)(2) of the Texas P enal
Code. P ENAL § 49.09(b)(2). Appellant filed a pretrial motion to suppress the evidence arising from his

arrest

. 2 He also filed a motion to quash the indictment
, allegi ng that one of the prior DWI convictions alleged in the indictment was void. The trial court heard the motion to suppress and the motion to quash on September 25, 2012. The trial
court denied both motions in open court at the end of the hearing s on each motion.

1 The reporter’s record indicates that a DVD of Appellant’s arrest was admitted during the punishment phase of trial. The reporter’s record further indicates that the actual DVD was “ [ m ] ailed under separate cover” because the file was too large to transmit elec tronically. However, we have no record of the DVD being mailed to our court
, and our efforts to obtain another copy have been unsuccessful. This omission does not preclude our consideration of the appeal because a review of the DVD is unnecessary to res olve the issues presented to the court.

2 Although it is not an issue in this appeal, Appellant was subjected to a mandatory blood draw after his arrest for felony DWI. The Court of Criminal Appeals recently held that “a nonconsensual search of a DWI susp ect’s blood conducted pursuant to the mandatory

- blood

- draw and implied

- consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment.” State v. Villarreal , No. PD

- 0306

- 14, 2014 WL 6734178, at *21 (Tex. Crim. App. Nov. 26, 2014), reh ’ g granted
, (Feb. 25, 2015); see Burks v. State , No. 02

- 13

- 00560

- CR, 2015 WL 115964, at *1 (Tex. App.

— Fort Worth Jan. 8, 2015, pet. filed ); Forsyth v. State , 438 S.W.3d 216, 223 (Tex. App.

— Eastland 2014, pet. ref ’ d).3 The trial court and the parties then immediately proceeded to trial. The trial began with Appellant’s trial counsel announcing the following stipulation on the record : We agreed that we would stipulate that he was driving and operating a mo tor vehicle on a public road or highway in Wise County on that particular date. We’ll stipulate to the intoxication and his driving. And I believe that after that stipulation, the State’s only burden is to prove that he has two prior convictions, your Ho nor. Appellant personally testified that he agreed to the stipulation
, and the prosecutor announced that the State agreed with the terms of the stipulation
, whereupon the trial court accepted it. The trial court ultimately found Appellant guilty of felony DWI based upon its determination that the State had sufficiently proven Appellant’s two prior DWI convictions

. Sufficiency of the Evidence In his third issue, Appellant challenges the sufficiency of the evidence to prove that he had previously been convicted of two prior offenses of driving while
intoxicated. 3 A person may be charged with felony DWI if he has two previous
convictions for DWI. P ENAL § 49.09(b)(2). The two prior DWI convictions are elements of the offense of felony DWI. Marti n v. State , 200 S.W.3d 635, 640

– 41 (Tex. Crim. App. 2006). The two prior convictions are jurisdictional, as opposed to mere enhancement allegations. Id. at 640. The State must prove the two prior DWI convictions at the guilt / innocence stage of trial in order to obtain a felony
DWI conviction. See Gibson v. State , 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). Evidence that a defendant has been convicted of a prior offense must establish beyond a reasonable doubt (1) that the prior conviction exists and (2) that

3 We are initially addressing Appellant’s third issue because it could potentially result in his acquittal.4 the defendant is linked to that conviction. Flowers v. State , 220 S.W.3d 919, 922 (Tex. Crim. App. 2007). The State may prove a prior conviction in a number of different ways. Id

. at 921

– 23. The State is not required to produce a specific
documen t or specific proof because “[t]here is no ‘best evidence’ rule in Texas that requires that the fact of a prior conviction be proven with any document, much less any specific document.” Id

. at 921

. The proof that is adduced to establish that the
defendan t on trial is the same person named in the prior conviction “closely resembles a jigsaw puzzle.” Id

. at 923 (quoting Human v. State , 749 S.W.2d 832, 836 (Tex. Crim. App. 1988)) . Standing alone, the pieces usually have little meaning, but when fitted together, the pieces usually form the picture of the person who committed the alleged prior conviction or convictions. Id

