



   MARY'S OPINION HEADING                                           



 NO. 12-01-00136-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

JOHNIE DALE MCGUFFEY,
APPELLEE§
		HENDERSON COUNTY, TEXAS
 
	Appellee Johnie Dale McGuffey ("McGuffey") was indicted for the offense of driving while
intoxicated ("DWI") pursuant to section 49.09(b) of the Texas Penal Code.  At his trial, the State of
Texas ("the State") was not allowed to introduce evidence of McGuffey's two previous DWI
convictions to the jury.  Following a mistrial granted on McGuffey's motion, the State appealed.  In
three issues, the State contends that the trial court erred in not allowing it to discuss McGuffey's two
previous DWI convictions during voir dire, in not allowing the introduction into evidence of
McGuffey's two previous DWI convictions, and in ruling that the prejudicial effect of the two
previous DWI convictions outweighed their probative value.  We remand for further proceedings
consistent with this opinion.

Background
	The Texas Penal Code provides that a DWI offense is a third-degree felony if the person has
two prior DWI convictions.  Tex. Pen. Code Ann. § 49.09(b) (Vernon Supp. 2002).  The indictment
in the instant case alleged that McGuffey had been convicted of DWI in 1992 in Williamson County
and in 1997 in Henderson County.  Before the trial began, McGuffey filed a written stipulation of
evidence attesting his two prior DWI convictions.  McGuffey asked the trial court to admonish the
State to refrain from presenting evidence, including the stipulation itself, of the two prior DWI
convictions during its case-in-chief.
	Before voir dire, the State asked the trial judge to allow it to voir dire the jury panel on
McGuffey's two prior DWI convictions.  The trial court instructed the State not to mention the prior
convictions during voir dire without first approaching the bench.  
	After the jury was empaneled, the trial court denied the State's motion to read the entire
indictment, including the paragraph setting out the 1992 and 1997 DWI convictions, and instructed
the State to read only that part of the indictment alleging the primary offense to the jury. The trial
court further precluded the State from introducing McGuffey's stipulation of the two previous DWI
convictions into evidence during the guilt/innocence phase of the trial.  
	After the State and McGuffey closed, the State objected to the trial court's failure to include 
the two previous DWI convictions as elements of the felony DWI offense in its jury charge.  After
the jury had begun its deliberations, the trial court granted McGuffey's motion for a mistrial.  The
State then timely filed this appeal in accordance with article 44.01(a)(1) of the Texas Code of
Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp. 2002).

Jurisdiction
	Because there has been no final disposition of this case in the trial court, we first must
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).  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.  See State v. Mewbourn, 993 S.W.2d
771, 773 (Tex. App.-Tyler 1999, no pet.).  In a felony DWI trial, the State should be allowed to read
the full indictment to the jury, including the two prior DWI convictions.  See Tamez v. State, 11
S.W.3d 198, 202 (Tex. Crim. App. 2000).  Because the trial court ordered the State not to read the
two prior DWI convictions during the 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.

Voir Dire
	In its first issue, the State contends that the trial court erred by refusing to allow the State's
attorney to discuss McGuffey's two previous DWI convictions during voir dire.  In examining the
record before us, we find that the State asked the court to permit it to question the veniremen on
McGuffey's two previous DWI convictions.  The court responded that the State would not be
allowed to mention the two previous DWI convictions during voir dire without first approaching the
bench.  The record on appeal contains no question or questions which the State proposed to ask the
prospective jurors about the two previous convictions.
	To preserve error for appellate review, the record must reflect that a complaint was made to
the trial court by a timely request or objection which was ruled upon by the judge.  Tex. R. App. P.
33.1(a).  When the issue concerns voir dire questions, the trial court must be on notice as to the
specific question the party wanted to ask and was precluded from asking.  See Franklin v. State, 12
S.W.3d 473, 477 (Tex. Crim. App. 2000).  Without a precluded voir dire question before us, there
is nothing for us  to review.  The State's issue one is overruled.

Evidence of Previous DWI Convictions
	In its second issue, the State contends that the trial court erred in not allowing it to introduce
evidence of McGuffey's prior DWI convictions during its case-in-chief, either through testimonial
evidence or through McGuffey's stipulation.  McGuffey counters that the Texas Court of Criminal
Appeals held in Tamez that the State may not produce evidence of a felony DWI defendant's prior
convictions during its case-in-chief when he has stipulated to two prior DWI convictions.  We
disagree with McGuffey's characterization of Tamez.
	In Tamez, the indictment alleged that the defendant had six previous DWI convictions.  Id.
at 199.  The trial court allowed each of those six convictions to be introduced into evidence during
the prosecution's case-in-chief even though the defendant had stipulated to two prior DWI's,
establishing that the indicted DWI charge was a felony.  Id.  The Court of Criminal Appeals
determined the trial court erred by allowing the State to put on evidence of each of the six previous
DWI convictions.  Id. at 203.
	In the instant case, McGuffey signed and entered into the trial court's record a stipulation
attesting his two previous DWI convictions.  We disagree with his contention that  this stipulation
could not be admitted into evidence before the jury as a result of Tamez.  Rather, we agree with the
El Paso Court of Appeals' conclusion that "Tamez does not hold that absolutely no mention may be
made of the defendant's prior DWI convictions during the State's case-in-chief."  Orona v. State,
52 S.W.3d 242, 249 (Tex. App.-El Paso 2001, no pet.).  Tamez  only limited the evidence of the
prior convictions to the stipulation itself.  Id.  The court of criminal appeals has determined that to
sustain a conviction for a felony DWI, the State must offer proof of two previous DWI convictions
during the guilt/innocence phase of the trial.  See Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim.
App. 1999).  If the evidence is admitted in the form of a stipulation, the stipulation should be
published to the jury so it can make its factual finding regarding those allegations after being
appropriately instructed by the trial court in the charge. (1) See Orona, 52 S.W.3d at 249.
	The issue of what can be admitted into evidence in a felony DWI trial in Texas arose out of 
the United States Supreme Court's opinion in Old Chief v. United States, 519 U.S. 172, 117 S. Ct.
644, 136 L. Ed. 2d 574 (1997).  In Old Chief, the defendant, charged with felon in possession of a
firearm, offered to stipulate that he had been previously convicted of a felony (assault causing serious
bodily injury), so that the jury need only consider whether he possessed a firearm and not know the
nature of the felony conviction.  Id. at 175, 117 S.Ct. at 648.  The Supreme Court held that because
the defendant was willing to stipulate to the felony conviction, the probative value of any extrinsic
evidence of the conviction was substantially outweighed by the danger of unfair prejudice.  Id. at
191,117 S.Ct. at 655.  It is important to note that the United States Supreme Court allowed evidence
of the prior felony to be submitted to the jury in the form of a stipulation.  Mewbourn, 993 S.W.3d
at 773.  Therefore, we hold the stipulation signed by McGuffey should have been introduced into
evidence and published to the jury.  No evidence of the two previous DWI convictions outside of
the stipulation would be admissible in the instant case.  The State's issue two is sustained.

Conclusion

	Because we have sustained the State's second issue, we need not address its third issue as
to the probative value of the two previous DWI convictions.  We remand this matter to the trial court
for further proceedings consistent with this opinion.


  JIM WORTHEN  
									   Justice

Opinion delivered January 16, 2002.
Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.


















 








(PUBLISH)
1.  For further discussion of the jury charge in a felony DWI case where the defendant has stipulated to two
previous DWI convictions, see Vanderhorst v. State, 52 S.W.3d 237(Tex. App.-Eastland 2001, no pet).

