Arthur Williams v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ARTHUR WILLIAMS, )

) No. 08-03-00083-CR

Appellant, )

) Appeal from the

v. )

) 243rd District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20010D04553)

)

OPINION ON REMAND

On September 5, 2001, Appellant Arthur Williams was placed under arrest for driving while intoxicated. Appellant was subsequently indicted for the offense of felony driving while intoxicated (ADWI@). At trial, Appellant stipulated to the requisite two prior DWI offenses and a jury found him guilty of the offense as alleged in the indictment. The trial court sentenced him to 10 years in the Texas Department of Criminal Justice and a $1,000 fine, probated. Appellant timely filed his appeal. This Court reversed and rendered an acquittal on Appellant=s conviction holding that the evidence of his prior convictions was legally insufficient. See Williams v. State, No. 08 03 00083 CR, 2005 WL 351305, *4 (Tex.App. -El Paso Feb. 10, 2005, pet. granted)(not designated for publication).

The Court of Criminal Appeals granted the State=s petition for discretionary review and in an unpublished per curiam opinion, vacated our decision and remanded for consideration in light of its opinion in Bryant v. State, 187 S.W.3d 397 (Tex.Crim.App. 2005). See Williams v. State, No. PD 451 05, 2005 WL 2218878 (Tex.Crim.App. Sept. 14, 2005)(not designated for publication). The case is now before us on remand.

In three issues, Appellant claims: (1) the trial court erred in allowing the State to read the entire indictment to the jury including the two prior DWI=s used for enhancement purposes; (2) the evidence was legally insufficient to support his conviction; and (3) the trial court erred in denying Appellant=s motion for a mistrial. We affirm.

In Issue One, Appellant argues that he was denied the right to a fair trial when the State was allowed to read the entire indictment to the jury including his two prior DWI convictions despite having stipulated to the trial court=s jurisdiction outside of the presence of the jury. We disagree.

When prior convictions are used to elevate a misdemeanor DWI offense to a felony, the prior convictions must be alleged in the indictment in order for the trial court to gain jurisdiction. Hollen v. State, 117 S.W.3d 798, 800-01 (Tex.Crim.App. 2003); Tamez v. State, 11 S.W.3d 198, 201 (Tex.Crim.App. 2000). Although not jurisdictional, the State may read the indictment, including the allegations related to the prior DWI convictions, in arraigning the defendant in the presence of the jury. Tex.Code Crim.Proc.Ann. art. 36.01 (Vernon Supp. 2006); Martin v. State, S.W.3d , 2006 WL 1750891, *3 (Tex.Crim.App. 2006); Tamez, 11 S.W.3d at 201 02. Therefore, the trial court did not err in overruling Appellant=s objection to the State reading the indictment including the two prior DWI convictions. Issue One is overruled.

In Issue Two, Appellant argues his conviction cannot be sustained because the State failed to introduce Appellant=s stipulation into evidence. In Bryant, the Court of Criminal Appeals addressed this issue and held that entry of a stipulation waives the right to contest the absence of proof on the stipulated elements. Bryant v. State, 187 S.W.3d 397, 401 (Tex.Crim.App. 2005). The Court concluded that a stipulation was Aa judicial admission which removed the need for proof of those convictions. By entering into that stipulation, [defendant] waived >his right to put the government to its proof of that element.=@ Id. at 402, citing United States v. Harrison, 204 F.3d 236, 240 (D.C. Cir. 2000). Accordingly, Appellant has no right to contest the sufficiency of the evidence on the stipulated element in this case. See Bryant, 187 S.W.3d at 402. Issue Two is overruled.

In Issue Three, Appellant argues the trial court erred in denying his motion for a mistrial based on alleged improper closing arguments made by the State. Appellant concedes that his trial counsel failed to make a timely objection. Appellant insists, however, that the argument was so prejudicial that an instruction to disregard would not have been sufficient to remove the harm. Further, Appellant argues this was fundamental error so egregious that he was denied a fair and impartial trial, and thus, no objection was needed to preserve the issue for appeal.

Generally, in order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. Tex.R.App.P. 33.1. In order for Appellant to complain on appeal about erroneous jury argument, he must show that he objected at trial and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Pursuing an objection to an adverse ruling ordinarily requires a party to first object to the argument, request an instruction to disregard, and then move for a mistrial. Cockrell, 933 S.W.2d at 89; Calderon v. State, 950 S.W.2d 121, 138 (Tex.App. -El Paso 1997, no pet.). Even if the State=s argument was so prejudicial that an instruction to disregard would not have cured the error, as Appellant suggests, he would still be required to make a timely objection and move for a mistrial. Mathis v. State, 67 S.W.3d 918, 927 (Tex.Crim.App. 2002).

Appellant points to statements made by the prosecutor during closing as evidence of impermissible comments to the jury about punishment and prejudicial remarks about being charged with felony DWI. Counsel for Appellant did not object to any alleged error but instead made his closing argument. The jury then retired to deliberate. It was not until after the trial court received a message from the jury and informed the parties that the jury had reached a unanimous verdict that Appellant=s trial counsel moved for a mistrial based on the State=s closing argument. The trial court denied Appellant=s motion and received the jury=s verdict of guilty. In this case, Appellant=s trial counsel did not make a contemporaneous objection, request an instruction for the jury to disregard the objectionable portions of the State=s argument, or timely move for a mistrial. Therefore, Appellant has failed to preserve this issue for our review. See Tex.R.App.P. 33.1; Cockrell, 933 S.W.2d at 89; Calderon, 950 S.W.2d at 139. Further, improper jury argument is one of those rights that is forfeited by a failure to insist upon it and is not fundamental error that may be raised for the first time on appeal. See Cockrell, 933 S.W.2d at 89; see also Calderon, 950 S.W.2d at 137. Issue Three is overruled.

We affirm the trial court=s judgment.

October 19, 2006

DAVID WELLINGTON CHEW, Justice

Before McClure, J., Chew, J., and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.)(Sitting by Assignment)

(Do Not Publish)