NO. 1303-99








Womack, J., delivered the opinion of the Court, in which Keller, P.J., and Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Johnson, J., filed a dissenting opinion in which Price, J., joined. Meyers, J., dissents.

The resolution of this appeal turns on an issue of the value of evidence given at the "punishment stage" of a trial without a jury.

An indictment charged the appellant with committing felony DWI and being an habitual felony offender. DWI is a felony when the suspect has been twice previously convicted of DWI (or similar offenses). (1) A person is an habitual felony offender when it is proved on the trial of certain felony offenses, including DWI, that the person is guilty and that the person had previously been finally convicted of two felony offenses, the second of which was for an offense committed after the first conviction became final. (2) To convict the appellant for a felony it was therefore necessary for the State to prove that the appellant committed DWI as alleged, and that he had been twice previously convicted of DWI as alleged. To enhance his punishment to that of an habitual offender, the State had to prove that he had been twice previously convicted of other felonies in the sequence prescribed by law as alleged.

The appellant waived trial by jury.

The trial began with the prosecuting attorney's reading of the portion of the indictment that alleged felony DWI, that is, that the appellant had committed DWI and that he had been twice previously convicted of DWI. The appellant pleaded not guilty. Then the court asked him, "And to the Paragraphs, the First and Second which enhances this to a felony, how do you plead? Are they true or not true?" The appellant pleaded, "Not true."

This separate plea was, of course, unnecessary. The two previous convictions of DWI are jurisdictional elements of the offense of felony DWI, which must be alleged to invoke the jurisdiction of the felony court and which must be proved to obtain a conviction of felony DWI. (3) The appellant's plea of not guilty was a denial of those allegations.

The parties presented their evidence on the issue of the instant DWI, but they did not present evidence of the prior convictions for DWI. Then they rested.

The court asked the State, "At what point do you prove up the Enhancement paragraphs on the DWI?" The prosecutor answered, "After a verdict, if there's a guilty verdict." This was incorrect in two respects. Proof of the prior DWI convictions is authorized in the State's case-in-chief on the issue of guilt. (4) And, strictly speaking, there is no "verdict" in a trial without a jury; the court makes findings and enters judgment.

The attorneys argued the issue of guilt, and the court found the appellant guilty.

After a recess, the prosecuting attorney read the allegations of previous felony convictions. The appellant pleaded that they were not true. The State presented documentary proof of the previous convictions for DWI and the previous convictions for two felony offenses. The evidence was closed. The court heard arguments, found that the allegations of previous DWI convictions and previous felony convictions were true, and sentenced the appellant to 35 years in prison.

The appellant's only point on appeal is that the evidence to prove the offense of felony DWI was insufficient because there was no evidence of the jurisdictional prior convictions of DWI at the "guilt stage" of the trial. The court of appeals sustained the point:

Because the State failed to put on evidence of appellant's two prior convictions in the guilt-innocence phase of trial, it did not prove the essential elements of the offense of felony DWI. Thus, the evidence is legally insufficient to support appellant's conviction. Accordingly, we are required to reverse the judgment of the trial court and order Lonnie Ray Barfield acquitted of the crime for which he was convicted. (5)

All the justices of the panel of the court of appeals agreed with this holding.

One justice dissented to ordering a judgment of acquittal, saying that the judgment should be reformed to a conviction for misdemeanor DWI, that is, DWI without prior convictions for similar offenses. The State's petition for discretionary review raises the same argument. We granted review.

We find that our grant of the State's petition was improvident because the record does not present a case in which the evidence was insufficient to prove the jurisdictional allegations of prior convictions for DWI. We have ordered the parties to brief two questions: (1) whether the bifurcated-trial provisions of Code of Criminal Procedure article 37.07, section 2(a) apply in a trial without a jury, and (2) whether an appellate review of the sufficiency of evidence on guilt must exclude evidence that was introduced after the trial court announced its finding of guilt in a trial without a jury. (6)

The bifurcated-trial procedure that the district court used is not authorized in a trial without a jury. "Prior to the 1965 Code of Criminal Procedure all trials before the court or jury regardless of plea were unitary trials"; (7) that is, the issues of guilt and punishment were submitted at the same time. A bifurcated trial procedure was authorized in the 1965 revision of the Code of Criminal Procedure. (8) The bifurcation statute provides, "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." (9) The bifurcation statute "is applicable only to pleas of not guilty before a jury." (10) The statute "ha[s] no application to a trial before the court on a plea of not guilty." (11)

This is not the first case in which courts have failed to notice that the bifurcation statute applies only to pleas of not guilty before a jury.

