Bryant v. State

135 S.W.3d 130, 2004 Tex. App. LEXIS 2326, 2004 WL 444558

• Court: Court of Appeals of Texas
• Decided: March 10, 2004
• Docket: 10-01-00280-CR
• Status: Published

Opinions

MEMORANDUM OPINION

FELIPE REYNA, Justice.

A jury convicted Clarence Randolph Bryant of felony driving while intoxicated. Bryant pleaded true to allegations of prior felony convictions enhancing his punishment to that for an habitual offender. The jury assessed his punishment at sixty-five years’ imprisonment. Bryant presents one issue in which he claims that the evidence is legally insufficient to support his conviction because the State faded to place in evidence the parties’ stipulation that he had two prior DWI convictions.

BACKGROUND

The indictment alleges seven prior DWI convictions. Before the reading of the indictment, Bryant stipulated in writing to the two most recent convictions (from 1991 and 1998). The State mentioned only those two prior convictions when it read the indictment. The parties made no further reference to Bryant’s prior DWI convictions until closing argument.

The court’s charge commenced by reiterating the allegation of the indictment (modified by virtue of the stipulation) that Bryant “had previously been convicted two times of [DWI].” The charge properly set out the law that a person commits felony DWI if he commits DWI and “has previously been convicted two times or more of [DWI].” The charge provided the following instructions to the jury regarding the stipulation:

The defendant has stipulated before the Court that he previously was convicted two times of the offense of driving while intoxicated, to wit: on October 2, 1991 in Cause No. 20632 in the County Court at Law of Wichita County, Texas; and on December 22, 1998 in Cause no. 6454F in the County Court at Law of Wichita County and you are instructed to find that the defendant has been previously convicted of those offenses.

With respect to the stipulation concerning the defendant’s having been two times previously convicted of being intoxicated while operating a motor vehicle in a public place, you are instructed that such evidence cannot be considered by you as in any manner proving or tending to prove that the defendant was intoxicated while driving or operating a motor vehicle in a public place on or about March 1, 2001.

The State briefly mentioned the prior convictions in its opening argument:

Ladies and Gentlemen of the jury, all of what the Judge has read you boils down to really a fairly simple question, do you find from the evidence that Clarence Randolph Bryant, a person who has previously been convicted two times of driving while intoxicated [defense objection ¹ overruled] was intoxicated while operating a motor vehicle....

Bryant’s counsel briefly responded to this argument by reminding the jurors that the court had instructed them not to consider the prior convictions in deciding whether Bryant was intoxicated on the occasion in question. The parties made no further reference to the prior convictions during the guilt-innocence phase.

LEGAL SUFFICIENCY

Bryant contends in his sole issue that the evidence is legally insufficient to support his conviction because the State failed to place the stipulation in evidence. The State responds that: (1) the prior convictions are not elements of the offense which must be proven at guilt-innocence beyond a reasonable doubt; (2) the stipulation satisfied the State’s burden of proof regardless of whether it was formally admitted in evidence; and (3) Bryant invited the error of which he now complains.

We measure the sufficiency of the evidence under a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997); Price v. State, 35 S.W.3d 136, 139 (Tex.App.-Waco 2000, pet. ref'd). According to Malik, a hypothetically correct charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240.

Article 36.14 establishes that the “law” which the hypothetically correct charge must “accurately set[] out” is the “law applicable to the case.” Tex.Code CRiM. Proc. Ann. art. 36.14 (Vernon Supp.2004). The Court of Criminal Appeals has described the court’s obligation to submit the applicable law in the charge in various terms over the years:

• “Because the evidence in question was admitted for all purposes, a limiting instruction on the evidence was not ‘within the law applicable to the case,’ and the trial court was not required to include a limiting instruction in the charge to the jury.” Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App.2001).

• “The law applicable to a case plainly includes laws from any source concerning which a jury instruction is necessary for resolution of the factual issues presented.” Atkinson v. State, 928 S.W.2d 21, 27 (Tex.Crim.App.1996), overruled on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App.2002).

• “The jury charge must allow the jury to determine the defendant’s guilt in light of the evidence and the law.” Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App.1996)

• The court must “prepare for a jury a proper and correct charge on the law, and the law as may be applied to the facts adduced.” Doyle v. State, 631 S.W.2d 732, 738 (Tex.Crim.App. [Panel Op.] 1980).

