Bryant, Clarence Randolph ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-627-04

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CLARENCE RANDOLPH BRYANT, Appellant

v.

THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS BOSQUE COUNTY

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   Meyers, J., filed a dissenting opinion.

It seems apparent from the State's first two grounds for review that when the parties prepared the stipulation involved in this case, they were not aware that Texas law either had or would soon have the concept of judicial admissions. ⁽¹⁾ The majority indicates that this doctrine needs to be part of our jurisprudence and that it acts in a manner similar to a judicial confession. I would hope and presume that it encompasses all of the same procedural prerequisites, safeguards, and waiver that accompany a judicial confession. See, majority opinion page 6, footnote 7. ⁽²⁾ While the State now seeks to prevent the defendant from contesting the sufficiency of the evidence because of the stipulation, they fail to show that the preparation of the stipulation was done for any purpose other than to inform the jury of the two prior DWI convictions. What is clear is that, as seen by the dialogue quoted beginning on page 2 of the majority opinion, prior to the trial of this case, the parties carefully drafted a stipulation which was crafted in order to inform the jury of only two prior DWI convictions by the defendant. It is apparent that this was the intent of both the defendant and the State. After the stipulation was completed, it was handed to the judge, but was never entered into evidence.

Regardless of the validity or conclusiveness that the concept of judicial admission brings to bear on a sufficiency analysis, ⁽³⁾ this is not the exclusive vehicle to prove the necessary enhancing prior DWI judgments. Before the broadened concepts introduced in this case and in Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), and its progeny, I would bet that the entire criminal appellate and trial community felt that the stipulation had to be introduced into evidence at guilt, either verbally, or in written form and then become part of the evidence for the jury to review. ⁽⁴⁾ Certainly the majority's innovation does not preclude this traditionally accepted method of informing the jury of the previous DWI convictions. But that is the whole point; neither the State nor the Defendant considered that they had implemented a judicial admission herein. The State's second ground for review clearly reflects this, and I find it somewhat disingenuous that they now claim, in their first ground for review, that the defendant is estopped from making his sufficiency appeal. If anything, the defendant relied totally on the State to introduce the stipulation into evidence because it was their burden. Certainly the defendant would not have offered the stipulation since its absence from the evidence should have alerted the trial judge to give the jury an instruction on the lesser-included offense of misdemeanor DWI. Somewhere along the line, the trial judge and the State recognized, albeit too late, that the jury had not been informed about the stipulation before the close of evidence. What is equally apparent and certainly more conclusive is that there had not been a judicial admission by the defendant. The trial court's attempt to make the evidence sufficient by the instruction to the jury is not contemplated by any rules of evidence or appellate procedure that I am aware of.

Because I am not convinced that Texas jurisprudence should now be bound by the ruling of a Federal D.C. Circuit case, and because the facts herein simply do not follow that authority, I respectfully dissent.

Meyers, J.

Filed: April 6, 2005

Publish

1. There is nothing in the Texas Code of Criminal Procedure addressing a judicial admission.

2. I am speaking specifically as to how much detail is involved: whether the judge is the exclusive finder of the sufficiency of the stipulation; the procedures for placing a stipulation into evidence; whether the defendant is allowed to have appellate review; whether it is voluntary, etc.

3. The majority seems to indicate that the judicial admission removes from the jury's consideration whatever elements of the crime that are included within the stipulation. See majority opinion page 10, stating that Bryant waived "his right to put the government to its proof of that element."

4. In fact, a transcript of

Smith v. State, 158 S.W.3d 463 (Tex. Crim. App. 2005), delivered one month ago shows the following:

[STATE] Your Honor, before I proceed with the witness, I have one exhibit that I would like to have marked and offered into evidence at this time.

[DEFENSE] We have no objection to the stipulation.

(State's Exhibit one marked for identification)

[DEFENSE] What number is it?

[THE COURT] All right. State's Exhibit 1 is admitted into evidence.

[STATE] Can I briefly summarize what this is for the members of the jury?

[THE COURT] Yes.

[STATE] Ladies and gentlemen, before trial today the defendant signed what is called a stipulation of evidence. Basically it agrees and confesses with his signature on it that he has twice been previously convicted of DWI. Specifically on February 28^th, 1993, in County Criminal Court at Law No. 4 of Harris County, Texas; in Cause Number 685,779, the defendant admits he was convicted of DWI; and second, on April 24, 1990 in the 258^th District Court of Polk County, Texas, in Cause Number 12,255, the defendant again admits that he was convicted of the offense of Driving While Intoxicated.