Has anyone read that Weaver case that's posted on today's website as the "case of the day" and was decided by the CCA earlier this month. As I understand it, the CCA is saying that the indictment can allege 2 remote priors for enhancement purposes and then if the State proves up an intervening DWI conviction outside the presence of the jury, the felony survives even though the priors in the indictment and jury charge are remote. The opinion says that Section 49.09(e) is not an element of a felony DWI but rather a rule of "admissibility" concerning remote convictions.

Okay, here's the deal. I have a case presently pending before the Waco Court of Appeals where the defendant stipulated pursuant to Tamez to two remote DWI's. Of course Tamez wouldn't allow me to prove up any other DWI's in front of the jury and I didn't prove up any others, outside of the presence of the jury or otherwise, until I got into the punishment phase where evidence of a couple of intervening priors came in. Does Weaver mean that if 49.09(e) is not an element, and the defendant doesn't object to remote convictions (or stipulates to them as in my case), that a felony conviction survives lack of proof of an intervening conviction in the guilt phase of the trial? In other words, can the defendant waive any claim of "inadmissabilty" concerning remote priors under 49.09(e)and allow the case to go to the jury with 2 remote priors?

Before anyone starts wondering how I wound up with 2 remote priors in my indictment, there was a discrepency between dates in a prior judgment and order revoking probation. One of my priors was ten years and ONE day too old. Jeez.

Subdivision(e)(3) is worded in the negative, so it should be a defensive issue. In other words the State does not need to prove that a particular conviction was subject to use because the defendant had also been convicted within 10 years of .... But Weaver says the proof "must" still be made by the State and in dicta: "at some point during its case-in-chief". But isn't the court really equating that proof with the predicate facts required to admit other proof?

Despite Judge Holcomb's advice or comment, it seems to me when the necessary proof comes in at the punishment phase, any error in admitting or using the priors in the guilt phase is cured. Further, the evidence of the priors was offered by the defendant (in the form of a stipulation). Further, the priors only really come into play at the punishment phase (although the offense has already been determined to be a felony). So long as the "intervening conviction" is not a true element of the offense it should always remain a question of admissibility rather than adequacy of the proof and therefore subject to Rule of Evidence 103(a)(1).

What the 10th Court does with Bryant, 10-01-280-CR, scheduled for submission on 10/02/02 may be important in your case. There the State is arguing that the issue of whether the Appellant had been previously convicted of DWI offenses was not required to be submitted to the jury for determination as to the truth of the allegations in the indictment once Appellant stipulated thereto. In that case the jury never saw the stipulation, but was just told about it in the charge. We still think the evidence was sufficient to support the verdict. See Orona, 52 S.W.3d at 247. Bryant is arguing the evidence was insufficient as a matter of law and he should gain a judgment of acquittal (which I presume is similar to the argument in your case).

Unless somehow changed by Weaver, a majority of a panel of the 1st Court has already laid out the argument you should make in Bower, 77 S.W.3d at 518 ("appellant's remedy would have been to timely object, based on section 49.09(e), to the admission of the convictions and/or request an instruction on the lesser included offense of misdemeanor DWI").

[This message was edited by Martin Peterson on 09-26-02 at .]