Bryant v. State

135 S.W.3d 130

Clarence Randolph BRYANT, Appellant, v. The STATE of Texas, Appellee.

No. 10-01-00280-CR.

Court of Appeals of Texas, Waco.

March 10, 2004.

Bradley Thomas Newsom, Meridian, for appellant.

B.J. Shepherd, Bosque County Dist. Atty., Martin L. Peterson, Bosque County Asst. Dist. Atty., Meridian, for appellee.

Before Chief Justice GRAY, Justice VANCE and Justice REYNA.^*

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 failed 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 objection¹ 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, 923 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).

From 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. ref'd); (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. ref'd).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...