I have mentioned this before: I strongly disagree with the Tamez opinion. For earlier discussions on the topic, go to this link.You remember that case, it requires the State to accept an offer to stipulate that the Defendant has prior convictions, if those convictions serve as elements of the offense (particularly in a DWI).

I don't like the case because it magically imposes a form of evidence on the State without any authority in the Code of Criminal Procedure or Rules of Evidence. It is a court-created rule.

And, we have seen much litigation following Tamez to tell us how this all works. Many of my frustrations with the case are now explained in a dissenting opinion issued by Judge Gray on the Waco Court of Appeals.

In the case, the defendant demanded a stipulation but didn't want the jury to see or hear about it. So, the stipulation wasn't admitted into evidence and was only discussed in the jury charge. Result: acquittal for insufficiency of the evidence.

The lesson, for now, is: offer the stipulation into evidence. Don't trust the defendant to follow his own agreeement.

Here is Justice Gray's opinion:

DISSENTING OPINION


Sometimes we do not see what is obvious. At other times, we see only what people tell us is there. There is an old adage: when something is obvious but overlooked, "It is hard to see the forest for the trees." Likewise, if you stand blindfolded in the middle of a pasture and everyone around you, who is not blindfolded, tells you that all they see are trees, you will not see that there are no trees. That is, you will not see there are no trees until you take off the blindfold.


We are in the middle of a case, and everyone is saying "Tamez." Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000). It is time to take off the blindfold. There is no Tamez.


This case is not about the forest of Tamez at all. But to see this, we must step away from Tamez, step away from Hollen(6), step away from Robles(7), and even step away from Old Chief(8). "What we've got here is...[a] failure to communicate." Cool Hand Luke (Warner Studios 1967) (motion picture).


Old Chief and the entirety of its Texas progeny do not directly relate to what happened to Bryant. In Old Chief, Tamez, etc., the defendant wanted something that he did not get. In Old Chief, the defendant wanted to keep the prosecutor from introducing the judgment regarding an extraneous offense. The extraneous offense made the possession of a firearm illegal for him. Old Chief wanted to stipulate that he had previously been convicted of a felony offense. He did not want the jury to know that it was for a fight, and that the fight involved a gun. Facts the jury would know if the judgment from the earlier conviction was admitted into evidence.


Old Chief did not get what he wanted from the trial court. Ultimately, the United States Supreme Court held Old Chief's offer to stipulate should have been accepted and the judgment should not have been admitted into evidence because, given Old Chief's stipulation of the element, the judgment's probative value was substantially outweighed by the danger of unfair prejudice. This was purely an analysis of an evidentiary rule; Federal Rule of Evidence 403. Under appropriate circumstances, defendants are now permitted to substitute a stipulation for the government's ability to introduce the judgment.


Tamez likewise wanted to stipulate. Despite his offer to stipulate to two prior DWI convictions, an indictment alleging six prior DWI convictions was read to the jury and the judgments of all six convictions were introduced into evidence. Tamez, 11 S.W.3d at 199. The Court of Criminal Appeals held that if a defendant offers to stipulate to the two prior convictions necessary to confer jurisdiction, convictions other than the two needed for the jurisdictional element should not be read or proven during the State's case-in-chief. Id. at 202-203.


The problem in these stipulation cases quickly gravitated to whether the stipulation of prior offenses was itself admissible. The defendants consistently wanted to keep the stipulation out, and the prosecutors wanted it admitted into evidence before the factfinder. Finally that issue has been put to rest. The State may introduce the stipulation into evidence to prove the jurisdictional element of two prior DWI related convictions. Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003).


Bryant's case also involves a stipulation regarding prior DWI convictions. So why is this case not controlled by Old Chief, Tamez, and their progeny? Because in this case, unlike the other cases, Bryant got what he wanted. The stipulation regarding prior convictions was not discussed in front of the jury, just as he wanted. It was not even admitted into evidence in the jury's presence, just as he wanted. So what is the effect of the stipulation? It was clearly made. It was clearly accepted by the State. It was clearly presented to the trial court. It was clearly placed before the jury. The stipulation was before the jury in the form of an instruction in the charge. Possibly the manner of its inclusion in the charge may have been improper, but Bryant does not complain about that. It may be that the instruction to find that element against Bryant was improper, but Bryant does not complain about that. Bryant received everything he asked for, except an acquittal. Now he is getting his acquittal from this Court.


