NUMBER 13-22-00157-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

SULLIVAN O’NEAL ARNOLD III, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 52nd District Court 

of Coryell County, Texas.

 

MEMORANDUM OPINION1

Before Chief Justice Contreras and Justices Silva and Peña

Memorandum Opinion by Chief Justice Contreras

A jury convicted Appellant Sullivan O’Neal Arnold III of driving while intoxicated

(DWI), third or more offense, a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04; 

1 This case was transferred from the Tenth Court of Appeals in Waco to this Court pursuant to a 

docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2

49.09(b)(2). Appellant pleaded “true” to an enhancement paragraph in the indictment, 

increasing his punishment range to a second-degree felony, and the jury assessed 

punishment at fifteen years’ incarceration in the Correctional Institutions Division of the 

Texas Department of Criminal Justice. See id. §§ 12.33(a), 12.42(a). By two issues, 

appellant contends that (1) there was legally insufficient evidence to prove his prior DWI 

convictions, and (2) the “trial court erred in instructing the jury to find [him] guilty on an 

element of the offense.” We affirm the trial court’s judgment.

I. BACKGROUND

A grand jury indicted appellant on September 16, 2021. The indictment alleged 

that on or about May 4, 2021, in Coryell County, appellant “did then and there operate a 

motor vehicle in a public place while [he] was intoxicated.” See id. § 49.04. The indictment 

also alleged that appellant had two prior DWI convictions in Mississippi. Trial commenced 

on March 22, 2022.

Officer Roger Snow of the City of Copperas Cove Police Department testified that 

he was working the night shift on May 4, 2021. Officer Snow parked his cruiser in a 

parking lot to “do[] traffic control.” Around 11:00 p.m., he saw a car pass him at a high 

speed. Because his handheld speed radar was not with him, Officer Snow pulled out into 

traffic to pace the vehicle, a process by which an officer “get[s] up to a speed until the 

vehicle is no longer getting closer or further away so [the officer] can determine [the 

vehicle’s] speed.” Officer Snow determined the driver was speeding, so he approached 

the vehicle and activated his emergency lights, but the driver raced off. Officer Snow gave 

chase. At some point, the fleeing car skidded over potholes and a curb, rupturing its tires 
3

and radiator, and ultimately came to a stop. Appellant immediately exited the car with his 

hands raised, and Officer Snow and his partner secured appellant in handcuffs. Appellant 

refused to provide a breath sample to measure his blood alcohol content (BAC), so the 

officers obtained a signed warrant to draw appellant’s blood. McCayla Lopez, a Texas 

Department of Public Safety forensic scientist, testified that the blood drawn from 

appellant showed a BAC of 0.137. Appellant was charged with evading arrest with a 

vehicle and DWI.2

Following Officer Snow’s testimony, the State moved, without objection, to

introduce appellant’s stipulation as to his two prior DWI convictions alleged in the 

indictment. The stipulation provided:

1. [Appellant] is aware that he has a right to remain silent and not give any

statement at all and that any statement he makes may be used against 

him at trial.

2. Any statement [appellant] makes may be used against him at trial.

3. Knowing the foregoing rights, [appellant], upon consultation with his

attorney of record, waives his right to remain silent only to the extent of 

any stipulation contained in this document.

4. I, [appellant], am the identical person named in the indictment in the 

above styled and numbered cause; and I have read the same and 

hereby agree and confess that:

On the 14th day of June 2011, in cause number 11-010879 

in Biloxi Municipal Court of Harrison County, Mississippi, I was 

convicted of an offense relating to the operating of a motor 

vehicle while intoxicated; and

2 Each charge was assigned a separate trial cause number. The two trial causes were tried together 

on March 22, 2022, and resulted in two separate judgments. The appeals from the two judgments maintain 

separate appellate cause numbers. This appeal concerns appellant’s DWI third or more conviction only. 

Appellant’s counsel filed an Anders brief in appellant’s related appeal, No. 13-22-00156-CR, concerning 

his evading arrest with a vehicle conviction.
4

On the 7th day of November 2012, in cause number 

2001209310 in the Pascagoula Municipal Court of Jackson 

County, Mississippi, I was convicted of an offense relating to 

the operating of a motor vehicle while intoxicated and both of 

these convictions became final before the 4th of May 2021.

The trial court admitted the stipulation into evidence as State’s Exhibit 7.

Following the close of appellant’s case, the court proceeded to the jury charge 

conference. Neither party objected to the charge, which provided in part that:

A person commits the offense of [DWI] 3rd or More, if the person commits 

the offense of [DWI] and the person has previously been convicted two or 

more times of an offense relating to operating a motor vehicle while 

intoxicated.

A person commits the offense of [DWI] if the person is intoxicated 

while operating a motor vehicle in a public place.

