Williams, Arthur ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-451-05

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ARTHUR WILLIAMS, Appellant

v.

THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS EL PASO COUNTY

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Per curiam.

O P I N I O N

A jury found Appellant guilty of felony driving while intoxicated and the trial court assessed punishment at ten years of community supervision and a fine of $1,000, probated. The Court of Appeals reversed the conviction, finding that the evidence was legally insufficient to support Appellant's conviction. Williams v. State, No. 08-03-00083-CR (Tex. App. -- El Paso 2005). The Court of Appeals held that the State offered no evidence of Appellant's prior convictions for driving while intoxicated, which would have elevated the primary offense to a felony. Appellant had stipulated to the prior convictions and the trial court granted his motion to preclude the State from presenting evidence of the convictions in its case-in-chief or mentioning Appellant's stipulation to the jury. The Court of Appeals concluded that the trial court's decision was made when the law regarding stipulations in felony DWI cases was in flux, and therefore, the decision to prohibit discussion of the stipulation was not invited error.

The State has filed a petition for discretionary review contending that the Court of Appeals erred to conclude that the evidence of Appellant's prior convictions was legally insufficient because Appellant induced the trial court to erroneously rule that his stipulation was sufficient proof of that element of the offense. The State argues that Appellant should be estopped from challenging the sufficiency of the element that made the charged offense a felony.

Recently, in Bryant v. State, S.W.3d (Tex. Crim. App. No. 672-04, delivered April 6, 2005), we addressed essentially the same issue. We concluded that the defendant's stipulation to his prior convictions was a judicial admission and that he thereby waived his right to put the State to its proof of that element. Id. slip op. at 12-13. The Court of Appeals in the instant case did not have the benefit of our opinion in Bryant. Accordingly, we grant ground one of the State's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals for consideration in light of our opinion in Bryant.

Delivered September 14, 2005

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