AFFIRMED and Opinion Filed September 21, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00057-CR 

LESLIE ROBERT SCHULZ, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 296th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 296-83859-2018 

MEMORANDUM OPINION 

Before Justices Molberg, Goldstein, and Smith 

Opinion by Justice Goldstein 

Leslie Robert Schulz appeals his conviction for driving while intoxicated 

(DWI) 3rd offense or more, based upon two prior misdemeanor DWI convictions, a 

third-degree felony offense.1

 Schulz pled “not guilty” to the charged offense and 

did not stipulate to the prior DWI related offenses. A jury found Schulz guilty of 

DWI 3rd and the trial court assessed punishment pursuant to the parties’ agreement 

to suspend the ten-year prison sentence, placing Schulz on probation for five years. 

Schulz presents two issues on appeal, first contending the trial court erred by 

1

 TEX. PENAL CODE ANN. § 49.09(b)(2). 
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refusing to quash a Florida conviction used as a jurisdictional enhancement, and next 

contending the trial court erred by refusing to suppress the results of Schulz’s bloodalcohol test. We affirm the trial court’s judgment. 

I. Factual Background 

Lavon Police Officer Flohr made a traffic stop based upon radar showing 

Schulz’s motorcycle traveling 70 miles per hour in a 50 miles per hour zone. Schulz 

admitted he was returning home from a bar and gave inconsistent answers as to the 

number of drinks he consumed and whether he was at the bar with friends or alone. 

Officer Flohr, observing signs of Schulz’s intoxication—slow, slurred speech, heavy 

eyes, balance issues, the smell of alcohol, and an inability to focus—called for 

backup. Schulz refused to perform standardized field sobriety tests (SFSTs). Sargent 

Aaron arrived as backup, observed signs of Schulz’s intoxication, and sought his 

consent to a breath test and SFSTs. Schulz, stating he was nervous, refused both. 

Officer Flohr arrested Schulz for driving while intoxicated, determining Schulz 

lacked normal use of his mental or physical faculties. 

Upon arrest, Schulz was handcuffed, searched, placed in the back of Officer 

Flohr’s patrol car, read his DIC-24 statutory warnings and provided a copy. Officer 

Flohr’s bodycam video reflected the request for a blood specimen and Schulz’s 

response “Okay, you can take my blood.” Officer Flohr verified “So you’re giving 

permission to consent for us to take your blood?” and Schulz replied “Yes.” Prior 

to taking Schulz to a hospital, Officer Flohr asked Schulz a third time “you still 
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consent to taking your blood?” and he said “yes.” Schulz’s blood was drawn by a 

registered nurse, placed into evidence and tested. Schulz’s blood alcohol 

concentration was .221, which is two- and one-half times over the .08 legal limit. 

Two prior misdemeanor DWIs were offered as jurisdictional enhancements, 

one from Collin County, Texas in 2012 and one from Lee County, Florida in 2014. 

Defense counsel objected that the Florida conviction was insufficient under Texas 

law to support a jurisdictional enhancement and moved to quash the Florida 

enhancement allegation in Schulz’s indictment. The trial court overruled counsel’s 

objections and denied the motion to quash. 

II. Motion to Quash Jurisdictional Enhancement 

In Issue One, Schulz contends the trial court erred in denying his motion to 

quash the portion of his indictment alleging a prior Florida conviction as a 

jurisdictional enhancement. The sufficiency of an indictment is a question of law 

that is reviewed de novo unless the resolution of the question of law turns on an 

evaluation of the credibility or demeanor of witnesses. See State v. Moff, 154 S.W.3d 

599, 601 (Tex. Crim. App. 2004). 

Schulz collaterally attacks the Florida conviction as void because of the 

record’s failure to reflect that he waived his right to a jury trial. A prior conviction 

that was alleged for enhancement may be collaterally attacked if it is void or if it is 

tainted by a constitutional defect. Galloway v. State, 578 S.W.2d 142, 143 (Tex. 

