Jeffery Jay Buchanan v. State of Texas

No. 04-00-00429-CR Jeffery Jay BUCHANAN, Appellant v. The STATE of Texas, Appellee From the 198th District Court, Kerr County, Texas Trial Court No. B00-33 Honorable James M. Simmonds, Judge Presiding Opinion by: Phil Hardberger, Chief Justice Sitting: Phil Hardberger, Chief Justice Tom Rickhoff, Justice Catherine Stone, Justice Delivered and Filed: March 7, 2001 REVERSED AND REMANDED Jeffery Jay Buchanan ("Buchanan") appeals the trial court's denial of his motion to stipulate to the validity of his two prior driving while intoxicated ("DWI") convictions when charged with felony DWI. Because the trial court erred by denying Buchanan's motion, we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion. Facts and Procedural History Buchanan was charged with felony driving while intoxicated ("DWI"), under section 49.04 of the Texas Penal Code. Because Buchanan had been convicted for two prior DWI offenses, the charge was enhanced from a Class B misdemeanor to a third degree felony. Tex. Penal Code Ann. § 49.04(b) & § 49.09(b) (Vernon Supp. 2000). Buchanan filed a motion offering to stipulate to the validity of his two previous DWI convictions in order to preclude the State from presenting Buchanan's prior offenses to the jury, either during the reading of the indictment or during its case-in-chief. The trial court denied the motion, allowing the State to read Buchanan's two prior convictions to the jury, and allowing the State, during its case-in-chief, to introduce the two prior convictions by admitting the prior judgments and sentence agreements into evidence. Discussion Buchanan raises only one issue on appeal: the trial court erred when it denied his motion to stipulate to his previous DWI convictions. Buchanan argues that by allowing the jury to hear of the two previous convictions, the trial court impermissibly prejudiced the jury. Buchanan further argues that evidence of his two prior convictions was unnecessarily cumulative, because he had already stipulated to the validity of the convictions. The Texas Court of Criminal Appeals in its recent decision, Tamez v. State, articulated both the consequences and advantages of stipulating to prior offenses in DWI cases. Tamez v. State, 11 S.W.3d 198, 200-01 (Tex. Crim. App. 2000) (en banc). In order to gain jurisdiction over a felony offense when the felony is derived from an enhancement due to prior convictions, the State must prove the prior convictions in order to support its prosecution. Tex. Penal Code Ann. § 49.09(b); Tamez, 11 S.W.3d at 201. In other words, "when prior convictions are used to elevate what would otherwise be a misdemeanor offense to the level of a felony, they must be pled in the indictment for the trial court to gain jurisdiction." Tamez, 11 S.W.3d at 201. While the State is required to read the indictment to the jury, under Tamez, the State is prohibited from reading any prior convictions except those required to confer jurisdiction. Tamez, 11 S.W.3d at 201; see also Tex. Code Crim. Proc. Ann. art 36.01(a)(1) (Vernon Supp. 2001) (requiring that any convictions not necessary to confer jurisdiction be read during the punishment phase of trial only). Because both of Buchanan's prior DWI convictions were required to be alleged in the indictment to raise the level of his DWI offense to a felony, the two convictions were properly read to the jury. Tamez, 11 S.W.3d at 201; Hernandez v. State, 18 S.W.3d 699, 701 (Tex. App.-San Antonio 2000, pet. granted). In Tamez, the Court of Criminal Appeals struggled to strike a balance between the Texas Code of Criminal Procedure, which authorizes a reading of the full indictment, and the Texas Rules of Evidence, which prohibits evidence that may unduly prejudice a jury. Cf. Tex. Code Crim. Proc. Ann. art 36.01(a)(1), with Tex. R. Evid. 403 & 404(b). "[A] defendant's stipulation to a previous conviction should suffice when it carries the same evidentiary value as the judgments of prior convictions, yet substantially lessens the likelihood that the jury will improperly focus on the previous conviction or the defendant's 'bad character.'" Tamez, 11 S.W.3d at 202. "We find that the proper balance is struck when the State reads the indictment at the beginning of the trial, mentioning only the two jurisdictional prior convictions, but is foreclosed from presenting evidence of the convictions during its case-in-chief." Id. In Buchanan's case, while the State permissibly read the indictment containing his two prior DWI convictions to the jury, the trial court erred by allowing the State to present evidence of Buchanan's stipulated prior convictions during its case-in-chief. Tamez, 11 S.W.3d at 202. Accordingly, we reverse the judgment of the trial court and remand this cause for further proceedings. Phil Hardberger, Chief Justice DO NOT PUBLISH