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Dunn v. State8/19/2004
imes.
PROCEDURAL SUMMARY
During a pretrial conference on November 1, 2002, defense counsel asked that the State not mention Appellant’s two prior DWI convictions until the punishment phase. The State argued that the prior DWIs were elements of the charge which needed to be addressed in the guilt-innocence portion. The State inquired if Appellant would stipulate to the prior judgments. Defense counsel responded that the admission of those convictions would be highly prejudicial. The court made the following statement: The way you could do it, if you want to prevent those two prior convictions, sir, is to stipulate that they are true. And if they -- if they find him driving while intoxicated, then they don’t come in. Stipulate that they are true and not bring it before the jury, you try it as a DWI.
Defense counsel answered, “Okay.” The State then argued that it was trying the case as a DWI-third and that it would need to talk about the prior convictions during voir dire with regard to the range of punishment. The trial court took the motion under advisement.
During introductory comments to the venire panel right before trial, the judge advised that Appellant was charged with driving while intoxicated a third time, explained it was a felony, and detailed the punishment range. Jurors soon began asking questions. One asked about Appellant having been charged with DWI for the third time. The trial court responded that the State had to prove those two prior convictions and that Appellant was intoxicated on this particular occasion. Another expressed confusion about the prior two convictions and indicated she was already assuming Appellant to be guilty. The trial court again explained that while the State had alleged Appellant had prior convictions, the prosecutor still had to prove it.
At this point, defense counsel asked to approach the bench and the waters grew muddy. Moving the discussion chambers, the judge said that Appellant had already been given the opportunity to stipulate to the prior convictions and that obviously he had not. The State responded that Appellant had indeed stipulated. The stipulation appears to have been signed on November 4, 2002 but not filed until November 7. It did not bear the judge’s signature.
The trial court stated: “You didn’t tell me, did you? It’s not on the record anywhere that there was that stipulation -- is there? You never informed me of that. There’s a mistrial here.” The State commented that the panel had to know what the charge was and that the questions were brought up by the panel not by the court. The judge offered to tell the panel that Appellant had stipulated that the two prior convictions were final. But defense counsel countered that the panel had already been prejudiced against Appellant. The court asked Appellant whether he wanted the panel told of the stipulation. Appellant answered no. Upon returning to the courtroom, the judge noted for the record that he had just received the stipulation but he was not going to read it.
Following voir dire, there was another discussion regarding the stipulation. The court asked Appellant whether he wanted to withdraw his stipulation. Defense counsel answered that Appellant wanted to keep the stipulation, but with the additional stipulation that there would be no reference to the prior convictions. He expressed his belief that the State could not bring up the prior convictions during the guilt-innocence portion of trial if Appellant had stipulated. The prosecutor replied that if the stipulation was signed and accepted by the court, he would only read the indictment and announce that there had been a stipulation; he would not introduce the othe
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