Thoughts would be appreciated. Regards, Charles G. Morton, Jr.

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1 From: Charles Morton, Jr Sent: Saturday, April 11, :37 PM To: tcdla-listserve Subject: [tcdla-listserve] Stipulation of Priors and challenge to enhancement to 2nd degree felony. Group: would appreciate some thoughts on case that will be coming up soon. Indictment charges theft of general merchandise less than $ Indictment then alleges two prior theft cases, one for Theft by Check and one just mentioned as theft, both a SJF. If defendant agrees to stipulate those two priors for jurisdictional purposes, then the jury gets to hear about the stipulation of the two priors, and the State can mention the stipulation in voir dire, and so forth, other wise the State has to prove up the two prior thefts. If defendant prepares a stipulation for the two priors just stipulating the two convictions for theft with the cause numbers and the State says no we are not going to do that, we want to prove them up. Can the Judge say no, I am going to accept the stipulation? What happens then? The last time I had this situation the State just agreed. To me it would look worse to the Jury for the if the stipulation was not agreed. Second question. The indictment does not contain any non SJF priors, and none that involve offenses under (b) or ( c ). So unless I am missing something here this should still be a 3d degree felony as it is indicted. So, if I am correct then when do I attack that? Thoughts would be appreciated. Regards, Charles G. Morton, Jr. From: Greg Velasquez <GVelasquez@epcounty.com> Date: April 11, 2015 at 6:09:35 PM CDT Subject: RE: [tcdla-listserve] Stipulation of Priors and challenge to enhancement to 2nd degree felony. Look at the following cases: Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000) 1. DWI -- Old Chief Defendant was charged with felony DWI. The State alleged six

2 prior DWI convictions in the enhancement court. Defendant offered to stipulate to two previous DWI convictions if the State would be foreclosed from mentioning his prior convictions to the jury. The trial court refused. The State read the indictment with the six priors and introduced the six judgments against Defendant into evidence during its case-in-chief. Defendant argued on the six previous DWI convictions were substantially more prejudicial than probative, violating Texas Rule of Evidence 403 and stated reversal was mandated under Old Chief v. United States, 519 U.S. 172, 192, 117 S.Ct. 644, , 136 L.Ed.2d 574 (1997). The Court of Appeals held if the Defendant stipulates to two prior DWI convictions: (1) the State may read the indictment at the beginning of trial, mentioning only the two jurisdictional prior convictions; (2) but is foreclosed from presenting evidence of the convictions during its case-inchief. (Dissenting opinion by Keller, J., joined by McCormick, P.J.) Argued the trial court did not err in permitting the State to read the six prior convictions alleged in the indictment, and did not err in admitting evidence of the six prior convictions. Robles v. State, 85 S.W.3d 211 (Tex.Cr.App. 2002) DWI. The Court of Appeals reversed at 11 S.W.3d 198 (Tex.Cr.App. 2000). Affirmed. 1. DWI -- Stipulating Prior Convictions Appellant was charged with felony DWI. Before trial, he offered to stipulate to the existence of the two prior convictions, and requested that the trial court prevent the State from introducing evidence of the priors. The request was denied, and appellant pled guilty in lieu of going to trial. The Court of Appeals reversed, relying on Tamez v. State, 11 S.W.3d 198 (Tex.Cr.App. 2000) which ruled the State may read the indictment including the two alleged prior convictions but it may not introduce evidence of those prior convictions in its case-in-chief on guilt-innocence. Tamez held the State could not introduce evidence of six prior convictions in its case-in-chief during the guilt-innocence phase of trial when the defendant offers to stipulate to the two jurisdictional prior convictions. The State argued Tamez should be limited to its particular facts where the State introduced six prior alcohol-related convictions; that if the State introduces evidence of two jurisdictional prior convictions, it should not be bound by the stipulation. Admitting evidence of prior convictions and other bad acts is generally prohibited during the guilt-innocence phase. The policy, embodied in Tex.

