*1 reasons, judgment delay. these complicated by a For inquiry This affirmed. of the trial court is hearing Speedy on the sparse record. At the Motion, attorney asserted that Rangel’s Trial he
Rangel prejudice had because suffered job indefinitely suspended from his
had been charges result of the police a officer as a
as respond to or
being filed. The did not State hearing. at the these
contradict statements Rangel nor the State called wit
Neither nesses, testimony, attempt or offered sworn TAMEZ, Appellant, A. Joe record, into the and ed to introduce evidence judge explicit findings of the trial made no v.
fact. Texas, Appellee. of The STATE urges Rangel that On the State No. 04-97-00432-CR. presented prejudice. no of In San- evidence Texas, Appeals of of State, attorney’s an v. the court found tallan Antonio. speedy at uneontested unsworn statement a hearing to of fact it trial be evidence Sept. (Tex.App.— asserted. 922 d.); 1996,pet. see Banda Fort Worth ref also (Tex.1997) Garcia, 270, 272
(holding object opponent’s that failure attorney of constituted
unsworn statement objection, causing of statement to be
waiver agreement some evidence of
considered question). But Neuenschwander v. cf. (Tex.Crim.App.1990) (imply-
ing prosecutor’s opening that did remarks fact). disputed
not constitute evidence of
Although Rangel strong does not make a
showing he of because was not allege
incarcerated and did not that his de- impaired delay, was as a result of the
fense Rangel’s suspension
we find that from
police proceed- force for the duration of prejudice.
ings presents evidence of some failed to contradict State Rangel’s prejudice.
or rebut assertions Rangel met his burden of show-
We find some
CONCLUSION weigh factors in favor
We find all four successfully Rangel. He demonstrated length delay presumptively delay were either
prejudicial; reasons reasons, negligence he or neutral responsibility delay; for the he
bore no sufficiently right; asserted his
promptly prejudice as a
and he suffered some result *2 HARDBERGER, C.J.,
Before ANGELINI, RICKHOFF and JJ. OPINION ANGELINI, Justice.
Nature of the case jury guilty A found A. Joe Tamez of the driving while intoxicated. jury punishment years assessed at ten confinement. his sole issue on alleges Tamez that the court erred in allow- jury portions the State to to the read alleging of the indictment six by admitting convictions and evidence of the during guilt-innocence phase of trial. Background
Factual alleged operat- The indictment that Tamez 30, ed a motor vehicle on June 1996 without physical the normal use of his mental or by faculties the reason of the introduction of body. alcohol into his The indictment then Tamez’s six convictions for pre-trial hearing DWI. In a on Tamez’s mo- limine, argued tion in his defense counsel reading the indictment to the with admitting convictions and evidence during guilt-inno- of the phase cence of trial allowed extraneous of- prove fense evidence to be admitted to char- 404(b).1 conformity acter in violation of Rule argued Defense counsel also under Rule 403 probative value of the convic- tions un- were prejudice.2 reading fair Prior to the indictment, Tamez offered to n jurisdic- convictions and to the court’s Wemmert, Antonio, Ap- Judith K. San tion over the case. Defense counsel also pellant. objections renewed her based on Rules 403 404(b). Thomberry, Atty., Daniel Asst. Crim. Dist. The court allowed Antonio, Appellee. read the indictment with the six convic- 404(b) pertinent "Although provides part: provides pertinent part: 1. Rule "Evi- 2. Rule 403 crimes, wrongs, relevant, dence of other or acts is not proba- be excluded if its prove person admissible to order to show action in the character of a substantially outweighed by tive value is the dan- conformity therewith." ger ..." Evid. Tex.R.Crim. 404(b). Effective March Tex.R.Crim. Evid. 1, 1998, Effective March the Court of Criminal Appeals adopted the Court of Criminal Appeals adopted the Texas Rules of Evidence apply Texas Rules of Evidence which in both apply proceed- which in both civil and criminal However, proceedings. civil and criminal we However, ings. apply we the rule in effect at the apply the rule in effect at the time of trial in this opinion. trial in time of opinion. required jurisdiction, the State ob- court’s tions. Defense counsel made same prior convictions jections the six when the State offered evidence of guilt-inno- Warren v. indictment. (reading of the phase (Tex.Crim.App.1985) cence of trial. mandatory). 36.01is
