Stephen Kyle JONES, Appellant, v. The STATE of Texas, 77 S.W.3d 819

OPINION COCHRAN, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, WOMACK, and HOLCOMB, J.J., joined. In this case, the State asks whether a conviction is “final” for purposes of the mandatory driver’s license suspension statute after a defendant pleads guilty and is sentenced, but before the time for filing a notice of appeal has expired. We hold that, when there is no evidence that a defendant ever filed a notice of appeal, a conviction is deemed to be final on the date of sentencing.

Therefore, we reverse the judgment of the Amarillo Court of Appeals which had reversed and acquitted appellant for the offense of driving with license suspended. Jones v. State, 21 S.W.3d 639 (Tex.App.-Amarillo 2000). I. Appellant pleaded guilty to possession of marijuana on July 27, 1998. The trial judge sentenced him to ninety days in jail, probated for 180 days, and a fine of $350. The trial judge also told appellant that his driver’s license would be automatically suspended for six months because he was convicted of a drug offense.

Approximately three weeks later, on August 22, 1998, an Allen City police officer stopped appellant for running a stop sign. When tiie officer radioed for a check on appellant’s driver’s license, the dispatcher told him that appellant’s license had been suspended on July 27th. The officer arrested appellant for driving with a suspended license. At appellant’s bench trial on April 23, 1999, the State introduced a copy of the July 27, 1998, judgment and sentence for possession of marijuana. This document did not contain any notation concerning an appeal.

The State also introduced a copy of appellant’s driver’s license record showing that his license was automatically suspended on July 27, 1998, through January 22, 1999. That document reflects that appellant had surrendered his driver’s license to the Department of Public Safety (“DPS”) on September 29, 1998, and it was returned to him by DPS on January 20, 1999. The State also introduced a copy of the order of suspension DPS sent to appellant on August 24, 1998.

Based on this evidence, the trial court found appellant guilty of driving with a suspended license and sentenced him to eleven days in jail and a $100 fine. Appellant appealed, contending that the evidence was legally and factually insufficient because, when he was arrested for driving with a suspended license, he still had time left in which he could have appealed the drug offense. According to appellant, no conviction is “final” until either: 1) the time for filing a notice of appeal has expired; or 2) the defendant has appealed and the mandate from that appeal has issued.

The Amarillo Court of Appeals agreed and stated: “we conclude that because appellant’s underlying conviction remained subject to appellate review at the time he was charged with driving while his license was suspended, his underlying conviction was not final.” We granted review to determine whether a conviction which is not appealed, or for which there is no evidence that it is appealed, becomes final at the time sentence is imposed or only when the time period for any appeal has expired. II.

As a part of its case, the State had to prove that appellant’s driver’s license was actually suspended at the time he was arrested on August 22nd. If the State failed in that proof, the evidence is legally and factually insufficient to support appellant’s conviction and he is entitled to an acquittal.

Section 521.372 states that the driver’s license of a person with a “final conviction” for a drug offense is automatically suspended for 180 days, but the statute does not define the term “final conviction.” Thus, the two issues in this case are, under

section 521.372: 1) when does a conviction become final if there is no evidence that an appeal was ever filed? and 2) what evidence must the State produce to meet its burden of proof to show that a conviction is final? The State argues that, in the absence of evidence to the contrary, courts should presume the regularity of the trial court’s judgment and records.

Thus, because the record is silent as to any notice of appeal or other irregularity, appellant did nothing to rebut that presumption and the evidence is legally and factually sufficient to support the trial court’s ruling that appellant’s driver’s license was suspended on July 27,1998. Appellant argues that, as a matter of law, the State failed to prove all elements of its case. Appellant contends that the issue presented is whether the judgment was final, not whether the judgment was regular on its face.

Appellant notes that the State did not introduce any evidence that appellant had waived his right to appeal, thus the judgment of conviction did not become final until the time for any right to appeal had expired. We have not previously addressed this question of the sufficiency of evidence to prove a “final conviction” in the context of

Section 531.372 of the Transportation Code. The present situation is analogous, however, to the proof of final convictions in the context of punishment enhancements under

Section 12.42 of the Penal Code. The general rule, in that context, is that a conviction from which an appeal has been taken is not considered final until it is affirmed by the appellate court and that court’s mandate becomes final. Intermediate courts of appeals have stated that a conviction which is on appeal is not a “final” conviction, for purposes of the automatic suspension of a driver’s license. The automatic suspension of a driver’s license is stayed during the pendency of an appeal.

Appellant argues that the automatic suspension of a driver’s license should likewise be stayed during the time period for which a defendant could file an appeal. However, all of the intermediate courts of appeals cases that appellant relies upon involved actual appeals. Here, the State provided ample evidence that appellant had been convicted of a drug offense on July 27, 1998, and nothing in the record suggests that appellant ever appealed that conviction.

