*1 premises, it does follow to in admission of charge, the same etration error extent that premise the first accurate. testimony is the experts’ was harmless. The That if expert manipu- an testified that judgment Appeals of the Court of is re- usually lated children exhibit certain char- versed, and the trial court’s acteristics, jury then a predict could affirmed. probably testify that a expert would particular child who did not exhibit those JOHNSON, JJ., concurred PRICE So, not manipulated. characteristics was in the result. of whether the conclusion is regardless HOLCOMB, J., dissented. “ineluctable,” there is at least reduced expert’s improper likelihood that an testi-
mony about his conclusion would influence jury beyond proper of his power the ex-
testimony premises. To experts’
tent conclusions followed premises,
from their was less
likely improperly to be influenced an explicit already statement of what was im- Ray BARFIELD, Appellant, Lonnie testimony. in the plicit addition, testimony there from was mother that the victim was a victim’s of Texas. The STATE testimony person, truthful and there was No. 1303-99. from defense witnesses truthful, person peaceful, law-abiding Texas, Appeals of Criminal Court unnatural tenden- who exhibited no sexual En Banc. Finally, the State cies toward children. Dec. testimony concerning presented expert injuries suffered the victim physical purposeful pen-
that were consistent with defense,
etration while in cross-exami-
nation, an timing raised issue about the injuries. testimony
those was recited exhaustive detail Justice Taft’s dis- in the court below and we
senting opinion say, it to repeat here.24 Suffice
need not testimony was a expert
the inadmissible large of a amount of portion
small have consid- that the could
presented credibility. assessing the victim’s
ered analysis focused Appeals’
The Court against appellant the fact that the case credibility complain-
rested on the of the significant,
ant. That fact but it is not In light entirety
conclusive.
testimony,
acquittal
pen-
and of the
on the
Schutz,
24. See *2 Wice, Varela,
Joseph W. Brian W. Hous- ton, appellant. Delmore, III, DA,
William J. Assist. Houston, Horn, Jeffrey L. Van First. St. Att., Austin, for state.
WOMACK, J., opinion delivered the P.J., Court, KELLER, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.
The resolution of turns on an appeal this given issue of the value of evidence “punishment stage” alleged of a trial without a to invoke the jury- felony proved court and which must be obtain conviction of DWI.3 The An charged indictment appellant’s plea of not denial committing felony being with DWI and an allegations. of those *3 felony felony habitual is a offender. DWI suspect previous- when the has been twice parties presented The their evidence on (or offenses).1 of DWI ly convicted similar DWI, of the but they the issue instant did felony an person A habitual offender present prior the evidence of convic- proved it is the trial of certain when on they for tions DWI. Then rested. offenses, DWI, felony including that the that person person and the had The court asked the “At been of previously finally convicted two you do the point prove up what Enhance offenses, felony of which the second The paragraphs prose ment on the DWI?” an offense the for committed after first answered, verdict, if cutor “After a there’s final.2 became To convict conviction the was incorrect in a verdict.” This a appellant felony for it was therefore respects. prior two Proof DWI the necessary prove for State to in the convictions is authorized State’s alleged, appellant committed DWI and And, guilt.4 of case-in-chief on the issue had been previously that he twice convict- no “verdict” in strictly speaking, there is as alleged. ed of DWI To enhance his court makes jury; trial without find offender, punishment to that anof habitual judgment. and enters ings prove had to that he had State been of attorneys argued guilt, the issue The previously twice convicted of other felonies appellant guilty. and the found law sequence prescribed by in the as al- leged. recess, attorney prosecuting After a felony of con- allegations previous read the appellant by jury. The waived trial that they pleaded The appellant victions. began The trial with the prosecuting presented docu- were not true. The State reading attorney’s portion convictions mentary proof previous DWI, felony alleged indictment previous convictions for DWI appellant that the had committed DWI felony The evidence was two offenses. had previously and that he been twice arguments, found closed. The court heard pleaded appellant convicted of DWI. The DWI con- allegations previous that the him, guilty. Then court asked felony convictions previous and victions First Paragraphs, “And to the and true, and were sentenced a felony, which enhances this to Second prison. years plead? they true or you how do Are “Not appellant pleaded, true?” The true.” only point ap appellant’s was, course, prove separate is that peal felony was insufficient be unnecessary. previous The two convic offense DWI the juris jurisdictional are elements of cause there was no evidence tions of DWI of DWI at the DWI, prior must felony the offense of which be dictional convictions 49.09(b). § 3. See 1. See Tamez Tex. Penal Code (Tex.Cr.App.2000). id., 12.42(d).