indictment under article *3 Further, jurisdiction Felony parties not confer DWI Wheeler, 416 a 790 S.W.2d at on court. argues the On Tamez that 524, Dial, 527 (citing v. 596 S.W.2d Garcia prior allowed him evidence of his convictions 1980)). In order (Tex.Crim.App. Op.] [Panel propensity of for to be convicted because his convictions, the had prove prior State to the DWI, committing crime of rather than the prior the convictions to introduce evidence of was for. for the offense he on trial See trial. guilt-innocence phase of the 404(b). If it is shown Tex.R.Crim. Evid. Further, in- prior to be the convictions had during a trial that the defendant has jury charge and found to be cluded in the times offense been convicted two of an relat guilty find true before the could Tamez ing operating to the of a vehicle motor while Pope, 802 felony of the of DWI. See intoxicated, felony the offense a of the Thus, prior at 421. the S.W.2d degree. third Tex. Pen.Code Ann. jurisdictional of extra- were and not evidence (Vernon 49.09(b) Supp.1998). § In order to did err in neous and the court not offenses elevate the misdemeanor offense of DWI to a or allowing the to read the indictment State degree felony, prior third the DWT con two dur- present of the victions included in the must be indictment ing guilt-innocence phase of trial. the jurisdictional. they are because See State, 886, v. 946 only Williams S.W.2d 898-99 Because two 1997, felony jurisdiction, (Tex.App. pet.); Pope necessary to no v. are confer —Waco State, 418, (Tex.App. 802 421 that have argues S.W.2d Tamez the State should —Austin 1991, Wheeler, pet.); proving no v. in 790 S.W.2d been limited to two convictions 415, 1990, 49.09(b) However, (Tex.App. pet.); 416 no does stead of six. section —Amarillo State, (Tex. 788, Addington v. pleading proving 730 790 not limit the State to or S.W.2d refd.). 1987, pet. App. only Article two convictions. See Read —Texarkana State, 435, of (Tex.App. 36.01 the Code of Criminal 437 Procedure —Fort refd.). 1997, requires prosecutor the pet. the to read indict Worth jury. ment to the Article 36.01 states: 403 Rule
The or indictment information shall be jury by attorney prosecut- read to the the argues proba the Tamez that relative ing. When convictions are slight, tive value of the convictions was purposes only of are enhancement high, while the risk of unfair jurisdictional, portion not of the in- light agreement stipu in especially of his to reciting dictment information such or con- urges late to us the convictions. Tamez hearing victions shall not be until the read in holding to Old v. United follow Chief in punishment provided on is held as Arti- States, 644, 172, 117 136 519 U.S. S.Ct. cle 37.07. (1997), interpret 403. L.Ed.2d 574 to Rule 36.01(a)(1) Chief, being prose Tex.Code Ckim. PROC. Ann. art. Old defendant was (Vernon of Supp.1998). felony In a DWI indict- cuted for the federal crime a felon ment, jurisdictional possession Chief, a 117 firearm.3 Old convictions are stipu only. not for v. S.Ct. at 647. The defendant offered to enhancement Maibauer 502, felony, so (Tex.App. 968 late that he had been convicted a S.W.2d —Waco refd.); he Pope, only at need consider whether pet. 421. possessed a firearm and not know the nature Although stipulate offered Tamez to commerce, any affecting pertinent part: possess in “it shall to ... or 3. The statute states be (West any person (1) 922(g)(1) Supp. who has been con- § unlawful for firearm.” 18 U.S.C.A. — any punishable by a victed in. court of crime 1998). year imprisonment exceeding a term one ... prosecutor to the indict- felony requires Id. at The conviction. necessarily request. Supreme jury, includes court denied the Id. The ment to the which held, they jur- are under Federal Rule of Evidence DWI convictions because willing agree with that because the defendant was isdictional. See id. We conviction, pro- Appeals, that these statutes Tenth Court of reasoning in any preclude adopting value of from bative extrinsic evidence us Klein, (citing substantially conviction was Id. 154 Tex.Crim. Old Chief. 