In what has to be the single most mystifying bit of reasoning to come from an appellate court, the Fort Worth Court of Appeals has decided that it is reversible error to let a jury know about any prior DWI convictions once the Defendant offers to stipulate to the convictions. Yes, that's what it says:

http://www.2ndcoa.courts.state.tx.us/ops2002/Pub_op_062702.htm

Judge Cochran's dissent in Robles points out the correct understanding of how to handle a stipulation in a DWI case:

http://www.cca.courts.state.tx.us/opinions/130500d.htm

To suggest that a prosecutor may not offer evidence to a jury of an element of an offense (the two prior DWI convictions), even if in the purified form of a stipulation, is just not right. If this proves to be the law as accepted by the Court of Criminal Appeals, someone should let the district courts know that they actually have misdemeanor jurisdiction and that the right to a jury trial apparently has been repealed.

[This message was edited by John Bradley on 07-02-02 at .]

[This message was edited by John Bradley on 07-02-02 at .]

I think it is way to early in the year to award this case the worst opinion of the year though I do predict it will fall in the top 10. While I disagree with the holding I think prosecutors need to be exercise some caution in the way they draft and use stipulations. I think the details contained in the stipulation should mention the cause number, offense date, conviction date, and the word DWI (even if it is a rep or felony just call it DWI) and nothing more. I don't think it is a good idea to emphasize and draw attention to the stipulation during case in chief. I also think some of the blame rests on the Court of Criminal Appeals for not better addressing it's intent in Tamez and Robles. For now lets hope Hood County takes it up and the Court of Criminal Appeals grants pdr.

Richard, your criticism of the Court of Criminal Appeals is correct. Anyone could have anticipated that Tamez was going to confuse the courts of appeals. If a state-wide appellate court is going to announce a new rule that is likely to influence hundreds of cases a year, the court should at least announce a clear rule. Robles was the opportunity to do so. The only clarity in that case came from the dissent of Judge Cochran, who provided a very concise set of instructions on the how and why of stipulations.

The idea that a stipulation, without any introduction of it to a jury, is somehow evidence is astonishing. So, if you instruct a jury about a stipulation and tell them they can't use it for any other purpose, that naturally would lead you to conclude that a jury used it for the wrong purpose?

The Court says, "...if the State is not permitted to present evidence of the two jurisdictional convictions during its case-in-chief, the two convictions are not proper subjects of comment during voir dire..."

What I want to know is, if we can't mention the 2 prior DWI's during voir dire, how on earth are we supposed to qualify the jury on the range of punishment? Are we just supposed to tell them that this is a DWI and DWI is punishable by 2 - 10 years in prison? Our juries in Parker County are very tough on DWI's, but I don't know if I could get enough of them to agree that a 1st offense DWI should get a 2 year minimum prison sentence to even make up a full panel from which to pick a jury. And if we don't comment on the 2 jurisdictional priors during voir dire, the case is a DWI 1st as far as the panel knows.

I have confidence that the SPA will get us some help on this one. At the very least, we have to be able to qualify the jury without completely misleading them about the nature of the case.

We need to do more than just HOPE that Hood County takes this up to the CCA and they grant PDR. Someone needs to call Hood County and make sure they do! This opinion makes no sense at all. We secretly enter into a stipulation about the 2 priors, but don't tell the jury about it?! I can live with a defendant entering into a stipulation, then not being able to offer the judgments, just the stipulation, but to say we can't offer the stipulation is nuts. Is the jury just supposed to GUESS why we're in felony court? And this court held that the instruction that told the jury not to consider the 2 priors for any other purposes was harmful, not a curative instruction. Sounds fairly ass-backwards. This is a slippery slope, too. What's next? The defendant offers to stipulate to anything that would be inculpatory, and then we can't introduce evidence of it?

I can think of one or two opinions in the past ten years that rival this one in the execrable category, but I certainly agree that this is truly awful. Our office has been fighting on this issue since Tamez came down. Van Horn and Alan Curry didn't win in Robles, but as I recall, the factor that made the difference in that case -- at least for some concurring judges -- was that the judgments contained unnecessarily prejudicial information, e.g., that the priors were felony DWIs. I think Robles was wrongly decided, of course, but it wasn't nearly as preposterous as this Hollen mess from the Fort Worth CA.

I'm glad I read all of your input. Our office is on top of this one, and we WILL be filing a PDR. I would welcome any further thoughts, ideas, and comments.

Matthew

By the way, we have been screaming (respectfully, of course) to the CCA about the Tamez slippery slope at every opportunity, to no avail. E.g., in a capital murder trial, if the defendant stipulates that he killed the victim, are we prohibited from introducing evidence of the cause of death? One can come up with a jillion such examples, but as far as I can tell, the Court has yet to articulate any meaningful principle for determining when a defendant can or cannot effectively bowdlerize the State's evidence by offering strategic stipulations.

