Opinion filed June 25, 2015



### In The 

# Eleventh Court of Appeals

_____ _ ____ _ 

### No. 11

- 13

- 00 1 80

- CR

______ _ ____ 

### GILBERT ROMAN CORRALES , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 2 38 th District Court
Midland County, Texas
Trial Court Cause No. CR39641

M E M O R A N D U M O P I N I O N The jury convicted Gilbert Roman Corrales of the third

- degree felony offense
of assault

- family violence

. See T EX

. P ENAL C ODE A NN

. § 22.01(a)(1) , (b)(2)(A) ( West Supp. 2014 ). Appellant pleaded true to the enhancement paragraph, and the jury assessed his punishment at confinement for a term of fo ur years and a fine of $1,500. The trial court sentenced him according ly

. W e affirm

.2

In his sole issue on appeal , Appellant claims that the evidence is insufficient
to show that h e was the person convicted in a prior judgment of conviction that the
trial court admit ted into evidence. Proof of the prior conviction was required to
elevate the misdemeanor as sault offense to a third

- d egree felony offense of assault

family violence. See id. Specifically, Appellant argues that the evidence was insufficient to prove his identity as the person convicted of the prior offense because
he did not expressly stipulate to the judgment and because no other evidence was presented that linked him to the prior judgment. We review the sufficiency of the evidence under the standard of review set
forth in Jackson v. Virginia , 443 U.S. 307 (1979). Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State , 337 S.W.3d 286, 288

– 89 (Tex. App.

— Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based o n that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson , 443 U.S. at 319; Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). To prove the third

- degree felony offense of assault

- family violence under Section 22.01(b)(2)(A), the State must show that the defendant committed an assault against a person whose relationship with the defendant is des cribed by
Section 71.0021(b), 71.003 , or 71.005 of the Texas Family Code 1 and that the
defendant had been previously convicted of an offense involving family violence.
See P ENAL § 22.01(b)(2)(A). Here, the State alleged that , on May 8, 2008, in Cause No. 121043 in the County Court at Law in Midland County, Texas, Appellant had been previously convicted of assault against a member of his family and household

.

1 T EX

. F AM

. C ODE A NN . §§ 71.0021( b), 71.003, 71.005 (West 2014 ).3

To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that a prior co nviction exists and that the
defendant is linked to that conviction. Flowers v. State , 220 S.W.3d 919 , 921 (Tex. Crim. App. 2007). There is no specific manner in which the State must prove these
two elements. Id. Some of the ways by which a defendant may be linked to a prior
conviction is through the testimony of a fingerprint expert , through the testimony of a witness who personally knows that the defendant was previously convicted and can identify the defendant, by the defendant’s stipulation or judi cial admission, or by a photograph that is contained in the prior judgment or pen packet

. See
, e.g. , Beck v. State , 719 S.W.2d 205 , 209 (Tex. Crim. App. 1986) ; Littles v. State , 726 S.W.2d 26, 31

– 32 (Tex. Crim. App. 1984)

. Here, t he State offered, and the trial court admitted without objection, a prior judgment of conviction of assault

- family violence against a “ GILBERT ROMAN
CORRALES .” When t he prosecutor offer ed the judgment that reflected the prior conviction, he said: “[A] t this time, I’m going to offer State’s Exhibit 11 [the judgment of conviction] into evidence. I believe this was going to be stipulated by Defense.” Whereupon, defense counsel stated that he had no objection , and the trial court admitted the judgment. Immediately after the tria l court admitted the judgment
int o evidence, the prosecutor said, “And just for the record, Your Honor, this is The State of Texas versus Gilbert Roman Corrales in County Court, Midland County, Texas, Cause Number 121043, in which the Defendant, on May 8th , 2008, was
convi cted for the offense of assault

- family violence.” Defense counsel did not respond to the prosecutor’s statement. State’s Exhibit No. 11 was published to the jury without further comment by defense counsel, and the State called its next

w itness. When a defendant stipulates to a prior conviction, he waives his right to challenge the sufficiency of the evidence as to the prior conviction on appeal