2. See Ibid. “guilt stage” provisions of the trial. The court of eated-trial of Code of Criminal 2(a) apply Procedure article section point: sustained (2) in a trial whether put
Because the State failed to
on evi-
sufficiency
an
review of the
appellate
convic-
appellant’s
dence of
guilt
evidence on
must exclude evidence
guilt-innocence
tions in the
phase
trial court
that was introduced after the
it did not
the essential ele-
in a
finding
announced its
ments of the offense of
DWI.
jury.6
without a
Thus,
legally
evidence is
insuffi-
cient to
conviction.
support appellant’s
procedure
The bifurcated-trial
Accordingly,
required
we are
to reverse
the district court used is not authorized
the trial court and or-
“Prior
jury.
without a
to the 1965
*4
Ray
der
Code of Criminal Procedure all trials be
acquitted
Lonnie
Barfield
jury
plea
regardless
fore the court or
the crime for which he was convicted.5
trials”;7
is,
unitary
were
the issues of
justices
All
panel
of the court of
at
punishment
and
were submitted
appeals agreed with
holding.
this
proce
the same time. A bifurcated trial
justice
One
dissented to
a
ordering judg-
dure was authorized
the 1965 revision of
of acquittal, saying
ment
the judg-
The
Code of Criminal Procedure.8
ment should be reformed to a conviction
provides,
bifurcation statute
“In all crimi
DWI,
for misdemeanor
DWI with-
cases,
nal
other than misdemeanor cases of
prior
out
convictions for similar offenses.
justice
municipal
which the
court or
court
The
petition
discretionary
State’s
for
re-
jurisdiction,
has
which are tried
a
before
view raises
the same argument. We jury
plea
guilty,
on a
the judge
granted review.
shall,
argument begins,
before
first submit
grant
We find that our
of the State’s
jury
to the
of guilt
issue
or innocence
petition
improvident
the rec-
because
of the defendant
the offense or offenses
present
ord does not
a
case which the
charged,
authorizing
jury
without
to
evidence was
prove
jur-
insufficient to
pass
punishment
to be im
upon
9
allegations
isdictional
prior
convictions posed.”
appli
The bifurcation statute “is
parties
DWI. We have ordered the
to
a
only
pleas
cable
to
of not
before
(1)
brief
questions:
two
jury.”10
application
whether the bifur-
The statute
no
“ha[s]
State,
23,
(Tex.
5.
it did not
the essential elements of the
Barfield
Thus,
App.
[14th
offense of
DWI.
the evidence is
Dist.]
—Houston
legally
support appellant's
insufficient to
con-
dissenting opinion says
6. The
that "the court
S.W.2d at
We are review-
viction.” 999
...,
appeals
did not rule on the issue
ing that decision.
us,
properly
issue is not
before
and we have
to decide it”
384,
because
can
7. Duhart v.
386 n. 3
"only
appeals;
review
decisions of the court of
(Tex.Cr.App.1984).
any party's
we do not reach the merits of
contention when it has not been
Act,
addressed
8. See
Criminal
Code of
R.S.,
Procedure
59th
appellate
(quo-
the lower
court.”
at 452
722,
1,
37.07,
2,
Post
Leg.,
§
ch.
art.
sec.
omitted).
Laws,
tation marks
p.
1965 Tex. Gen.
vol.
The issue that the
raised was the
evidence,
37.07,
(em-
2(a)
legal sufficiency
9. Tex.Code Crim. Proc. added).
phasis
court of
exclud-
decided the issue
ing
"punishment” stage.
at
the evidence
held,
(Tex.
court
"Because the State failed to
10. Morales v.
put
appellant’s
Cr.App.1967).
on evidence of
con-
Accord Duhart v.
("The
guilt-innocence phase
(Tex.Cr.App.1984)
victions in the
386 n. 3
to a trial
plea
unitary
irregular
before
court on
of not
converted [to
trial] was
guilty.”11
but does not
and of itself call for rever-
sal.”
