Joe A. TAMEZ, Appellant, v. The STATE of Texas, 11 S.W.3d 198

PRICE, J., delivered the opinion of the Court, in which MEYERS, MANSFIELD, HOLLAND, WOMACK and JOHNSON, JJ., joined Appellant was arrested and indicted for the offense of driving while intoxicated (“DWI”). See Tex. Penal Code Ann. § 49.09(b) (West Supp.1999).

Section 49.09(

b) provides that this offense is a third degree felony if the person has two prior DWI convictions. The indictment alleged that appellant had six such previous convictions. Before trial, appellant stated to the court that he would stipulate to two previous DWI convictions if the State would be foreclosed from mentioning his prior convictions in any way to the jury. The trial court refused. At the commencement of trial and over appellant’s objection, the prosecutor read the indictment — including all six aforementioned convictions — -to the jury.

The State also introduced the six judgments against appellant into evidence during its case-in-chief, again over his objection. The jury convicted appellant of the charged offense and sentenced him to ten years confinement. Court of Appeals Appellant argued on appeal that the six previous DWI convictions were substantially more prejudicial than probative, violating Texas Rule of Evidence 403. Appellant urged that the reversal of his conviction was mandated under the reasoning of Old Chief v. United States. See 519 U.S. 172, 192, 117 S.Ct. 644, 655-656, 136 L.Ed.2d 574 (1997).

In Old Chief, a defendant was prosecuted for the offense of possession of a firearm by a felon. Id. Because any type of felony conviction was sufficient to prosecute the defendant for possession of a firearm, the Court decided that allowing the Government to prove the particular felony of which the defendant was previously convicted was of little probative value; yet it could substantially prejudice the defendant by allowing the jury to improperly focus on the previous crime rather than the instant offense. Id.

The Supreme Court held that such a result violated Federal Rule of Evidence 403 and thus precluded the Government from proving what felony the defendant was previously convicted of if. he chose to stipulate that he was indeed a felon. Id. Appellant argued to the Fourth Court of Appeals that the DWI convictions were precisely the type of pre-requisite convictions envisioned in Old Chief — they have virtually no probative value, but can easily and improperly inflame the jury’s prejudice against him.

Appellant argued that the jury convicted him not because it believed he was guilty of the instant DWI offense, but because it was improperly provided with such overwhelming evidence of his bad character in the form of six previous DWI convictions. Thus, by not allowing him to stipulate to the two previous convictions, the trial court allowed evidence to reach the jury that was substantially more prejudicial than probative. The Fourth Court of Appeals declined to apply Old Chief to the Texas DWI statute for a variety of reasons. First, it analyzed the relevant Texas statute,

section 49.09(

b) of the Texas Penal Code: If it is shown on the trial of an offense under

Section 49.04[DWI] ... that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated ... the offense is a felony of the third degree. Tex. Penal Code Ann. § 49.09(b) (West 1999). It determined that the previous convictions were jurisdictional elements, because the State must indict and prove at least two prior DWI convictions to elevate the misdemeanor offense of DWI to the level of a felony. See Tamez v. State, 980 S.W.2d 845, 848 (Tex.App.—San Antonio 1998). It then applied

article 36.01 of the Code of Criminal Procedure, which states: 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 shall not be read until the hearing on punishment is held as provided by

Article 37.07. Tex.Crim. P.Code Ann. § 36.01 (West 1999). It then cited this Court’s holding that the reading of the indictment under

article 36.01 is mandatory. Id. (citing Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App.1985)). For these reasons, the Court of Appeals determined that Old Chiefs reasoning should not be applied in the instant case, because the Texas DWI statute required a different outcome: the State must read and prove the previous DWI convictions as jurisdictional elements in its casein-chief. Appellant further argued that even if the two previous convictions were properly presented and argued to the jury, the trial court abused its discretion by allowing evidence of the four other previous DWI convictions. The Court of Appeals determined that nothing in the plain language of

section 49.09(

b) limited the State to pleading or proving only two prior convictions. Id. (citing Read v. State, 955 S.W.2d 435, 437 (Tex.App.—Fort Worth, 1997 pet. ref'd.)). Finding no error in the trial court’s actions, it overruled appellant’s points of error and affirmed his conviction. Appellant petitioned this Court for review regarding the propriety of the Court of Appeals’ decision, specifically disputing its

interpretation of Old Chief and its ramifications on the

interpretation of Texas Rule of Evidence 403. We will reverse and remand. Analysis This cause encompasses two somewhat interrelated questions. First, we must determine if the State is required to prove two previous DWI convictions in order to prosecute a defendant for felony DWI or if a defendant’s stipulation admitting those previous convictions is sufficient. We must also decide if it is error for the trial court to allow pleadings and evidence of more than two prior DWI convictions if the defendant stipulates to at least two previous DWI convictions.

Regarding the former issue, this Court held that when prior convictions are used to elevate what would otherwise be a misdemeanor offense to the level of a felony, they must be pled in the indictment for the trial court to gain jurisdiction. See Turner v. State, 636 S.W.2d 189, 196 (Tex.Crim.App.1980); Gant v. State, 606 S.W.2d 867, 871 (Tex.Crim.App. [Panel Op.] 1980). Nevertheless, it is not the reading of the indictment that vests the trial court with jurisdiction. Rather, jurisdiction vests when the pleadings are submitted to the Mai court and contain the requisite number of previous convictions.

Therefore, this rule guides us as to what the State should present to the trial court, not necessarily what the State should tell and prove to the jury.

