      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00258-CR



                                     David Pratte, Appellant

                                                  v.

                                   The State of Texas, Appellee


              FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
            NO. 2C98-5654, HONORABLE JOHN MISCHTIAN, JUDGE PRESIDING


                             MEMORANDUM OPINION


               A jury convicted appellant David Pratte of misdemeanor driving while intoxicated

(“DWI”), second offense, and the trial court sentenced him to one year in jail and a $500 fine. See

Tex. Penal Code Ann. § 49.04 (West 2003), § 49.09(a) (West Supp. 2008). In two issues, Pratte

complains that the State should not have been allowed to read the part of the charging information

alleging a prior conviction for DWI and that the trial court erred in ruling that Pratte’s failure to

appear was admissible as evidence of flight. We affirm the judgment of conviction.

               The trial court overruled Pratte’s objection to the reading of the part of the

information alleging a prior DWI offense, saying, “[W]e’re going to object on the grounds that this

court has jurisdiction, whether it’s a first DWI or a second DWI, and that the reading of the previous

DWI conviction would be prejudicial and serves no purpose for jurisdiction in this court.” On

appeal, Pratte argues that second-offense DWI is not a separate offense from first-offense DWI and

“is instead an enhanced punishment for” DWI.
               Article 36.01 of the code of criminal procedure requires a charging instrument to be

read to the jury, but “[w]hen prior convictions are alleged for purposes of enhancement only and are

not jurisdictional, that portion of the indictment or information reciting such convictions shall not

be read until the hearing on punishment.” Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (West 2007).1

However, Pratte stipulated without objection and in the jury’s presence to his prior DWI conviction

after the information was read and before the State called its first witness. Therefore, as in Love

v. State, the “identical prejudicial fact of the prior conviction” was admitted into evidence without

objection, and we conclude that the asserted error did not contribute to Pratte’s conviction. See

833 S.W.2d 264, 266 (Tex. App.—Austin 1992, pet. ref’d). We overrule Pratte’s first issue.


       1
           The purpose of article 36.01(a)(1) is to prevent prejudice against the defendant from the
outset of the trial. Love v. State, 833 S.W.2d 264, 266 (Tex. App.—Austin 1992, pet. ref’d) (quoting
Frausto v. State, 642 S.W.2d 506, 508 (Tex. Crim. App. 1982)). However, section 49.09 of the
penal code, titled, “Enhanced Offenses and Punishments,” provides that DWI, usually a
Class B misdemeanor, is instead a Class A misdemeanor if the defendant has one prior
DWI conviction. Tex. Penal Code Ann. § 49.09(a) (West Supp. 2008) (emphasis added); see Gibson
v. State, 995 S.W.2d 693, 695-96 (Tex. Crim. App. 1999). Thus, the allegation of Pratte’s prior
conviction was necessary to establish this offense as a Class A misdemeanor, and the prior
conviction arguably is an “element[] of the offense” that “define[s] the offense” as alleged. See
Gibson, 995 S.W.2d at 696.

        However, because Class A and Class B misdemeanors are heard by the same court, see
Tex. Code Crim. Proc. Ann. art. 4.07 (West 2005), no issue arose as to the county court’s
jurisdiction, and article 36.01(a)(1) would seem to bar the reading of the prior-conviction portion of
the information. See Wood v. State, 260 S.W.3d 146, 148-49 (Tex. App.—Houston [1st Dist.] 2008,
no pet. h.) (State admitted “that reading the enhancement paragraph to the jury during the
guilt-innocence phase was improper”); see also State v. Morgan, 160 S.W.3d 1, 4 (Tex. Crim.
App. 2004) (discussing penal code section 49.09 as one of two “statutes providing for potentially
increased punishment in the case of a person’s second offense of driving while intoxicated”
(emphasis added)). But see Mapes v. State, 187 S.W.3d 655, 659 (Tex. App.—Houston [14th Dist.]
2006, pet. ref’d) (citing Gibson, 995 S.W.2d at 696) (“Texas courts have drawn a clear distinction
between enhancement of a punishment and enhancement of a DWI offense”). Because we conclude
that no harm resulted from the jury being read the prior-conviction portion of the information, we
need not resolve this issue.

                                                  2
                Pratte next contends that allowing the State to present evidence of his failure to

appear was reversible error. He concedes that evidence of flight or escape from the scene is

admissible as evidence of guilt, but argues that he “was not escaping or fleeing from the scene of the

crime when he allegedly failed to appear in court.” We disagree.

                Pratte was charged in 1998 of the subject offense of DWI, second offense, and was

released on bond in October 1998. Nothing further was filed in the clerk’s record until 2008. At a

2008 pretrial hearing on the State’s motion in limine, the State said, “I plan on calling the court

coordinator to testify why this case is 10 years old; the fact that Mr. Pratte didn’t show up for court;

that he—in fact, his bond was forfeited, and did not get back in our system until sometime back in

2007.” Pratte responded, “I don’t see how that’s not extremely prejudicial. And I’m not aware of

any resulting conviction from the failure to appear or an actual confirmation of bond jumping. So

I don’t think that issue has been resolved.” The trial court overruled Pratte’s objection and

proceeded to voir dire. At trial, the State called the court coordinator, who testified that Pratte’s

bond was forfeited after he failed to appear on December 10, 1999; she had no personal knowledge

about why Pratte failed to appear. The State admitted into evidence a judgment nisi reciting that

Pratte had not appeared in December 1999 and that his bond was therefore forfeited.

                “The forfeiture of an accused’s bail bond may be proved as tending to show flight,”

and “flight, in the context of bail-jumping, may be construed as evidence of guilt.” Cantrell v. State,

731 S.W.2d 84, 93 (Tex. Crim. App. 1987); see Logan v. State, 510 S.W.2d 598, 600 (Tex. Crim.

App. 1974); Guajardo v. State, 378 S.W.2d 853, 856 (Tex. Crim. App. 1964); Hyde v. State,

846 S.W.2d 503, 505 (Tex. App.—Corpus Christi 1993, pet. ref’d). “To exclude evidence of flight,

the defendant has the burden to affirmatively show that the flight is directly connected to some other

                                                   3
transaction that is not connected with the offense on trial.” Hyde, 846 S.W.2d at 505 (citing

Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex. Crim. App. 1975)).

               Evidence that Pratte failed to appear in 1999 and that his bond was forfeited was

relevant and admissible as evidence of guilt. See Cantrell, 731 S.W.2d at 93; Hyde, 846 S.W.2d at

505; see also Tex. R. Evid. 402 (relevant evidence generally admissible). Pratte did not present any

evidence showing that his failure to appear was not flight from prosecution. See Hyde, 846 S.W.2d

at 505. On appeal he presents no argument that the probative value of the evidence was substantially

outweighed by its prejudicial effect, see Tex. R. Evid. 403. Pratte therefore has not shown that the

trial court abused its discretion or committed reversible error in admitting the evidence. See Tex. R.

App. P. 44.2(b); see also Nelson v. State, No. 03-05-00711-CR, 2006 Tex. App. LEXIS 8059, at *10

(Tex. App.—Austin Sept. 8, 2006, no pet.) (mem. op., not designated for publication) (weighing

admission of flight under rule 403). We overrule Pratte’s second issue.

               Having overruled Pratte’s issues, we affirm the trial court’s judgment of conviction.



                                               ___________________________________________

                                               David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Affirmed

Filed: December 31, 2008

Do Not Publish




                                                  4