Crim. App. 1979). Lesser infirmities in a prior conviction, such as irregularities in 
 –4– 

the judgment or sentence, may not be raised by a collateral attack, even if they would 

have resulted in a reversal had they been presented on appeal. Id. 

A. State’s Burden: Prima Facie Showing

A DWI offense may be enhanced to a third-degree felony if the State proves 

that the person has two prior convictions for certain DWI offenses. TEX. PENAL 

CODE ANN. § 49.09(b)(2). An offense relating to the operation of a motor vehicle 

while intoxicated includes an offense under the laws of another state that prohibit 

the operation of a motor vehicle while intoxicated. Id. § 49.09(c)(1)(F). The prior 

convictions are jurisdictional allegations that define the offense and are essential 

elements of felony DWI that must be plead and proven at the guilt-innocence phase 

of trial. See TEX. PENAL CODE ANN. § 49.09(b); TEX. CODE CRIM. PROC. ANN. art. 

36.01(a)(1); State v. Duke, 59 S.W.3d 789, 790 (Tex. App.—Fort Worth 2001, pet. 

ref’d) (op. on reh’g). 

Schulz did not plead “true” to the jurisdictional enhancements or stipulate to 

the prior convictions. Where a defendant has not pled “true” to an enhancement 

allegation, the State must prove the enhancement allegation beyond a reasonable 

doubt. Wood v. State, 486 S.W.3d 583, 588 (Tex. Crim. App. 2016) (holding State 

cannot solely rely upon presumption of regularity applied to judgment recital of 

“true” plea to an enhancement allegation, finding State met its evidentiary burden to 

prove prior conviction). To establish a prior conviction for purposes of 

enhancement, the State must produce evidence demonstrating the existence of a prior 
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conviction and the defendant’s link to it. Henry v. State, 509 S.W.3d 915, 918 (Tex. 

Crim. App. 2016) (citing Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 

2007)). 

To make its prima facie showing, the State introduced, and the Court admitted 

over objection, State’s Exhibit 8, the Florida penitentiary packet consisting of 

certified copies of the Florida judgment and sentence, fingerprint card, 

order/commitment form, first appearance court order, arrest warrant, and sheriff’s 

alcohol influence report, all containing Schulz’s name and the same case number.2

 

The judgment indicates Schulz entered a plea of nolo contendere to DUI, in open 

court, signed by the Judge, placed on 12 months’ probation, with a blank signature 

line acknowledging receipt of the order. The order/commitment form (“plea form”) 

reflects Schulz was “Present by Attorney” and that a plea of nolo contendere was 

made “in absentia.” The plea form reflects a sentence of twelve months’ probation 

with the same conditions of probation as the judgment. 

If the State provides prima facie evidence of an enhancement conviction, we 

presume the regularity of the judgment related to that prior conviction. Fletcher v. 

State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007); Wise v. State, 394 S.W.3d 594, 598 

(Tex. App.—Dallas 2012, no pet.). We find the State met its evidentiary burden to 

2

 Also referred to as a “pen packet.” While not presented as a separate issue on appeal, Schulz contends 

the trial court erred in admitting the Florida pen packet. A trial court’s decision to admit or exclude evidence 

will not be reversed absent an abuse of discretion. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 

2018). We do not separately address whether the trial court abused its discretion in admitting State Exhibit 

8, as our de novo standard of review of the denial of the motion to quash is more stringent. 
 –6– 

link Schulz to the prior Florida DUI conviction, and therefore we presume the 

regularity of the Florida conviction for enhancement purposes. Once the State links 

a defendant to a prior judgment, the burden then shifts to the defendant, who must 

affirmatively show a defect in the judgment that would render it void. See Wise, 394 

S.W.3d at 598; see also Sample v. State, 405 S.W.3d 295, 301 (Tex. App.—Fort 

Worth 2013, pet. ref’d); Williams v. State, 309 S.W.3d 124, 129 (Tex. App.—

Texarkana 2010, pet. ref’d). 