• “The parties may make strategic decisions whether to present evidence, and the evidence will determine what law must be applied. To that extent the adversaries’ decisions affect the court’s charge.” Posey v. State, 966 S.W.2d 57, 69 (Tex.Crim.App.1998) (Womack, J., concurring).

Prom these cases, we conclude that an accurate statement of the law applicable to the case properly states: (1) the legal provisions under which the accused is being prosecuted (e.g., pertinent provision of penal code); see e.g. Drew v. State, 76 S.W.3d 436, 455 (Tex.App.-Houston [14th Dist.] 2002, pet. refd); (2) the legal principles which govern criminal trials in general (e.g., burden of proof, presumption of innocence); see e.g. Victor v. Neb., 511 U.S. 1, 5,114 S.Ct. 1239,1243,127 L.Ed.2d 583 (1994); (3) the legal theories presented at trial on which an instruction is necessary or proper (e.g., the law of parties, defenses); see e.g. Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App.2002); and (4) evidentiary instructions which are necessary or proper based on evidence actually offered and admitted in evidence (e.g., evidentiary presumptions); see e.g. Tex.Pen.Code Ann. § 2.05(2) (Vernon 2003); Anderson v. State, 11 S.W.3d 369, 373-74 (Tex.App.-Houston [1st Dist.] 2000, pet. refd).²

Here, the court’s charge did not accurately state the law applicable to the case insofar as it instructed the jury regarding a stipulation which was never placed in evidence. A hypothetically correct jury charge in a felony DWI would have instructed the jury that it must find that Bryant had been previously convicted two or more times of DWI. However, a hypothetically correct charge based on the evidence presented at trial would not have instructed the jury regarding a stipulation to the prior convictions because the stipulation was never offered or admitted in evidence. Cf Hammock, 46 S.W.3d at 895 (because challenged evidence was admitted without limitation, trial court was not required to give limiting instruction in charge).

Notwithstanding the State’s argument, the prior convictions are elements of the offense of felony DWI which the State must prove beyond a reasonable doubt.³ Weaver v. State, 87 S.W.3d 557, 560 (Tex.Crim.App.2002); Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App.1999). The State can satisfy this obligation at trial either by offering in evidence certified copies of the judgments or a stipulation. See Robles v. State, 85 S.W.3d 211, 212 (Tex.Crim.App.2002).

The State argues that the written stipulation which appears in the clerk’s record satisfied its burden of proof regardless of whether the stipulation was admitted in evidence. We disagree. Two Texas appellate courts have concluded that the State “should” introduce the stipulation in evidence. State v. McGuffey, 69 S.W.3d 654, 657 (Tex.App.-Tyler 2002, no pet.); Orona v. State, 52 S.W.3d 242, 249 (Tex.App.-El Paso 2001, no pet.). The Fort Worth Court held that the State cannot admit the stipulation in evidence. Hollen v. State, 87 S.W.3d 151,157 (Tex.App.-Fort Worth 2002), reversed, 117 S.W.3d 798 (Tex.Crim.App.2003).

However, the Court of Criminal Appeals reversed the decision of the Fort Worth Court in Hollen. In so doing, the Court held that the State “may” admit the stipulation in evidence. Hollen, 117 S.W.3d at 799. The Court noted in Hollen that its prior decisions “suggest that the jury should be informed of the stipulation, as the two prior convictions are elements of the offense that must be proven to the factfinder — in this case the jury — to establish the offense of felony DWI.” Id. at 802 (emphases added). However, the Court of Criminal Appeals has never plainly stated that the State must offer the stipulation in evidence to prove its case. Cf. Hernandez v. State, 109 S.W.3d 491, 495 (Tex.Crim.App.2003) (“The appellant’s stipulation would have placed the prior convictions into evidence, making the jury aware of their existence. This would have satisfied the evidentiary requirements regarding stipulations while avoiding the unfair prejudice that would accompany further mention of the convictions.”); Robles, 85 S.W.3d at 212 (“The stipulation would have diminished the probative value of the [judgments], however, because the same information would have been admitted in an alternate form.”).