. The trier of fact fits the pieces of the jigsaw puzzle t ogether and weighs the credibility of each piece. Id

. Whatever form the State’s proof takes, however, it must be su fficient to prove the defendant’ s prior conviction beyond a reasonable doubt. Id

. at 923. In reviewing the sufficiency of the evidence to determine whether the State proved the elements of the offense beyond a reasonable doubt, we apply the Jackson v. Virginia standard. Brooks v. State , 323 S.W.3d 893, 895

– 96 (Tex. Crim. App. 2010) ( citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). Un der that standard, a reviewing court must consider all evidence in the light most
favorable to the verdict and
, in doing so
, determine whether a rational ju stification exists for the jury’ s finding of guilt beyond a reasonable doubt. Id

. T he trier of
fac t is the sole judge of the weight and credibility of witness testimony ; therefore, on appeal
, we must give deference to the factfinder’ s determinations. Id

. If the record contains conflicting inferences, we must presume th at the factfinder
resolved such facts in favor of the verdict and defer to that resolution. Id

.5 Appellant limits his evidentiary challenge under his third issue to the
contention that the State failed to affirmatively link him to the Tarrant County
conviction

. Specifical ly, Appellant alleges that the officer that testified as a fingerprint expert was not able to read the fingerprint on th e judgment from the Tarrant County conviction and
, thus
, could not tell if Appellant was indeed the
individual convicted in the Tarrant County conviction

. We conclude that the State offered additional evidence that sufficiently linked Appellant to the Tarrant County
conviction.
State’s Exhibit No. 2 contained a certified Order R evoking P robation for Appellant’s conviction in Tarrant County for DWI. State’s Exhibit No. 3 consisted
of the Texas Department of Public Safety ’s Certified A bstract R ecord for Appellant . State’s Exhibit No. 3 contain ed Appellant ’ s name, date of birth, address, driver’s license number, dates of arr est, charged offenses, findings of guilt, and the judicial case identification number for the Tarrant County conviction

. T his information matches the information in the revocation of probation order arising from the Tarrant County conviction , with one exce ption

— the Certified Abstract Record lists the “conviction date” for the Tarrant County conviction as being December 12, 1994. This was actually the date that Appellant’s probation
was revoked for the Tarrant County conviction.
T he charging instrument for the subsequent Wise County conviction alleged the details of the Tarrant County conviction. Additionally, t he judgment from the Wise County conviction that Appellant offered into evidence during the hearing on the motion to quash specifically states that this wa s a conviction for a Class A

m isdemeanor DWI under S ection 49.09(a). See P ENAL § 49.09(a). A conviction of
a Class A m isdemeanor DWI requires a finding of a prior conviction of DWI. Id

. Thus, Appellant pleaded guilty to a Class A m isdemeanor in the subsequent Wise6 County conviction that specifically alleged the existence of his prior Tarrant County conviction

. Viewing the evidence in the light most favorable to the verdict, we conclude
that the trial court could have found beyond a reas onable doubt that Appellant had
been convicted of the two prior DWIs alleged in the indictment. We overrule Appellant’s third issue

. Motion to Quash Indictment In his second issue, Appellant challenges the trial court’s denial of his pretrial motion to quash the indictment. 4 Appe llant argues that the indictment
should hav e been quashed because the 201 0 conviction that was alleged in the
indictment is purportedly void and therefo re could not be used to elevate his 20 11 offense to a felony DWI

. He bases this contention on the argument that the punishment he received for his Wise County conviction was below the minimum punishment range for a Class A m isdemeanor DWI. In this regard, Appellant received a punishment of three days in jail, with the s entence being suspended and Appellant placed on community supervision for one day. The minimum range of jail time for a Class A m isdemeanor DWI is thirty days. P ENAL § 49.09(a)

. We review de novo a trial court’ s ruling on a motion to quash an indictment because the sufficiency of a charging instrument is a question of law. Smith v.
State , 309 S.W.3d 10, 13