B. Burden Shifts to Schulz – Presumption of Regularity 

During the punishment phase of trial, Schulz moved to quash the Florida 

penitentiary packet produced by the State for enhancement purposes. Schulz 

contends that the face of the Florida judgment contains false statements and therefore 

is not entitled to the presumption of regularity. Noting that neither Schulz nor his 

attorney signed the judgment or plea form, Schulz argues that recitals in the 

judgment indicating Schulz was present before the court, entered a nolo contendere 

plea, and was admonished that his probation may be rescinded are false, as they 

conflict with the plea form that reflects Schulz did not appear in person and that his 

plea was made in absentia. The State argues, reading the judgment and plea form 

together, that Schulz was present before the court through his attorney’s 

representation, noting that Florida procedural rules allow a misdemeanor defendant 

to be tried in absentia at their own request, upon leave of court. See FLA. R. CRIM.

P. 3.180(d). In addition to reflecting that Schulz made a plea in absentia and was 
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“Present by Attorney,” the plea form contains defense counsel’s name, and the same 

date, plea, case number, and sentence details as the judgment. The first appearance 

court order, recites, among others, that Schulz: 1) was to be provided a copy of the 

order upon release from jail, 2) lived in Texas, 3) acknowledged he had been advised 

of his right to be represented by an attorney and of the rights on the plea form, and 

4) the conviction may be used on a subsequent felony score sheet. Similar to cases 

likening such evidence to pieces of a jigsaw puzzle, we find the details of Schulz’s 

appearance and plea through counsel reflected on the plea form and other documents 

are pieces of the puzzle that supplement, rather than conflict, with the judgment. 

Flowers, 220 S.W.3d at 923 (although each piece alone may have little meaning, 

evidence is legally sufficient to prove a prior conviction when the evidence 

considered together forms a picture showing a defendant is the person who 

committed the alleged prior offense); see also Wood, 486 S.W.3d at 589–90. 

Properly considering all documents comprising State Exhibit 8 in combination, the 

documents show that Schulz appeared in court on April 29, 2014, through his 

counsel to plead nolo contendere. Accordingly, the trial court did not err in denying 

Schulz’s motion to quash the enhancement allegation on this basis. 

C. Schulz’s Burden: Collateral Attack on Jury Trial Waiver 

Even if the presumption of regularity applied, which we found that it has, 

Schulz contends that the Florida judgment is void “because the record contains 

evidence that Schulz never signed a waiver of his right to a jury trial or was 
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admonished about it.”3

 Schulz collaterally attacks the Florida conviction as void 

because the record fails to reflect that he waived his right to a jury trial. A prior 

conviction alleged for enhancement may be collaterally attacked if it is void or if it 

is tainted by a constitutional defect. Sparks v. State, 809 S.W.2d 773, 774 (Tex. 

App.—Houston [14th Dist.] 1991, pet. ref’d) (citing Galloway, 578 S.W.2d at 143).4

Lesser infirmities in a prior conviction, such as irregularities in the judgment or 

sentence, may not be raised by a collateral attack, even if they would have resulted 

in a reversal had they been presented on appeal. Id. 

 The pen packet contained no showing that Schulz had been informed of, or 

waived, his right to a trial by jury. Schulz relies on the contents of the pen packet to 

argue that the original Florida conviction record contains no showing of a jury 

waiver. 

 Although Schulz may lodge a collateral attack on the prior Florida conviction, 

as the party attacking the conviction, it is his burden to show its invalidity in the 

3

 At the motion to quash hearing, Schulz maintained it was the State’s burden to establish on the record 

that the defendant made an express, knowing, and intelligent waiver of a jury trial compliant with article 

1.13 of the code of criminal procedure. He argued the Florida judgment could not be presumed regular 

because it lacked a recitation that a jury trial was waived, arguing the Breazeale holding that a silent record 

cannot support a presumption that a defendant formally waived his right to trial by jury. See Breazeale v. 

