### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Decem ber 3, 2002

Session
STATE OF TENNESSEE v. MARTEL TH OMAS
Direct Appeal from the Criminal Court for Shelby County

No. P13320 Chris Craft, Judge

No. W2002-01549-CCA-R3-CD - Filed Mar ch 4, 2003

Appel lant, Martel Thomas, filed a petition pursuant to Tennessee Code Annotated section 55-10

- 615(c), in which he mov ed the Crim inal C ourt o f Shel by Count y to resto re his privi lege to opera te a motor veh

icle in Te nnessee . In 1 994, Appe

llant had been de clared

an Habitu al Motor Vehicle Offender. In his petition, which is the subject of this appeal, Appellant alleged that he did not have th e requisite number of prior convictions to establish his status as an Habitual Motor Vehicl e Offender. The trial court denied the petition and this appeal followed. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined. Lance R. Chism, Memphis, Tennessee, for the appellant, Martel Thomas.

Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; William L. Gib

bons, Distr

ict Attorn

ey Genera l; and Gle

nn Baity , Assist ant Distri ct Attorney General, for the appellee, State of Te nnessee.
OPINION

There is no tran script of

the trial court he aring a

vailable in th e ap pel lat e re cor d. In fact, the record on appea l consists o f the orig

inal petit ion to have

Appellan

t declar ed an Ha bitu a l Motor Vehicle Offender, the consent

order declaring him to be an Habitual Motor Ve hicle Offender entered July 26, 1994, A

ppellant ’s petitio n to remove his Habitual Motor Vehicle Offender status, and the order of th e t ri al co ur t d en yi ng the petition. Attached to Appellant’s petition is a document purporting to be a printout of the Tennessee Depart ment of Safety Dr iver License Recor

d of Appellan t, but there is no indication that this document was made an exhibit at the hearing in the trial court.-2-

The record, such as it is, reflects that there wer e three convictions which were used to support the consent order declaring Appe llant to be an habitual motor vehicle offender. These convictions
were as follows: a DUI conviction on Marc h 12, 199 1 and two c onviction s for driv ing while his license was cancelled, suspended, or revoked on January 23, 1992 and March 10, 1994. Tennessee Code Annotated section 55-10-615(c) became e ffective on July 1, 2000. I n perti nent part, that subsecti on states that [I]f a person is decla red to be a habitual motor vehicle offender and one (1) or more of the requisite convictions was for . . . drivi ng on a cancelled, suspended, or revoked license as prohibited by § 55-50-504 whe re the underly

ing violation of § 55- 50-504 was not an offense enumerated in § 55-10-603 ( 2)(A), such person may petition the court where such hab it ual offender finding occurr ed or any c ourt of record having criminal jurisdiction in the county in which such person then resides for immediate restoration of the privilege to operate a motor vehicle in this state. After reviewing such petition, if the court finds that one (1) or more o f such requisite convictions was for . . . § 55-5 0-504 where the underly ing offense was not one (1) enumerated

in § 55-10-603(2)(A), then the court shall restore t o such p erson the privilege to operate a motor vehicle in this state upon such terms a nd conditions as the court ma

y pr escribe , subject

to other provisions of law relating to the issuance of operators’ or chauffeurs’ lice nses.
Included within the off

enses enu merated in Tennessee Code Annotated section 55-10- 603(2)(A), is: “(viii) [a] violation of § 55-10-401, prohibiting intoxicated or drugged persons from driving,” i.e. DUI. Our revie w of this case is severely

limited by the nature of

the record

on appea l. As stated a

bove, the re is no tr anscrip t of the pr

oceeding in the t

rial cou rt. Ther e is n othing in

th e record to indicate that any doc

ument was properly

introduced as an exhibit in the trial court. I n its order denying the petition, the trial court found that the matter came on to be heard upon the petition “filedby [A

ppellant ], stateme nts of cou

nsel, and the rec ord as a

whole.” Further, the trial court specific ally

found in its order

that A ppellant offered no proof at the hearing that the underlying offense resulting in the cancellation, suspension, or revoca tion of his l

icense w as not an o ffense enumerated

in Tennessee Code Annotated section 55-10-603(2)(A). I n State v. Cooper , 736 S.W.2d 125 (Ten n. Crim. Ap

p. 1987), this cour

t held tha t:
Before an exhibit may be consider ed by this Court, it must have been (a) received into evide nce, (b ) mark ed by the t rial j udge , clerk, or court reporter as having been received into evidence as a n exhibit, (c) authenticated by the trial judge, and (d) included in the transcript of the evidence transmitted to this court. (Citations omitted). The inclusion of a

doc ument in what has been commonly r eferred to as the ‘technical record ’ will not, as a matte r of la w , permit this Court to consider the document when it has not been introduced as evidence or authenticated

by the trial court. Id . at 131.-3-

Rule 13(c) of the Tennessee Rules of Appellat e Procedu re state s that app ellate c ourts in thi s state may co n sider facts established by the evidence in the trial court and set forth in the rec ord. Appellat e courts may also consider a dditional facts that may be judicia lly noticed or which ar

e considered

pursuant to Rule 14 of the Tennessee Rules of Appellate Procedure . Neither of the latter two provisions is applicable in this case.

In support of

his argume

nts on appe al, Appellant rel ies heavily u

pon fact s contained in his purporteddriving

history prin tout from the Tennessee Department of Safety , and also upon other facts which are not

in the record, such as his inability to pa y fines, costs, and fees in order to reinsta te his license following his DUI conviction. Appellant argues that after e xpiration of the mandatory one-yea r prohibitio n from dr

iv ing a vehicle in Tennessee imposed by the trial court at his DUI conviction pursuant to Tennessee Code Annotated section 55-10-403(a) ( 1) , the continuing revocation of

his driving privileges was then converted to a revocation based on his inability to pay costs, fines, and fees in order to have his driver’s lice nse reinstated.

There is, essentially, a void of proof in the r ecord in suppo rt of Appe llant’s arguments on appeal. Thus, we must presume that there was sufficient evidence, in the abse nce of any

thing in the appella te record contrary

thereto, to support the trial court’s order deny ing the petition. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

Even i f we assume that all facts relied upon by Appellant in his brief were true, our interpretation of Tennessee Code Annotatedsections 55-10-603(2)(A) and 55-10-615(c) draws us to the inesc apable c onclusion that A ppel lant’s driver’s license was mandatorily revoked by the Department

of Safety following

his DUI conviction pursuant to Tennessee Code Annotated section 55-50-501( a )(2). There is no one-y ear limitation on the revocation pursuant to this code section. Two subsequent convictions for driving on a cancelled, suspe nded, or revoked license f

o rmed a ba sis forthe finding

that Appe

llant wasan habitu al motor ve hicle of fender . Each of

these ha d, as it s underlying

offense, causing his license to be ca ncelled, suspended, or revoked , an offe nse e numerated

in Tennessee Code Annotated section 55-10-603(2)(A) , to wit: DUI, in violation o f Tennessee Code A nnotated se ction 55- 10-401. Accordin gly , the judgment of the trial cou rt must be affirmed.
CONCLUSION

Based upon our review of the record and the a pplicable law, the judgment of the trial court is affir med. Costs a

re taxed to

the Appellant.

___________________________________

THOMAS T. WOODALL , JUDGE