3 R. Evid. Rule 404(b). Rule 404(b) reads, in pertinent part: Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. The bifurcated trial procedure, Tex. Code Crim. Proc. art , 2(a), addresses the court s concern that conviction not be based on the assumption that the accused is a criminal generally or that he is a person of bad character. Art , 2(a) reads: In all criminal cases, other than misdemeanor cases of which the justice court or municipal court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed. The Court of Criminal Appeals stated: When the accused offers to stipulate that the jurisdictional convictions exist, the probative value of evidence of the same convictions is substantially outweighed by the danger of unfair prejudice under Tex. R. Evid. Rule 403. The Court of Criminal Appeals held: the admission of evidence of prior convictions is error, even though they are jurisdictional elements of the offense, because the danger of unfair prejudice from introduction of the evidence substantially outweighs its probative value. (Concurring opinion by Womack, J., joined by Johnson, J.) Joined the Court s opinion and wrote to point out that Keasler s dissenting opinion is incorrect in saying, To say that the judgments of conviction prove nothing more than an element of the offense is incorrect. (Dissenting opinion by Keasler, J., joined by Keller, P.J., and Hervey, and Cochran, J.J.) Argued the judgments of the prior DWI convictions prove nothing more than an element of the offense and are not unfairly

4 prejudicial. (Dissenting opinion by Cochran, J., joined by Keller, P.J.) Joined Keasler s dissenting opinion and wrote separately to clarify the limited nature of Tamez. Hollen v. State, 117 S.W.3d 798 (Tex. Cr. App. 2003) Felony DWI. 1. DWI -- Tamez - Stipulation Can be read to the Jury Appellant was charged with felony DWI. He offered to stipulate to the two prior convictions pursuant to Tamez v. State, 11 S.W.3d 198 (Tex. Cr. App. 2000). The State and the trial court agreed, and Appellant drafted a stipulation. The State refrained from introducing at trial any extrinsic evidence of the convictions. Appellant objected that excluding extrinsic evidence was not enough: he objected to any mention of the prior convictions including any reference to the stipulation while the indictment was read, during voir dire, in opening statement, at the evidentiary stage of trial, during closing arguments, and in the jury charge. These objections were overruled. The indictment allegations regarding the prior convictions were read to the jury. The State referred to the prior convictions briefly in voir dire, opening statement, and closing argument. The written stipulation was admitted into evidence and the jury charge referred to the prior convictions in its phrasing of the elements of the offense and in giving a limiting instruction. Relying upon Tamez and Robles v. State, 85 S.W.3d 211 (Tex. Cr. App. 2002), the Court of Appeals held that error occurred when the stipulation was admitted into evidence. Hollen v. State, 87 S.W.3d 151 (Tex. App. Fort Worth 2002). Tamez permitted the State to read the indictment at the beginning of trial, mentioning only the two jurisdictional prior convictions, and prohibited admission of evidence of the convictions during its case-in-chief, if the accused stipulated to the prior convictions; (2) Robles held that the judgments of the prior convictions were inadmissible; The Court of Criminal Appeals reversed the Court of Appeals, holding: (1) Tamez and Robles suggested 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; (2) it was not error to inform the jury of the stipulation because the stipulation is a form of evidence. (Concurring opinion by Holcomb, J, joined by Price and Johnson, J.J.)

5 Wrote to emphasize what the majority s does not hold: (1) that the jury must be informed of the specific nature of the prior offense. Tex. Penal Code Sec requires only that the priors be among several specified alcohol related offenses which could be innocuously referred to by code section instead of by name. As the majority recognized, Appellant did not object to the specific wording of the indictment, the stipulation, the State s references to the stipulation, or the instructions in the jury charge; (2) that all references to the prior conviction evidence, regardless of context, is proper jury argument. Because proof of the prior convictions will be in evidence, that proof is properly the subject matter for proper jury argument: summation of evidence, reasonable deductions drawn from that evidence, answers to opposing counsel s argument, and a plea for law enforcement; this does not mean the State can refer to the proof in an inappropriate context, such as suggesting that the jury should find the defendant guilty of the current charge of DWI because he was already found twice guilty of a similar offense, or that the jury should take the prior convictions into account when considering whether there is a reasonable doubt the defendant was intoxicated on the date in question while operating a motor vehicle; (3) that repeated emphasis regarding the prior convictions, when stipulated, could not amount to error although the proof of the priors would generally be proper subject matter for jury argument. This means there is still room to determine the balance that exists under current law between the State s burden of proof in a felony DWI and the defendant s right to be convicted of the crime charged on proof beyond a reasonable doubt; (4) the majority opinion does hold that the allegations of the jurisdictional priors may be read as part of the indictment to the jury at guilt-innocence, that proof of the priors must be admitted into evidence even when the defendant stipulates to them, that the State may refer to the proof of the prior convictions, and that the jury instructions may instruct the jury on making a finding of the jurisdictional element based on the stipulation. Taylor v. State, 442 S.W.3d 747 (Tex.App.-- Amarillo 2014) Assault from the 355 th District Court, Hood County. Reversed. 1. Jurisdictional Enhancement Counts -- Multiple Convictions Stipulation James Taylor and Regina Velasquez were in an intimate relationship that had been ongoing for some time. They got into an argument at Velasquez s home that culminated in Taylor boxing Velasquez s ears. After slapping her around for a while, he got tired and left. Velasquez s ten-year-old daughter went to a neighbor s home and called 911 and officers and emergency medical personnel were dispatched

