OK you TDCAA gurus. Due to Tamez, and now that crazy case out of Fort Worth (Hollen?), what we need is a SAMPLE JURY CHARGE for felony DWI's and SJF thefts.

And...are ya'll offering the stipulation to the prior DWI's and thefts into evidence as an exhibit? Since that Hollen case came out, I'm scared to do even that for fear of reversible error.

It's like trying to navigate a mine field. *Tamez/Hollen go boom* SPLAT!!

Thanks in advance.

If they see the fear in our eyes, we are dead.

You shouldn't be doing anything different with the jury charge after Tamez. You should still indicate that proof of two prior DWI convictions is an element of a felony DWI. You should still track the language in the indictment. You should still tell the jury they have to find the allegations beyond a reasonable doubt.

Some people are so bold as to put in extra language saying that the defendant has stipulated to the proof required for that allegation, instructing the jury to find those allegations to be proven beyond a reasonable doubt.

That sort of language strikes me as a comment on the weight of the evidence, although I can't see how it would be harmful. Nonetheless, I like for the jury to make the decision. You can always say in final argument that the defendant has stipulated to part of the proof.

As for the stipulation itself, the judge should have the defendant waive in writing his right against self-incrimination and his right to confront and cross-examine witnesses before accepting the stipulation. And, the stipulation itself should be in writing (preferably in the same document that contains the waiver). [Case law supporting this procedure is contained in the Evidence chapter of The Perfect Plea, which should be on your desk.]

Then, the prosecutor, in front of the jury, should have the stipulation marked and admitted as evidence. The prosecutor should read the stipulation to the jury and, later, during argument, refer to it as evidence in support of the allegation that the defendant has been twice before been convicted, as required by the Texas Legislature.

I would not change this procedure until five members of the Court of Criminal Appeals tell us to do so. And, even then, I would take the issue to the Texas Legislature.

It is utter nonsense for an appellate court, out of whole cloth, to have invented this forced form of proof. I am appalled that an appellate court has invaded the prosecutor's constitutional duty to present proof in the form that the prosecutor deems best for the case. Fight on.

John, is there any effort underway to have the Legislature address the problems caused by Tamez? Are there any thoughts as to what type of legislation might best fix the problem?

The problem with a legislative fix is that it might result in a law worse than the Tamez case. If legislators buy into the argument that notifying jurors of prior convictions is such a terrible deal, they might write the law so that they are never told about them. Does anyone want to try a felony DWI before a jury as if it is a first time DWI?

One of my assistants is set to try a felony dwi before a jury next week. 2 misdemeanor priors. The defendant didn't blow and the video is marginal. The defense lawyer is going to stipulate to the 2 priors and ask the judge to prevent us from mentioning the 2 priors in any way.... You might say, "Oh, the judge surely won't do that..." Factor in that the judge was a defense lawyer for umpteen years prior to taking the bench AND he and the defense lawyer are brothers-in-law.... Any ideas........

So the court erroneously grants a motion in limine and presumably says (exactly contrary to Tamez) that you are also prohibited from reading the portion of the indictment mentioning the prior convictions. You know that Robles excludes use of the prior judgments as evidence (if the stipulation is offered in lieu of them), but that some mention of this jurisdictional element of the offense is expressly authorized to be communicated to the jury in both Tamez and Robles. I say its time to test the judge's contempt powers, or let him erroneously grant a mistrial. That defendant may win, but the judge will ultimately have a lot of explaining to do. Follow John's advice to the bitter end if necessary. Just as the judge is supposed to be faithful to the law and maintain professional competence in it and not be swayed by partisan interests or fear of criticism, sometimes you have to fight fire with fire. Many an old Indian chief learned this the hard way.

You should have an application for writ of mandamus drafted and ready to file before the local Court of Appeals or the Court of Criminal Appeals (which is on vacation still). Seek a continuance on the trial as soon as the order is issued by the judge and file the application.

This is what happens when an appellate court thinks it is a trial court and comes up with its own version of how to try a case. The Court of Criminal Appeals was warned that an unclear Tamez would lead to mischief.

I still say that Judge Cochran's dissent was the right law in Robles. Push for it.