The Defendant has stipulated to two prior [DWI] offense convictions.

You are instructed to find those elements have been established and that 

the jurisdiction of this District Court has been established. With respect to 

the evidence concerning the defendant having been two times previously 

convicted of being intoxicated while operating a motor vehicle in a public 

place, you are instructed that you cannot consider such evidence as in any 

manner proving or tending to prove that the defendant was intoxicated or 

operated a motor vehicle in a public place on the 4th day of May 2021.

The jury deliberated, found appellant guilty of DWI third or more, and assessed 

punishment at fifteen years’ incarceration. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

Appellant does not dispute the sufficiency of the evidence to convict him of DWI 

stemming from the incident on May 4, 2021. He does allege by his first issue that the 

evidence of his two prior convictions was legally insufficient. We disagree.

A. Standard of Review

“In reviewing the sufficiency of the evidence to support a conviction, we consider 
5

the evidence ‘in the light most favorable to the verdict’ to determine whether any rational 

trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.” Delagarza v. State, 635 S.W.3d 716, 723 (Tex. App.—Corpus Christi–Edinburg 

2021, pet. ref’d) (quoting Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 

2020)); see Jackson v. Virginia, 443 U.S. 307, 319 (1979).

“The sufficiency of the evidence is measured by comparing the evidence produced 

at trial to ‘the essential elements of the offense as defined by the hypothetically correct 

jury charge.’” Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021) (quoting Malik 

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “A hypothetically correct jury 

charge ‘accurately sets out the law, is authorized by the indictment, does not 

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s 

theories of liability, and adequately describes the particular offense for which the 

defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240).

A hypothetically correct charge would instruct the jury that a person commits the 

offense of DWI, third or more, as alleged in the indictment, if he “is intoxicated while 

operating a motor vehicle in a public place,” see TEX. PENAL CODE ANN. § 49.04, and it is 

shown that he “has previously been convicted . . . two times of any other offense relating 

to the operating of a motor vehicle while intoxicated,” see id. § 49.09(b)(2). Any other

“[o]ffense relating to the operating of a motor vehicle while intoxicated” includes, among 

other things, “an offense under the laws of another state that prohibit the operation of a 

motor vehicle while intoxicated.” Id. § 49.09(c)(1)(F). As here, “when prior convictions are 

used to elevate what would otherwise be a misdemeanor offense to the level of a felony, 
6

they must be pled in the indictment for the trial court to gain jurisdiction.” Tamez v. State, 

11 S.W.3d 198, 201 (Tex. Crim. App. 2000).

B. Stipulating to Prior Convictions

“To establish that a defendant has been convicted of a prior offense, the State 

must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the 

defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. 

App. 2007). “No specific document or mode of proof is required to prove these two 

elements. There is no ‘best evidence’ rule in Texas that requires that the fact of a prior 

conviction be proven with any document, much less any specific document.” Id. “While 

evidence of a certified copy of a final judgment and sentence may be a preferred and 

convenient means, the State may prove both of these elements in a number of different 

ways, including . . . the defendant’s admission or stipulation.” Id. at 921–22 (footnotes 

omitted); see Tamez, 11 S.W.3d at 202 (concluding in part that a defendant’s stipulation 

to previous DWI convictions should suffice to prove the prior convictions).

A stipulation “conced[es] for the purposes of the trial the truth of some alleged fact”

such that “the fact is thereafter to be taken for granted; so that the one party need offer 

no evidence to prove it, and the other is not allowed to disprove it.” Bryant v. State, 187 

S.W.3d 397, 400 (Tex. Crim. App. 2005). Stipulating to prior convictions serves as “a 

judicial admission which remove[s] the need for proof of those convictions.” Id. at 402. 

Thus, by entering a stipulation in a criminal case on a particular element, a defendant 

“waive[s] ‘his right to put the government to its proof of that element.’” Id. (quoting United 

States v. Harrison, 204 F.3d 236, 240 (D.C. Cir. 2000)). The defendant “cannot complain 
7

on appeal that the State failed to prove ‘an element to which he confessed.’” Id. (quoting 

United States v. Branch, 46 F.3d 440, 442 (5th Cir. 1995) (per curiam)); see also Sanchez 

v. State, No. 13-15-00223-CR, 2016 WL 872535, at *3 (Tex. App.—Corpus Christi–

Edinburg Feb. 18, 2016, no pet.) (mem. op., not designated for publication) (“Based on 

Bryant, we conclude that . . . [appellant] may not challenge whether the State proved the 

element to which he stipulated beyond a reasonable doubt.”).