“The elements of an offense must be charged in the indictment, submitted to the jury, and proven by the State beyond a reasonable doubt.” Weaver, 87 S.W.3d at 560 (emphasis added). “The prior intoxication-related offenses are elements of the offense of [felony] driving while intoxicated.” Id. (quoting Gibson, 995 S.W.2d at 696). Because the prior convictions are elements of the offense of felony DWI, we hold that, in a case in which the parties have made a Tamez stipulation, the State must offer the stipulation in evidence during the guilt-innocence phase to prove the prior convictions. In this case, the State simply failed to offer any evidence to satisfy its burden of proving beyond a reasonable doubt that Bryant had two prior DWI convictions.⁴

The State claims that Bryant should be estopped to complain of this failure of proof because he invited it. The State relies on the decision of the El Paso Court of Appeals in Orona to support this contention. In Orona, the defendant stipulated to two prior DWI convictions then objected to the admission of the stipulation before the jury. The stipulation and the judgments of conviction were admitted in evidence outside the presence of the jury. The court’s charge instructed the jury that the defendant had stipulated to two prior convictions and that “the court ha[d] so found.” Id. at 246 & n. 1.

The defendant in Orona objected on appeal that the court erred in charging the jury in this manner because it was for the jury to determine whether he had been previously convicted as alleged. Id. at 248. The court rejected this complaint because it determined that he had invited the error by objecting to the admission of the stipulation in evidence before the jury. Id. at 248-49.

Bryant’s case varies from Orona in at least one critically important respect: Bryant did not object to the introduction of the stipulation in evidence before the jury. He could not because the State never offered it in evidence. Accordingly, we hold that he is not estopped from challenging the sufficiency of the evidence to support his conviction.

In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App.2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991).

Even viewed in a light most favorable to the verdict, no rational trier of fact could find from the evidence presented that Bryant had two prior DWI convictions. Accordingly, the evidence is legally insufficient. Thus, we conclude that Bryant’s sole issue is meritorious.

Upon a finding that the evidence is legally insufficient to support a conviction, the appropriate disposition is usually a reversal of the judgment of conviction and rendition of a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996); Jones v. State, 945 S.W.2d 852, 854 (Tex.App.-Waco 1997), aff'd, 979 S.W.2d 652 (Tex.Crim.App.1998). However, we may instead modify the judgment to reflect a conviction for a lesser-included offense if: (1) the jury was charged on the lesser offense; or (2) a party requested a charge on the lesser offense which the trial court denied. Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App.1999); Logan v. State, 48 S.W.3d 296, 307 (Tex.App.-Texarkana 2001), aff'd, 89 S.W.3d 619 (Tex.Crim.App.2002); Hicks v. State, 999 S.W.2d 417, 424 (Tex.App.-Waco 1999, pet. refd).

Misdemeanor DWI is a lesser-included offense of felony DWI. See Mosqueda v. State, 936 S.W.2d 714, 717 (Tex.App.-Fort Worth 1996, no pet.). However, the court did not charge the jury on this lesser offense and neither side requested such a charge. Thus, we cannot modify the judgment to reflect a conviction for the lesser-included offense of misdemeanor DWI. See Collier, 999 S.W.2d at 782; Logan, 48 S.W.3d at 307; Hicks, 999 S.W.2d at 424.

Accordingly, we reverse the judgment and render a judgment of acquittal.

Chief Justice GRAY dissenting.

1 . Bryant objected that the jury was not to give any consideration to his prior convictions in determining whether he was driving while intoxicated on the occasion in question.

2 . This list is not necessarily exhaustive.

3 . We do not have the luxury of disagreeing, as the State does, with the decisions of the Court of Criminal Appeals. See Horton v. State, 986 S.W.2d 297, 300 (Tex.App.-Waco 1997, no pet.).

4 . The fact that the State proved up the prior convictions at punishment is of no moment. See Barfield v. State, 63 S.W.3d 446, 450 (Tex.Crim.App.2001) (In a bifurcated trial on a plea of not guilty, "our consideration of the evidence is necessarily limited to that evidence before the jury at the time it rendered its verdict of guilt.”) (quoting Munoz v. State, 853 S.W.2d 558, 560 (Tex.Crim.App.1993)).