This case takes us squarely into the grounds plowed by Justice O'Connor in her dissenting opinion in Old Chief. Old Chief v. U.S., 519 U.S. 172, 192-201, 117 S.Ct. 644, 656-660, 136 L.Ed.2d 574 (1997). Each new rule that makes such a pervasive change impacts the law like a rock thrown into a pond. The rock causes ripples in ever expanding circles. The first major ripple, actually more of a wave, became whether a stipulation of prior offenses by the defendant could be introduced into evidence by the State. While Tamez is the Texas case that told the State the courts will follow Old Chief, remember it was just an evidentiary rule, Hollen is the case that finally answered the question of whether the State could introduce the stipulation. See Hollen v. State, 117 S.W.3d 798 (Tex. Crim. App. 2003).


We now must deal with another ripple caused by Old Chief and Tamez. The specific issue is what happens if the defendant's stipulation is accepted by the State as a partial plea and the jury is so charged. While a partial plea cannot be compelled upon the State, can it be accepted by the State because that is what the defendant wanted. In this case, that is what Bryant requested. That is what he got. And now he wants to complain on appeal that the State failed to prove its case when he stipulated to the very element he complains the State failed to prove.


You see, what we have is the other side of the Old Chief coin. We have the very issue raised by the dissent in Old Chief and to which the Court offered no guidance; that is, when the defendant successfully excludes the stipulation of an element of the offense from evidence, what has actually happened? Has the defendant pled guilty to an element of an offense? Can a defendant do that in Texas? Is it constitutionally permissible? Must the jury be advised of the stipulation? If so, how? Can the trial court give an instructed verdict on an element like the trial court does on guilt/innocence when only punishment is going to the jury?


Or is this something that relieves the prosecutor of admitting evidence of an element? After all, it is said that a stipulation is evidence. Hollen, 117 S.W.3d at 802. The jury only has to be informed of the contents of the stipulation. Old Chief, 519 U.S. at 191. Must the stipulation actually be introduced into evidence or must the jury only be advised of it? We know that the stipulation can be introduced into evidence, but the question now is must it be admitted as evidence in the presence of the jury. If the jury can be advised of it, without it being formally introduced into evidence, and the jury is informed in the charge of the contents of the stipulation, why would it have to be introduced into evidence? If the stipulation is of an element of the offense, can the jury be instructed regarding the effect of the stipulation? Can the jury be instructed to accept the stipulation?(9) If the jury cannot be instructed about the effect of the stipulation, or about a finding of the element, but the charge nevertheless does so inform or instruct, is that charge error or is it a failure of proof? Is this a waiver of a jury trial on an element of the offense?


This case brings me to an observation. An observation that occurred to me as I was reading Justice O'Connor's dissenting opinion (which was joined by three other Justices, including Chief Justice Rehnquist) wherein she reminded the reader that the jury is presumed to follow their instructions. Old Chief, 519 U.S. at 196 (O'Connor, J., dissenting)(citing Shannon v. United States, 512 U.S. 573, 585 114 S.Ct. 2419, 2427, 129 L.Ed.2d 459 (1994)). When a majority of the United States Supreme Court has accepted the notion that a jury cannot, will not, or may not follow the charge, we have been forced into a quagmire of epic proportion. The two areas that immediately come to mind are Old Chief stipulations, because, according to the Court, the jury cannot be trusted to limit the use of the evidence of other convictions only to the finding of the elements related to prior offenses and not as improper propensity evidence, and Sansone/Royster/Rousseau(10)


instructions on lesser included offenses, because, according to the Court, the jury cannot be trusted to acquit on the greater charge if the government fails to prove its case and the lesser offense is not included in the charge; the argument being that the jury simply convicts on the greater, but unproven, charge rather than acquit.


