NO. 1305-00








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

The appellant was charged with felony driving while intoxicated. Tex. Penal Code 49.09 (b). Before trial, he offered to stipulate to the existence of the two prior convictions the State was required to prove, and he requested that the trial court prevent the State from introducing evidence of the prior DWI convictions. The trial court denied the appellant's request, and the appellant pled guilty in lieu of going to trial.

The Court of Appeals reversed the appellant's conviction concluding that, under our holding in Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), 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 during the guilt-innocence phase of the trial. Robles v. State, 20 S.W.3d 162, 164 (Tex. App.--Houston [14th Dist.] 2000). (1) We granted the State's petition to determine (1) whether evidence of two prior convictions is unfairly prejudicial under Rule of Evidence 403 when the accused agrees to stipulate to their existence and (2) whether admission of evidence of the prior convictions is error if the State does not allege additional prior convictions. (2)

I. Rule 403

In a Rule 403 (3) analysis, the trial court weighs the probative value of the evidence against the danger of unfair prejudice. The evidence the State would have introduced was not relevant to any contested issue in the case. In the absence of a stipulation, judgments from prior convictions would be relevant to show the existence of those prior convictions. The stipulation would have diminished the probative value of the prior convictions, however, because the same information would have been admitted in an alternate form. The appellant's offer to stipulate removed from contention the existence of the prior convictions.

The risk of unfair prejudice from the evidence was great because the judgments contained information that was not relevant in the guilt-innocence phase of the trial. Each judgment contained a notation that it was a DWI-third offense. Also, the judgments contained the sentences that were imposed in each case. Therefore, the jury could have gleaned, during the guilt-innocence phase, that the DWI charged here was the appellant's fifth alcohol-related offense and that the appellant had not served his full term for his last prior conviction. That kind of evidence is prejudicial and possesses no probative value.

Admitting evidence of prior convictions and other bad acts is generally prohibited during the guilt-innocence phase. The policy, embodied in Rule 404(b) (4) and the bifurcated trial procedure, Tex. Code Crim. Proc. art. 37.07 2(a), (5) addresses our 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.

We undermine the efficacy of these safeguards if we allow the admission of judgments when the accused offers to stipulate to the required convictions' existence, and we enable the State to do what we prohibited in Tamez: tell the jury that the accused has many prior alcohol-related convictions. 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.


Next we address whether admission of evidence of prior convictions is error when the State does not allege more prior convictions than are required to prove felony DWI. (6) The State wants us to limit Tamez to its particular facts. In that case, the State introduced six prior alcohol-related convictions. Tamez, S.W.3d at 198. If it introduces evidence of only the two jurisdictional prior convictions, the State claims, it should not be bound by the stipulation.

We 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. Tamez, 11 S.W.3d at 201. We did not address whether the State could introduce evidence of only the two jurisdictional priors if the accused stipulates to their existence because the issue was not before us. The State argues that proof of the prior convictions is necessary. Proof of the convictions is necessary in that the prior convictions are elements of felony DWI. Tex. Penal Code 49.09(b). But evidence of the convictions' existence is not necessary if the accused stipulates to their existence because the statutory requirement has been satisfied. The admission of evidence of prior convictions is error, even though they are jurisdictional elements of the offense, (7) because the danger of unfair prejudice from introduction of the evidence substantially outweighs its probative value.

The judgment of the Court of Appeals is affirmed.

Delivered: May 8, 2002


1. The Court of Appeals overruled the State's motion for rehearing in an unpublished opinion. Robles v. State, No. 14-98-00548-CR (Tex. App.--Houston [14th Dist.] June 1, 2000) (op. on reh'g) (not designated for publication).

2. The exact grounds on which we granted review are:

(1) the Court of Appeals erred in holding that under Rule 403, the trial judge necessarily abused his discretion, when he refused to require the State to accept the appellant's stipulation as to his two prior convictions for DWI, even though it was not substantially and unfairly prejudicial to introduce evidence of those prior two convictions, and even though there was little or no possibility that a trial judge or jury would improperly focus on the prior convictions of the appellant's bad character.

(2) the refusal of the trial court and the State to agree to the defendant's offer to stipulate to two prior convictions necessary as jurisdictional elements error where no additional prior convictions are alleged in the indictment.

3. Rule 403 reads:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless cumulation of evidence.

4. 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.

5. Article 37.07 section 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.

For a history behind the bifurcated trial and its purpose, see Brumfield v. State, 445 S.W.2d 732 (Tex. Crim. App. 1969).

6. The State framed this question in terms of whether it had to agree to the stipulation. That is not truly the issue. See supra note 2. In Tamez, we wrote that the trial court erred in failing to exclude the evidence of prior convictions, we did not refer to any requirement that the State or the trial court agree to the stipulation. Tamez, 11 S.W.3d at 202-03.

7. Jurisdiction vests with the district court for felony DWI when the indictment is presented containing the requisite number of prior alcohol-related convictions. Tamez, 11 S.W.3d at 201. If the State alleged two prior DWI convictions, but the State was only able to prove the existence of one prior DWI at trial, the case would not be dismissed and sent to a misdemeanor court for a new trial.