Carrasco, Oscar ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-173-04

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OSCAR BRITO CARRASCO, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS PRESIDIO COUNTY

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   Meyers, J., filed a concurring opinion.

CONCURRING OPINION

I disagree with the majority's analysis of the decision of the trial judge in overruling Appellant's objection to the admission of the stipulation. The majority reasons that because the trial judge in the second trial was the same judge who signed the stipulation and presided over the first trial, he was aware of the circumstances surrounding the stipulation and concluded that the use of the stipulation was not limited to the first trial. Thus, because the stipulation was used in the first trial, the majority sees no reason why it should be excluded from the second trial. I disagree that the determination of whether a stipulation is admissible should be based on the fact that it was used in a previous trial. We should instead disregard the previous use and consider the purpose of the stipulation.

The Appellant stipulated to the underlying facts of the crime and was presenting a defense of insanity. Both the State and Appellant agreed that the stipulation was entered into in order to save time in the first trial. Appellant additionally stated that the stipulation was entered into due to the unavailability of some of the State's witnesses at the time of the first trial, so the stipulation was a substitute for the testimony of the witnesses. However, at the retrial, the State presented these witnesses, so the purpose of the stipulation no longer existed. And, some of the items of evidence listed in the stipulation were not initially going to be admitted by the State, but later, at the retrial, were admitted into evidence. Because the stipulation duplicated evidence that was already presented by the State, Appellant objected that the State was not abiding by the agreement and thus it was no longer binding and should not be admitted.

Texas Rule of Evidence 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence" (emphasis added). In Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), the defendant was charged with DWI. The offense was raised to a third degree felony because the defendant had at least two prior convictions. We held that it was a violation of Rule 403 for the trial court to allow the State to present evidence of defendant's six previous DWI convictions rather than allow the defendant to stipulate to two prior convictions. Although this case is slightly different in that the defendant was not allowed to stipulate while in the case before us, Appellant's stipulation was entered over his objection, the issue is the same-whether the State was allowed to needlessly present cumulative evidence.

Since the State chose another path for presenting the evidence, which abolished the reason the parties entered into the stipulation, the stipulation should have been rendered void. I would have considered the nullified purpose of the stipulation as well as analyzed the decision of the trial judge under Rule of Evidence 403 and held that he abused his discretion in admitting the stipulation into evidence.

However, because the admission of the stipulation merely duplicated evidence that was already presented and served only to bolster the State's case, the admission of the stipulation over Appellant's objection was harmless. Therefore, while I disagree with the analysis, I agree with the result and concur in the majority's decision to affirm the judgment of the court of appeals.

Meyers, J.

Filed: January 19, 2005

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