What is the latest on Robles and Hollen? Based on those cases, my district judge will not let me read the two priors in the indictment to the jury, publish the stipulation to the jury, or introduce the prior judgments until punishment. Any suggestions? Will the CCA clarify this soon? I know both cases are up on PDR. Right now, I have to try a felony DWI as if it were a Class B misdemeanor!

[This message was edited by Michael Mark on 05-09-03 at .]

Michael, call me.

I may have missed something but I don't see Robles forbidding offering the stipulation into evidence and if you can do that you don't need the priors. The main impact of Robles is that it emphasizes that the danger of offering priors in lieu of stipulations is that there are extraneous details that can be found in the priors that go beyond what is needed. i.e. perhaps the priors you relay on are felony DWI's or rep's which would put other aggravating details before the jury. As noted Hollen has PDR granted and we are not following that opinion in Tarrant County and we are still letting the jury know about the priors in voir dire and we are offering the stipulation into evidence. The priors must be mentioned in the jury charge. See Martin v. State 84 SW3d 267 (Tex. App. Beaumont 2002).

I know of no case which has ever held that the jurisdictional elements of a DWI indictment should not be read in accordance with art. 36.01(a)(1), CCP.

The next two cases most likely to answer some of the questions left after Tamez are Marbella, No. 00-0646 (PDR granted 02/07/01) and Hernandez, No. 00-0818 (PDR granted 09/20/00). Obviously, we have been waiting quite a while for those decisions, but presumably they are now very near to announcement.

Frankly, we should be arguing a bigger issue. The CCA has no business telling prosecutors that evidence must be offered in a particular form in every case. While a stipulation might well be an efficient method for dealing with prior DWI judgments, there is no authority anywhere (except by raw power) that permits the CCA to say a stipulation is the method that must be used in every case.

For example, a prosecutor might decide to delete any irrelevant language in a judgment and simply offer the remainder of the document into evidence. Or, the prosecutor might want to wait and decide, during trial, whether a stipulation was the best choice. It is appalling that the CCA has decided on this new form of pretrial decision-making that authorizes a defendant to request and a judge to enforce a particular type of evidence presentation.

Well, now we have the decisions in Hernandez (07/02/03) and Marbella (04/09/03)and the only thing of interest is that the court seems to think all is well with Tamez (i.e., it tells us all we needed to know). The latest opinion does seem to make clear that the chosen two allegations of prior DWI convictions should be read to the jury and that if a stipulation is offered by the defense, any other type evidence should be excluded. (Sorry, John, looks like we have already lost the "mandated form of evidence" war). I think the defendant was darn tricky in Hernandez in the way he worded his proposed stipulation making it look like he was asking for more than he was entitled to. Whatever happened to the requirement that in order to preserve error you had to state the grounds with sufficient specificity to make everyone aware of exactly what you sought?

In Hollen, the Court of Criminal Appeals has given us an answer. You can read the stipulation to the jury and offer it into evidence. Big surprise, we actually have to offer evidence to prove an element of an offense. At least the issue is settled.

...TDCAA should've lobbied the court to pick other elemtns of offenses, which we did not have to prove at trial, like the county, or the date of offense & etc.

I've never understood how proving an element of a case, even if it is a prior, can be so detrimental as to be inadmissible. To tell you the truth, unless what we're offering IS detrimental to the defendants, we probably should be finding new careers!