Comment

Felony Enhanced Driving While Intoxicated. There are five grades of the offense of driving while intoxicated. The differences among the grades depend on the number and type of prior convictions of the defendant and whether a victim is injured or killed. The offense of driving while intoxicated with no alleged prior intoxication-related offense is a class B misdemeanor, with a minimum term of confinement of seventy-two hours. Tex. Penal Code § 49.04(b). If the state can show at trial that the defendant had previously been convicted of an offense listed in section 49.09(a) and defined in section 49.09(c), the offense of driving while intoxicated is a class A misdemeanor, with a minimum term of confinement of thirty days. Tex. Penal Code § 49.09(a), (c). If the state can show at trial that the defendant had previously been convicted of intoxicated manslaughter or two intoxication-related offenses, the offense of driving while intoxicated is a felony of the third degree. Tex. Penal Code § 49.09(b)(1), (2). If the state can show at trial that the defendant “caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty,” the offense of driving while intoxicated is a felony of the second degree. Tex. Penal Code § 49.09(b–1). If the state can show at trial that the defendant caused the death of a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty, the offense of driving while intoxicated is a felony of the first degree. Tex. Penal Code § 49.09(b–2).

The court of criminal appeals has held that the prior offenses required for enhanced felony penalties under Tex. Penal Code § 49.09(b) “are elements of the offense of driving while intoxicated. They define the offense . . . and are admitted into evidence as part of the State’s proof of its case-in-chief during the guilt-innocence stage of the trial.” Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999) (holding that state could rely on two prior convictions arising out of single act of DWI to enhance DWI offense to felony). Thus, such prior convictions must be pleaded in the indictment and proved to the jury beyond a reasonable doubt.

Stipulation to Enhancement Prior Conviction. The defendant may offer to stipulate to the jurisdictional prior involuntary manslaughter conviction in a felony DWI case brought pursuant to Tex. Penal Code § 49.09(b)(1). It is the defendant’s responsibility to draft an acceptable written stipulation, signed by the defendant. The trial judge need not accept a stipulation that is not dispositive of the jurisdictional element. Martin v. State, 200 S.W.3d 635, 640 n.12 (Tex. Crim. App. 2006).

However, when the defendant agrees to stipulate to the requisite number or type of convictions necessary to enhance the penalty, the prosecutor may not read the full indictment to the jury, nor may he present evidence of the convictions during the case-in-chief. The court of criminal appeals has held in two similar cases that this rule is necessary to strike a balance between Code of Criminal Procedure article 36.01(a)(1), which authorizes the reading of the full indictment, and rule 403 of the Texas Rules of Evidence, which prohibits the admission of evidence that is substantially more prejudicial than probative. In Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), the court of criminal appeals reversed a felony DWI conviction in which the state had read from the indictment each of the defendant’s six prior DWI convictions at the beginning of the trial and entered the six judgments into evidence during its case-in-chief.

Tamez, 11 S.W.3d at 202–03. See also Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002) (en banc) (when defendant stipulates to existence of the two alleged prior DWI convictions, state may read indictment but may not enter judgments into evidence, as jury could have gleaned from judgments that DWI charged was appellant’s fifth alcohol-related offense and that appellant had not served his full term for his last prior conviction). These cases all concern instances in which the enhancement to a felony required two prior convictions. In a Penal Code section 49.09(b)(1) case, only a single prior intoxication manslaughter conviction is required. Nevertheless, the Committee believes that it could be sufficiently prejudicial to the defendant to provide the details of this prior death that the state must accept a stipulation under Tamez if such a proper stipulation is offered.

However, although no evidence relating to the particulars of the prior conviction is admissible at trial, the jury instruction must include the jurisdictional element of the crime charged even if this element is a prior conviction and the defendant has stipulated to its existence. The court of criminal appeals recently suggested that the best procedure is to include the allegation of the prior manslaughter conviction in the application paragraph of the jury instruction, with a separate paragraph stating that the defendant has stipulated to the existence of this prior conviction and thus that element has been satisfied. See Martin, 200 S.W.3d at 639.

Instruction on Limited Use of Prior Conviction. Martin v. State ensures that even if a defendant stipulates to the prior convictions, the jury at the guilt/innocence stage of the trial will at least be told something about these prior convictions. See Martin, 200 S.W.3d at 640–41. Those prior convictions, of course, cannot be used by the jury in determining whether the defendant operated a vehicle while intoxicated as alleged in the charged offense.

In Martin, the court of criminal appeals assumed that if the jury is told that the defendant stipulated to the prior convictions, the instruction conveying this information “would also instruct the jury to find that the jurisdictional prior convictions may not be used for any other purpose in determining the guilt of the defendant on the charged occasion.” Martin, 200 S.W.3d at 639.

The Committee concluded that such limiting instructions should be used in every case in which the jury hears evidence about, or is instructed concerning, such prior convictions.