.4

Bryant v. State , 187 S.W.3d 397, 401 (Tex. Crim. App. 2005 ). A stipulation is “ a kind of judicial admission ” and reliev es the State from its burden to prove the fact that has been stipulated

. Id. at 400

– 01. The question in this case becomes whether Appellant’s silence to the prosecutor’s representation that he had stipulated to the prior co nviction is sufficient to show that he stipulated to the evidence.
In Matthews v. State , counsel for the State and for the defendant stipulated, during the guilt/innocence phase, that there was a witness that could identify the defendant as the same per son who was previously convicted of the misdemeanor offense of driving while intoxicated. Matthews v. State , 414 S.W.2d 938, 939 (Tex. Crim. App. 1967). On appeal, the defendant claimed that the trial court erred when
it admitted e vidence of his prior co nviction because “he did not personally join or waive his right to confrontation of the witness and right against self

- incrimination” in a written stipulation. Id. The Court of Criminal Appeals held that a written stipulation, as is required under Article 1.15 of the Texas Code of Criminal
Procedure 2 when a defendant waives his right to a jury trial and stipulates to the evidence, was not required under these circumstances. Id. The court opined that, because the defendant did not object to the sti pulation, he acquiesced in the stipulation and was bound by it. Id. Relying on Bryant and Matthews , the Beaumont Court of Appeals recently
held that the defendant ’s silent acquiesce nce to defense counsel’s oral stipulation regarding the defendant’s prior convictions was bin ding on the defendant and that
the defendant was thus precluded from challenging the sufficiency of the stipulated
evidence

. Vanness v. State , No. 09

- 13

- 00335

- CR, 2014 WL 3387007, at *4 (Tex. App.

— Beaumont July 9, 2014, pet. ref’d) (me m. op., not designated for publication). The court also noted that the defendant did not object to the admission

2 T EX

. C ODE C RIM

. P ROC

. A NN . art. 1.15 (West 2005 ).5

of two exhibits that contained copies of documents purporting to establish his prior
convictions. Id. at *4 n.2.
We believe that , when taken in context, in its entirety, the s tatement of the prosecutor that we have quoted above constituted a stipulation as to the identity of Appellant as being the same person as named in the prior judgment of conviction. Neither Appellant nor his attorney mad e any objection to the State’s recitation, nor did they correct it in any way; they “clearly acquiesced in it.” See Stribling v. State , 542 S.W.2d 418, 419 (Tex. Crim. App. 1976) (holding that the defendant acquiesced to the stipulation by failing to object)

. In addition, defense counsel stated that he had no objection to State’s Exhibit No. 11

— the judgment of prio r conviction

— and did not object to the prosecutor’s statement, whi ch was made in the jury’s presence, that Appellant had been convicted of the offense of assault

- family violence on May 8, 2008, in Midland County. As we have said, no specific method of proof is required to pro ve the elements
related to judgments of pri or convictions. Flowers , 220 S.W.3d at 921. The totality
of the circumstances determines whether the State met its burden of proof as to those
elements. Id . at 923.
We hold that Appellant acquiesced in the State’s representation that he stipulated to the identity issue in connection with the prior conviction when neither he nor defense counsel corrected or objected to the prosecutor’s statements. We also note that the judgment of conviction contains the same name as that of Appellant.
While that alo ne might not be enough to link the defendant to the prior judgment, the jury also had before it the State’s representation that Appellant stipulated to the conviction and Appellant’s silent acquiescence to that representation. Therefore, we hold that, under the totality of the circumstances of this case, a rational trier of fact could have found beyond a reasonable doubt that Appellant had6

been previously convicted of assault

- family violence. Appellant’s so le issue on appeal is overruled.
We af firm t he judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

June 25 , 2015 Do not publish. See T EX

. R. A PP

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