We have held that “[a]fter the State establishes that a defendant has been previously convicted, this Court will presume that a conviction is final when faced with a silent record regarding such.” Put another way, in the absence of evidence to the contrary, this Court presumes the regularity of the trial court’s judgment and records. Thus, when the State offers into evidence a certified copy of a judgment and sentence, it has made a prima facie case that the conviction reflected within that judgment and sentence is a final conviction worthy of respect.

That evidence is legally and factually sufficient to prove that a prior conviction is a final conviction absent any evidence to the contrary. If the judgment of conviction has been set aside, vacated or appealed, the defendant must offer some evidence to support that fact. Once the defendant offers that evidence, the State must prove, beyond a reasonable doubt, that the conviction has been affirmed and the mandate has issued.

Appellant contends that this general rule does not apply in the present case because here the judgment shows, on its face, that it was not final on the day appellant was arrested as he still had sufficient time to appeal the drug conviction if he chose to. Appellant is correct in stating that, on August 22nd, when he was arrested for driving with the suspended driver’s license, he still had time in which to file an appeal. However, there is no evidence in this record that he did, in fact, file an appeal of the drug conviction.

Although the wish may be father to the thought, the possibility of a future appeal is not the fact of a present appeal. The right to take an appeal does not equal the pendency of an appeal. , , • Thus we hold' that, for purposes of

section 521.372 of the Transportation Code, a conviction which appears' to be regular, valid and final on its face, does not lack finality merely because the defendant still has an opportunity to appeal that' conviction. The evidence is legally and factually sufficient to support a prima facie finding of a final conviction for purposes of

section 521.372 once- the State offers a judgment and sentence which appears to be final on its face. Only when there is evidence that the defendant actually perfected an appeal is the conviction deemed to be lacking finality. In the present case, the State offered legally and factually sufficient evidence to prove a prima facie case that appellant’s drug conviction was final. The appellant offered no evidence that the conviction had been appealed. Therefore, the evidence was legally and factually sufficient to prove that appellant's driver’s license was automatically suspended on July 27, 1998.

We affirm the judgment of the trial court. KEASLER, J., filed a dissenting opinion, in which PRICE, JOHNSON, and HERVEY, J.J., joined. . We granted the following grounds for review: 1. When is a conviction final for the purpose of imposing a license suspension? 2. In proving the finality of a conviction, what must the State show to meet its burden of proof? .

Section 521.372(

a) of the Transportation Code provides: (

a) A person’s driver’s license is automatically suspended on final conviction of: (1)an offense under the Controlled Substances Act; (2) a drug offense; or (3) a felony under

Chapter 481, Health and Safety Code, that is not a drug offense. .That letter began: Your Texas Driver License and/or driving privilege was AUTOMATICALLY SUSPENDED from 07-27-98 through 01-22-99 upon conviction for a DRUG OFFENSE in County Court, Cause Number 0048519497, COLLIN County, Texas. . 21 S.W.3d at 642. . Normally, a defendant must file notice of appeal within 30 days after sentence is imposed, but if he files a motion for new trial, he need not give notice of appeal until 90 days after sentencing. Tex.R.App. P. 26.2.

However, in either instance, an appellant may request an extension. of time in which to file notice of appeal if he makes a written request to the appellate court within 15 days after the deadline for filing the notice of appeal. Tex. R.App. P. 26.3. Thus, there is no one single, set time period within which a criminal defendant must file his notice of appeal. That time might vary anywhere from 30 to 105 days or more after sentencing. .

Although not addressing precisely this issue, lower courts have held that where, as here, a statute provides for the suspension of a driver’s license upon conviction of certain offenses, the statute is self-operative, and the license is automatically suspended upon a final conviction. Gaddy v. Texas Dep’t of Public Safety, 380 S.W.2d 783, 785 (Tex.Civ.App.-Eastland 1964, no writ); see also Texas Dep’t of Public Safety v. Preble, 398 S.W.2d 785, 787 (Tex.Civ.App.-Houston 1966, no writ).

Further, the time of the suspension is not within the discretion of any court or jury, nor is it conditioned upon a surrender of the operator’s license. Gaddy, 380 S.W.2d at 785. . See Tex. Penal Code § 12.42 ("Penalties for Repeat and Habitual Felony Offenders”). Under that statute, this Court has held that a prior conviction entered just one day before defendant committed the primary offense may be used to enhance the primary offense as long as there is no evidence that notice of appeal was ever filed. Woolsey v.

State, 166 Tex.Crim. 447, 449, 314 S.W.2d 298, 300 (1958) (rejecting defendant's contention that prior conviction for burglary entered on October 9, 1957, could not have been final on the next day, October 10, 1957, when defendant committed assault upon sheriff transporting him to TDC; because “[n]o notice of appeal is shown to have been given,” conviction became final on date of sentencing). . See Jones v.

