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Criminal Law Click here for the full text of this decision The jury should be informed of the stipulation, as the two prior convictions are elements of the offense that must be proven to the factfinder — in this case the jury — to establish the offense of felony DWI. FACTS:The appellant was indicted for felony DWI. The indictment included allegations of two prior DWI convictions. Appellant offered to stipulate to the two prior convictions pursuant to Tamez v. State. The state and the trial court agreed, and appellant drafted a stipulation. As a result, the state refrained from introducing at trial any extrinsic evidence of the convictions. However, appellant objected that excluding extrinsic evidence was not enough: he objected to any mention of the prior convictions �- including any reference to the stipulation �- while the indictment was read, during voir dire, in opening statement, at the evidentiary stage of trial, during closing arguments and in the jury charge. These objections were all overruled. The indictment allegations regarding the prior convictions were read to the jury. The state referred to the prior convictions briefly in voir dire, opening statement and closing argument. The written stipulation was admitted into evidence. And the jury charge referred to the prior convictions in its phrasing of the elements of the offense and in giving a limiting instruction. The court notes that appellant made no objection to the specific manner in which these prior convictions were mentioned to the jury. That is, he did not object that the stipulation contained too much information, nor did he object to the specific phrasing of the state’s references to the stipulation, nor did he object to the specific wording of the indictment or the relevant instructions in the jury charge. His objections were all aimed at the mere reference to the prior convictions. Appellant’s complaint was succinctly summarized at the jury charge conference as: “this case should be tried in isolation from the two priors because of our stipulation.” The appellant was convicted. On appeal, he contended that the trial court erred by reading the prior convictions portion of the indictment and by permitting the stipulation of prior convictions to be mentioned at various stages of the trial. The court of appeals reversed. Relying upon Tamez and Robles v. State, the court of appeals held that error occurred when the stipulation was admitted into evidence. The court found that the error was harmful because the written stipulation contained more information than the mere existence of the convictions and because “the mere repetition of the fact that the stipulation and prior offenses existed served to focus the jury’s attention on Appellant’s character for driving while intoxicated, which contradicts the policy of convicting persons for their conduct, not for their criminal natures.” Because of its holding regarding the admission of the stipulation into evidence, the court of appeals did not address appellant’s claim of error with regard to the reading of the indictment or with regard to the mention of the prior convictions at other stages of trial. HOLDING:Affirmed. Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002), did not address whether the jury may be informed of the stipulation or whether the stipulation itself may be admitted into evidence. Citing Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), the court reiterated that the two prior convictions are jurisdictional elements that must be proven to obtain a conviction for the offense of felony DWI. In dicta, the court recently indicated that juries should at least hear the stipulation: “The appellant’s stipulation would have placed the prior convictions into evidence, making the jury aware of their existence. This would have satisfied the evidentiary requirements regarding stipulations while avoiding the unfair prejudice that would accompany further mention of the convictions.” Hernandez v. State. Thus, this court’s cases suggest that the jury should be informed of the stipulation, as the two prior convictions are elements of the offense that must be proven to the factfinder -� in this case the jury -� to establish the offense of felony DWI. This conclusion is consistent with the U.S. Supreme Court’s own discussion of the issue in Old Chief v. U.S., 519 U.S. 172 (1997). In two different places in its opinion, the court characterized the stipulation as something that would be given to the jury: “The District Court was also presented with alternative, relevant, admissible evidence of the prior conviction by Old Chief’s offer to stipulate, evidence necessarily subject to the District Court’s consideration on the motion to exclude the record offered by the Government. Although Old Chief’s formal offer to stipulate was, strictly, to enter a formal agreement with the Government to be given to the jury, even without the Government’s acceptance his proposal amounted to an offer to admit that the prior conviction element was satisfied, and a defendant’s admission is, of course, good evidence. . . . The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress though should bar a convict from possessing a gun, and this point may be made readily in a defendant’s admission and underscored in the court’s jury instructions.” The Supreme Court’s point is that the stipulation is evidence, and as such, is received by the jury. The court concludes that it was not error to inform the jury of the stipulation. And because the stipulation is a form of evidence, the trial court did not err in “admitting” the stipulation. Since the two prior offenses were validly mentioned in the indictment and validly introduced into evidence via the stipulation, there was likewise no error in the jury instructions, and the prior convictions were the legitimate subject of voir dire, opening statements and closing arguments. OPINION:Keller, P.J.; Meyers, Womack, Keasler, Hervey and Cochran, JJ., join. CONCURRENCE:Holcomb,J.; Price and Johnson, JJ., join. “I harbor grave concerns that, under the current law, felony DWI defendants will be convicted solely on their prior alcohol related convictions rather than on the offense charged, even when the defendant stipulates to the jurisdictionally required prior convictions. The danger is great, I believe, because the prior convictions the State is required to prove are for similar offenses, any of the specified alcohol related offenses. These understandably arouse strong emotions, especially in those whose lives have been touched by preventable alcohol related accidents. However, the State’s interest in enhancing to felony range the punishment for those who increase their odds of causing such fatalities by tempting fate behind the wheel must be balanced against the defendant’s right to be convicted on evidence beyond a reasonable doubt regarding his commission of the underlying offense of driving while intoxicated at the alleged time and place.”

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