Maibauer v. State, 10-97-192-CR

• Decision Date: 22 April 1998
• Docket Number: No. 10-97-192-CR,10-97-192-CR
• Citation: 968 S.W.2d 502
• Parties: Gregory James MAIBAUER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 502

968 S.W.2d 502

Gregory James MAIBAUER, Appellant, v. The STATE of Texas, Appellee.

No. 10-97-192-CR.

Court of Appeals of Texas Waco.

April 22, 1998.

Discretionary Review Refused

July 15, 1998.

Robert A. Canonico, Waco, for appellant.

B.J. Shepherd, Dist. Atty., Meridian, for appellee.

Before DAVIS,C.J., and CUMMINGS and VANCE,JJ.

OPINION

DAVIS, Chief Justice.

A jury convicted Appellant Gregory James Maibauer of felony driving while intoxicated. See TEX. PEN.CODE ANN. § 49.09(b) (Vernon Supp.1998). Maibauer pled true to a prior felony DWI conviction alleged for general enhancement purposes, and the jury sentenced him to fifteen years' confinement and a $5,000 fine. See id. § 12.42(a)(3) (Vernon Supp.1998).

Maibauer presents three issues in which he claims: (1) the State improperly used a prior felony DWI conviction under the general enhancement provisions of the Penal Code; (2) the admission of his other prior DWI convictions during the guilt-innocence phase of trial was unduly prejudicial because he had agreed to stipulate to those convictions; and (3) the State injected new and harmful facts about the details of a prior conviction during closing argument in the punishment phase of trial. We will affirm the judgment.

FACTUAL BACKGROUND

The indictment alleges that Maibauer committed the primary offense of DWI on or about January 25, 1997. The indictment alleges three prior misdemeanor DWI convictions and one prior felony DWI conviction to elevate Maibauer's offense to a third-degree felony. See Williams v. State, 946 S.W.2d 886, 898-99 (Tex.App.--Waco 1997, no pet.); TEX. PEN.CODE ANN. § 49.09(b). The indictment alleges an additional prior felony DWI conviction under the general enhancement provisions of the Penal Code to enhance the punishment for Maibauer's offense to a second-degree felony. Id. § 12.42(a)(3); 49.09(f).

Before trial, Maibauer filed motions to quash the indictment and to strike surplusage from the indictment. On the same day he filed a stipulation that he had in fact been previously convicted of two of the misdemeanor DWI's alleged to elevate the present offense to a felony. The motion to quash asked the court to quash the prior felony DWI alleged under the general enhancement statute. The court overruled this motion. The motion to strike asked the court in view of the stipulation to "strike from the indictment all references to prior convictions" and further instruct the State "to refrain from reading from the indictment any references to his prior convictions." The court implicitly denied this motion by allowing the State to read the allegations of prior convictions to the jury and offer evidence of them during trial. See Rey v. State, 897 S.W.2d 333, 336 (Tex.Crim.App.1995).

At trial, Maibauer presented a motion in limine asking the court to instruct the State to approach the bench before making any statement or offering any evidence concerning the alleged prior convictions. The court implicitly overruled this motion. Id. He presented an additional stipulation to the other two prior DWI convictions alleged to elevate the primary offense to a felony. He presented a motion for the court to compel the State to elect any two of the prior DWI convictions on which it would rely to elevate the underlying offense to a felony and to instruct the State to read to the jury the allegations of only those two offenses. The court denied this motion.

Maibauer pled not guilty to the allegations of the indictment. When the State offered evidence of the four prior DWI convictions alleged to elevate the offense to a felony, Maibauer objected on the same bases asserted in his previous motions. Specifically, he argued that because the State needs only two prior DWI convictions to make the present offense a felony, allowing proof of additional allegations could only prejudice the jury and deny him a fair trial, due process and equal protection. The court overruled the objections.

The jury found Maibauer guilty as charged and sentenced him as indicated above.

SECTION 49.09(f)

The first issue presented questions whether the State can use a prior felony DWI conviction under the general enhancement provisions of the Penal Code in the prosecution of a subsequent DWI offense. Prior to the enactment of section 49.09(f) of the Penal Code, the State could not use a felony DWI in this manner. See Phifer v. State, 787 S.W.2d 395, 396 (Tex.Crim.App.1990). Section 49.09(f) provides:

(f) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12 (TEX. PEN.CODE ANN. § 12.41 et seq.), but not under both this section and Subchapter D.