This is
the first case in which
But
the unauthorized “bifurca
courts
have failed
notice that the bifur
tion” of a trial
a jury
does not
cation
applies only
statute
of not
separate punish
that a genuinely
mean
jury.
before a
genuinely
In a
phase
ment
exists.
bifur
among
[S]ome confusion
existed
has
jury
plea
cated
of not
bench and bar since the advent Arti-
guilty,
that is
at
evidence
introduced
cle
reaching
V.A.C.C.P. Records
stage of
trial can have
this
frequently
show courts bifur-
little,
any,
if
on the
effect
force
cating
the plea
bench trials where
guilt.14
evidence on the issue of
such a
guilty.
the court will
Often
hear evi-
case, therefore, “our consideration of the
dence,
guilty,
declare the defendant
or-
necessarily
that evi
limited to
investigation
der a
and
pre-sentence
dence
time it ren
before the
sometimes months later
re-convene
in a
guilt.”
dered its verdict of
But
“penalty stage”
guilty plea,
allow-
guilty,
without a
on a
of not
ing the
State
defense
offer evi-
*5
“punish
introduced at the
evidence
is
punishment
guilt.12
dence as to
in
stage
ment”
of trial is considered
decid
practice
became common after the
ing
sufficiency
of the evidence
legislature
pre-sentence
authorized
investi-
guilt.
gation
to be
in
reports
assessing pun-
used
State,16
Although
ishment.
the case
bifurcated
with-
Jones v.
was
authorized,
out a
not
is
it
is not
tried without a
the court announced
fact,
necessarily
guilt,
a harmful error.
“The
and then it heard evi
finding
its
however,
entering
that the proceeding
punishment
judg-
was not so dence on
ques-
generally applies
statute
opinion
rely
can
on Ricondo to resolve
j.
jury’
before a
about
trial in this case be-
tions
the bench
Ricondo
convicted in a
cause
State,
440,
Courtney
11.
v.
424 S.W.2d
anot bench trial.
1968).
(Tex.Cr.App.
State,
Leday
14.
v.
983 S.W.2d
Cf.
12. Ricondo v.
634 S.W.2d
1998)
guilt given
(Tex.Cr.App.
("[T]estimony of
1981)
opinion).
(Tex.Cr.App.
(plurality
See
punishment phase
cannot
at the
of the trial
be
(Tex.Cr.
Bean v.
563 S.W.2d
to have
harmless the introduc
said
rendered
(Onion, P.J.,
(“Rec
App.1978)
concurring)
testimony
guilt stage
at the
tion of similar
Court,
coming
particularly
ords
before this
least
we have
trial —at
in
sense
County,
from
Harris
have demonstrated
thought
admission of
of harmless error
growing tendency
proceed
these
to bifurcate
guilt phase. Any
evidence at
similar
ings”).
the introduction of inadmis
harmful effects of
jury's
testimony
decision of
sible
were on
Ricondo,
13.
while
which must be proved
Similarly,
majority
cites Jones v.
before the offense
a felony.
becomes
(Tex.Crim.App.
not,
Whether in error or
proceeding
Jones,
In
the trial court errone
bifurcated,
and the trial court had
ously allowed a bench trial to
bifurcat
be
before it evidence
prove only
sufficient to
ed.
Id. at 597 n. 1. This Court observed
driving
misdemeanor
while intoxicated.
accomplice-witness testimony
Finally,
assuming
guilt/innocence
even
that appellant’s
stage of trial was corrobo
bifurcated,
bench trial was erroneously
by appellant’s
testimony,
our
rated
even
majority’s
case law does not
though
testify
pun
he did not
until the
conclusion that it should be treated as a
stage
ishment
of the trial.
Id. at 597.
unitary
Jones,
Ricondo,
trial.
majority
analyzed
cites Ricondo
proceed
when a defendant court, nor guilty” “not to the
pleads any find other statute which
am I able to proceeding. such a Even assum-
prohibits statutorily prohibits
ing that art. 37.07 law indicates our case proceeding,
such proceeding
that we should still treat
bifurcated, in error. even when bifurcated
Because this Court has decided, because
consider the issue majori-
our case law does holding, I
ty’s dissent. DENSON, Appellant,
Tommie J.
T.D.C.J-I.D., al., Appellees. et
No. 12-99-00177-CV. Texas, Appeals
Court
Tyler. 28, 1999.
Oct. Dec.
Rehearing Overruled *9 be relied phase, they cannot ("Insofar early these (Tex.Crim.App.1998) on..”), majority’s on Jones appellate complaints reliance precedents ... held that guilt would be questionable. insufficient evidence about therefore guilt at his appellant admitted futile when the