– 14 (Tex. Crim. App. 2010); State v. Moff , 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). A ppellant’ s challenge to the Wise County
conviction fails as a matter of law under the holding in Rhodes v. State , 240 S.W.3d 882, 892 (Tex. Crim. App. 2007). Rhodes is applicable because the Wise County conviction was the result of a plea agreement. Th e Court of Criminal Appeals held in Rhodes that “ [a] defendant w ho has enjoyed the benefits of an

4 W e are addressing Appellant’s second issue next because it is jurisdictional in nature.7 agreed judgment prescribing a too

- lenient punishment should not be permitted to collaterally attack that judgment on a later date on the basis of the illegal leniency.”
240 S.W. 3 d at 892. Accordingly, Appellant is prohibi ted from collaterally attacking the Wise County conviction on the basis of it being too lenient. Id. Appellant’s second issue is overruled. Motion to Suppress In his first issue, Appellant challenges the trial court’s denial of his motion to suppress. Appellant alleged as follows in his motion: For cause, Defendant would show that the stop of Defendant was without a warrant or probable cause. There was no probable cause based upon acceptable scientific protocol. Further, the so

called

- tipster was not shown to be credible. The officer did nothing to corroborate the tip from the unknown informant.
The suppression hearing began with the prosecutor acknowledging that the State had the burden of establishing a valid basis for the arresting officer’s conduct because Appellant was “stopped without warrant.” The prosecutor then called
T rooper Jeff Johnson of the Texas D epartment of Public Safety as a witness. Trooper Johnson testified on direct examination that he was dispatched at
1 2: 3 0 a.m. on January 30 , 201 1 , to a “ possible intoxicated driver leaving the

store .” He arrived at the Exxon at the intersection of H ighway 101 and H ighway 380. While he was making a turn onto Highway 101, Trooper Johnson saw a white
Pon tiac in the Exxon parking lot. This vehicle matched the description given to Trooper Johnson over the radio. Trooper Johnson then saw “the Pontiac’s brake lights come on
, ” and the car “started backing up.” The Pontiac pulled onto Highway 101 driving northbound. Trooper Johnson pulled behind the vehicle and noticed that the vehicle “accelerated quickly.” Trooper Johnson testified that he checked the speed o f the vehicle on the radar in his patrol car and that “ it was 62 in a 55.” The posted speed8 limit on that road was fifty

- five miles per hour. T he prosecutor concluded his
direct examination of Trooper Johnson as soon as he elicit ed testimony from Trooper Johnson that he stopped Appellant because of the speeding violation that
he observed. In this regard, i t appears that the State treated Appellant’s motion to suppress as solely an attack on the arresting officer’s basis for initiating the stop of Appellant

. On cross

- examination, Appellant’s trial counsel asked Trooper Johnson
about an anonymous tip that Trooper Johnson had overheard on the radio. Trooper Johnson testified that he stopped Appellant because of his speed and not because of the anonym ous tip about an intoxicated person. Trooper Johnson
further testified on cross

- examination that Appellant “eventually stopped” after the lights on Trooper Johnson’s patrol vehicle had been “on for a while.” Appellant’s counsel obtained a copy of Trooper Johnson’s report during cross

- examination. Based upon the questions asked during cross

- examination, it appears that Trooper Johnson noted in the report that Appellant “almost struck the guardrail” when pulling over

. However, Trooper Johnson did not obser ve Appellant weaving
in his lane. Appellant’s counsel further elicited testimony from Trooper Johnson during cross

- examination that Appellant refused to p erform any field sobriety tests
and that Appellant told Trooper Johnson what he had to drink . Near the end of
counsel’s brief cross

- examination, he asked Trooper Johnson: “ So, you arrested him, based upon the odor of alcohol on his breath? ” Trooper Johns on replied in
the affirmative.
At the conclusion of the evidence present ed during the suppre ssion hearing, the trial court received closing argument s from the attorneys . The prosecutor argued that Trooper Johnson had “probable cause to stop” Appellant because of his9 observation of Appellant’s speeding violation. Appellant’s trial counsel respon ded by argu ing as follows: And he smells alcohol on his breath, so he doesn’t do any tests, doesn’t do anything. No evidence of intoxication except alcohol on his breath, and he’s arrested for DWI.
It ’ s our position that anything after the stop should be suppressed, because there’s no probable cause for his arrest. On appeal, Appellant does not challenge Trooper Johnson’s basis for initiating the traffic stop . Instead, Appellant direct s his challenge on the conten tion that Trooper
Johnson did not have probable cause to arrest him for DWI. 5 A defendant seeking to suppress evidence on the basis of an alleged Fourth Amendment violation bears the initial burden of rebutting the presumption of proper police conduct. Young v. State , 283 S.W.3d 854, 872 (Tex. Crim. App. 2009). A defendant meets this burden by demonstrating that the challenged search
or seizure occurred without a warrant. Id

. The burden then shifts to the State to prove that the search or seizure was reasonable under the totality of the
circumstances. Amador v. State , 221 S.W.3d 666, 672

– 73 (Tex. Crim. App. 2007) ( Amador I )

. This burden may be satisfied by a showing that one of the statutory exceptions to the warrant requirement is met. See Torres v. State , 182 S.W.3d 899, 902 (Tex. C rim. App. 2005). In this case, it is undisputed that no warrant was issued for Appellant’s

arrest. As a result, the State bore the burden of establishing the reasonableness of
A ppellant ’ s detention and arrest. See Young , 283 S.W.3d at 872; Amador I , 221
S.W.3d at 672

– 73. Under the Fourth Amendment, a warrantless arrest for an

o ffense committed in the officer’ s presence is reasonable if the officer has probable

cause. Amador v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009)

5 The State does not assert, nor do we find, that Appellant failed to preserve his challenge to the probable cause supporting his warrantless arrest by Trooper Johnson.10 ( Amador II )

. “ ‘ Probable c ause ’ for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstanc es within the arresting officer’ s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a prudent man in believing tha t the person arrested had committed or was committing an offense. ” Id

. The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer, and it requires a consideration of the totality of the circumstanc es fac ing the arresting officer. Id

. A finding of probable cause requires more than bare suspicion but less than would justify conviction. Id

. Whether a specific search or seizure is reasonable or supported by probable cause is a question of law subject to de novo review.
Dixon v. State , 206 S.W.3d 613, 616 (Tex. Crim. App. 2006). In the absence of express findings of fact and conclusions of law, the trial

court ’s denial of A ppellant’s motion to suppress constitutes an implicit conclusion by the trial court that the State carried its burden of proving that, under the totality of the circumstances, Trooper Johnson ’s warrantless arrest of A ppellant was supported by probable caus e for an offense committed in his presence. Amador II
, 275 S.W.3d at 879

. Our task is to determine whether the trial court, in so concluding, abused its discretion. Id

. Because of the very limited inquiry at the hearing on the motion to suppress regarding Trooper Johnson’s basis for arresting Appellant, we conclude that the trial court err ed in denying the motion to suppress. Appellant alleges that Trooper Johnson arrested him for DWI “based solely upon the odor of alcohol on Appellant’s breath.” Appellant additionally contends
as follows in his brief: Trooper Johnson did not obse rve anything abnormal about Appellant’s eyes or speech; nor did he notice if Appellant swayed when he walked, or any other signs that might indicate that Appellant was intoxicated.11 We disagree with Appellant’s limited view of Trooper Johnson’s testimony. Trooper Johnson simply was not asked about any physical observations that he made of Appellant’s eyes, speech, or movement ; nor was he asked what effect, if any, these observations may have had on his decision to arrest Appellant. Trooper
Johnson’s affirm ative response to the question from Appellant’s trial counsel about
the odor of alcohol indicates that it was a factor he relied upon in making the decision to arrest Appellant