Article 36.01 provides the framework for what the jury should be told.

Article 36.01 suggests by negative implication that the jurisdictional elements may be read, as it states, “[w]hen prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment shall not be read until the hearing on punishment is held as provided by

Article 37.07.” See Tex.Crim. P.Code Ann. § 36.01 (West 1999). But it does not require the State to read an indictment containing the jurisdictional prior convictions. It merely proscribes the reading of prior convictions that are enhancements only. Thus, standing alone,

article 36.01 does not dispose of the issues, either. At this point, it is helpful to focus on why the indictment is read. We have held that reading the indictment serves two purposes: it ensures that the accused is informed of the charges against him and it ensures that the jury is informed of the precise terms of the particular charge against the accused. Warren, 693 S.W.2d at 415. The first rationale does not apply in a trial where the accused admits to the charges by stipulation; obviously the defendant is aware of the charges against him if he stipulates to them.

The remaining rationale must be tempered against the protections provided to a defendant under Rule 403. This delicate balance, between providing the jury with all of the relevant facts while keeping substantially prejudicial evidence from reaching it, was struck in Old Chief. Although Old Chief is not binding authority, its persuasive value in this analogous situation should not be dismissed. See Montgomery v.

State, 810 S.W.2d 372, 376 n. 2 (Tex.Crim.App.1990), set aside on reh’g, 810 S.W.2d 372, 397 (Tex.Crim.App.1991) (even when not bound by federal court decisions, when the Texas Rule duplicates the Federal Rule, greater-than-usual deference should be given to the federal court’s

interpretations). In Old Chief, the Supreme Court determined that: Given [the] peculiarities of the element of felony-convict status and of admissions and the like when used to prove it, there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative component of the official record the prosecution would prefer to place in evidence. For pur poses of the Rule 103 weighing of the probative against the prejudicial, the functions of the competing evidence are distinguishable only by the risk inherent in the one and wholly absent in the other.

In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was abuse of discretion to admit the record when an admission was available. Id. (emphasis added).

Thus, a defendant’s stipulation to a previous conviction should suffice when it carries the same evidentiary value as the judgments of prior convictions, yet substantially lessens the likelihood that the jury will improperly focus on the previous conviction or the defendant’s “bad character.” Such improper focus by the jury not only violates the unfair prejudice rationale of Rule 403, it violates the basic policy of Rule 404(b). See Mayes v. State, 816 S.W.2d 79, 86 (Tex.Crim.App.1991) (Rule 404 ensures that a person is tried for the offense he allegedly committed, not for the type of person that he may be).

Here, the State was allowed not only to read the indictment containing six previous DWI convictions, but also to present evidence of the convictions during its case-in-chief. The likelihood that the jury was improperly swayed to convict appellant after the State presented conviction after conviction was great. The “reasonable conclusion” mentioned in Old Chief is brought into startling relief here: when faced with appellant’s apparently unflagging character as a drunk driver, the jury may have convicted him because he was a “bad man,” not because it believed him to be guilty of the instant offense.

A balance must be struck between

Article 36.01(a)(1), which authorizes the reading of the full indictment (and by this action implicitly authorizes the proof of the previous convictions in the State’s case-in-chief), and Rule 403, which proscribes this evidence if there is a strong likelihood that the jury may improperly use it in reaching its verdict.

In cases where the defendant agrees to stipulate to the two previous DWI convictions, we find that the proper balance is struck when the State reads the indictment at the beginning of trial, mentioning only the two jurisdictional prior convictions, but is foreclosed from presenting evidence of the convictions during its case-in-chief. This allows the jury to be informed of the precise terms of the charge against the accused, thereby meeting the rationale for reading the indictment, without subjecting the defendant to substantially prejudicial and improper evidence during the guilt/innocence phase of trial.

Following this logic, any prior convictions beyond the two jurisdictional elements should not be read or proven during the State’s case-in-chief — as long as the defendant stipulates to the two prior convictions — as they are without probative value and can serve only to improperly prove the defendant’s “bad character” and inflame the jury’s prejudice. We find that the trial court erred in allowing the State to read each of the six convictions at the beginning of trial and to prove the six convictions during its case-in-chief. We remand this cause to the Court of Appeals for a proper harm analysis.

KEASLER, J., concurred; KELLER, J., filed a dissenting opinion, in which McCORMICK, P.J., joined. . Tex R. Evid. 403 provides: 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 presentation of cumulative evidence. . Federal Rule of Evidence 403 is materially identical to Texas Rule of Evidence 403. . Moreover, the Texas Rules of Evidence are not alone in leading to this conclusion.

Previous convictions should not be unnecessarily introduced at the guilt/innocence stage lest they violate

Article 37.07 § 2 of the Texas Code of Criminal Procedure. See Tex.Code Crim. P. art. 37.07 § 2 (trial court should first submit to the jury the issue of guilt or innocence only without authorizing the jury to pass upon the punishment to be imposed) (West 1999). In Brumfield v. State, we interpreted this bifurcated trial statute, determining: Such procedure was obviously designed to take the blindfolds off the judge or jury when it came to assessing punishment. It authorized the introduction of evidence on punishment not heretofore held to be generally admissible.

It did, however, limit such introduction to the penalty stage to prevent the accused from being tried as a criminal generally prior to the determination of the issue of guilt. It thus allowed evidence critical to an enlightened determination of punishment but avoided the possibility of prejudice on the issue of guilt. 445 S.W.2d 732, 738 (Tex.Crim.App.1969) (emphasis added).