James Edward Lockhart v. The State of Texas--Appeal from 77th District Court of Limestone County

State: Texas

Court: Texas Northern District Court

Docket No: 10-03-00010-CR

Case Date: 11/03/2004

Plaintiff: Danny Lynn Nabors

Defendant: State of Texas--Appeal from 402nd District Court of Wood County

Preview:James Edward Lockhart v. The State of Texas--Appeal from 77th District Court of Limestone County
IN THE TENTH COURT OF APPEALS

No. 10-03-00010-CR James Edward Lockhart, Appellant v. The State of Texas, Appellee

From the 77th District Court Limestone County, Texas Trial Court # 9873-A MEMORANDUM Opinion James Lockhart was convicted of felony driving while intoxicated. He complains on appeal that the trial court erred by allowing the portion of the indictment setting forth his two prior convictions to be read to the jury. We affirm. BACKGROUND An officer of the Mexia police department spotted Lockhart sitting in a vehicle with an expired inspection sticker. The officer stopped the vehicle when it began moving and noticed a quart-sized beer bottle in the car and smelled the presence of alcohol. The officer administered a field sobriety test and then transported Lockhart to the county jail where he refused a breathalyzer test. Upon finding prior driving while intoxicated (DWI) convictions, Lockhart was indicted with felony DWI. At his trial, Lockhart stipulated that he had two prior DWI convictions, the convictions were final, they had become final within ten years, and that the trial court had felony jurisdiction over the case. Over objection from Lockhart, the State read the indictment paragraphs concerning the two prior convictions to the jury. Lockhart was found guilty and sentenced to five years' confinement. READING OF THE TWO PRIOR CONVICTIONS In his single issue, Lockhart argues that the trial court erred in allowing the State to read that portion of the indictment pertaining to his two prior convictions. However, the Court of Criminal Appeals has rejected Lockhart's position. In Tamez, the Court recognized that the two

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jurisdictional prior convictions may be included in the reading of the indictment to the jury. "The proper balance is struck when the State reads the indictment at the beginning of trial, mentioning only the two jurisdictional prior convictions, but is foreclosed from presenting evidence of the convictions during its case-in-chief." Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim. App. 2000). Accordingly, we overrule Lockhart's sole issue.

CONCLUSION Having overruled Lockhart's sole issue, we affirm the judgment of the trial court. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed November 3, 2004 Do not publish [CR25]

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