Smith v. State , 2004 Tex. App. LEXIS 2685 ( 2004 )

TOM GRAY, Chief Justice,

dissenting.

Once again, I cannot agree to reverse a conviction because of something the defendant wanted. See Bryant v. State, No. 10-01-00280-CR, 135 S.W.3d 130, 2004 Tex.App. Lexis 2326 (Waco March 10, 2004, no pet. h.) (Gray, C.J., dissenting).

Smith stipulated to two prior DWI convictions. On the record, he admitted that by signing the stipulation, the State did not have to prove up the convictions and he would avoid discussion of his other priors. The State offered the stipulation of those convictions into evidence. Smith specifically stated, ‘We have no objection to the stipulation.” The stipulation was admitted. Smith cannot now complain that one of those convictions was too remote to use. And he certainly should not be acquitted on this issue.

Section 49.09(e) is not an element of felony DWI; it is more like a rule of admissibility. Weaver v. State, 87 S.W.3d 557, 561 (Tex.Crim.App.2002). The situation in this case and the issue raised by Smith on appeal has already been decided, twice, by the First Court of Appeals in Houston; and in each case, the Court of Criminal Appeals refused a petition for discretionary review. See St. Clair v. State, 101 S.W.3d 737, 740 (Tex.App.-Houston [1st Dist.] 2003, pet. refd); Bower v. State, 77 S.W.3d 514, 518 (Tex.App.-Houston [1st Dist.] 2002, pet. refd). Houston was right; the majority of this court is wrong. And I respectfully dissent.