C. Analysis

Because appellant admits that he stipulated to his prior DWI convictions from 

Mississippi, he cannot now claim on appeal that the stipulation failed to prove his two 

prior DWI convictions. See Bryant, 187 S.W.3d at 400; Woods v. State, 398 S.W.3d 396, 

400 (Tex. App.—Texarkana 2013, pet. ref’d) (concluding that appellant “was barred from 

challenging the sufficiency of his [prior] DWI conviction [on appeal] because he had 

stipulated to that conviction”); see also Sanchez, 2016 WL 872535, at *3; cf. Hartman v. 

State, 198 S.W.3d 829, 843 (Tex. App.—Corpus Christi–Edinburg 2006, pet. struck)

(concluding that stipulating to prior convictions “arguably rises to the level of estoppel 

when it comes to challenging the legitimacy of using those priors,” and such challenges 

may also be barred by the law of invited error). We overrule appellant’s first issue.

III. JURY CHARGE ERROR

By his second issue, appellant contends that the trial court erred when it “partially 

instructed the jury to find an element of the offense—namely that the [two prior DWI] 

jurisdictional convictions were ‘established.’” Appellant contends that the instruction 

“impermissibly granted the State a partial directed verdict on an element of the offense.”
8

In reviewing a challenge to a jury charge, we undertake a two-step analysis. Price 

v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). We first determine whether the

jury charge contained error. Id. If error is found, we then “analyze the harm resulting from 

the error.” Id. “A jury charge must distinctly set forth the law applicable to the case and 

set out all of the essential elements of the offense.” Martin v. State, 200 S.W.3d 635, 639 

(Tex. Crim. App. 2006); see TEX. CODE CRIM. PROC. ANN. art. 36.14. Jurisdictional 

elements are essential. Martin, 200 S.W.3d at 639. Thus, when the State charges a 

defendant with a DWI third or more, the jury charge should instruct the jury “about the 

existence and effect of a defendant’s stipulation to the two jurisdictional prior DWI 

convictions.” Id. at 637; see Tamez, 11 S.W.3d at 201. There are several ways by which 

the trial court can instruct the jury about the stipulated prior convictions. Martin, 200 

S.W.3d at 639. One “way is to simply charge the elements of the underlying DWI offense 

and include a paragraph stating that the defendant has stipulated to the existence of two 

(specified or unspecified) prior DWI convictions, and thus the jury is directed to find that 

those elements of felony DWI are established.” Id.

Here, the charge informed the jury that defendant stipulated to two prior DWI 

convictions, and instructed the jury to find that the two jurisdictional DWI offenses were 

established. These instructions are acceptable under Martin; indeed, they track one of 

the examples provided in the opinion. See 200 S.W.3d at 639; see also Brown v. State, 

No. 10-17-00343-CR, 2018 WL 4926209, at *3 (Tex. App.—Waco Oct. 10, 2018, pet. 

ref’d) (mem. op., not designated for publication) (concluding that a virtually identical jury 

charge in a DWI third or more case was proper under Martin); Moore v. State, No. 06-14-
9

00056-CR, 2015 WL 832266, at *6 (Tex. App.—Texarkana Feb. 25, 2015, no pet.) (mem. 

op., not designated for publication) (overruling appellant’s argument that the trial court 

improperly instructed the jury on his prior conviction because “[t]he trial court’s instruction 

fell squarely within the parameters of Martin”).

Appellant argues that the court of criminal appeals wrongly decided Martin, that 

the Waco court in Brown improperly relied on Martin in a case with similar facts,

3 and that 

we should ignore both cases and instead follow the United States Supreme Court’s 

holding in United Brotherhood of Carpenters & Joiners of America v. United States, 330 

U.S. 395, 398 (1947). Appellant contends that “[i]t is the United States Constitution, as 

interpreted by the United States Supreme Court, that is the supreme law of the land,” and 

when Texas case law conflicts with Supreme Court case law, Texas courts must follow 

the latter.

But, as an intermediate appellate court in Texas, we are required to follow the 

decisions of the Texas Court of Criminal Appeals. See TEX. CONST. art. V, § 5(a) (“The 

Court of Criminal Appeals shall have final appellate jurisdiction . . . , and its 

determinations shall be final, in all criminal cases of whatever grade . . . .”); Wiley v. State, 

112 S.W.3d 173, 175 (Tex. App.—Fort Worth 2003) (“It is axiomatic that a Court of 

Appeals has no power to ‘overrule or circumvent [the] decisions, or disobey [the] 

3 In transfer cases, “the court of appeals to which the case is transferred must decide the case in 

accordance with the precedent of the transferor court under principles of stare decisis if the transferee 

court’s decision otherwise would have been inconsistent with the precedent of the transferor court.” TEX. R.

APP. P. 41.3. While unpublished memoranda opinions in criminal cases have no precedential value, see id. 