One can make such arguments, but unfortunately, one cannot force the Court to address them.

MP

Perhaps the next reply from the State could explore the legal basis for a court imposing upon a party a paticular method for proving something. It seems to me that a Court can decide whether evidence is admissible or not but it can't decide how it should be offered.

I am still quite bothered by the court's rather casual decision to impose upon a party a particular method (stipulation) for addressing the issue of potential misuse of evidence.

A prosecutor should be able to:

delete the harmful part of the judgment;

request a limiting instruction;

consider other ways to prove the prior convictions.

But who gave the court authority to impose a particular method? This is the sort of bad decision that always comes back to haunt the court of criminal appeals -- when they don't stick within the authority granted by a particular law.

So is it realistic that Defendants will be able to stipulate to the value of stolen property (and its other characteristics), and thereby PREVENT the State from introducing ANY evidence of value? So we then have to voir dire in a first degree theft case on the possibility of life or 5 - 99 years as the range of punishment but cannot say what was stolen or what its value was? Isn't there a rule of evidence that says something about probative value - or do they not have that in the Fort Worth CA? What about the scenario where the defendant pleads not guilty but stipulates to ALL the elements of the offense, then goes to the jury for punishment. Could the state put on ANY evidence at guilt / innocence?

I have to agree with John - worst opinion of the decade; even though it is early, this one will be hard to beat.

First as to the language quoted by Jeff, my focus is going to be on the word "if" and I am inclined to call that whole sentence "dicta". I would like to hear what other counties intend to do in the meantime. I think a bare bones stipulation that calls the priors DWI's without reference to whether they were rep's or felonys, that lists the conviction dates, Court, Cause #'s, & County and State would be proper and though I still believe some mention of the priors in voir dire is proper and that in arraignment the charge as a whole can be read, I would stay away from referring to the priors in opening or argument.
As for offering the stipulation I still believe it is necc. but I'm a bit nervous about proposing we do it.
Of course in Tarrant County we are stuck with the 2nd Court holding and will have to come up with a immediate plan to deal with this.
Does anyone know if there is a another case already in the Appellate pipeline which the Court of Criminal Appeals might use as a vehicle to clear up this mess?

The issues are also involved in Marbella, No. 00-646 PDR granted 2/7/01 in which the State is directly challenging a forced "stipulation" to prior theft convictions and in Hernandez, No. 00-818 PDR granted 9/20/00 in which the State argues a stipulation cannot include a provision for exclusion of the evidence from the jury. It seems to me the CCA is more to blame for creating this mess in Tamez than Fort Worth is for attempting to follow that decision.

Tamez and now Hollen cannot be reconciled with Johns, 236 S.W.2d at 822 which reads as follows: "the State has the right to prove its case in any way it may see fit under proper rules and regulations, and an accused cannot be allowed to direct either the method or manner of such proof." See also Ross, 401 S.W.2d 844. Mewbourn, 993 S.W.2d at 773 also presents an argument wholly ignored in Tamez.

I have also argued that "a defendant cannot enter a plea of 'not guilty' and then waive such plea as to those facts which he picks and chooses. His plea is to be construed as a denial of every material allegation in the indictment and places the burden on the State to prove each aspect of its case. 22 Tex.Jur.3d, Criminal Law sec. 2416 at 745."

In thinking about whether we will be barred from discussing the priors in voir dire, I recalled the cases that say that we can discuss regular �12.42 enhancements so that we can qualify the jury on the range of punishment. I don't see how DWI jurisdictional enhancements could be more prejudicial than regular penitentiary enhancements under �12.42 that the courts have allowed us to inquire about in voir dire. I'm going to keep discussing the jurisdictional priors (in a vague manner, like I do with regular enhancements) during voir dire and cite the court to the cases on regular enhancements should anything come up.

As to the stipulation form mentioned by Richard, we already use a plain vanilla form that says that the defendant stipulates he's been convicted of 2 DWI's with one in the last 10 years, as alleged in the indictment, and leave it at that. I'd be happy to fax it to anyone who would like a copy.

Be careful about the wording on the stipulation as to whether one of the convictions was from the last 10 years. In the last session, the legislature expanded the time limit, changing it slightly.

We have to be able to continue to talk about the priors during voir dire, i.e. how this defendant ended up in District Court. The jury is (rightfully)going to be wondering: "why the hell a first time DWI where no one got hurt is being tried as a felony" or "you can go to the pen for up to 10 years for something as minor as this"--mountain out of a mole hill routine. Even if they don't vocalize it during voir dire, you know they're going to be thinking about it.

I remember a misdemeanor assault case several years ago BEFORE Tamez, where the defense attorney, citing Old Chief, tried to stipulate to the "Bodily Injury" and therefore argued that we should not be able to show the jury the very bloody result of the defendant's punches to the victim's face. We won that one, but this is just another realistic and potential example of the dangers of this line of thinking.