[S]ome confusion has existed among the bench and bar since the advent of Article 37.07, V.A.C.C.P. Records reaching this court frequently show courts bifurcating bench trials where the plea is guilty. Often the court will hear evidence, declare the defendant guilty, order a pre-sentence investigation and sometimes months later re-convene the "penalty stage" of the guilty plea, allowing the State and defense to offer evidence as to punishment or guilt. (12)

This practice became common after the legislature authorized pre-sentence investigation reports to be used in assessing punishment. Although a bifurcated trial without a jury is not authorized, it is not necessarily a harmful error. "The fact, however, that the proceeding was not so converted [to a unitary trial] was irregular but does not in and of itself call for reversal." (13)

But the unauthorized "bifurcation" of a trial without a jury does not mean that a genuinely separate punishment phase exists. In a genuinely birfurcated trial before a jury on a plea of not guilty, evidence that is introduced at the punishment stage of the trial can have little, if any, effect on the force of the evidence on the issue of guilt. (14) In such a case, therefore, "our consideration of the evidence is necessarily limited to that evidence before the jury at the time it rendered its verdict of guilt." (15) But in a trial without a jury on a plea of not guilty, evidence that is introduced at the "punishment" stage of trial is considered in deciding the sufficiency of the evidence to prove guilt.

In Jones v. State, (16) the case was tried without a jury, the court announced its finding of guilt, and then it heard evidence on punishment before entering judgment. This evidence included Jones's testimony that he had committed the offense. Jones argued on appeal that the evidence was insufficient to corroborate the testimony of accomplice witnesses as Code of Criminal Procedure article 38.14 requires. We held that Jones's confession "would clearly meet the requirements of Article 38.14." (17)

It is true that the trial judge permitted the bench trial to be bifurcated without objection and that the appellant did not testify until the "penalty" stage of the trial. While Article 37.07, Vernon's Ann. C.C.P., does not require a bench trial to be bifurcated, cf. Morales v. State, 416 S.W.2d 403 (Tex. Cr. App. 1967), we cannot conclude a different result should be reached in light of the authorities cited because the appellant testified after the court had found him guilty at the "guilt" stage of the trial. (18)

The support for such a holding is not that a defendant's admission of guilt in a punishment stage prevents him from challenging the sufficiency of the evidence of guilt. (19) It is because a jury's decision on guilt in a bifurcated trial is made when it returns its verdict of guilt, but the decision of the court in a unitary trial is not fixed until it renders judgment on guilt and punishment after all the evidence and arguments have been heard. (20)

The court of appeals erred to limit its consideration of the evidence to that which was introduced at the "guilt" stage of this non-jury trial.

It is not contended that the evidence of the appellant's prior convictions for DWI was insufficient in any way other than its having been presented after the "verdict" of guilt, and there are no other points of error in the appeal. Thus we have the information necessary to dispose of the point without a remand.

Therefore we dismiss the State's petition as improvidently granted, grant discretionary review on our own initiative, (21) reverse the judgment of the court of appeals, and affirm the judgment of the district court.

En banc.

Delivered December 19, 2001.


1. See Tex. Penal Code 49.09(b).

2. See id., 12.42(d).

3. See Tamez v. State, 11 S.W.3d 198, 202 (Tex. Cr. App. 2000).

4. Ibid.

5. Barfield v. State, 999 S.W.2d 23, 26 (Tex. App. -- Houston [14th Dist.] 1999).

6. The dissenting opinion says that "the court of appeals did not rule on the issue , that issue is not properly before us, and we have no jurisdiction to decide it" because we can review "only decisions of the court of appeals; we do not reach the merits of any party's contention when it has not been addressed by the lower appellate court." Post at 2 (quotation marks omitted).

