I harbor grave concerns that, under the current law, felony DWI defendants will be convicted solely on their prior alcohol related convictions rather than on the offense charged, even when the defendant stipulates to the jurisdictionally required prior convictions. The danger is great, I believe, because the prior convictions the State is required to prove are for similar offenses, any of the specified alcohol related offenses. These understandably arouse strong emotions, especially in those whose lives have been touched by preventable alcohol related accidents. However, the State's interest in enhancing to felony range the punishment for those who increase their odds of causing such fatalities by tempting fate behind the wheel must be balanced against the defendant's right to be convicted on evidence beyond a reasonable doubt regarding his commission of the underlying offense of driving while intoxicated at the alleged time and place.

This Court has previously, I believe rightly, held that where a defendant stipulates to the jurisdictional prior convictions, reading or introducing the stipulation to the jury is sufficient to meet the State's burden of proof, making extraneous evidence of the prior convictions, including the judgments, inadmissible under Texas Rule of Evidence 403. See Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002); Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000). The majority opinion, in this case, makes clear that the jury will in some manner be informed of the prior convictions, that some form of proof of those priors will be introduced into evidence, and that the State may comment on the evidence of the priors throughout the trial because, having been introduced, that evidence becomes proper grounds for jury argument.

I write to emphasize what the majority's opinion does not hold. It does not hold that the jury must be informed of the specific nature of the prior offense; Texas Penal Code 49.09 requires only that the priors be among several specified alcohol related offenses which could be innocuously referred to by code section instead of by name. As the majority recognizes, the appellant did not object to the specific wording of the indictment, the stipulation, the State's references to the stipulation, or the instructions in the jury charge.

In the same vein, the majority does not hold that all references to the prior conviction evidence, regardless of context, is proper jury argument. Because proof of the prior convictions will be in evidence, that proof is properly the subject matter for proper jury argument: summation of evidence, reasonable deductions drawn from that evidence, answers to opposing counsel's argument, and a plea for law enforcement. See Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000)(four areas of proper jury argument). That does not mean the State can refer to the proof in an inappropriate context, such as suggesting that the jury should find the defendant guilty of the current charge of DWI because he was already found twice guilty of a similar offense, or that the jury should take the prior convictions into account when considering whether there is a reasonable doubt the defendant was intoxicated on the date in question while operating a motor vehicle.

The majority also does not hold that repeated emphasis regarding the prior convictions, when stipulated, could not amount to error although the proof of the priors would generally be proper subject matter for jury argument.

Because the majority opinion does not so hold, there is still room to determine the balance that exists under current law between the State's burden of proof in a felony DWI and the defendant's right to be convicted of the crime charged on proof beyond a reasonable doubt. However, the majority opinion does hold that the allegations of the jurisdictional priors may be read as part of the indictment to the jury at guilt -innocence, that proof of the priors must be admitted into evidence even when the defendant stipulates to them, that the State may refer to the proof of the prior convictions, and that the jury instructions may instruct the jury on making a finding of the jurisdictional element based on the stipulation. Thus, even if minimized by the holdings of future cases, the risk of a verdict rendered on an improper basis remains. It is inherent in the legislature's method of enhancing the punishment for repeat offenders of certain alcohol related misdemeanor offenses, including drunk driving, to the ranges provided for felonies by creating a felony offense with two prior convictions as elements of the offense. As far as I am aware, this issue has only arisen in the context of felony prosecutions under Texas Penal Code 49.09.

I recognize that within the current criminal justice system of bifurcated trials and various court jurisdictions for misdemeanor and felony offenses the legislature is limited in the methods available to achieve its goal of significantly enhancing punishment for repetition of such alcohol related offenses. However, I would urge the legislature to revise the Penal Code to eliminate the risk of an improper verdict based on prejudice introduced by jurisdictional elements of the offense, and somehow provide, rather, that evidence of the prior convictions be admissible, except for purposes recognized by the Texas Rules of Evidence, only at punishment via an enhancement provision.

Because I believe the majority's limited holding is, regretfully, correct under the current law, I concur in the judgment only.

FILED SEPTEMBER 10, 2003.

PUBLISH