State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1985) (op. on reh’g). However, the Breazeale case involved 

a direct appeal and does not apply to a collateral attack on prior judgments used for enhancement purposes. 

See West v. State, 720 S.W.2d 511, 519 (Tex. Crim. App. 1986), cert. denied, 481 U.S. 1072 (1987). 

4

 Even when a collateral attack rests on constitutional grounds, states may assign a burden of production 

to the defendant to overcome a silent or missing record because prior judgments retain a presumption of 

regularity. See Parke v. Raley, 506 U.S. 20, 31–32 (1992); Alvear v. State, 25 S.W.3d 241, 245 (Tex. App.—

San Antonio 2000, no pet.) (“It is unreasonable to presume from the unavailability of a reporter’s record 

that a defendant was not advised of his rights”) (citing Parke, 506 U.S. at 30). 
 –9– 

record and preserve the error for appeal. West, 720 S.W.2d at 519. Schulz has 

neither presented the court with a complete record of the prior Florida cause, nor 

introduced evidence that the Florida law requires a jury waiver to be reflected on the 

face of the judgment. West, 720 S.W.2d at 519. Reliance on the Florida penitentiary 

packet alone is insufficient to carry Schulz’s burden of proof. Sparks, 809 S.W.2d at 

774–75. 

Schulz argues his defense counsel offered State Exhibit 8 to demonstrate the 

Florida records contained no evidence of a valid jury trial waiver, and that the State 

offered no additional evidence to contradict his contention. However, in a collateral 

attack, the absence of a written jury waiver in the court’s file does not render a 

conviction void. See Sample, 405 S.W.3d at 302; Egger v. State, 62 S.W.3d 221, 

224 (Tex. App.—San Antonio 2001, no pet.) (citing Ex parte Sadberry, 864 S.W.2d 

541, 543 (Tex. Crim. App. 1993)). A judgment that fails to comply with statutory 

requirements is not void and may serve as sufficient proof of a final conviction for 

enhancement purposes. Brown v. State, 508 S.W.3d 453, 457 (Tex. App.—Fort 

Worth 2015, pet. ref’d). This Court similarly has held that, “[e]ven if all procedural 

requirements of article 42.01 have not been met, as long as a judgment adjudicates 

the guilt of the defendant and assesses his punishment, it may be used under section 
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49.09(d) to elevate misdemeanor DWI to a felony offense.” Williamson v. State, 46 

S.W.3d 463, 466–67 (Tex. App.—Dallas 2001, no pet.). 

Schulz cites Florida and Texas authority supporting the proposition that the 

actual lack of an express jury trial waiver is per se reversible error under Florida law 

and can render a conviction void under Texas law. A defendant collaterally 

attacking a prior conviction used for enhancement purposes on the ground that a jury 

trial was not validly waived has the burden either to show the entire record is silent 

on jury waiver or to introduce additional evidence that shows the right to a jury trial 

was not in fact waived. The Texas Court of Criminal Appeals has stated: 

The records introduced at trial, while silent on the question of jury 

waiver, were not shown to be the complete records of the Florida 

offense. The question, then, is not whether records which are silent 

upon the question of jury waiver can support a conviction, but whose 

burden it is to show whether the records are indeed silent in a collateral 

attack such as the one at bar. We hold that in this instance, as in other 

collateral attacks, that burden is upon the party attacking the validity of 

the conviction. 

West, 720 S.W.3d at 519; see also Sample, 405 S.W.3d at 301 (defendant’s 

testimony did not overcome judgment’s recital of jury trial waiver); Tate v. State, 

120 S.W.3d 886, 890 (Tex. App.—Fort Worth 2003, no pet.) (defendant failed to 

introduce entire record from prior conviction or evidence of actual jury trial waiver). 

Because the records in State Exhibit 8 are silent on the issue of jury waiver, it 

was Schulz’s burden to establish the Florida conviction was void by producing 

evidence that demonstrates the pen packet contained the complete record of his 
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Florida conviction or that he in fact never made an express, knowing, and intelligent 

waiver of a jury trial. Schulz did not introduce the Florida reporter’s record or any 

evidence showing that the pen packet was the complete record of his Florida 

conviction, nor did he offer testimony when the trial court heard his motion to quash. 