The issue that the appellant raised was the legal sufficiency of the evidence, and the court of appeals decided the issue by excluding the evidence at the "punishment" stage. The court held, "Because the State failed to put on evidence of appellant's two prior convictions in the guilt-innocence phase of trial, it did not prove the essential elements of the offense of felony DWI. Thus, the evidence is legally insufficient to support appellant's conviction." 999 S.W.2d at 26. We are reviewing that decision.

7. Duhart v. State, 668 S.W.2d 384, 386 n.3 (Tex. Cr. App. 1984).

8. See Code of Criminal Procedure Act, 59th Leg., R.S., ch. 722, 1, art. 37.07, sec. 2, 1965 Tex. Gen. Laws, vol. 2, p. 317, 462.

9. Tex. Code Crim. Proc. art. 37.07, 2(a) (emphasis added).

10. Morales v. State, 416 S.W.2d 403, 405 (Tex. Cr. App. 1967). Accord Duhart v. State, 668 S.W.2d 384, 386 n.3 (Tex. Cr. App. 1984) ("The statute generally applies to pleas of not guilty before a jury").

11. Courtney v. State, 424 S.W.2d 440, 443 (Tex. Cr. App. 1968).

12. Ricondo v. State, 634 S.W.2d 837, 842 (Tex. Cr. App. 1982) (plurality opinion). See Bean v. State, 563 S.W.2d 819, 821 (Tex. Cr. App. 1978) (Onion, P.J., concurring) ("Records coming before this Court, particularly from Harris County, have demonstrated a growing tendency to bifurcate these proceedings").

13. Ricondo, 634 S.W.2d at 842. The dissenting opinion says that Ricondo "do[es] not support" our "conclusions," by which it seems to mean the holding that we make below. But we cite Ricondo, not to support the conclusion of our opinion, but to support the incidental statements that confusion exists about bifurcating bench trials and that bifurcation of a bench trial does not call for reversal. Neither our opinion nor the dissenting opinion can rely on Ricondo to resolve questions about the bench trial in this case because Ricondo was convicted in a jury trial, not a bench trial.

14. Cf. Leday v. State, 983 S.W.2d 713, 720 (Tex. Cr. App. 1998) ("[T]estimony of guilt given at the punishment phase of the trial cannot be said to have rendered harmless the introduction of similar testimony at the guilt stage of trial -- at least not in the sense we have thought of harmless error in the admission of similar evidence at the guilt phase. Any harmful effects of the introduction of inadmissible testimony were on the jury's decision of guilt. They cannot be ameliorated by the defendant's testimony which follows that decision").

15. Munoz v. State, 853 S.W.2d 558, 560 (Tex. Cr. App. 1993) (disapproving dicta to the contrary).

16. 532 S.W.2d 596 (Tex. Cr. App. 1976).

17. Id. at 597.

18. Id. at 597 n.1.

19. See Leday, 983 S.W.2d at 720-21. The dissenting opinion says Jones does not support our conclusion. Post at 5. Jones supports our holding that evidence in the "punishment" stage of an improperly divided bench trial will be considered in deciding the sufficiency of the evidence to support the judgment of guilt. In the next sentence of our opinion, we point out that there is a reason other than the one given in Jones to so hold.

20. See Ex Parte Rawlinson, 958 S.W.2d 198, 200 (Tex. Cr. App. 1997) (defining a conviction as "an adjudication of guilt and an assessment of punishment"); Jones v. State, 797 S.W.2d 33, 34 (Tex. Cr. App. 1990) (explaining that a complete verdict in a bench trial requires a finding of guilt and an assessment of punishment by the court). Compare Tex. Code Crim. Proc. art 37.07 3(c) ("In cases where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty.") with id., 3(d) ("When the judge assesses the punishment, he shall forthwith announce his decision in open court as to the punishment to be assessed.").

21. See Tex. R. App. P. 66.1 & 67.1.