Royce Lee Blankenship, II. v. The State of Texas--Appeal from 115th District Court of Upshur County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00037-CR

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ROYCE LEE BLANKENSHIP, II, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th Judicial District Court

Upshur County, Texas

Trial Court No. 13,118

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Royce Lee Blankenship, II, appeals his conviction for felony driving while intoxicated. See Tex. Pen. Code Ann. 49.04, 49.09 (Vernon 2003). In his sole point of error, Blankenship contends the trial court erred by allowing the State to read the stipulation of prior offenses to the jury. We follow the Texas Court of Criminal Appeals' decision in Hollen v. State, No. 1592-02, 2003 Tex. Crim. App. LEXIS 302 (Tex. Crim. App. Sept. 10, 2003), // and affirm the trial court's judgment.

I. Background

The grand jury indicted Blankenship for driving while intoxicated. The indictment further alleged Blankenship had been twice previously convicted of driving while intoxicated, making Blankenship's current charge a felony. See Tex. Pen. Code Ann. 49.09(b) (third degree felony enhancement). More specifically, the indictment alleged Blankenship had been convicted in cause number 99-2020 in the County Court of Gregg County, Texas, April 3, 1999, and in cause number 96-1667 in the County Court at Law of Gregg County, Texas, May 10, 1996. Blankenship pled not guilty and proceeded to trial before a jury.

On February 11, 2003, before trial began, Blankenship stipulated to the truth and finality of the prior convictions as alleged in the indictment. The trial court then allowed the State to read the stipulation to the jury, over Blankenship's objection. The jury found Blankenship guilty as charged in the indictment, and the trial court sentenced Blankenship to six years' confinement.

II. Reading of the Stipulation During Guilt/Innocence

Citing Hollen v. State, 87 S.W.3d 151 (Tex. App. Fort Worth 2002), rev'd, No. 1592-02, 2003 Tex. Crim. App. LEXIS 302 (Tex. Crim. App. Sept. 10, 2003), Blankenship contends the trial court erred by permitting the State to read the stipulation of evidence to the jury during the guilt/innocence portion of the trial. In Hollen, the appellant offered to stipulate to the two prior (jurisdictional) convictions. Hollen, 2003 Tex. Crim. App. LEXIS 302, at *1. The state refrained from introducing any extrinsic evidence of the convictions, but still sought to introduce the stipulation itself to meet the jurisdictional requirement of Article 49.09 of the Texas Penal Code. Id. Hollen objected to permitting the prosecutor to read the stipulation before the jury, claiming the exclusion of extrinsic evidence of the convictions was not enough; the state should be prohibited from mentioning any of the prior jurisdictional convictions, including reference to Hollen's stipulation, during the guilt/innocence stage of the trial. Id. at *1-2. The state read the stipulation to the jury, and Hollen was convicted. The Fort Worth Court of Appeals reversed Hollen's conviction, holding the trial court erred by permitting the state to read the stipulation to the jury and such error was harmful. Hollen, 87 S.W.3d at 158-59.

On petition for discretionary review, the Texas Court of Criminal Appeals reversed. Hollen, 2003 Tex. Crim. App. LEXIS 302, at *12. The court reviewed its holding in Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), and noted the court had previously held "prior convictions beyond the two jurisdictional elements should not be read or proven during the State's case-in-chief." Hollen, 2003 Tex. Crim. App. LEXIS 302, at *6 (quoting Tamez, 11 S.W.3d at 202-03).

The court then reviewed its opinion in Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002). Hollen, 2003 Tex. Crim. App. LEXIS 302. In Robles, the appellant offered to stipulate to the existence of the two prior convictions and requested the trial court prevent the state from introducing evidence of those convictions. His request was denied. The Texas Court of Criminal Appeals held that the stipulation should have been approved and the state prevented from entering into evidence the judgments of the jurisdictional prior convictions. The court noted that each judgment was for a DWI-third offense, and the jury could have discerned from those judgments that the present trial was for Robles' fifth alcohol-related offense. However, the court (in Hollen) then went on to distinguish Robles on the basis that "Robles did not address whether the jury may be informed of the stipulation or whether the stipulation itself may be admitted into evidence." Id. at *8-9. The court then reaffirmed its prior holding that "the two prior convictions are jurisdictional elements that must be proven to obtain a conviction for the offense of felony DWI" and held it was not error to inform the jury of the stipulation. Id. at *9 (citing Old Chief v. United States, 519 U.S. 172, 186 & 191 (1997); Hernandez v. State, 109 S.W.3d 491, 495 (Tex. Crim. App. 2003); and Barfield v. State, 64 S.W.3d 446, 448-49 (Tex. Crim. App. 2001)). In this case, proof of Blankenship's prior convictions was necessary to establish the jurisdictional elements of the crime. The trial court therefore did not err by permitting the State to read the stipulation regarding Blankenship's prior jurisdictional convictions into evidence before the jury.

We affirm the trial court's judgment.

Donald R. Ross Justice

Date Submitted: October 28, 2003

Date Decided: October 29, 2003

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