R. 47.7(a), “we may take guidance from them ‘as an aid in developing reasoning that may be employed.’”

Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref’d) (quoting Carrillo v. State, 

98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)). And Rule 47.7 should not be read to “justify[]

unreasoned inconsistency on the part of an appellate court.” Carrillo, 98 S.W.3d at 794.
10

mandates,’ of the Court of Criminal Appeals.” (quoting State ex rel. Vance v. Clawson, 

465 S.W.2d 164, 168 (Tex. Crim. App. 1971)). And like our sister court in Waco noted in 

Brown, to our knowledge, Martin is still the controlling precedent in Texas. See Martin,

200 S.W.3d at 639; see also Brown, 2018 WL 4926209, at *3. In any event, even if this 

Court could circumvent a decision of the court of criminal appeals, we would have no 

basis to do so here under appellant’s stated theory.

In arguing against Martin, appellant cites Carpenters for the proposition that “a 

judge may not direct a verdict of guilty no matter how conclusive the evidence.”

Carpenters, 330 U.S. at 408; see Sullivan v. Louisiana, 508 U.S. 275, 277 (1993)

(“[A]lthough a judge may direct a verdict for the defendant if the evidence is legally 

insufficient to establish guilt, he may not direct a verdict for the State, no matter how 

overwhelming the evidence.”). In Carpenters, the Supreme Court held that the trial court’s 

improper exclusion of a requested jury instruction on an element of the relevant offense

may have amounted to a directed verdict on that element, as it was not clear that the jury 

considered it. Carpenters, 330 U.S. at 408–09; see United States v. Mentz, 840 F.2d 315, 

324 (6th Cir. 1988) (“[W]hen an instruction prevents the jury from considering a material 

issue, it is equivalent to a directed verdict on that issue . . . .”). That conclusion satisfies 

the Sixth Amendment requirement that “the jury, rather than the judge, [must] reach the 

requisite finding of ‘guilty,’” and the Fifth Amendment requirement that, to do so, the jury 

must find each element of the charged crime beyond a reasonable doubt. Sullivan, 508 

U.S. at 277–78; see U.S. CONST. amends. V, VI. But neither Carpenters nor any of the 

cases appellant cites concerns an instance where, as here, the defendant stipulates to 
11

the facts establishing an element of the charge against him, and that stipulation is 

presented to the jury.

While he cites no authority on point, appellant’s constitutional contention is still

relevant in the stipulation context. “[W]hether the government’s duty to prove each 

element of a crime beyond a reasonable doubt is diluted impermissibly if the jury 

instructions do not submit the stipulation for the jury’s consideration” has never been 

addressed by the Supreme Court and is a “thorny question [that] has divided the [federal] 

courts of appeals.” United States v. Meade, 175 F.3d 215, 223 n.2 (1st Cir. 1999). This 

includes submitting the stipulation but mandating that the jury find that the stipulated fact 

or element has been proven. Compare United States v. Muse, 83 F.3d 672, 680 (4th Cir. 

1996) (concluding that the stipulation must be submitted to the jury and suggesting that, 

to preserve a defendant’s Fifth and Sixth Amendment rights, the jury should be instructed 

that it may, but need not, find that the stipulated element has been proved beyond a 

reasonable doubt); with United States v. Mason, 85 F.3d 471, 472 (10th Cir. 1996) (noting 

that “by stipulating to elemental facts, a defendant waives his right to a jury trial on that 

element,” and concluding that instructing the jury that they should find that a stipulated 

element of an offense had been proven did not constitute a directed verdict on that 

element because “the judge has not removed the consideration of an issue from the jury; 

the parties have”).4

4 When faced with the same issue, the Second, Third, and Sixth Circuits each sidestepped the 

question of whether the trial court’s instructions were erroneous and instead analyzed the issue for plain 

error—and ultimately affirmed the convictions in each case. See United States v. Gonzalez, 110 F.3d 936, 

948 (2d Cir. 1997); United States v. Cornish, 103 F.3d 302, 306 (3d Cir. 1997); United States v. Jones, 108 

F.3d 668, 673 (6th Cir. 1997).
12

We do not undertake further analysis of the issue, however, because the Supreme 

Court has not opined on the matter. Thus, even if, as appellant suggests, this Court had 

the authority to stray from an on-point decision from the court of criminal appeals that

conflicted with United States Supreme Court precedent, we would have no cause to do

so here.

We conclude that the jury charge instructing the jury “to find [appellant’s two prior 

DWI convictions] have been established” was not erroneous. See Martin, 200 S.W.3d at 

640; Price, 457 S.W.3d at 439. We overrule appellant’s second issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

DORI CONTRERAS 

Chief Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

23rd day of March, 2023.