Schulz urges this Court to consider testimony he offered after the trial court 

denied his motion to quash, overruled his objections to including the Florida 

conviction in the jury charge, and dismissed the jury to deliberate.5

 Schulz testified 

that he never signed a document waiving a jury trial and he never authorized an 

attorney to give up his right to a jury trial. An appellate court’s review of the record 

generally is limited to the evidence that was before the trial court at the time of the 

trial court’s ruling. Amador v. State, 221 S.W.3d 666, 677 (Tex. Crim. App. 2007). 

Even if Schulz’s testimony had been offered when the trial court was considering 

his motion to quash, the court was not required to accept it as conclusive proof there 

was no voluntary waiver of his right to trial by jury. A defendant’s self-serving 

testimony alone is insufficient to carry the burden on collateral attack. See Egger, 

62 S.W.3d at 224–25 (finding production of entire file proving no written jury 

5

 We note that the purpose of Schulz’s testimony is not delineated on the record. Schulz testified that 

he was in Florida for two weeks in December 2012 and was arrested for DUI, whereupon he posted bond 

and returned to Texas. Schulz admits the fingerprint card contains his fingerprints and his signature, that 

he was represented by the Florida attorney named on the plea form who took his plea in absentia, and that 

as a result he was given probation. Schulz did not testify that he would have demanded a jury trial if he 

had been advised it was available. The State argues that Schulz’s appearance in absentia through his 

retained counsel, his plea of nolo contendere, and his negotiated sentence all militate against Schulz’s 

testimony that his attorney never advised him of his right to a jury trial. We agree. 
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waiver and defendant’s testimony was insufficient to overcome judgment recital) 

(citing Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985)); Alvear, 

25 S.W.3d at 246 (bald assertions by defendant that plea was involuntary are 

insufficient to overcome the presumption of regularity) (citing Parke, 506 U.S. at 

30). 

 Because Schulz failed to meet his burden of proving that State’s Exhibit 8 

contained the entire Florida record or that he in fact never waived a jury trial, Schulz 

failed to prove his Florida conviction was void. Accordingly, we find the trial court 

did not err in admitting State Exhibit 8 or in denying Schulz’s motion to quash the 

enhancement allegation. Issue One is overruled. 

III. Motion to Suppress Blood Test Results 

In his second issue, Schulz contends the trial court erred in denying his motion 

to suppress blood-alcohol test results because he did not separately consent to the 

testing of his blood specimen. We review a trial court’s ruling on a motion to 

suppress under a bifurcated standard of review. State v. Ruiz, 577 S.W.3d 543, 545 

(Tex. Crim. App. 2019). We give almost total deference to the trial court’s 

determination of historical facts and review de novo the application of the law to the 

facts. Id. We view the record in the light most favorable to the trial court’s ruling 
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and uphold the ruling if it is supported by the record and is correct under any theory 

of the law applicable to the case. Id.

 Schulz argues that a warrant was required to test his blood because consent 

given for blood to be drawn does not operate as consent for testing, as blood testing 

involves a discrete invasion of privacy under the Fourth Amendment. See Martinez 

v. State, 570 S.W.3d 278, 290 (Tex. Crim. App. 2019) (finding warrant was required 

for State to test blood obtained from hospital where consent to draw blood after 

traffic accident was given for medical purposes only). 

The Texas Court of Criminal Appeals recently distinguished Martinez from 

cases where blood was drawn after a showing of probable cause justified a warrant, 

and clarified “the chemical testing of the blood, based upon a warrant that justifies 

the extraction of blood for that very purpose, is a reasonable search for Fourth 

Amendment purposes.” Crider v. State, 607 S.W.3d 305, 307–08 (Tex. Crim. App. 