6 to the scene. Velasquez suffered an injury to her arm and complained of a headache. A paramedic who examined her urged her to go in the ambulance to the hospital for further examination. Velasquez declined to seek further medical attention. Taylor was subsequently indicted for assault on a family member with two prior convictions for the same offense. After jury selection, Taylor objected to the indictment as Mr. Berry is going to read it. The objection was overruled. The State s opening statement which was made without an objection, included a direct reference to the two prior family violence cases. Taylor did not object to these references. After the State, presented three witnesses, Taylor offered to stipulate to either jurisdictional prior conviction, to include the question of identity. The stipulation offer was not accepted by the State, and the trial court did not order the stipulation entered. Thereafter, when the State offered the judgments of conviction in each of the prior felony cases alleged for jurisdictional purposes, Taylor renewed his objection. Both exhibits were admitted over Taylor s objection. Taylor objected to the proposed jury charge because the charge contained references to both prior convictions that had been alleged for jurisdictional purposes. The trial court overruled the objection. Subsequently, the jury convicted him and following pleas of true to the punishment enhancement paragraph, Taylor was sentenced to 20 years. On appeal, Taylor argued the trial court committed reversible error when it allowed the State to prove two prior assault on a family member convictions during the guilt-innocence phase of the trial when only one was required, arguing that this violated Rule 404(b). Rule 404(b) acts as a safeguard against a prosecutor's attempt to convince the jury that a criminal defendant must be guilty of the crime charged because he is a bad person who has previously been convicted. See Robles v. State, 85 S.W.3d 211, 213 (Tex. Crim. App. 2002). In Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim. App. 2000), case involved the trial of a felony driving while intoxicated case, wherein, the State's indictment contained allegations of six prior driving while intoxicated convictions. Id. at 199. Prior to trial, Tamez sought to enter into a stipulation as to two prior convictions for driving while intoxicated, the requisite number to elevate the offense to a felony. Id. The trial court refused to allow the stipulation and the indictment with all six prior convictions was read to the jury and the jury heard the evidence as to all six prior convictions during the guilt-innocence phase. Id. The Texas Court of Criminal Appeals held that an appellant's offer to stipulate should have sufficed because it carries the same evidentiary value as the judgments of prior convictions. Id. at 201. More especially, such an offer to stipulate would lessen the likelihood that the jury would focus on the prior

7 convictions and convict the appellant because of appellant's "bad character." Id. The Court of Criminal Appeals then reversed the conviction and remanded the case to the intermediate appellate court for a harm analysis. Id. at 203. The intermediate appellate court then reversed the trial court's judgment based upon a finding of harmful error in allowing the six prior convictions to be proved up during the guilt-innocence phase of the trial. See Tamez v. State, 48 S.W.3d 295, 296 (Tex. App.--San Antonio 2001, no pet.). The State also argued that Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003), requires that any stipulation offered by appellant must come before trial to be effective. The Hollen court was not concerned with the timing of the stipulation, rather, the issue before it was whether the jury should be informed of the stipulation after it was entered into the record. Id. Here, this case dealt with an offense that required proof of a single prior family assault conviction, and a stipulation to one of the prior convictions would have provided the State with the evidence to ensure that, if Taylor was convicted, he would be convicted of a thirddegree felony. Yet, the State refused the stipulation with the argument that the indictment had been read to the jury and opening statements had previously been made and that, in both instances, both prior assault on a family member convictions had been mentioned. The Court of Appeals held: (1) While those facts are borne out in the record, they are not dispositive of the issue. The trial court could have easily given the jury an instruction that Taylor had stipulated to the prior conviction and the jury should disregard any mention of the other prior conviction this would have significantly lessened the likelihood that the jury would convict Taylor because of his bad character; (2) the trial court abused its discretion when it refused to allow Taylor to stipulate to one prior conviction for assault on a family member. See: Appellant s Brief Herring v. State, 147 S.W.3d 425 (Tex.App.-- Amarillo 2003) Failure to register as a sex offender. Affirmed. 1. Sexual Registration -- Reading Indictment - Old Chief State is Allow to Read Appellant was on probation for attempted indecency and failed to to report, in person, an intended change of address to local law enforcement personnel seven days prior to the anticipated move. Citing Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997),