As intermediate state appellate courts, we have to deal with the inevitable ripple effects of this rejection of one of the most fundamental tenants of our jury system. Our judicial system is based upon the fundamental belief that juries are able to make the tough calls regarding determining disputed issues of fact and, in doing this, they follow the instructions of the court. When the foundation for this belief is rejected by a new rule, without giving any guidance as to the scope of the rule, we, the courts at this level and especially the trial courts, are forced to flail around in the dark until a sufficient number of cases are tried, giving rise to a variety of fact patterns and appeals, before the scope of the new rule is fully understood.


It is not my job to second guess the United States Supreme Court's rejection of the belief in the jury system. And I do not shy away from the tough cases which determine the scope of a new rule. But Bryant should not be allowed to escape punishment for the offense as we develop the scope of the new rule. He asked for something. He got it. Now he complains that what he got resulted in a failure of the State to prove him guilty. How could that lead to his acquittal? There may be error in directing a verdict on an element based upon a stipulation, but the jury was informed of the stipulation. And as a substitute for evidence, it should not have to be introduced into evidence because, contrary to Bryant's assertions in this issue, the jury was informed of the stipulation's contents.


The jury found Bryant guilty of the offense. I would overrule his specific complaint and affirm the conviction. Because the Court does not, I respectfully dissent.


TOM GRAY
Chief Justice

The additional thing one needs to know about the prosecution of Bryant was that it was his 11th conviction for DWI and that the jury assessed a punishment of 65 years.

John, I put my feelings about the decision a little more strongly in the State's Motion for Rehearing: "The 'true, but not proven' argument makes no sense. In short, if the court has accurately expressed the law, then there is new support for Mr. Bumble's renowned evaluation of the law, i.e. 'that the law is a ass- a idiot.' C. Dickens, The Adventures of Oliver Twist, ch. LI. It is a sad day when courts can so constrict or confound the means of arriving at the truth in the name of preserving an ordered society."

Just goes to show bad decisions breed their own kind.

quote:

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"What we've got here is...[a] failure to communicate." Cool Hand Luke (Warner Studios 1967) (motion picture).

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Forget the substance of the dissent -- that reference alone makes it worth reading ...

I frequently use that line from Cool Hand Luke with my children, just before the punishment falls.

I imagine that in your house punishment falls like a dead cow from a helicopter.

Actually, I model my punishments after some of former District Judge Ted Poe's sentences. Sometimes the kids say they would prefer some old fashioned corporal punishment.

I just got poured out by the 10th Circuit on a similar case with Justice Gray writing a vehement dissent. See Smith v. State, 10-00-00316-CR (Tex.App.Waco 2004) In my case, my habitual offender felony DWI defendant got 35 years and the 10th Circuit reversed and rendered on an insufficiency of the evidence basis where the defendant had stipulated to the two JURISDICTIONAL priors. Problem was that both priors were committed more than ten years prior to the instant offense (clerical error in prior judgment caused the mistake, and one was only ten years and ONE DAY too old!) although the stipulation mentioned only the dates of the prior convictions rather than the dates of the commission of the offenses. As previously noted, the defendant, pursuant to Tamez, wanted to stipulate to the two priors. At no time did he move to quash the indictment because the priors were outside the old 10 year window. At no time did he object to the use of these two priors. At no time did he request a jury charge on the use of stale priors, or an instruction on a lesser included offense. At the PUNISHMENT phase, pen packs and judgments were offered that showed that the defendant had more DWI (felony) convictions that were within the ten year period.
In Weaver v. State, 87 S.W.3d, 557 (Tex.Crim.App.2002), the CCA held that 49.09(e) is not an ELEMENT of the offense of felony DWI but rather an EVIDENTIARY rule governing the admission of DWI priors (although for reasons that are beyond me, the CCA says you still need evidence of an intervening DWI offered to the COURT during the guilt phase). Justice Gray pointed this out in his dissent on my case. The 1st Court of Appeals has held likewise. But for the Tamez stipulation, I would have likely offered prior judgments during the guilt phase of the trial which would have proved up not only the "remote" jurisdictional priors but intervening DWI convictions as well. In other words, but for the stipulation I would evidently have been in good shape per Weaver.
At any rate, I'm presently working with the State Prosecuting Attorney on getting a PDR filed. Hopefully this mess can be straightened out. As Justice Gray pointed out, it's amazing that a case like this is being reversed because the defendant got exactly what he asked for and never made any objection whatsoever.

