









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1940-05


RICHARD T. MARTIN, Appellant

v.


THE STATE OF TEXAS




ON THE STATE OF TEXAS'S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS

SAN JACINTO COUNTY



 Meyers, J., filed a dissenting opinion.

O P I N I O N


	In this case, a jury convicted Appellant of a felony DWI on the basis of a deficient
jury charge.  Although Appellant had stipulated before trial that he had been previously
convicted of two DWI offenses, this stipulation was not entered into evidence until the
punishment phase of the trial.  Furthermore, the trial judge did not charge the jury that, in
order to find him guilty of a felony DWI, it must first find that he had been convicted of
two prior DWI offenses.  While I agree with the majority that the jury should be
instructed about a defendant's stipulation to two jurisdictional prior convictions in order
to be convicted of the enhanced offense, (1) I disagree that it is the responsibility of the
defendant to object to the deficient jury charge.  As a result, I do not agree that it is
necessary to employ an Almanza (2) analysis in reviewing the omission of the jurisdictional
element and stipulation from the jury charge.
	It is incumbent upon the State to ensure that the trial court's jury charge conforms
to the offense for which it seeks conviction.  In the instant case, the State sought a felony
DWI conviction for Appellant, but the trial court failed to charge the jury on an essential
element which made the offense a felony-the two prior DWI convictions.  In Almanza,
we established the standard of review for unobjected-to jury-charge error, but this
precedent does not apply to the circumstances of the instant case because in Almanza, the
charge error was potentially detrimental to the defendant.  I know of no authority which
places the onus on the defendant to object to jury charge error that benefits him by
outlining the elements for a lesser offense.  The responsibility does not reside with the
defendant to make a jury charge correct; it rests with the State to voice an objection if the
trial court does not charge the jury with the offense presented in the indictment.
	In this case, it was the State that failed to secure a proper jury charge for the felony
it sought.  It is not the defendant's duty to object to the jury charge so that it conforms to
the State's indictment.  If the State wanted to obtain Appellant's conviction for a felony
DWI, it bore the responsibility of requesting a jury charge that included the prior
convictions to which Appellant had stipulated.  Since the State made no attempt to right
the jury charge, the verdict was lacking an essential element to convict Appellant of a
felony.  The jury found only those elements sufficient to secure a misdemeanor
conviction, and accordingly, the jury could not convict Appellant of the enhanced offense.
	I see no reason why a defendant would want to object to a jury charge which
allows the possibility of a lesser offense and shorter sentence.  The State may request
what it deems is the correct jury charge, but it is not our duty to bail it out when the trial
court mistakenly submits a jury charge that works to the advantage of a defendant.  To
hold otherwise discourages the State from being vigilant.  Just as we would not expect a
child who had been grounded for two weeks to remind his parents of the term of
punishment when granted a reprieve after one week, we should not expect a defendant to
participate in furthering his demise by voicing objection to an instruction that works in his
favor.
	The majority makes Appellant responsible for objecting to a jury charge which
benefitted him so that the trial court could instruct the jury on how to convict him of a
greater offense.  This is neither warranted by precedent or fair in our system of justice. 
Incidentally, even under Almanza, egregious harm surely exists where a jury convicts a
defendant of a felony upon evidence that constitutes only a misdemeanor.  Appellant's
sentence should be reformed to reflect the misdemeanor for which he was actually
convicted.
									Meyers, J.
Filed: June 28, 2006
Publish
1. In its opinion, the majority summarizes the status of the law with regard to stipulations in
DWI cases, noting in its sixth point that "the jury may be informed of the stipulation and any
written stipulation may be offered into evidence before the jury."  Maj. Op. at 9.  The majority
also notes that "the evidence is sufficient to support a defendant's conviction even if the
stipulation is not given or read to the jury."  Id.  Although the majority cites Hollen v. State, 117
S.W.3d 798, 801 (Tex. Crim. App. 2003), for this latter proposition-a case in which the
stipulation was admitted to the jury-we find no evidence for it in that opinion.
2. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).
