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Click here for the full text of this decision FACTS:A jury convicted appellant of felony driving while intoxicated. Appellant argues that-although he had stipulated to two prior DWI convictions before trial and asked that the prosecutor be forbidden from reading either the jurisdictional indictment paragraphs or the stipulation to the jury-the court’s charge should have required the jury to find that he had two prior DWI convictions before it could convict him of felony DWI. The court of appeals rejected this claim and found no error in the jury charge. HOLDING:Affirmed. The court summarizes the current status of the law when a defendant offers to stipulate to the two jurisdictional prior DWI convictions in a felony DWI trial: 1. The state must plead two jurisdictional prior DWI convictions in a felony DWI indictment; it is the indictment that confers jurisdiction in the district court; 2. The state may (but is not required to) read the entire indictment, including the two jurisdictional allegations (but only those two), in arraigning the defendant in the presence of the jury; 3. Both the state and the defense may voir dire the jury concerning the range of punishment for both a felony and misdemeanor DWI; 4. Nothing in the law requires that the jury be informed of the particulars of the prior convictions in reading the indictment, voir dire, opening or closing arguments or in the jury charge itself; 5. A defendant’s stipulation to the two prior DWIs, being in the nature of a judicial admission, has the legal effect of removing the jurisdictional element from contention; a defendant may not offer evidence or argument in opposition to his stipulation;6. During the trial, the jury may be informed of the stipulation and any written stipulation may be offered into evidence before the jury, but the evidence is sufficient to support a defendant’s conviction even if the stipulation is not given or read to the jury; 7. In a bench trial, the guilt and punishment stages are not bifurcated, so the state is not required to offer the stipulation during the initial portion of the hearing, even if the proceeding is improperly bifurcated. To that list, the court now adds: 8. The jury charge must include some reference to the jurisdictional element of two prior DWI convictions in a felony DWI trial; 9. The jury charge must include some reference to the defendant’s stipulation and its legal effect of establishing the jurisdictional element; and 10. Any error in failing to include, in the jury charge, some reference to the jurisdictional element and the stipulation is analyzed under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g). The appellant has failed to show harm under any of these factors. The jury charge benefits him because it does not mention anything about his two prior DWI convictions, the very convictions that he did not want the jury to be made aware of. The stipulation took the prior DWI convictions out of contention and thus while they comprised a jurisdictional element, the existence of that element had been agreed to. Neither side mentioned the two prior convictions in their closing arguments, and appellant does not suggest that the closing arguments caused or increased any possible harm to his rights. There is no other relevant information in the record that appellant suggests caused or increased any harm from the trial court’s failure to include an instruction concerning the jurisdictional element of prior convictions and his stipulation to that element. OPINION:Cathy Cochran, J., delivered the opinion of the court, in which Keller, P.J., Price, Womack, Johnson, Keasler, Hervey, and Holcomb, J.J., joined. Meyers, J., filed a dissenting opinion. DISSENT:Lawrence E. Meyers, J. “While I agree with the majority that the jury should be instructed about a defendant’s stipulation to two jurisdictional prior convictions in order to be convicted of the enhanced offense, I disagree that it is the responsibility of the defendant to object to the deficient jury charge. As a result, I do not agree that it is necessary to employ an Almanza analysis in reviewing the omission of the jurisdictional element and stipulation from the jury charge. . . . “The majority makes Appellant responsible for objecting to a jury charge which benefitted him so that the trial court could instruct the jury on how to convict him of a greater offense. This is neither warranted by precedent or fair in our system of justice. Incidentally, even under Almanza, egregious harm surely exists where a jury convicts a defendant of a felony upon evidence that constitutes only a misdemeanor. Appellant’s sentence should be reformed to reflect the misdemeanor for which he was actually convicted.”

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