Lee, I really feel like the court may grant a rehearing in Bryant, therefore I would suggest that you also consider filing a motion for rehearing in Smith. Might as well get the problem solved as quickly and easily as we can (unless you just enjoy making law where it counts).

Boy, was I off base. Motion for rehearing denied on March 31. No word yet on Bryant's motion for release on bail. Wonder what the ruling would have been if the parties had stipulated that the stipulation need not have been introduced into evidence?

Bryant was reversed today.

I just did a BWI (25-99 or life), hung jury which by the end of the day I was happy to get.

Here is what happened. The offer to stipulate was entered into evidence. However, the defense attorney stipulated to 2 priors in the late 1970's. My defendant was on a sea-do. I got the trial court to remove the dates from the offer to stipulate based of two recent decesions, one from the court of criminal appeals the other from texarkana.

If i read those decisions right, the dates were not jurisdictional rather evidentry and the defendant waived his right to complain.

Would I have survived a legal sufficency challenge?

Also as to the Bryant case.. is this bad news for prosecutors?

I mean if offers to stipulate are judicial admissions.. cant the defense now argue that once the stipulate the jury should not even hear that the only way this is a felony is because it is the 3rd or more. Evidence of guilt or not, the jury knowing it is not the defendants first time at the rodeo helps.

If I was a defense attorney I would be using this new case to flog courts into not allowing the jury to hear anything about the DWI 3rd or more requirement

I think Defense DWI schools will be using this case against us.

Personally, I think the procedure in Bryant is superior to that used in Hollen because the jury is instructed to find the jurisdictional elements in favor of the State. But, one can observe that the court did not specifically approve that method of informing the jury of the defendant's admission (although it appears proper under Ratliff, 276 S.W.2d 519). Thus, Bryant may well be an anomaly-- produced solely by the confusion over the issue which existed in 2001 (when the case was tried)-- so far as felony DWI practice is concerned (although it does clarify that the Court of Appeals in Hollen was right about the effect of a stipulation in all criminal cases).

I do not really care whether prosecutors perceive any benefit in Bryant-- now that we have the Hollen roadmap available. But, I am sure glad that Mr. Bryant is on his way back to prison. And I do not believe Bryant can be construed in any way to prevent the jury from learning one way or the other about whichever two prior DWI convictions the State chooses to stipulate to. And shame on Judge Meyers for completely misconstruing what occurred in Bryant. Where he got the idea the parties (jointly) carefully crafted the stipulation or that the State recognized that the defendant was relying totally on the State to introduce his confession is beyond me. It made perfect sense to us at the time that if the Defendant wants the jury to hear evidence about his priors he can make that choice (by choosing not to stipulate to them).

Bryant is written to tell the defendant how his stipulation restricts his ability to complain. It does nothing to restrict the State's ability to prosecute a case, at least no more than Tamez has done. It does not change the State's ability and, indeed, responsibility, to inform the jury about evidence that supports the elements of an offense.

By whatever title the Courts give the two prior convictions, they are elements that must have proof in the record. So, the State should be marking the stipulation as an exhibit and offering it into evidence. Bryant simply indicates that the Defendant can't utter a word of complaint about its introduction. If he does, he is going back on his word, leaving the prosecutor with the option of putting on evidence in the form of certified records of all of the prior convictions alleged in the indictment.

What I termed the "superior method" of presenting the jurisdictional allegations to the jury has now been approved. Martin, No. 1940-05 (06/28/06). Therefore, in my opinion no one should ever again give the jury the opportunity to find contrary to the stipulation. At the end of the day, Tamez does not seem so bad after all. But, of course, I still wish Maibauer and Jiminez (which make more sense than Tamez) had remained the law. Judge Meyers missed the boat again.

Maybe Justice Meyers should get a sea-do.