253-54). Id. at 655. at at allowing The court did not err the State language nearly Rule 403 is identi- alleg- portions read the of the indictment cal to that Federal Rule 403. Fed.R.Evid. by admitting convictions and provide 403. Both that relevant evidence *4 during the the evidence of probative if be excluded its value is Therefore, phase guilt-innocence of trial. we substantially outweighed by danger the appeal. Tamez’s sole issue on Ac- overrule prejudice. unfair Prior federal decisions cordingly, judgment. we affirm the should be followed unless Texas statutes dic- Maibauer, tate a different outcome. 968 RICKHOFF, Concurring opinion by J. Klein, (citing at 506 State v. 154 S.W.2d 31, 38, 224 Tex.Crim. 253-54 RICKHOFF, Justice, concurring. (1949)). However, Ap the Tenth Court join majority opinion I in write to holding peals apply has declined to in Old again that Rules of Evidence 403 and observe felony in a to Chief 404(b) only logically and res- not cannot be Maibauer, In DWI casa Id. the defendant behavior, applied ponsibly to all but argued that the court abused its discretion for certain these rules should be reversed by allowing evidence of four DWI con- conduct. during guilt-innocence phase victions opens prosecutor When the trial with the agreed trial after he to driving reading six convictions for in convictions. Id. at 505. The defendant intoxicated, very charged, offense while Maibauer, case, argued, inas this will the conclude that the defendant probative value of the convictions was conformity past acted in with his behavior? danger of unfair jurors may expert need an Of course. Some argued under Rule 403 and that Old Chief on, rely they constantly judge but others apply. should Id. character. Could the court based on their apply also decline to Old inter- We Chiefs to neutralize the devise a curative instruction pretation Rule to the admis- of Federal injected proceeding? prejudice thus into the guilt- sion of likely. Not But I believe that phase of trial of a innocence conclusion; right someone with reaches the Chief, Supreme offense. In Old DWI, standing convictions for ac- that the federal statute for unlawful observed driving again, cused of it drunk. any possession applied nearly of a firearm appellate My experience as a trial and requiring imprisonment more behaviors, judge has been that with some year, than a so the nature of the conviction abuse, including past behav- chronic alcohol light slight probative bore value single significant factor ior is in fact the most Chief, 117 S. Old determining person commit- whether that 49.09(b) contrast, at 655. In section Ct given ted alcohol abuse in a case. See also requires proof the Penal of two Code Creekmore of- DWI convictions order to elevate the d) (ar (Tex.App. pet. Antonio ref —San Thus, felony. proba- fense of DWI to a always when guing that character is at issue value of nature of the tive conviction is sexually abusing charged one is children with greater than the nature of the conviction care). in one’s necessary the federal statute. See under Maibauer, Further, previously If deviant as to at 507. arti- one has been so repeatedly sexually a child or drive cle 36.01 of the of Criminal Procedure assault Code drunk, past reality is that his behavior eases,
predicts future behavior. these his ju- remains consistent and the
“character” compels to so experience
rors’ them common
conclude. dancing Tex.R. quit
We should around 404(b) recognize they
Evid. and 408 and human If contrary
are to certain conditions. convicting Tamez
we about not are serious character, conformity acting with his the six convictions to
we would never allow evidence, charge, argu-
be guilt/innoeence.
ment on and deliberations not, recognize must that at
Since we are we
times is the character evidence most relevant
evidence.
Jay MORITZ, Cheryl Cleave, L. F. Van Levine, Cabler,
Ron Mitchell Will Anita
Gonzalez, Mendoza, Felipe Jesus Calza-
da, Montalvo, Bruner, Mi- Lauro Ronald Ludwig, Rubinsky,
chael Simon Rudolfo
Casias, Camilli, and Luis Allicia Euresti
Holloway, Appellants, Mary
Clifford BUECHE
Bueche, Appellees.
No. 04-98-00350-CV. Texas, Appeals of
Court of Antonio. 7, 1998.
Oct.