TEX. PEN.CODE ANN. § 49.09(f) (footnote omitted).

Under Maibauer's reading of this provision, the State cannot "enhance an offense under both Subchapter D, Chapter 12 and § 49.09 of the Texas Penal Code." When construing a statute however, we must apply the plain meaning of the language used in the statute. State v. Mancuso, 919 S.W.2d 86, 87 (Tex.Crim.App.1996). On its face, section 49.09(f) prohibits the use of a prior DWI conviction for enhancement under both section 49.09 and Subchapter D, Chapter 12. Thus, Maibauer misreads the statute. From our reading of section 49.09(f) we conclude that the State can use a prior felony DWI conviction under section 12.42 of the Penal Code for enhancement purposes so long as that prior conviction is not also used to elevate the alleged offense to a felony under section 49.09(b).

Our reading of the statute finds further support in the fact that the Legislature significantly altered the felony DWI statute when it enacted section 49.09. Under the former article 6701l--1(e), a person could be convicted of felony DWI if he had "previously been convicted two or more times of [DWI]." Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1576, repealed by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704 (article 6701l--1(e)). The Court of Criminal Appeals has construed identical language in the felony theft statute to mean "a defendant's prior theft convictions, regardless of their number or degree, cannot serve to enhance the punishment for a subsequent theft of less than [$1,500] beyond that of a [state jail] felony." "To this extent, [section 31.03(e)(4)(D) ] constitutes a special enhancement statute which controls over the provisions of Sec. 12.42, supra. " Rawlings v. State, 602 S.W.2d 268, 270 (Tex.Crim.App. [Panel Op.] 1980) (construing what is now codified as TEX. PEN.CODE ANN. § 31.03(e)(4)(D) (Vernon Supp.1998)). Section 49.09(b) provides that a person can be convicted of felony DWI if he "has previously been convicted two times of [DWI]." TEX. PEN.CODE ANN. § 49.09(b). Because the legislature eliminated the "two or more" previous convictions language, the felony DWI statute is no longer the special enhancement statute it previously was, and when read together with section 49.09(f), it does not control over the general enhancement provisions of section 12.42. For these reasons, we overrule Maibauer's first issue.

OLD CHIEF v. UNITED STATES

The second issue presented urges us to adopt the United States Supreme Court's interpretation of Rule 403 of the Federal Rules of Evidence announced in Old Chief v. United States as we apply Rule 403 of the Texas Rules of Criminal Evidence to this case. 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Maibauer argues that the court abused its discretion by allowing evidence of the four prior DWI convictions alleged and proved during the guilt-innocence phase of trial after he offered to stipulate to them because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice to him. See TEX.R.CRIM. EVID. 403, 49 Tex. B.J. 223 (Tex.Crim.App.1986, repealed 1998). ¹

The State responds that Maibauer failed to properly preserve this issue for our review because he did not object to the admission of his prior convictions on this basis. Before the court admitted any evidence of the prior convictions, Maibauer objected on the same grounds he had asserted in his pretrial motions. The court implicitly overruled the objection by admitting the evidence. See Rey, 897 S.W.2d at 336. Thus, Maibauer preserved any error arising from the court's admission of this evidence. See TEX.R.APP. P. 52(a), 49 Tex. B.J. 573 (Tex.Crim.App.1986, repealed 1997). ²

In Old Chief, the Supreme Court applied the federal version of Rule 403 to the federal felon in possession statute. See 18 U.S.C.A. § 922(g)(1) (West Supp.1998). ³ The defendant had asked the trial court not to allow the government to make any statements or offer any evidence concerning his prior conviction. He offered to stipulate that he had been convicted of an offense which met the requirements of the statute so that the only question left for the jury would be whether he had in fact possessed a firearm. The government refused to join in the stipulation, and the trial court denied his request. Old Chief, 519 U.S. at ---- - ----, 117 S.Ct. at 647-48.

The Court held in a 5-4 decision that in view of the defendant's willingness to stipulate the fact of the prior conviction the probative value of any extrinsic evidence of the conviction was substantially outweighed by the danger of unfair prejudice because:

[t]he most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant's admission and underscored in the court's jury instructions. Finally, the most obvious reason that the general presumption that the prosecution may choose its evidence is so remote from application here is that proof of the defendant's status goes to an element entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit...