NO CR IN THE COURT OF APPEALS 5TH JUDICIAL DISTRICT DALLAS, TEXAS. JOSEPH MICHAEL DEMERS, Appellant. THE STATE OF TEXAS, Appellee

Transcription

1 NO CR IN THE COURT OF APPEALS 5TH JUDICIAL DISTRICT DALLAS, TEXAS 5th Court of Appeals FILED: 04/05/ :00 Lisa Matz, Clerk JOSEPH MICHAEL DEMERS, Appellant v. THE STATE OF TEXAS, Appellee ON APPEAL IN CAUSE NUMBER FROM THE 15TH DISTRICT COURT OF GRAYSON COUNTY, TEXAS APPELLEE'S BRIEF KARLA BAUGH HACKETT ASST. CRIMINAL DISTRICT ATTORNEY BAR NO GRAYSON COUNTY, TEXAS 200 S. CROCKETT SUITE 100 SHERMAN, TEXAS / / (FAX) ATTORNEY FOR THE STATE ORAL ARGUMENT NOT REQUESTED

2 ON APPEAL KARLA BAUGH HACKETT BAR NO ASST. CRIMINAL DISTRICT ATTORNEY GRAYSON COUNTY, TEXAS 200 S. CROCKETT SUITE 100 SHERMAN, TX / / (FAX) LIST OF PARTIES APPELLANT: JOSEPH MICHAEL DEMERS ATTORNEY FOR APPELLANT AT TRIAL & ON APPEAL: ROBERT E. RICHARDSON, JR. 118 S. CROCKETT SHERMAN, TX BAR NO / FAX: 903/ APPELLEE: THE STATE OF TEXAS ATTORNEY FOR THE STATE: ELECTED OFFICIAL JOSEPH D. BROWN BAR NO CRIMINAL DISTRICT ATTORNEY GRAYSON COUNTY, TEXAS 200 S. CROCKETT SUITE 100 SHERMAN, TX (903) / (FAX) AT TRIAL J. BRETT SMITH BAR NO ASST. CRIMINAL DISTRICT ATTORNEY GRAYSON COUNTY, TEXAS 200 S. CROCKETT SUITE 100 SHERMAN, TX / / (FAX) STATE'S BRIEF CR - PAGE ii

3 TABLE OF CONTENTS LIST OF PARTIES... ii TABLE OF CONTENTS...iii INDEX OF AUTHORITIES... 2 ISSUES PRESENTED... 3 SUMMARY OF ARGUMENT... 4 ARGUMENT... 4 RESPONSE POINT 1: THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE THAT THE APPLICANT WAS CONVICTED OF A PRIOR DRIVING WHILE INTOXICATED OFFENSE FROM RESPONSE POINT 2: THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE THAT THE APPLICANT WAS CONVICTED OF A PRIOR DRIVING WHILE INTOXICATED OFFENSE FROM A. STANDARD OF REVIEW FOR SUFFICIENCY OF THE EVIDENCE... 5 B. PRIOR CONVICTIONS WERE SUFFICIENTLY PROVEN CONVICTION CONVICTION... 7 PRAYER... 8 CERTIFICATE OF SERVICE... 8 STATE'S BRIEF CR - PAGE 1

4 INDEX OF AUTHORITIES Brooks v. State, 323 S.W.3d 893, (Tex.Crim.App. 2010) Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007) Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999) Jackson v. Virginia, 443 U.S. 307, 319 (1979) Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986) Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007) STATE'S BRIEF CR - PAGE 2

5 NO CR IN THE COURT OF APPEALS 5TH JUDICIAL DISTRICT DALLAS, TEXAS JOSEPH MICHAEL DEMERS, Appellant v. THE STATE OF TEXAS, Appellee TO THE HONORABLE COURT OF APPEALS: COMES NOW THE STATE OF TEXAS, hereinafter referred to as the State, and submits this brief pursuant to the Texas Rules of Appellate Procedure and would show through her attorney the following: ISSUES PRESENTED RESPONSE POINT 1: THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE THAT THE APPLICANT WAS CONVICTED OF A PRIOR DRIVING WHILE INTOXICATED OFFENSE FROM RESPONSE POINT 2: THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE THAT THE APPLICANT WAS CONVICTED OF A PRIOR DRIVING WHILE INTOXICATED OFFENSE FROM STATE'S BRIEF CR - PAGE 3

6 SUMMARY OF ARGUMENT the appellant alleges that the evidence was insufficient to prove that he had been previously convicted of the two prior jurisdictional Driving While Intoxicated offenses alleged in the indictment. Specifically, the appellant alleges that the judgment and sentence in cause number did not contain a finding of guilt by the trial court. He also alleges that the State did not prove that the defendant named in cause number was proven to be the appellant. The State presented legally sufficient evidence regarding both alleged prior convictions for Driving While Intoxicated. ARGUMENT RESPONSE POINT 1: THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE THAT THE APPLICANT WAS CONVICTED OF A PRIOR DRIVING WHILE INTOXICATED OFFENSE FROM RESPONSE POINT 2: THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE THAT THE APPLICANT WAS CONVICTED OF A PRIOR DRIVING WHILE INTOXICATED OFFENSE FROM In both grounds, the appellant alleges that the evidence was insufficient to STATE'S BRIEF CR - PAGE 4

7 prove that he had been previously convicted of the two prior jurisdictional Driving While Intoxicated offenses alleged in the indictment. Specifically, the appellant alleges that the judgment and sentence in cause number did not contain a finding of guilt by the trial court. He also alleges that the State did not prove that the defendant named in cause number was proven to be the appellant. A. STANDARD OF REVIEW FOR SUFFICIENCY OF THE EVIDENCE Under the Jackson v. Virginia legal-sufficiency standard, a reviewing court is required to defer to a jury's credibility and weight determinations. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When reviewing sufficiency of the evidence, all of the evidence is viewed in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, (Tex.Crim.App. 2010)(plurality opinion). Following the admonitions of the Court of Criminal Appeals in Brooks, an appellate court may not sit as a thirteenth juror and substitute its judgment for that of the fact finder by reevaluating the weight and credibility of the evidence. Id. at , ; Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986) (expressing the jury may choose to believe or disbelieve any portion of the testimony). Appellate courts must defer to the fact finder's resolution of conflicting evidence unless the STATE'S BRIEF CR - PAGE 5

8 resolution is not rational. See Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007). The duty of a reviewing court is to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). B. PRIOR CONVICTIONS WERE SUFFICIENTLY PROVEN The State presented legally sufficient evidence regarding both alleged prior convictions for Driving While Intoxicated CONVICTION The State presented evidence that the applicant was convicted of the offense of Driving While Intoxicated in State s Exhibit # 1 was identified as known prints taken from the appellant. (RR vol. 5, p. 15) State s Exhibit # 2 was identified as the judgment and sentence for Driving While Intoxicated in cause number (RR vol. 5, p. 17) Terry Dunn, an investigator for the Grayson County Criminal District Attorney s Office identified a fingerprint on State s Exhibit # 2 as being a match to the known print of the applicant in State s Exhibit # 1. (RR vol. 5, pp ) State s Exhibits 1 & 2 were admitted into evidence. (RR vol. 5,p. 17) STATE'S BRIEF CR - PAGE 6

9 The applicant alleges that judgment contained in State s Exhibit # 2 did not contain a finding by the trial court that the applicant was guilty. This appears to be in reference to the fifth page in State s Exhibit # 2. The fifth page in State s Exhibit # 2 appears to be a probation order in cause number The actual judgment contained in State s Exhibit # 2 for cause number , signed April 29, 1988, is found on the sixth page of State s Exhibit # 2 and clearly states that... it is the opinion of the Court and it so finds that the defendant is guilty as confessed by him of the offense of Driving While Intoxicated... The evidence adduced at trial is sufficient to prove that the appellant was previously convicted of Driving While Intoxicated in cause number on April 29, CONVICTION The State also offered State s Exhibit # 3 into evidence. (RR vol. 5, p. 25) State s Exhibit # 3 was identified as jail records belonging to the appellant, identified by name and through the book-in photograph. (RR vol. 5, pp ) Those jail records included the judgment and sentence in cause number in the State of Texas v. Joseph Michael Demers, signed on May 27, (RR vol. 5, p. 23; State s Exhibit 3) The appellant alleges that the identification of State s Exhibit # 3 was insufficient to prove that the appellant was the person named in that exhibit. STATE'S BRIEF CR - PAGE 7

10 Because the appellant did not object to the identification testimony by the witness through whom the State introduced State s Exhibit #3 or to the admission of State s Exhibit # 3, it was within the purview of the jury to believe that the Joseph Michael Demers named in State s Exhibit # 3 was the same Joseph Michael Demers on trial in the current case. The evidence was legally sufficient to prove the appellant was previously convicted of Driving While Intoxicated in cause number , on May 27, PRAYER WHEREFORE, the state respectfully prays this court affirm the judgment and conviction herein. Respectfully Submitted, JOSEPH D. BROWN CRIMINAL DISTRICT ATTORNEY KARLA BAUGH HACKETT ASST. CRIMINAL DISTRICT ATTORNEY GRAYSON COUNTY, TEXAS BAR NO S. CROCKETT, SUITE 100 SHERMAN, TEXAS / ATTORNEY FOR THE STATE mailed to: CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Motion was STATE'S BRIEF CR - PAGE 8

11 attorney of record for the Appellant, in accordance of the Rules of Appellate Procedure, on this the day of, 20. KARLA BAUGH HACKETT ASST. CRIMINAL DISTRICT ATTY. STATE'S BRIEF CR - PAGE 9