Bosnjakovic, Muhamed v. State ( 2003 )

Opinion issued November 26, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00931-CR

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MUHAMED BOSNJAKOVIC, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 900004

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MEMORANDUM OPINION

          Appellant, Muhamed Bosnjakovic, was charged with the felony offense of driving while intoxicated. Before voir dire, he stipulated to the two prior DWI convictions alleged in the indictment to enhance the primary offense to a felony. The jury found appellant guilty, and the trial court assessed punishment at 10 years’ confinement and a fine in the amount of $2,500. We affirm.

          In two points of error, appellant complains of the following: (1) the trial court abused its discretion (a) in allowing the State to read to the jury the enhancement paragraphs of the indictment which alleged that appellant had two prior DWI convictions and (b) in allowing the State to introduce the stipulation into evidence, and (2) the trial court abused its discretion by overruling appellant’s objection to the portion of the jury charge which mentioned appellant’s stipulation of his two previous DWI convictions.

          The State brings one cross-point, contending that the trial court erred when it withdrew appellant’s stipulation from the evidence.

Background

          Prior to voir dire, appellant filed a motion to stipulate that he had been convicted of the two prior DWI offenses alleged in the indictment, and the trial court approved and accepted the stipulation. During formal arraignment, the State read the prior convictions alleged in the indictment to the jury. Immediately following opening statements, the State offered, and the trial court admitted into evidence, appellant’s stipulation.

          Before the State called its second witness, the trial court withdrew from the evidence appellant’s stipulation to his two prior DWI convictions, and ordered the parties to refrain from mentioning the two convictions to the jury. See Hollen v. State, 87 S.W.3d 151 (Tex. App.—Fort Worth 2002) rev’d, No. 1592-02, slip op. at 8 (Tex. Crim. App. Sept. 10, 2003). The trial court’s charge did, however, reference appellant’s prior DWI convictions in its phrasing of the elements of the offense and in a limiting instruction.

Analysis

          Like appellant, Hollen was charged with felony DWI and stipulated to the two prior DWI convictions required to enhance the primary offense to a felony. Hollen, 87 S.W.3d at 153. The stipulation was accepted by the trial court during the State’s case-in-chief, outside the presence of the jury. Id. The trial court permitted the State to mention the prior offenses and stipulation to the jury during voir dire, when the State read the indictment, during the State’s opening statement, in the State’s case-in-chief, and during the State’s closing argument. Id. The trial court admitted the stipulation into evidence, and, as in this case, referred to each conviction in its charge and limiting instruction to the jury. Id.

          On appeal, Hollen contended that the trial court erred by allowing the State to announce his two prior DWI convictions when reading the indictment, by allowing the State to discuss the prior convictions during voir dire, opening statement, its case-in-chief, and closing argument, and by referring to the two prior DWI convictions in the court’s charge to the jury. Id. at 154. Relying on Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000) and Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002), the Fort Worth Court of Appeals reversed, stating that “we are constrained to hold that the trial court abused its discretion by admitting the stipulation into evidence and that the admission of the stipulation was harmful.” Hollen, 87 S.W.3d at 154.

          The Court of Criminal Appeals granted the State’s petition for review, and concluded that “Tamez recognized that the two jurisdictional prior convictions can be included in the reading of the indictment to the jury.” Hollen v. State, No. 1592-02, slip op. at 8 (Tex. Crim. App. Sept. 10, 2003). Furthermore, it concluded that Robles determined only that the judgments of the prior convictions were inadmissible, and that the Court left unanswered whether the jury could be informed of the stipulation and whether the stipulation could be admitted into evidence. Id. at 3; Robles, 85 S.W.3d at 213.

          Based on Tamez and Robles, the Court of Criminal Appeals held that the jury may be informed of a defendant’s stipulation to two prior DWI convictions in a felony DWI prosecution, that the trial court may admit the stipulation into evidence, and that the trial court may refer to the two prior DWI convictions in its charge to the jury. Hollen, No. 1592-02, slip op. at 3.

          The present case is identical to Hollen. We hold that the trial court did not err in allowing the jury to be informed of appellant’s stipulation to his two prior DWI convictions alleged in the indictment, in admitting the stipulation into evidence, and in referring to the stipulation in its charge to the jury.

Conclusion

          The judgment of the trial court is affirmed.

                                                             Adele Hedges

                                                             Justice

Panel consists of Justices Hedges, Nuchia, and Higley.

Do not publish. Tex. R. App. P. 47.4.