NO. 1923-98

JOE A. TAMEZ, Appellant






Keller, J., delivered a dissenting opinion in which McCORMICK, P.J. joined.


To analyze whether Texas Rule of Evidence 403 and Old Chief v. United States, 519 U.S. 172 (1997) control the outcome of the present case, we must recognize that two separate issues are raised in this petition: (1) whether the trial court erred in permitting the State to read the six prior convictions alleged in the indictment, and (2) whether the trial court erred in admitting evidence of the six prior convictions.

I. Indictment

Whether some or all of the prior convictions in the indictment may be read depends upon our interpretation of Texas Code of Criminal Procedure, Article 36.01. Established principles of statutory construction dictate that we interpret a statute in accordance with its literal language unless that language is ambiguous or leads to absurd results. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). The statutory text is the only definitive evidence of what the legislators intended when the statute was enacted into law. Id. The judiciary's function is to interpret the law in such a way as to effectuate the collective intent or purpose of the Legislature. Id. As the law-interpreting branch of government, the judiciary is not empowered to substitute what it believes to be right and fair for what the Legislature has written, even if the statute seems unwise or unfair. "[A] court is not substitute its judgment for the will of the people of a State as expressed in the laws passed by their popularly elected legislatures...'judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.'" Parham v. Hughes, 441 U.S. 347 (1979)(quoting Vance v. Bradley, 440 U.S. 93 (1979)). An appellate court "must not substitute its view of wise or fair legislative policy for that of the duly elected representatives of the people." Schweiker v. Wilson, 450 U.S. 221 (1981)(Powell, J. dissenting)(citing Vance).

The statute in question dictates that the indictment shall be read to the jury:

The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.

Article 36.01(a)(1)(emphasis added).

The statutory language is unambiguous. The indictment must be read to the jury in the guilt phase of trial. The statute provides an exception to that rule for prior convictions that are alleged "for enhancement purposes only," but the exception does not apply if the prior convictions are jurisdictional. In the present case, the prior convictions are used to establish jurisdiction and are not used merely for enhancement purposes.(1) Tex. R. Evid. 403 does not apply to Article 36.01 because the statute does not involve the admission or exclusion of evidence. Moreover, even if a conflict between Article 36.01 and Rule 403 did exist, the statute would control. Tex. R. Evid. 101(c). Old Chief is grounded on an application of Federal Rule of Evidence 403. See Old Chief, generally. Because Rule 403 does not apply to the reading of the indictment, Old Chief has no applicability in that context.

II. Evidence

In Old Chief, the defendant was convicted under 18 U.S.C. 922(g)(1) of possession of a firearm by a felon. 519 U.S. at 174. The offense prohibited the possession of a firearm by anyone with a prior felony conviction. Id. The statute did not require proof of the name of the particular felony committed. Id. at 186. At trial, the defendant offered to stipulate that he had been previously convicted of a felony and that this felony qualified to meet the "prior felony" element of the crime. Id. The prosecution refused the offer, and the trial court admitted into evidence (over objection) the judgment of conviction for the prior felony. Id. at 177. That judgment disclosed that the defendant had committed an "assault resulting in serious bodily injury." Id. The Supreme Court held that the judgment's disclosure of the specific felony offense constituted unfair prejudice which substantially outweighed the probative value of the evidence, given the defendant's willingness to stipulate to having a prior felony conviction. Id. at 190-191. Crucial to this holding was the finding that the statute was not concerned with the kind of felony offense but only with whether a prior felony had been committed. Id.

Under the Texas DWI statute, however, the State must prove that the prior convictions were for DWI offenses. Texas Penal Code 49.09. Unlike the statute in Old Chief, the Texas DWI statute makes the kind of offense for which the defendant was previously convicted an element of the offense in the subsequent prosecution, and therefore, unfair prejudice does not arise from disclosing the kind of offense for which the defendant was previously convicted. See Hampton v. State, 977 S.W.2d 467, 469 (Tex.App.-Texarkana 1998)(DWI prosecution); Minnamon v. State, 988 S.W.2d 408, 410 (Tex.App.-Hous. (1 Dist.) 1999)(theft prosecution). In Old Chief, the statute required only that a felony be proven, but the government proved the additional prejudicial fact that an assault occurred. In the present case, however, the statute required that DWI offenses be proven, and DWI offenses were proven.

The only remaining issue is whether unfair prejudice resulted from the admission of evidence of six prior DWI offenses instead of just two. Appellant's request to restrict the State to proof of two offenses is not simply a restriction of the method of proof by which the State may prove a theory of the offense; his request is an attempt to prevent the State from presenting alternate factual theories of the offense.

To illustrate: Consider the situation in which the State prosecutes a defendant for intentionally killing a man, and in the course of that killing, committing aggravated sexual assault of the man's wife and daughter. Either of the aggravated sexual assaults would, by itself, be sufficient to elevate the homicide to capital murder under Texas Penal Code 19.03(a)(2). But if the defendant offered to stipulate to one of the aggravated sexual assaults and by doing so prevent the admission of evidence of the other aggravated sexual assault, he would not be allowed to do so. I do not believe the State can be restricted from presenting evidence of alternate factual theories that constitute an element of an offense, where the defendant is contesting guilt, simply because the defendant wishes to stipulate to one of the theories for that element. Likewise, the six DWI convictions are alternate factual theories for committing the "two prior DWI convictions" element of the offense of felony DWI and are not simply different methods of proof. Old Chief is concerned only with the method of proof; that case does not attempt to determine whether the prosecution can be restricted from presenting alternate factual theories of an element of the offense. Old Chief is inapplicable, and we need not decide at this time whether we would follow its holding in a case presenting the issue confronted in that case.

Because the trial court did not err in permitting the State to read the six prior DWI convictions to the jury from the indictment, and the trial court did not err in admitting evidence of all six of the prior convictions, I would affirm. I respectfully dissent.


DATE DELIVERED: January 5, 2000


1. Although only two convictions are required to establish jurisdiction, we have recognized that the State may allege as many prior convictions as it has for that purpose. May v. State, 350 S.W.2d 924, 925 (Tex. Crim. App. 1961); see also Carter v. State, 676 S.W.2d 353, 355 n. 3 (Tex. Crim. App. 1984).