ROBERT RAY ORMAND v. THE STATE OF TEXAS--Appeal from 36th District Court of Aransas County

NUMBER 13-03-534-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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ROBERT RAY ORMAND, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 36th District Court

of Aransas County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Robert Ray Ormand, was indicted on the charge of felony driving while intoxicated (DWI). See Tex. Pen. Code Ann. 49.04 (Vernon 2003); id. 49.09 (Vernon Supp. 2004-2005). A jury found appellant guilty, and the trial court assessed punishment at ten years in the Texas Department of Criminal Justice Institutional Division. The trial court has certified that this is not a plea bargain case, and appellant has the right of appeal. See Tex. R. App. P. 25.2. By one issue, appellant complains that the trial court erred by allowing the State to read his two prior DWI convictions to the jury and to place information concerning the convictions in the charge after appellant had stipulated to the convictions. // We affirm.

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

I. Background

Appellant was indicted for felony DWI. The indictment included allegations of two prior DWI convictions. Before trial, appellant stipulated to the two prior convictions. The court accepted and approved appellant s stipulation and made it a part of the record. At trial, the State read the indictment to the jury. The indictment included an enhancement paragraph which set out appellant s two prior DWI convictions. Defendant pleaded not guilty to the charge and answered true to the two prior DWI convictions. // The State admitted no evidence and made no reference to the prior convictions during its case-in-chief. // The charge in this case referred to the prior convictions in its phrasing of the elements of the offense and in its limiting instructions. //

II. Analysis

Appellant stipulated to his two prior convictions. See Bryant v. State, No. PD-672-04, 2005 Tex. Crim. App. LEXIS 517, at *7-*8 (Tex. Crim. App. April 6, 2005) (holding that a stipulation is a kind of judicial admission and when not admitted needs no evidence from party benefitting by admission) (citations omitted); Hernandez v. State, 109 S.W.3d 491, 493 (Tex. Crim. App. 2003) (en banc) (finding trial court erred in denying appellant's stipulation to three previous DWI convictions and in dicta explaining that "[t]he appellant's stipulation would have placed the prior convictions into evidence, making the jury aware of their existence."); Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003) (holding stipulation which confessed jurisdictional prior convictions and which is a "form of evidence" may be admitted and published to jury). The trial court did not err by allowing the State to read the enhancement paragraph in the indictment to the jury. See Tamez v. State, 11 S.W.3d 198, 202-03 (Tex. Crim. App. 2000) (concluding if defendant offers to stipulate to prior convictions necessary to confer jurisdiction, two prior convictions but no more can be included in reading of indictment to jury). Moreover, because the stipulation had placed the convictions into evidence and because the enhancement paragraph had been read to the jury, it was not error to place information concerning the convictions in the charge. See Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003) (holding no error for including prior convictions in jury instructions when two prior convictions had been validly mentioned in indictment and introduced into evidence via stipulation). We overrule appellant's sole issue on appeal.III. Conclusion

Accordingly, the judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 9th day of June, 2005.