                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-17-00343-CR

ERNEST BROWN,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2016-1506-C1


                          MEMORANDUM OPINION


      In two issues, appellant, Ernest Brown, challenges his conviction for felony driving

while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2017). Specifically,

Brown contends that the trial court erred by: (1) instructing the jury to find him guilty

on an element of the offense; and (2) allowing the mention and admission of proof of his
two prior convictions for DWI. Because we overrule both of Brown’s issues, we affirm

the judgment of the trial court.1

                                        I.       JURY INSTRUCTIONS

       In his first issue, Brown argues that the trial court erred by instructing the jury to

find the jurisdictional element—his two prior convictions for DWI—“established.”

Brown asserts that this instruction was tantamount to a directed verdict on an element of

the offense that constitutes structural error and a denial of his right to a unanimous

verdict. We disagree.

A.     Standard of Review

       In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly

preserved by objection, as was the case here, reversal will be necessary if there is some

harm to the accused from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985). To obtain a reversal for jury-charge error, Brown must have suffered actual

harm and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex.

Crim. App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

B.     Discussion


       1   In light of our disposition, we dismiss all pending motions as moot.

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       In analyzing this issue, we must look at the language contained in the jury charge.

The relevant portion of the jury charge provides as follows:

                                      ELEMENTS

   1. On or about the 8th day of August, 2016;

   2. In McLennan County, Texas;

   3. The Defendant, ERNEST BROWN;

   4. Did then and there operate a motor vehicle in a public place;

   5. While the said Defendant was intoxicated; and

   6. The Defendant was convicted prior to the commission of the alleged
      offense, on February 16, 2016, in Cause No. 20060295CR1 in the County
      Court at Law No. 1 of McLennan County, Texas, of an offense relating to
      the operation of a motor vehicle while intoxicated; and on June 4, 2012, in
      Cause No. 12-06-19459-CR in the 82nd District Court of Robertson County,
      Texas, the Defendant was convicted of an offense relating to the operating
      of a motor vehicle while intoxicated.

                                     STIPULATION

       The Defendant has stipulated to the prior convictions set out in element
       number Six (6). Thus[,] the jury is directed to find that Element number Six
       (6) of Driving While Intoxicated (Enhanced) is established.

       You are further instructed that these prior convictions may not be used for
       any other purpose in determining the Guilt or Innocence of the defendant
       on this charge. They may not be used to suggest that, because the
       Defendant committed Intoxication offenses in the past, he is more likely to
       have committed the presently charged Intoxication offense.

On appeal, Brown complains specifically about the “STIPULATION” section and the

language directing the jury to determine that element six is “established.”


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       A jury charge must distinctly set forth the law applicable to the case and set
       out all of the essential elements of the offense. This requirement includes
       jurisdictional elements. Thus, the jury charge must inform the jury of the
       existence of the two prior DWI convictions that the defendant has
       stipulated to and that the State relies upon for conviction of a felony DWI
       offense.

Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App. 2006). The Martin Court also

provided the following summary of the status of the law when a defendant offers to

stipulate to the two jurisdictional prior DWI convictions in the felony DWI trial:

       1) The State must plead two jurisdictional prior DWI convictions in a
          felony DWI indictment; it is the indictment that confers jurisdiction in
          the district court;

       2) The State may (but it is not required to) read the entire indictment,
          including the two jurisdictional allegations (but only those two), in
          arraigning the defendant in the presence of the jury;

       3) Both the State and the defense may voir dire the jury concerning the
          range of punishment for both a felony and misdemeanor DWI;

       4) Nothing in the law requires that the jury be informed of the particulars
          of the prior convictions in reading the indictment, voir dire, opening or
          closing arguments or in the jury charge itself;

       5) A defendant’s stipulation to the two prior DWIs, being in the nature of
          a judicial admission, has the legal effect of removing the jurisdictional
          element from contention; a defendant may not offer evidence or
          argument in opposition to his stipulation;

       6) During the trial, the jury may be informed of the stipulation and any
          written stipulation may be offered into evidence before the jury, but the
          evidence is sufficient to support a defendant’s conviction even if the
          stipulation is not given or read to the jury;




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       7) In a bench trial, the guilt and punishment stages are not bifurcated, so
          the State is not required to offer the stipulation during the initial portion
          of the hearing, even if the proceeding is improperly bifurcated.

           To that list, we now add:

       8) The jury charge must include some reference to the jurisdictional
          element of two prior DWI convictions in a felony DWI trial;

       9) The jury charge must include some reference to the defendant’s
          stipulation and its legal effect of establishing the jurisdictional element.

       10) Any error in failing to include, in the jury charge, some reference to the
           jurisdictional element and the stipulation is analyzed under Almanza.

Id. at 640-41 (emphasis in original) (citations omitted).

       Based on our review of the charge and the Martin decision from the Court of

Criminal Appeals, we cannot conclude that the complained-of instruction is erroneous.

See id. at 639-41 (“The trial court can instruct the jury about the stipulated prior

convictions in any of several different ways. One way is to include the specific indictment

allegations of the two prior DWI convictions in the application paragraph with a separate

paragraph stating that the defendant has stipulated to the existence of those two prior

convictions, thus that jurisdictional element has been established.”). The application

section of the charge appropriately referenced Brown’s stipulation to his two prior

convictions for DWI and the legal effect of “establishing the jurisdictional element.” See

id. at 639-41.

