The State of Texas v. Sheila Alphin Sanders--Appeal from 173rd District Court of Henderson County

OPINION HEADING PER CUR NO. 12-03-00067-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

THE STATE OF TEXAS,

 
APPEAL FROM THE 173RD

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

SHEILA ALPHIN SANDERS,

APPELLEE

 
HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION

Sheila Alphin Sanders ("Sanders") was indicted for the offense of felony driving while intoxicated ("DWI"). At trial, the State of Texas (the "State") was not allowed to read to the jury the portion of the indictment alleging two prior jurisdictional DWI convictions, and was not allowed to introduce evidence in its case-in-chief that Sanders had stipulated to the two prior DWI convictions. Following a mistrial, the State appealed. In three issues, the State contends that the trial court's rulings were error. We reverse for further proceedings consistent with this opinion.

 
Background

Driving while intoxicated is a third degree felony if the accused has two prior DWI convictions. Tex. Pen. Code Ann. 49.09(b)(2) (Vernon 2003). The indictment alleged that Sanders had been convicted of DWI twice in 1993 in Henderson County. Before the trial began, Sanders filed a written stipulation of evidence attesting to her two prior DWI convictions.

Before the State read its indictment to the jury, the trial court ruled that the State could not mention the two prior DWI convictions while reading the indictment. Later in the trial, the State sought to introduce into evidence a copy of Sanders's stipulation. The trial court sustained Sanders's objection to the offer of evidence. The trial court based its rulings on Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002). When the jury was unable to reach a verdict after hearing the evidence and arguments of counsel, the trial court declared a mistrial. The State timely filed this appeal, contending that the trial court had dismissed a portion of its indictment.

 
Jurisdiction

Because there has been no final disposition of this case in the trial court, we must first determine whether we have jurisdiction to consider this appeal. Article 44.01(a)(1) of the Texas Code of Criminal Procedure permits the State "to appeal an order of a court in a criminal case if the order dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint." Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp. 2004). We have previously determined that when the trial court does not allow the State to read an entire felony DWI indictment to the jury, the trial court has effectively dismissed a portion of the indictment. State v. McGuffey, 69 S.W.3d 654, 656 (Tex. App.-Tyler 2002, no pet.); see also State v. Mewbourn, 993 S.W.2d 771, 773 (Tex. App.-Tyler 1999, no pet.). In a felony DWI trial in district court, the State is allowed to read the full indictment to the jury, including the two prior DWI convictions, in order to establish the court's jurisdiction. See Tamez v. State, 11 S.W.3d 198, 201-02 (Tex. Crim. App. 2000). Because the trial court ordered the State not to mention the two prior DWI convictions during its reading of the indictment to the jury, effectively dismissing that portion of the indictment, the trial court's order became appealable by the State pursuant to Article 44.01(a)(1). We hold that we have jurisdiction to consider this appeal.

 
Reading Indictment to Jury

In its first issue, the State contends that the trial court erred by refusing to allow the State's attorney to read to the jury that portion of the indictment alleging Sanders's two prior DWI convictions. We agree. The State is allowed to mention prior DWI convictions when reading an indictment to the jury at the beginning of a felony trial. See Tamez, 11 S.W.3d at 202. Here, it was improper for the trial court not to allow the State to read the portion of the indictment alleging Sanders's two prior DWI convictions. The State's first issue is sustained.

 
Stipulation as Evidence

In its second issue, the State contends that the trial court erred in not admitting Sanders's stipulation of her prior DWI convictions into evidence during its case-in-chief. In Texas, the stipulation itself is allowed into evidence to make the jury aware of the two previous DWI convictions. See Hollen v. State, 117 S.W.3d 798, 801-02. This satisfies "evidentiary requirements regarding stipulations while avoiding the unfair prejudice that would accompany further mention of the convictions." Id. at 802 (quoting Hernandez v. State, 109 S.W.3d 491, 495 (Tex. Crim. App. 2003)). The introduction of the stipulation into evidence is necessary because the two prior convictions are elements of the offense that must be proven to the fact finder - in this case, the jury - to establish felony DWI. Hollen, 117 S.W.3d at 802. Robles is distinguishable from this case because it held that the underlying evidence of two prior convictions was inadmissible. Robles, 85 S.W.3d at 213. The State's second issue is sustained.

 
Conclusion

Having sustained the State's first and second issues, we remand this matter to the trial court for further proceedings consistent with this opinion. We need not address the State's third issue in which it argues that the probative value of the two prior DWI convictions outweighs their prejudicial effect. See Tex. R. App. P. 47.1.

 

JAMES T. WORTHEN

Chief Justice

 

Opinion delivered February 27, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

 
(DO NOT PUBLISH)