Edward Ray Mixon v. The State of Texas--Appeal from 8th District Court of Hopkins County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00148-CR
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EDWARD RAY MIXON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Hopkins County, Texas
Trial Court No. 0116129
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION

Edward Ray Mixon was charged by indictment with felony driving while intoxicated (DWI). The indictment alleged two prior DWI convictions, as required by Tex. Pen. Code Ann. 49.09(b) (Vernon 2003), and further alleged six prior felony convictions for enhancement of punishment. Mixon pled guilty before the court and admitted as true the allegations of the enhancement paragraphs. He was sentenced to forty years' imprisonment, as assessed by the court. Mixon appeals, contending the trial court erred in admitting into evidence the prison "pen packs" of his prior DWI convictions. For the reasons stated below, we overrule Mixon's contention and affirm the judgment.

At trial, the State offered the "pen packs" of Mixon's prior DWI convictions, as well as the convictions alleged in the enhancement paragraphs. Mixon objected on the ground that the admission of the admitted convictions was cumulative and superfluous. The court overruled the objection and admitted the evidence. Mixon contends the admission of the "pen packs" of his prior DWI convictions was cumulative and improper.

On appellate review, the trial court's rulings admitting or excluding evidence are subject to an abuse of discretion standard. Rachal v. State, 917 S.W.2d 799, 816 (Tex. Crim. App. 1996) (citing Matson v. State, 819 S.W.2d 839, 850 (Tex. Crim. App. 1991)). If the trial court's decision was within the bounds of reasonable disagreement, we will not disturb its ruling. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

The introduction of the prior convictions did not prejudice Mixon because that is precisely the type of evidence deemed by the Legislature as relevant to the determination of sentencing, and there was no danger of its improper use to determine his guilt after he had entered a plea of guilty. In Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), the Texas Court of Criminal Appeals held that, when a defendant stipulates to his or her prior DWI convictions, they are inadmissible during the state's case-in-chief under Texas Rule of Evidence 403. The court found that the "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.'" Id. at 202. In Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002), the court acknowledged that evidence of two prior DWI convictions is an element of felony DWI under Tex. Pen. Code Ann. 49.09(b), but held that, where a defendant stipulates to their existence, the admission is error because the danger of unfair prejudice from the introduction of that evidence substantially outweighs its probative value. Id. at 213-14.

The rationale for excluding the admitted prior convictions during the state's case-in-chief is not applicable to the sentencing of a defendant. When a defendant enters a guilty plea, the proceeding becomes a "unitary trial" to determine the remaining issue of punishment. Ricondo v. State, 634 S.W.2d 837, 841 (Tex. Crim. App. 1982) (op. on reh'g); Frame v. State, 615 S.W.2d 766, 767 n.1 (Tex. Crim. App. [Panel Op.] 1981). The guilty plea admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the state is to enable the jury or judge to intelligently exercise discretion in the assessment of punishment. Williams v. State, 674 S.W.2d 315, 318 (Tex. Crim. App. 1984). Tex. Code Crim. Proc. Ann. art. 37.07, 3(a) (Vernon Supp. 2003) provides plain language granting trial courts almost unfettered discretion to admit any evidence of prior crimes or bad acts during the sentencing portion of a proceeding. The relevant language reads as follows:

[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Evidence of prior convictions is precisely the type of evidence deemed relevant to the determination of sentencing by the Legislature, and the rationale in Tamez, 11 S.W.3d at 202, and Robles, 85 S.W.3d at 213-14, that the jury will improperly focus on the previous conviction or the defendant's "bad character" to determine guilt, is inapplicable where guilt has already been admitted.

The admission of the "pen packs" of Mixon's prior DWI convictions at sentencing was not cumulative, but provided other evidence and circumstances of the convictions relevant to sentencing. As noted above, the trial court has broad discretion to admit evidence of the criminal record of a defendant and other evidence of his or her general reputation or character. See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a). The "pen packs" admitted by the trial court provided evidence of the criminal record of Mixon, and other evidence and circumstances as to those convictions which were relevant to sentencing. This enabled the trial court to intelligently exercise discretion in the assessment of punishment. Williams, 674 S.W.2d at 318. Mixon's contention is overruled.

We affirm the judgment.

 

Donald R. Ross

Justice

 

Date Submitted: September 8, 2003

Date Decided: September 9, 2003

 

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