I believe the two jurisdictionally-required prior convictions were admissible evidence. Therefore, I respectfully dissent.

The majority concludes that the admission of Robles's two prior DWI convictions was unfairly prejudicial under Rule 403. This holding is flawed for several reasons. First, the two prior convictions are an essential element of felony driving while intoxicated and must be proved at trial in order to authorize a conviction. ⁽¹⁾ The majority holds that evidence of elements of an offense, required by law to be proved to authorize a conviction, may be unfairly prejudicial to the defendant. I disagree. If the facts proved show nothing more than an element of the offense, those facts may be prejudicial, but are not unfairly prejudicial. ⁽²⁾ Granted, if the State sought to introduce the gory details of each offense, those extraneous details could be unfairly prejudicial to the defendant. But the majority holds that any evidence of the prior convictions would be unfairly prejudicial, including the mere judgments of conviction. Since the prior convictions were an element of the offense, I would hold that judgments of those convictions prove nothing more than an element of the offense and are not unfairly prejudicial. To hold otherwise, as the majority does, opens a wide door through which many defendants will attempt to pass, arguing that proof of the elements of other offenses is unfairly prejudicial.

The majority also errs in conducting the Rule 403 balancing analysis itself. Under Montgomery v. State, ⁽³⁾ we made clear that we are to review the trial court's balancing test of probativeness versus prejudice under an abuse of discretion standard rather than conducting that review de novo. The majority fails to review the trial court's decision with the appropriate deference and instead conducts the balancing test itself.

The majority's holding also indicates that from now on, in all DWI cases, if the defendant offers to stipulate to the two jurisdictional priors, the danger of unfair prejudice of those two priors will always outweigh their probative value. I do not think the Court intended such a broad holding from the limited facts of Tamez v. State. ⁽⁴⁾ My reading of today's holding is that from now on, trial judges are without authority to weigh the probative value against any unfair prejudice in cases like this one. They must always conclude that admitting any evidence of the two jurisdictional priors is unfairly prejudicial. This mandate effectively overrules Montgomery.

Finally, I am troubled by the majority's conclusion that the risk of unfair prejudice was great in this case "because the judgments contained information that was not relevant in the guilt-innocence phase of the trial," including notations that each was a third offense and the sentences imposed in each case. ⁽⁵⁾ But neither of these previous judgments is in the record; rather, they are merely attached as appendices to Robles's brief. An appellate court cannot consider documents attached to briefs that do not appear in the appellate record. ⁽⁶⁾ We should not consider the particular facts of the judgments in this case.

I understand the majority's concern about a DWI defendant's being convicted solely on his prior convictions rather than on the offense charged. But the solution to that problem is in a revision of the statute. As written, the statute requires proof of the prior convictions at the guilt-innocence stage of trial in order to prove felony DWI. To avoid any risk of juries condemning DWI defendants as criminals generally, the Legislature could rewrite the statute to provide that evidence of the prior convictions is admissible at punishment via an enhancement provision. But that is for the Legislature to do if they choose. "Above all we must remember that this Court's power of judicial review is not an exercise of the powers of a super-Legislature." ⁽⁷⁾ In lieu of any statutory revision, we should hold that the judgments of the prior convictions are admissible evidence at guilt-innocence.

I would reverse the court of appeals and affirm the judgment of the trial court. Because the majority holds otherwise, I dissent.

DATE DELIVERED: May 8, 2002

PUBLISH

1. Luedke v. State, 711 S.W.2d 657, 659 (Tex. Crim. App. 1986).

2. See Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990) (op. on orig. subm.).

3. 810 S.W.2d 372, 391-92 (Tex. Crim. App. 1990) (op. on reh'g).

4. 11 S.W.3d 198 (Tex. Crim. App. 2000).

5. Ante, slip op. at 3

6. See Tex. R. App. P. 34.1; Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex. Crim. App. 1981); James v. State, 997 S.W.2d 898, 901 n.5 (Tex. App. - Beaumont 1999, no pet.).

7. Dennis v. United States, 341 U.S. 494, 526 (1951) (Frankfurter, J., concurring).