8 Robles v. State, 85 S.W.3d 211 (Tex.Cr.App. 2002), and Tamez v. State, 11 S.W.3d 198 (Tex.Cr.App. 2000), Appellant offered to stipulate to his prior conviction and moved to preclude the State from telling the jury that he had been convicted of attempted indecency with a child and from introducing evidence, such as parts of the judgment of conviction, setting out the specific offense description. The State rejected Appellant's offer, and the trial court refused to accept the stipulation. During voir dire, the State informed the venire that Appellant had been convicted of attempted indecency with a child by contact and was required to report an intended change of address. During guilt-innocence, the indictment describing the prior conviction was read to the jury and evidence naming the specific offense was admitted. On appeal, Appellant argued the trial court should have accepted his proposed stipulation and prohibited the State from informing the jury about the specific offense, and excluded evidence of the specific offense. In support of his argument, he cited Robles v. State, 85 S.W.3d 211 (Tex.Crim.App. 2002), and Tamez v. State, 11 S.W.3d 198 (Tex.Crim.App. 2000). See Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997). Old Chief was decided as a matter of federal evidentiary law. Old Chief is persuasive, not binding, authority under the circumstances. See Tamez, 11 S.W.3d at In Tamez, the defendant was charged with felony DWI. The State refused the defendant's offer to stipulate to two prior DWI convictions, and offered proof of six prior DWI convictions. The Court of Criminal Appeals held that in such a situation, the State, in reading the indictment at the beginning of trial, was to mention only two prior convictions, and was foreclosed from presenting evidence of six convictions in the guiltinnocence phase of its case. See Tamez, 11 S.W.3d at In Robles the defendant offered to stipulate to his two prior DWI convictions on which the pending indictment for felony DWI was based, and requested the trial court to exclude evidence of the prior convictions. The trial court denied the request, and Robles pled guilty. The Court of Appeals reversed and the Court of Criminal Appeals affirmed the reversal. Robles, 85 S.W.3d at The basis for the Robles holding was that in the guilt-innocence stage of trial, the danger of unfair prejudice from introduction of the evidence substantially outweighed its probative value. Id. The Court of Appeals held: The State was required to read the indictment. See CCP art (a)(1); Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App. 1985). See also Tamez, 11 S.W.3d at 202. Appellant's prior conviction for attempted indecency with a child by contact was specified in the indictment as the reportable conviction, and thus was to be read to the jury. Id.

9 Contrary to the situations in Tamez and Robles, the indictment did not reference unrelated convictions or extraneous bad acts which were not elements of the crime for which appellant was on trial, but which would have been used to elevate appellant's crime to a higher classification or enhance the punishment range. We do not read Tamez and Robles to preclude reading, as part of the indictment, the specific name attached by statute to an element of the crime with which a defendant is charged. To the extent appellant's motion sought to preclude the State from reading the indictment with the description of appellant's reportable conviction as it was specified in the indictment, the trial court did not err in overruling the motion. Even if the trial court erred, and error was harmless. Ford v. State, 112 S.W.3d 788 (Tex.App.-- Houston [14th Dist.] 2003) Evading arrest. Affirmed. 1. Evading -- Old Chief - State can Present Extraneous Evidence of the Conviction During its Case-in-chief Appellant argued that the prior conviction constituted an enhancement rather than an element of the crime and therefore should have been presented only at the punishment phase. The State introduced the stipulation during its cross examination of Appellant. The State also argued in closing that a required element of the offense was a prior conviction and that Appellant stipulated to having such a conviction. There was no other mention of the conviction and no details regarding it were admitted into evidence. The elements of the offense of felony evading arrest under Tex. Penal Code 38.04(a), (b)(2) are: (1) the actor intentionally fled from a person he knew was a peace officer attempting to lawfully arrest him; (2) the actor used a vehicle in fleeing from the officer; and (3) the actor has been previously convicted under The language in Tex. Penal Code 38.04(b)(2) that makes the offense of evading arrest a third-degree felony is an element of the offense, rather than an enhancement provision, such as can be found in Tex. Penal Code See Tex. Penal Code (Vernon 2002) (providing penalties for repeat and habitual felony offenders). The statute's language, structure, subject matter, context, and history make it clear that a prior conviction constitutes an element of the felony offense of evading arrest. See Throneberry v. State, 72 S.W.3d 389, 392 (Tex. App.--Fort Worth 2002, pet. dism'd); State v. Atwood, 16 S.W.3d 192, (Tex. App.--Beaumont 2000, pet. ref'd). As an element, the prior conviction not only must be included in the indictment, but also must be proved at trial. Atwood, 16 S.W.3d at 196. In Robles v. State, 85 S.W.3d 211 (Tex. Cr. App. 2002), court did not