       Furthermore, because Brown’s stipulation amounted to a judicial admission, it

removed the need for proof of his prior convictions for driving while intoxicated and
Brown v. State                                                                            Page 5
eliminated the issue for jury consideration; thus, we disagree that this instruction

amounted to an impermissible directed verdict on an element of the charged offense. See

id. at 640-41; see also Bryant v. State, 187 S.W.3d 397, 402 (Tex. Crim. App. 2005) (“Bryant

stipulated to his prior convictions. This was a judicial admission which removed the

need for proof of those convictions. By entering into that stipulation, Bryant waived ‘his

right to put the government to its proof of that element.’” (quoting United States v.

Harrison, 204 F.3d 236, 240 (D.C. Cir. 2000))).

       And to the extent that Brown argues against Martin, we note that this Court, as an

intermediate appellate court in the State of Texas, is bound to follow decisions issued by

the Court of Criminal Appeals. See State v. Nelson, 530 S.W.3d 186, 189-90 (Tex. App.—

Waco 2016, no pet.); see also TEX. CONST. art. V, § 5(a); Wiley v. State, 112 S.W.3d 173, 175

(Tex. Crim. App. 2003) (“But it is not within the scope of the Court of Appeals’ powers to

override a decision of the Court of Criminal Appeals because it conflicts with other

decisions of that Court. It is axiomatic that a Court of Appeals has no power to ‘overrule

or circumvent [the] decisions, or disobey [the] mandates,’ of the Court of Criminal

Appeals.” (quoting State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App.

1971), cert. denied, 404 U.S. 910, 92 S. Ct. 226, 30 L. Ed. 2d 182 (1971))); Purchase v. State, 84

S.W.3d 696, 701 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (noting that an

intermediate court of appeals is bound to follow the precedent of the Court of Criminal

Appeals). And to our knowledge, the Martin decision is still good law in Texas.


Brown v. State                                                                             Page 6
       Because we cannot conclude that the complained-of jury instruction is erroneous,

we need not address harm associated with the purported jury-charge error.                See

Middleton, 125 S.W.3d at 453-54; see also Hutch, 922 S.W.2d at 170. We therefore overrule

Brown’s first issue.

                 II.   EVIDENCE OF BROWN’S TWO PRIOR CONVICTIONS FOR DWI

       In his second issue, Brown contends that the trial court erred by allowing the

mention and admission of proof of his two prior convictions for DWI. Because he

stipulated to these convictions, Brown alleges that any additional mention of the prior

convictions amounted to inadmissible propensity evidence.

       As noted earlier, the Court of Criminal Appeals, in Martin, stated that “the jury

may be informed of the stipulation and any written stipulation may be offered into

evidence before the jury . . . .” 200 S.W.3d at 640; see Hollen v. State, 117 S.W.3d 798, 802

(Tex. Crim. App. 2003) (“Thus, this Court’s cases already suggest that the jury should be

informed of the stipulation, as the two prior convictions are elements of the offense that

must be proved to the factfinder—in this case the jury—to establish the offense of felony

DWI. . . . From this discussion, we conclude that it was not error to inform the jury of the

stipulation. And because the stipulation is a form of evidence, the trial court did not err

in ‘admitting’ the stipulation.”). Therefore, in light of Martin and Hollen, we cannot

conclude that the trial court abused its discretion by allowing the jury to be informed of

the stipulation or by “admitting” evidence of the stipulation. See Martin, 200 S.W.3d at


Brown v. State                                                                         Page 7
640; Hollen, 117 S.W.3d at 802; see also McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim.

App. 2005) (“In determining whether a trial court erred in admitting evidence, the

standard of review is abuse of discretion. A trial court abuses its discretion when its

decision is so clearly wrong as to lie outside the zone within which reasonable persons

might disagree.” (internal footnotes omitted)).

        Moreover, we note that the jury charge included an instruction in the stipulation

section that specifically noted the following:

        You are further instructed that these prior convictions may not be used for
        any other purpose in determining the Guilt or Innocence of the defendant
        on this charge. They may not be used to suggest that, because the
        Defendant committed Intoxication offenses in the past, he is more likely to
        have committed the presently charged Intoxication offense.

Nothing in the record suggests that the jury disregarded or was confused by this

instruction or that the jury improperly considered Brown’s prior DWI convictions as

propensity evidence.2 See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003)

(“We presume the jury follows the trial court’s instructions.” (citing Colburn v. State, 966

S.W.2d 511, 520 (Tex. Crim. App. 1998))); see also Williams v. State, 937 S.W.2d 479, 490

(Tex. Crim. App. 1996) (“[W]e assume that the jury would follow the instruction as given,



        2 This conclusion is supported by overwhelming evidence of guilt, which included testimony from
the arresting officer, McLennan County Sheriff’s Department Deputy Jeremy Bost, that Brown smelled of
alcohol at the time of the stop. Brown also had red, glassy, and bloodshot eyes and performed poorly on
the standardized field-sobriety tests. Deputy Bost also found a half-full can of cold beer upright on the
back floorboard of the vehicle, and Brown was unable to clearly state where he was going at the time of the
stop. Brown claimed to be heading to the hospital to visit a family member, but he did not know the name
of the hospital or where it was located. Additionally, Brown blew a .111 and a .107 on the breath test
administered at the jail.

Brown v. State                                                                                      Page 8
and we will not reverse in the absence of evidence that the jury was actually confused by

the charge.”). Therefore, based on the foregoing, we reject Brown’s argument in this

issue. Accordingly, we overrule Brown’s second issue.

                                    III.   CONCLUSION

       Having overruled both of Brown’s issues, we affirm the judgment of the trial court.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed October 10, 2018
Do not publish
[CR25]




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