FRANKIE WELBOURN v. THE STATE OF TEXAS--Appeal from 105th District Court of Kleberg County

NUMBER 13-03-706-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

FRANKIE WELBOURN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 105th District Court

of Kleberg County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Frankie Welbourn, was indicted for the offense of felony driving while intoxicated (DWI) which was enhanced by two prior convictions alleging appellant was a habitual felony offender. See Tex. Pen. Code Ann. 49.04 (Vernon 2003); see also id. 49.09 (Vernon Supp. 2004-2005). Welbourn pleaded not guilty. A jury returned a verdict of guilty of felony DWI as alleged in the indictment. The trial court sentenced appellant to twenty-five years in the Texas Department of Criminal Justice Institutional Division. The trial court has certified that this is not a plea bargain case, and Welbourn has the right of appeal. See Tex. R. App. P. 25.2. By one issue, Welbourn complains that the evidence was legally insufficient to support the conviction. 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

Welbourn was indicted for felony DWI enhanced by two prior convictions. Welbourn stipulated to two prior convictions for jurisdictional purposes. // The State agreed with Welbourn's stipulation, and the court approved it. The judgments from those convictions were entered into the record for the court's use only. The stipulation, entitled Agreement to Stipulate to Identity of the Defendant, was filed as part of the clerk's record. The stipulation was not admitted into evidence.

The court's charge instructed the jury that the State and defendant "have agreed to stipulate to evidence that the Defendant has previously been convicted of two separate and different [DWI] offenses as alleged in the indictment," and that "[y]ou are therefore instructed to find that the Defendant has previously been convicted of two separate and different [DWI] offenses as alleged in the indictment."

The charge also instructed the jury not to consider such evidence in proving or tending to prove that the defendant was driving while intoxicated on the day of the primary offense. Neither the State nor Welbourn objected to this language.II. AnalysisOn appeal, Welbourn argues in a single point of error that the evidence is insufficient to convict because the State failed to offer proof of the stipulated prior jurisdictional DWIs. However, subsequent to the appeal of this case, the Texas Criminal Court of Appeals has held that a stipulation to prior convictions is a judicial admission which removes the need for proof of those convictions. Bryant v. State, No. PD-672-04, 2005 Tex. Crim. App. LEXIS 517, at *12 (Tex. Crim. App. April 6, 2005). By entering into the stipulation at issue in this case, Welbourn waived "his right to put the government to its proof of that element." Id. (quoting Harrison v. United States, 204 F.3d 236, 240 (D.C. Cir. 2000)). He cannot complain on appeal that the State failed to prove "an element to which he confessed." Id. at *12-*13 (quoting United States v. Branch, 46 F.3d 440, 442 (5th Cir. 1995)). 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.