








IN THE
TENTH COURT OF APPEALS
 

No. 10-01-00280-CR

     CLARENCE RANDOLPH BRYANT,
                                                                         Appellant
     v.

     THE STATE OF TEXAS,
                                                                         Appellee
 

From the 220th District Court
Bosque County, Texas
Trial Court # 13,398
                                                                                                                
                                                                                                         
DISSENTING OPINION
                                                                                                                

      Sometimes we do not see what is obvious.  At other times, we see only what people tell us
is there.  There is an old adage:  when something is obvious but overlooked, “It is hard to see
the forest for the trees.”  Likewise, if you stand blindfolded in the middle of a pasture and
everyone around you, who is not blindfolded, tells you that all they see are trees, you will not
see that there are no trees.  That is, you will not see there are no trees until you take off the
blindfold. 
      We are in the middle of a case, and everyone is saying “Tamez.”  Tamez v. State, 11
S.W.3d 198 (Tex. Crim. App. 2000).  It is time to take off the blindfold.  There is no Tamez. 
      This case is not about the forest of Tamez at all.  But to see this, we must step away from
Tamez, step away from Hollen
, step away from Robles
, and even step away from Old Chief
. 
“What we’ve got here is...[a] failure to communicate.”  Cool Hand Luke (Warner Studios
1967) (motion picture).
      Old Chief and the entirety of its Texas progeny do not directly relate to what happened to
Bryant.  In Old Chief, Tamez, etc., the defendant wanted something that he did not get.  In Old
Chief, the defendant wanted to keep the prosecutor from introducing the judgment regarding an
extraneous offense.  The extraneous offense made the possession of a firearm illegal for him. 
Old Chief wanted to stipulate that he had previously been convicted of a felony offense.  He
did not want the jury to know that it was for a fight, and that the fight involved a gun.  Facts
the jury would know if the judgment from the earlier conviction was admitted into evidence.
      Old Chief did not get what he wanted from the trial court.  Ultimately, the United States
Supreme Court held Old Chief’s offer to stipulate should have been accepted and the judgment
should not have been admitted into evidence because, given Old Chief’s stipulation of the
element, the judgment’s probative value was substantially outweighed by the danger of unfair
prejudice.  This was purely an analysis of an evidentiary rule; Federal Rule of Evidence 403. 
Under appropriate circumstances, defendants are now permitted to substitute a stipulation for
the government’s ability to introduce the judgment.
      Tamez likewise wanted to stipulate.  Despite his offer to stipulate to two prior DWI
convictions, an indictment alleging six prior DWI convictions was read to the jury and the
judgments of all six convictions were introduced into evidence.  Tamez, 11 S.W.3d at 199. 
The Court of Criminal Appeals held that if a defendant offers to stipulate to the two prior
convictions necessary to confer jurisdiction, convictions other than the two needed for the
jurisdictional element should not be read or proven during the State’s case-in-chief.  Id. at 202-203.
      The problem in these stipulation cases quickly gravitated to whether the stipulation of
prior offenses was itself admissible.  The defendants consistently wanted to keep the stipulation
out, and the prosecutors wanted it admitted into evidence before the factfinder.  Finally that
issue has been put to rest.  The State may introduce the stipulation into evidence to prove the
jurisdictional element of two prior DWI related convictions.  Hollen v. State, 117 S.W.3d 798,
802 (Tex. Crim. App. 2003).
      Bryant’s case also involves a stipulation regarding prior DWI convictions.  So why is this
case not controlled by Old Chief, Tamez, and their progeny?  Because in this case, unlike the
other cases, Bryant got what he wanted.  The stipulation regarding prior convictions was not
discussed in front of the jury, just as he wanted.  It was not even admitted into evidence in the
jury’s presence, just as he wanted.  So what is the effect of the stipulation?  It was clearly
made.  It was clearly accepted by the State.  It was clearly presented to the trial court. It was
clearly placed before the jury.  The stipulation was before the jury in the form of an instruction
in the charge.  Possibly the manner of its inclusion in the charge may have been improper, but
Bryant does not complain about that.  It may be that the instruction to find that element against
Bryant was improper, but Bryant does not complain about that.  Bryant received everything he
asked for, except an acquittal.  Now he is getting his acquittal from this Court.
      This case takes us squarely into the grounds plowed by Justice O’Connor in her dissenting
opinion in Old Chief.  Old Chief v. U.S., 519 U.S. 172, 192-201, 117 S.Ct. 644, 656-660, 136
L.Ed.2d 574 (1997).  Each new rule that makes such a pervasive change impacts the law like a
rock thrown into a pond.  The rock causes ripples in ever expanding circles.  The first major
ripple, actually more of a wave, became whether a stipulation of prior offenses by the
defendant could be introduced into evidence by the State.  While Tamez is the Texas case that
told the State the courts will follow Old Chief, remember it was just an evidentiary rule, 
Hollen is the case that finally answered the question of whether the State could introduce the