. 6 However, the record is silent as to what other factors Trooper Johnson may h ave relied upon in making the decision to arrest. W hether probable cause exists to justify a warrantless arrest must be considered under the totality of the circumstances surrounding the arrest. Amador II
, 275 S.W.3d at 878 . Based on the very limited record developed at the hearing on the motion to

suppress regarding Trooper Johnson’s basis for arresting Appellant , we conclude that the trial court erred in determining that the State met its burden of proof to show probable cause for Appellant’s arrest. To hold otherwise would require us to speculate on what other factors , if any, Trooper Johnson may have relied upon in arresting Appellant, including Appellant’s refusal to perform fie l d sobriety tests
, 7 Appellant’s response to the question regarding wh at he had been drinking, Appellant’s speeding violation, and Appellant’s act o f almost striking a guardrail. The State responds to Appellant’s challenge to the probable cause for the arrest by asserting that the trial court did not err in overruling Appellant’s motion to suppress because “the record is absent of any evidence obtained by the State after Appellant’s arrest that would be subject to suppression.” Based on this assertion, the State contends that any error by the trial court in denying the motion

6 Appellant cites Domingo v. State , 82 S.W.3d 617, 621

– 22 (Tex. App.

— Amarillo 2002, no pet .) , for the proposition that the odor of alcohol alone is not sufficient to establish probable cause to make an arrest for intoxication.

7 See Maxwell v. State , 253 S.W.3d 309, 314 (Tex. App.

— Fort Worth 2008, pet. r ef ’ d) (noting suspect’s refusal to perform field sobriety tests as a factor supporting probable cause to make DWI arrest).12 to suppress is harmless. We disagree with the State’s analysis. After the trial court erroneously denied the motion to suppress, Appellant stipulated to the allegation that he was driving w hile intoxicated. In many respects, Appellant’s stipulation is akin to a plea of guilty. The Court of Criminal Appeals has stated that appellate

courts are not to speculate as to an appellant’s reasons for entering a “guilty” plea
or as to whether the ap pellant would have done so if the motion to suppress had been granted. See Holmes v. State
, 323 S.W.3d 163, 172

– 73 (Tex. Crim. App. 2009) ; McKenna v. State , 780 S.W.2d 797, 799

– 800 (Tex. Crim. App. 1989); Kraft v. State , 762 S.W.2d 612, 613

– 15 (Tex. Crim. App. 1988) ; Paulea v. State
, 278 S.W.3d 861 , 867 (Tex. App.

— Hous ton [14th Dist.] 2009, pet. r ef’ d). As long as the evidence that should have been suppressed would in any measure inculpate the accused, this court mu st presume that the trial court’s denial of A ppellant’ s motion t o suppress influenced A ppellant’ s decision to plead “guilty” and is
reversible error. See McKenna , 780 S.W.2d at 799

– 800; Kraft , 762 S.W.2d at
613

– 15 ; Paulea , 278 S.W.3d at 867 . The record in this appeal indicates that Appellant was subjected to a mandatory blood draw after his arrest. While the record is silent regarding the results of the blood draw, we assume that the results were inculpatory based upon Appellant’s stipulation to being intoxicated

— a stipulation that occurred after the motion to suppress was denied . Accordingly, we
presume that the trial court ’s erroneous denial of A ppellant’ s motion to suppress
influenced his decision to enter the stipulation. Therefore, the error is reversible.
We sustain App ellant’ s first iss ue. Conclusion We conclude that Appellant’s conviction was supported by sufficient evidence. Additionally, w e uphold the trial court’s denial of Appellant’s pretrial13 motion to quash the indictment. However, we sustain Appellant’s first issue challenging the trial court’s denial of hi s pretrial motion to suppress. This Court’s Ruling
We reverse the judgment of the trial court, and we remand this ca u se to the
trial court for further proceedings consistent with this opinion.

JOHN M. BAILEY
JUSTICE

March 20 , 2015
Pub lish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: W right , C.J., Willson, J. , and Bailey, J.