2020), cert. denied 141 S.Ct. 1384 (2021) (citing State v. Staton, 599 S.W.3d 614, 

617–18 (Tex. App.—Dallas 2020, pet. ref’d) (finding Martinez does not mandate a 

second warrant to test blood obtained through a warrant, stating “common sense 

dictates that blood drawn for a specific purpose will be analyzed for that purpose 

and no other.”)). 

Schulz’s blood was tested after being drawn by consent rather than pursuant 

to a warrant. Officer Flohr read Schulz the standard DIC-24 statutory warnings, 

after which upon specific questioning, Schulz thrice verbally and unequivocally 
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consented to his blood being drawn. Schulz contends the focus of the DIC-24 is the 

taking of a blood specimen and advising of the consequences of refusing the blood 

draw; the warnings do not contain an additional request for consent to analyze the 

specimen. 

The DIC-24 warns that, after consent is given for blood to be drawn, the 

specimen will be analyzed for blood-alcohol content and certain consequences will 

arise if the test shows an alcohol concentration of .08 or more. Schulz argues this 

additional warning does not create a blanket consent to other conduct by law 

enforcement. The State argues that Schulz’s consent to the blood draw necessarily 

authorized the blood alcohol testing because a reasonable person could have no other 

understanding after hearing DIC-24 statutory warnings. See Freeman v. State, 413 

S.W.3d 198, 203 n.1 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). (“These 

warnings explain among other things, some of the potential consequences of refusing 

or submitting to a breath or blood test.”). 

 “Whether we say the warrant that justifies extraction of the blood also, by 

necessary implication, justifies chemical testing, or we simply acknowledge that a 

magistrate’s finding of probable cause to extract the blood for chemical testing 

necessarily constitutes a finding of probable cause also to conduct the chemical test 

for intoxicants, is of no moment.” Crider, 607 S.W.3d at 307–08. “[T]he Fourth 

Amendment does not require the State to obtain a second warrant to test a blood 

sample that was seized based on probable cause that a person was driving while 
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intoxicated.” Id. at 307 (citing with approval Jacobson v. State, 603 S.W.3d 485, 

491 (Tex. App.—Fort Worth 2020, pet. ref’d)). 

Consent to search is one of the well-established exceptions to the 

constitutional requirements of both a warrant and probable cause. Carmouche v. 

State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). Voluntary consent to draw blood 

after receiving statutory DIC-24 warnings is recognized as a valid exception to the 

warrant requirement. See Leal v. State, 82 S.W.3d 84, 89 (Tex. App.—San Antonio 

2002, pet. ref’d) (“Search warrants and consent-to-search forms serve the same 

purpose, permitting a legal search, and only differ as to the source of authority.”). 

Schulz does not challenge the voluntariness of, or consent to, the blood draw, 

just the subsequent testing. We find that Schulz’s voluntary consent given for his 

blood to be drawn after hearing DIC-24 warnings that the specimen will be tested 

for alcohol and could be used in proceedings against him was sufficient authorization 

for the State to test the specimen without first obtaining a warrant for the testing.6

 

Accordingly, we find the trial court did not err in denying Schulz’s motion to 

6

 A sister court agrees. See Burkland v. State, No. 14-18-00599-CR, 2020 WL 548334, at *5 (Tex. 

App.—Houston [14th Dist.] Feb. 4, 2020, pet. ref’d) (mem. op., not designated for publication) (where 

statutory warning informs of purpose of the blood draw before consent, concluding consent covered both 

the draw and subsequent analysis of blood). 
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suppress the results of his blood-alcohol test. We overrule issue two and affirm the 

trial court’s judgment. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

200057F.U05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
 –17– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

LESLIE ROBERT SCHULZ, 

Appellant 

No. 05-20-00057-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 296th Judicial 

District Court, Collin County, Texas 

Trial Court Cause No. 296-83859-

2018. 

Opinion delivered by Justice 

Goldstein. Justices Molberg and 

Smith participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered this 21st day of September, 2021.