10 prevent the admission of stipulations, but only judgments or other extrinsic evidence. There, the trial court admitted evidence of prior judgments that contained information beyond a mere stipulation regarding the prior conviction. The Court of Criminal Appeals noted that a "jury could have gleaned, during the guilt-innocence phase, that the DWI charged here was the appellant's fifth alcohol-related offense and that appellant had not served his full term for his last prior conviction." Id. at 213. This extraneous evidence is prejudicial and possesses no probative value. Id. The Robles court noted that it was appellant's stipulation that made the prior conviction evidence unnecessary. Id. at 212. It did not, however, rule that the State need not, nor should not, admit the stipulation to a jurisdictional prior conviction into evidence. In a case where a defendant agrees to stipulate to the prior conviction, it is proper for the State to "read the indictment at the beginning of trial, mentioning only the jurisdictional prior conviction, but it is foreclosed from presenting extraneous evidence of the conviction during its case-in-chief." Tamez v. State, 11 S.W.3d 198, 202 (Tex. Cr. App. 2000); see also Hernandez v. State, 109 S.W.3d 491, 2003 Tex. Cr. App. LEXIS 150, No , 2003 WL , at *2-*3 (Tex. Cr. App. July 2, 2003); Delatorre v. State, 2003 Tex. App. LEXIS 5130, No CR, 2003 WL , at *1 (Tex. App.--Houston [14th Dist.] no pet.) (memorandum opinion). The Fourteenth Court of Appeals held: the State read the jurisdictional allegation to the jury and introduced evidence only of the stipulation, not the underlying offense hence the trial court did not err in overruling Appellant s objections to the evidence. Smith v. State, 12 S.W.3d 149 (Tex. App.-El Paso 2000) DWI. Reversed. 1. DWI -- Old Chief His indictment contained allegations of six previous DWI convictions. He agreed to stipulate to, for felony jurisdiction, two previous convictions. The State declined the offer to stipulate, and read the full indictment to the jury. The State pled and proved six prior DWI convictions The Court of Appeals, following Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000) reversed and held that because appellant offered to stipulate to the two jurisdictional DWIs, the trial court abused its discretion in allowing the State to read the indictment containing allegations of the remaining prior DWI convictions. The court found that the risk was great that the jury, knowing that appellant had been caught driving drunk on numerous occasions, would for that reason find him guilty of the

11 current charge. The court found that the other previous DWIs would be inadmissible character evidence, which would have a substantial and injurious effect on jury's verdict Robles v. State, 20 S.W.3d 162 (Tex. App.-Houston [14th Dist.] 2000) 1. DWI -- Old Chief In his motion to suppress, appellant stipulated to two previous DWI convictions and requested the State be prohibited from introducing evidence regarding the nature of his prior DWI convictions. The trial court denied the motion, appellant entered a guilty plea, and was sentenced to five years confinement. The Court of Appeals following Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), reversed because appellant properly agreed to stipulate to his previous DWI convictions used to elevate his offense from a misdemeanor to a felony, the State was foreclosed from presenting evidence of the convictions during its case-in-chief and the trial court erred by denying his motion to suppress. Greg S. Velasquez Assistant Public Defender 500 E. San Antonio Suite 501 El Paso, Texas 79901