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Dunn v. State8/19/2004
r convictions unless Appellant opened the door. Defense counsel explained his concern that although the stipulation was entered into prior to trial, the three DWIs had been referenced in voir dire. He complained that the jury had already been prejudiced and requested a mistrial. The court inquired whether defense counsel had told the court about the stipulation, and counsel admitted that he had not. The court allowed Appellant to withdraw his stipulation and denied the motion for mistrial.
At the start of trial, the State read the indictment, including the prior two offenses. During opening statement, the prosecutor commented that the State would have to prove that Appellant had been previously convicted twice of DWI. Near the end of the State’s case-in-chief, the court called a recess and stated that he had told Appellant during pretrial that the only way to exclude his prior convictions was to stipulate. The judge then commented that he was not aware of a stipulation at the time of voir dire and that the stipulation handed to him was not dated. The court told Appellant that before the State proved up the prior two convictions, he had one more opportunity to decide about the stipulation. Defense counsel rejected the invitation. When the State offered two certified judgments of Appellant’s convictions, defense counsel had no objection and the judgments were admitted.
THE STIPULATION
In Point of Error No. One, Appellant complains that the trial court denied the stipulation. Our resolution of this issue requires that we first address the state of the law with regard to stipulations in the DWI context. In Hollen v. State, 117 S.W.3d 798, 799 (Tex.Crim.App. 2003), cert. denied, __ U.S. __, 124 S.Ct. 2022, 158 L.Ed.2d 499 (2004), the defendant was indicted for felony DWI, and the indictment included allegations of two prior DWI convictions. The defense offered to stipulate to the prior convictions but claimed that the stipulation should not be mentioned at all during the trial. Id. His objections were overruled, and the indictment was read along with the prior conviction allegations. Id. The written stipulation was admitted into evidence and the jury charge referred to the prior convictions in phrasing the elements of the offense and in giving a limiting instruction. Id.
The court first recognized its prior opinion in Tamez v. State, 11 S.W.3d 198, 202-03 (Tex.Crim.App. 2000), in which it held that two prior convictions could be included in the reading of the indictment to the jury. Hollen, 117 S.W.3d at 801. It acknowledged precedent holding that the two prior convictions are jurisdictional elements which must be proven to obtain a conviction for the offense of felony DWI. Id. And it referenced dicta that juries should hear the stipulation. Id.; see also Hernandez v. State, 109 S.W.3d 491, 495 (Tex.Crim.App. 2003). The court concluded that a stipulation is a form of evidence which can be admitted. Hollen, 117 S.W.3d at 802. Moreover, the prior convictions are the legitimate subject of voir dire, opening statements, and closing arguments. Id.
Was There a Valid Stipulation?
Appellant argues that there was a valid stipulation between the parties because they verbally agreed in the presence of the court to enter into a stipulation, and the agreement was reduced to writing and signed on November 4. Appellant also contends that the stipulation did not need to be approved by either the State or the trial court. Although Appellant frames his issue for review as error arising from the denial of his stipulation, his briefing reveals that he is actually complaining about the mention of his prior convictions during voir dire. We will dispose of both issues.<
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