NO. 1303-99








Johnson, J., filed a dissenting opinion, in which Price, J., joined.

D I S S E N T I N G  O P I N I O N

I respectfully dissent. At a bench trial on a plea of "not guilty," appellant was convicted of felony driving while intoxicated and sentenced to thirty-five years imprisonment. At the court of appeals, appellant claimed that the evidence was legally insufficient to sustain the conviction. The court of appeals reversed the conviction. It held that because the state did not 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. Barfield v. State, 999 S.W.2d 23, 26 (Tex. App.- Houston [14th Dist.] 1999). Today, pursuant to its own order, a majority of this court holds that because appellant waived his right to a jury trial, his trial should not have been bifurcated. Therefore, the majority concludes that in assessing whether the evidence was sufficient to support the conviction, the court of appeals erred in limiting its consideration of the evidence to that which was introduced at the guilt/innocence stage. Ante, at ___ (slip op. at 7-9).

This court's jurisdiction is limited to review of decisions by the courts of appeals. See Tex. Const. art. V, 5; Tex. Code Crim. Proc. arts. 4.04 & 44.45; Tex. R. App. P. 66.1. As we have repeatedly stated, "This court reviews only 'decisions' of the courts of appeals; we do not reach the merits of any party's contention when it has not been addressed by the lower appellate court." Sotelo v. State, 913 S.W.2d 507, 509 (Tex. Crim. App.1995); see also Davis v. State, 870 S.W.2d 43, 47 (Tex. Crim. App.1994); Farrell v. State, 864 S.W.2d 501, 502 (Tex. Crim. App.1993); Tallant v. State, 742 S.W.2d 292, 294 (Tex. Crim. App.1987). Because the court of appeals did not rule on the issue decided by the majority today, that issue is not properly before us, and we have no jurisdiction to decide it.

However, since the majority considers the merits of the issue, I will do so as well. Section 2(a) of art. 37.07 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.

By its plain language, art. 37.07 applies only to jury trials; it says nothing about bench trials. As the majority notes, in Courtney v. State, 424 S.W.2d 440, 443 (Tex. Crim. App. 1968), we stated that art. 37.07 "is applicable only to pleas of not guilty before a jury." Ante, at ___ & n.10 (slip op. at 5 & n.10). However, the majority does not note that, in Courtney, we were not concerned with the issue of bifurcation. Instead, the defendant's complaint concerned the introduction of his prior criminal record at trial. We held:

We find no merit in appellant's third ground of error that appellant's prior convictions were introduced to show his 'prior criminal record' when [art. 37.07] had no application to a trial before the court on a plea of not guilty. It is obvious that such convictions were offered for impeachment purposes only.

This is the complete discussion of the applicability of art. 37.07 and can hardly be said to stand for the proposition that a bifurcated bench trial on a plea of "not guilty" is statutorily prohibited. Similarly, Morales v. State, 416 S.W.2d 403, 405 (Tex. Crim. App. 1967), also cited by the majority (ante at ___ & n.9 (slip op. at 5 & n.9)), specifically states that art. 37.07, 2(b) "is applicable only to pleas of not guilty before a jury. Rojas v. State, [404 S.W.2d 30, (Tex. Crim. App. 1966)]. It has no application where a defendant waives trial by jury and enters a plea of guilty before the Court in a felony less than capital case." That case, as well as Rojas, concerned the situation in which a defendant waives his right to a jury trial and enters a plea of "guilty"; it does not address the procedure for a bench trial when the defendant has entered a plea of "not guilty." The same is true of Duhart v. State, 668 S.W.2d 384 (Tex. Crim. App. 1984), which is also cited by the majority. Ante, at ___ & n.9 (slip op. at 5 & n.9). While a bifurcated trial on a plea of "not guilty" to the court may not be explicitly authorized, neither is it explicitly prohibited.

Moreover, a bifurcated trial on a plea of "not guilty" to the trial court makes sense as a practical matter. When a defendant pleads "guilty" at a bench trial, the only question that must be answered by the court is punishment. In a bench trial on a plea of "not guilty," the court must, like a jury, first consider the question of guilt or innocence, then, if guilt is found, punishment. In this case, the trial court pronounced appellant guilty of felony driving while intoxicated without proof of the element, two prior convictions for driving while intoxicated, which must be proved before the offense becomes a felony. Whether in error or not, the proceeding was bifurcated, and the trial court had before it evidence sufficient to prove only misdemeanor driving while intoxicated.

Finally, even assuming that appellant's bench trial was erroneously bifurcated, our case law does not support the majority's conclusion that it should be treated as a unitary trial. The majority cites Ricondo v. State, 634 S.W.2d 837 (Tex. Crim. App. 1981) (op. on reh'g), for the proposition that "[t]he fact . . . that the proceeding was not . . . converted [to a unitary trial] was irregular but does not in and of itself call for reversal." Ante, at ___ (slip op. at 5-6). In Ricondo, the defendant refused to enter a plea after the indictment was read. Therefore, the trial court entered a plea of "not guilty" for him. Ricondo, 634 S.W.2d at 839-40. The defendant then decided that he wished to enter a plea of "guilty." Id. at 840. At that point, the trial court gave the defendant admonishments concerning his range of punishment, but the admonishments were not complete. We noted that, even though the trial was originally a bifurcated proceeding, it should have become a unitary proceeding when the defendant changed his plea to "guilty." Id. at 841. Because the trial court continued the trial as if it were a bifurcated proceeding, and because admonishments as to the punishment range were not required in a bifurcated trial, we held that failure to admonish was not reversible error. Id. That is, even though the trial court erroneously proceeded with a bifurcated trial instead of a unitary trial, we reviewed the defendant's ground as if the trial had been properly bifurcated. Id. at 843.

Similarly, the majority cites Jones v. State, 532 S.W.2d 596 (Tex. Crim. App. 1976. In Jones, the trial court erroneously allowed a bench trial to be bifurcated. Id. at 597 n.1. This Court observed that accomplice-witness testimony in the guilt/innocence stage of trial was corroborated by appellant's testimony, even though he did not testify until the punishment stage of the trial. Id. at 597. In Jones, as in Ricondo, we analyzed the defendant's trial as a bifurcated proceeding, even though it was bifurcated erroneously. 532 S.W.2d at 597 n.l. Thus, neither Ricondo and Jones support the majority's conclusions. Instead, they indicate that, when a trial is erroneously bifurcated, on appeal it should continue to be treated as a bifurcated trial. (1)

I do not believe that art. 37.07 applies to a plea of "not guilty" to the trial court or that it prohibits a bifurcated proceeding when a defendant waives a jury trial and pleads "not guilty" to the trial court, nor am I able to find any other statute which prohibits such a proceeding. Even assuming that art. 37.07 statutorily prohibits such a proceeding, our case law indicates that we should still treat the proceeding as bifurcated, even when bifurcated in error.

Because this Court has no jurisdiction to consider the issue decided, and because our case law does not support the majority's holding, I dissent.

Johnson, J.

Date Delivered: December 19, 2001


1. It is also notable that Jones relied in part on Boothe v. State, 474 S. W.2d 219 (Tex. Crim. App. 1971), and Garcia v. State, 522 S. W.2d 203 (Tex. Crim. App. 1975). Jones, 532 S.W.2d at 597 n.1. However, both cases were overruled by Leday v. State, 983 S.W.2d 713, 721 (Tex. Crim. App. 1998) ("Insofar as these early precedents . . . held that appellate complaints about insufficient evidence of guilt would be futile when the appellant admitted his guilt at the punishment phase, they cannot be relied on."), and the majority's reliance on Jones is therefore questionable.