State, 711 S.W.2d 634, 636 (Tex.Crim.App.1986) (stating that when defendant had announced his intent to appeal, State had burden to show final disposition of that appeal; "[t]he law is settled that a conviction from which an appeal has been taken is not considered to be a final conviction until the conviction is affirmed by the appellate court and that court’s mandate of affirmance becomes final”). . See, e.g., Allen v. Texas Dep’t of Public Safety, 411 S.W.2d 644, 646 (Tex.Civ.App.-Texarkana 1966, no writ). . See Sparkman v. State, 997 S.W.2d 660, 666 (Tex.App.-Texarkana 1999, no pet.). . See Lugo v.

Tagle, 783 S.W.2d 815, 816 (Tex.App.-Corpus Christi 1990, no pet.) (When defendant appeals his DWI conviction, the period of automatic license suspension begins when the mandate is received by the trial court); Allen, 411 S.W.2d at 646 (automatic suspension of defendant’s driver's license for driving while intoxicated began when his appeal was dismissed and mandate issued); Barham v.

Texas Dep’t of Public Safety, 398 S.W.2d 168, 169 (Tex.Civ.App.-Eastland 1966, no writ) (when conviction has been appealed, automatic driver's license suspension begins "when appeal is finally determined by the Court of Criminal Appeals”). . Johnson v. State, 784 S.W.2d 413, 414 (Tex.Crim.App.1990); see also Johnson v. State, 583 S.W.2d 399, 403 (Tex.Crim.App.1979). . See Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App.1985) (op. on reh'g). In Breazeale, we stated: this Court will indulge every presumption in favor of the regularity of the documents in the trial court.

This means that the recitations in the record of the trial court, such as a formal judgment, are binding in the absence of direct proof of their falsity. Id. (internal citations omitted). . Id.; see also Archer v. State, 607 S.W.2d 539, 541 (Tex.Crim.App.1980) (panel op.) (judgment and sentence offered by State did not indicate that notice of appeal was given, thus evidence was sufficient to support finality of prior conviction), overruled on other grounds by Wilson v. State, 977 S.W.2d 379 (Tex.Crim.App.1998); Johnson v.

State, 583 S.W.2d 399, 403 (Tex.Crim.App.1979) (panel op.) ("[o]nce the State introduces such prima facie evidence of a final conviction, the defense has the burden of proving that the conviction was not final”; when defendant failed to offer evidence of an appeal, evidence sufficient to support finality of conviction). . Archer, 607 S.W.2d at 541; Johnson, 583 S.W.2d at 403; Ashley v. State, 527 S.W.2d 302, 305 (Tex.Crim.App.1975) ("when a conviction appears to be final on its face, as here, the burden of showing the same to be not final is on the defendant”). In Acosta v.

State, 650 S.W.2d 827, 833 (Tex.Crim.App.1983), this Court quoted a treatise selection favorably: "Once the state has made a prima facie case, the burden then shifts to the defendant. It has been held that the defendant has, generally, a burden to sustain his assertion that he had received a pardon, that the judgment had been set aside, that a new trial had been granted in the prior case, or that an appeal had been taken therein, or that the judgment of conviction relied on for enhancement purposes is void. These burdens do not, ordinarily, fall on the state....” Id. (quoting 25 Tex. Jur.3rd, Crim.

Law, § 3716, p. 752). . Carter v. State, 510 S.W.2d 323, 324 (Tex.Crim.App.1974); Arbuckle v. State, 132 Tex.Crim. 371, 381-82, 105 S.W.2d 219, 224 (1937) (Lattimore, J., dissenting). .As noted above, he could have filed notice of appeal on or before August 26, 1998. Alternatively, he could have filed a motion for new trial on or before August 26th and then filed notice of appeal at any time prior to October 25, 1998. Or he could have requested an extension of time in which to file notice of appeal any time before September 10, 1998. Thus, the date upon which all right to appeal is exhausted is a moveable feast.

The court of appeals in this case had stated that: Being of the opinion that in the absence of a statutory definition to the contrary, uniformity of decision of the term "final conviction” is to be fostered, we conclude that because appellant’s underlying conviction remained subject to appellate review at the time he was charged with driving while his license was suspended, his underlying conviction was not final. 21 S.W.3d at 642. We, too, are interested in the uniformity of decision.

But a rule that a conviction is final on the date of sentencing unless there is some indication that an appeal has been filed is a much easier "bright line,” subject to more uniform application, than a rule which states that a conviction is not final until all permissible time for an appeal has elapsed. That rule would require DPS to check on the status of each and every conviction to determine whether a motion for new trial has been filed, an appeal has been filed, or a motion for an extension to file notice of appeal has been filed. .

Suppose, however, appellant had filed a timely notice of appeal immediately after he had been arrested on August 22, 1998. In that case, the automatic driver's license suspension would have been retroactively stayed during the pendency of his appeal. He then would have evidence that his conviction was not final on August 22nd.