O P I N I O NThe State of Texas charged Jose Hernandez-Javier, Appellant, by indictment with the offense of Driving While Intoxicated (DWI), which was enhanced by two additional prior DWI convictions pursuant to Tex. Penal Code Ann. § 49.09(b)(2) (West Supp. 2017). A jury found Hernandez-Javier guilty, and the trial court sentenced him to two years’ imprisonment. In his sole issue, Hernandez-Javier appeals his conviction. We affirm.[1]FACTUAL AND PROCEDURAL BACKGROUNDOn May 3, 2014, Hernandez-Javier was arrested for suspicion of DWI following a traffic stop initiated by a Texas Department of Public Safety trooper assigned to the Highway Patrol Division. The State later charged Hernandez-Javier by indictment with the offense of Driving While Intoxicated (DWI), which was enhanced to a third-degree felony by two prior DWI convictions pursuant to Tex. Penal Code Ann. § 49.09(b)(2). At trial, the trial court admitted State’s Exhibit 1, a stipulation of evidence signed by Hernandez-Javier pertaining to his two previous convictions for DWI offenses. After opening statements, the State read the stipulation to the jury. The jury convicted Hernandez-Javier, and the trial court sentenced him to two years’ imprisonment.DISCUSSIONIn his sole issue, Hernandez-Javier contends that he was deprived of due process by the use of his prior convictions for driving while intoxicated during the guilt-innocence phase of the trial. In particular, he argues that his Fourteenth Amendment rights to due process were violated by the State informing the jury of his prior convictions during the guilt-innocence phase of his trial, even though these convictions were limited by stipulation under Section 49.09(b) of the Texas Penal Code. U.S. Const. amend XIV.General Law and ApplicationDue process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Zellmar v. State, No. 03-16-00315-CR, 2017 WL 3222407, at *2 (Tex. App — Austin Jul. 25, 2017, pet. dism’d) (citing Jackson v. Virginia, 443 U.S. 307, 315-316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979); Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)). Section 49.09(b) reads, in pertinent part, “[a]n offense under Section 49.04 . . . is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted . . . two times of any other offense relating to the operating of a motor vehicle while intoxicated .. . .” Tex. Penal Code Ann. § 49.09(b)(2). To satisfy the elements and establish that a person committed an offense under Section 49.09(b)(2), the State must prove that (1) he or she operated a motor vehicle in a public place; and (2) that he or she had twice before been previously convicted of a DWI offense. See Zellmar, 2017 WL 3222407, at *3. Prior convictions for DWI are considered jurisdictional elements of the offense which must be pleaded in the indictment and included in jury instructions, and proved during the guilt-innocence phase of trial. Luedke v. State, 711 S.W.2d 657, 659 (Tex. Crim. App. 1986); Orona v. State, 52 S.W.3d 242, 246-47 (Tex. App.—El Paso 2001, no pet.). These convictions are considered “jurisdictional” in that they must be alleged in the indictment for the trial court to establish jurisdiction. Tamez v. State, 11 S.W.3d 198, 201 (Tex. Crim. App. 2000); Orona, 52 S.W.3d at 246. These convictions are not considered enhancement allegations. Maibauer v. State, 968 S.W.2d 502, 507 (Tex. App.—Waco 1998, pet. ref’d). Although it is not jurisdictional, the State is also required to read the indictment, including the allegations related to the prior convictions, during the guilt-innocence phase of the trial. Orona, 52 S.W.3d at 246-47 (citing Tamez, 11 S.W.3d at 201; Tex. Code Crim. Proc. Ann. art. 36.01 (West 2007)). This requirement applies to the prior two convictions for DWI in a case implicating Section 49.09(b). See Zellmar, 2017 WL 3222407, at *3; Martin v. State, 200 S.W.3d 635, 638-39 (Tex. Crim. App. 2006); Orona, 52 S.W.3d at 246-47.The rationale for introducing stipulations of a defendant’s prior DWI convictions is simple: the information regarding prior convictions is limited to what is necessary to establish jurisdiction for the charge of felony DWI, and efforts are made to prevent a jury from misusing the evidence of prior conviction. Martin, 200 S.W.3d at 638 (citing Tamez v. State, 11 S.W.3d 198, 202-03 (Tex. Crim. App. 2000)). Courts have repeatedly rejected the notion that introducing these stipulations during the guilt-innocence phase of trial violates due process, and they have likewise rejected Appellant’s argument based on Old Chief v. United States, 519 U.S. 172, 117 S Ct. 644, 136 L.Ed.2d 574 (1997). See, e.g., Tamez, 980 S.W.2d at 847-48; Maibauer, 968 S.W.2d at 507; Hampton v. State, 977 S.W.2d 467, 469 (Tex. App.—Texarkana 1998, pet. ref’d); Davis v. State, No. 03-98-00145-CR, 1999 WL 699762, at *2-3 (Tex. App—Austin Sep. 10, 1999, pet. ref’d). In Old Chief, the Supreme Court held that the federal version of Rule 403 was violated when the defendant offered to stipulate to the existence of a prior conviction and the government refused to join in the stipulation, instead introducing more particular evidence regarding the prior conviction beyond that of its mere existence. Old Chief, 519 U.S. at 177, 117 S.Ct. at 648-49. The Supreme Court concluded that the probative value of the details of the previous conviction was substantially outweighed by the risk of unfair prejudice. Id. at 190-92, 117 S.Ct. at 654-56.Here, the State introduced Hernandez-Javier’s signed stipulation as State’s Exhibit 1, and then read the stipulation to the jury after opening statements had concluded. The stipulation itself contained nothing more than the date and cause numbers of two prior DWI convictions, and the county and trial courts from which these convictions originated. Thus, it was proper for the State to read the stipulations during opening statements, and even if trial counsel for Hernandez-Javier had objected, it would have been groundless. See Davis, 1999 WL 699762, at *3. Since the State did not elucidate anything more specific than the mere existence of Hernandez-Javier’s prior convictions during trial, Old Chief is inapplicable and due process was not violated. See id.; Old Chief, 519 U.S. at 177, 117 S.Ct. at 648-49.CONCLUSIONBecause the admission and reading of the stipulation to Hernandez-Javier’s prior convictions is required by law, and because Old Chief is inapplicable here, we reject Appellant’s argument that the introduction of the stipulation violated his right to due process. We overrule Hernandez-Javier’s sole issue and affirm the judgment of the trial court.GINA M. PALAFOX, JusticeMarch 14, 2018Before McClure, C.J., Rodriguez, and Palafox, JJ.(Do Not Publish)