stipulation.  See Hollen v. State, 117 S.W.3d 798 (Tex. Crim. App. 2003).
      We now must deal with another ripple caused by Old Chief and Tamez.  The specific issue
is what happens if the defendant’s stipulation is accepted by the State as a partial plea and the
jury is so charged.  While a partial plea cannot be compelled upon the State, can it be accepted
by the State because that is what the defendant wanted.  In this case, that is what Bryant
requested.  That is what he got.  And now he wants to complain on appeal that the State failed
to prove its case when he stipulated to the very element he complains the State failed to prove.
      You see, what we have is the other side of the Old Chief coin.  We have the very issue
raised by the dissent in Old Chief and to which the Court offered no guidance; that is, when
the defendant successfully excludes the stipulation of an element of the offense from evidence,
what has actually happened?  Has the defendant pled guilty to an element of an offense?  Can a
defendant do that in Texas?  Is it constitutionally permissible?  Must the jury be advised of the
stipulation?  If so, how?  Can the trial court give an instructed verdict on an element like the
trial court does on guilt/innocence when only punishment is going to the jury?
      Or is this something that relieves the prosecutor of admitting evidence of an element? 
After all, it is said that a stipulation is evidence.  Hollen, 117 S.W.3d at 802.  The jury only
has to be informed of the contents of the stipulation.  Old Chief, 519 U.S. at 191.  Must the
stipulation actually be introduced into evidence or must the jury only be advised of it?  We
know that the stipulation can be introduced into evidence, but the question now is must it be
admitted as evidence in the presence of the jury.  If the jury can be advised of it, without it
being formally introduced into evidence, and the jury is informed in the charge of the contents
of the stipulation, why would it have to be introduced into evidence?  If the stipulation is of an
element of the offense, can the jury be instructed regarding the effect of the stipulation?  Can
the jury be instructed to accept the stipulation?
  If the jury cannot be instructed about the
effect of the stipulation, or about a finding of the element, but the charge nevertheless does so
inform or instruct, is that charge error or is it a failure of proof?  Is this a waiver of a jury trial
on an element of the offense?  
      This case brings me to an observation.  An observation that occurred to me as I was
reading Justice O’Connor’s dissenting opinion (which was joined by three other Justices,
including Chief Justice Rehnquist) wherein she reminded the reader that the jury is presumed
to follow their instructions.  Old Chief, 519 U.S. at 196 (O’Connor, J., dissenting)(citing
Shannon v. United States, 512 U.S. 573, 585 114 S.Ct. 2419, 2427, 129 L.Ed.2d 459 (1994)). 
When a majority of the United States Supreme Court has accepted the notion that a jury
cannot, will not, or may not follow the charge, we have been forced into a quagmire of epic
proportion.  The two areas that immediately come to mind are Old Chief stipulations, because,
according to the Court, the jury cannot be trusted to limit the use of the evidence of other
convictions only to the finding of the elements related to prior offenses and not as improper
propensity evidence, and Sansone/Royster/Rousseau
 instructions on lesser included offenses,
because, according to the Court, the jury cannot be trusted to acquit on the greater charge if
the government fails to prove its case and the lesser offense is not included in the charge; the
argument being that the jury simply convicts on the greater, but unproven, charge rather than
acquit.
      As intermediate state appellate courts, we have to deal with the inevitable ripple effects of
this rejection of one of the most fundamental tenants of our jury system.  Our judicial system is
based upon the fundamental belief that juries are able to make the tough calls regarding
determining disputed issues of fact and, in doing this, they follow the instructions of the court. 
When the foundation for this belief is rejected by a new rule, without giving any guidance as to
the scope of the rule, we, the courts at this level and especially the trial courts, are forced to
flail around in the dark until a sufficient number of cases are tried, giving rise to a variety of
fact patterns and appeals, before the scope of the new rule is fully understood.  
      It is not my job to second guess the United States Supreme Court’s rejection of the belief
in the jury system.  And I do not shy away from the tough cases which determine the scope of
a new rule.  But Bryant should not be allowed to escape punishment for the offense as we
develop the scope of the new rule.  He asked for something.  He got it.  Now he complains
that what he got resulted in a failure of the State to prove him guilty.  How could that lead to
his acquittal?  There may be error in directing a verdict on an element based upon a
stipulation, but the jury was informed of the stipulation.  And as a substitute for evidence, it
should not have to be introduced into evidence because, contrary to Bryant’s assertions in this
issue, the jury was informed of the stipulation’s contents.
      The jury found Bryant guilty of the offense.  I would overrule his specific complaint and
affirm the conviction.  Because the Court does not, I respectfully dissent.
 
                                                                   TOM GRAY
                                                                   Chief Justice

Dissenting opinion delivered and filed March 10, 2004
