XXIII. Priors/Enhancements

A. PROVING DEFENDANT IS PERSON NAMED IN JUDGMENT

1. I.D. MUST BE BASED ON MORE THAN “SAME NAME”
   • Strehl v. State, 486 S.W. 3d 110, (Tex.App.-Texarkana 2016)
     • This was a felony DWI trial where the State’s only evidence tying the Defendant on trial to one of the two jurisdictional priors was the fact that the name of the Defendant was the same name that was on the prior The State argued that Defendant’s name was unique (Joseph Leo Strejil III). The Court of Appeals sad that same name is not enough and modified the conviction to reflect a misdemeanor conviction of DWI-Rep.
   • White v. State, 634 S.W.2d 81 (Tex.App.-Austin 1982, no pet.).
2. BOOK-IN CARD MUST BE TIED TO JUDGMENT AND SENTENCE
   • Zimmer v. State, 989 S.W.2d 48 (Tex.App.-San Antonio 1998, pet. ref’d).
     • Where State proved identity of defendant by using book-in card which it offered in conjunction with a Judgment and Sentence and the judge admitted the Judgment and Sentence but not the card, and there was no evidence tying the card to the Judgment and Sentence, the proof was insufficient as to that prior. (It appears there may not have been a sufficient predicate laid for admission of the slip, i.e. business record, and implies no tie between the slip and the Judgment and Sentence [i.e. cause number on slip tied to J & S] because there was no mention of same in the opinion.)
3. PROOF OF ID POSSIBLE WITHOUT PRINTS OR PHOTOS
   • Billington v. State, No. 08-12-00144-CR, 2014 WL 669555 (Tex.App.-EI Paso 2014, no pet.).
     • In this case the fingerprints on the J & S were in such poor quality they could not be used so Defendant was tied to two pen packets with other evidence including a third useable pen packet. The details from the pen packets that connected him included same DPS number, name and date of birth and tattoos. A certified DL record had the same offense and conviction dates. Under totality of circumstances, there was found to be sufficient evidence to tie Defendant to Pen Packet and prove his priors.
   • Richardson v. State, No. 05-03-01104-CR, 2004 WL 292662 (Tex.App.-Dallas 2004, no pet.) (not designated for publication).
     • There were no prints on the certified trial docket sheets, charging instruments, or the judgment and probation order, nor were there any photographs used to prove the defendant was the same person named in the two priors. The defendant’s address, gender, race, date of birth, and drivers’ license number were on those documents; and they matched the information gained from defendant at the time of the arrest. This was found to be sufficient proof that the defendant was the same person named in the prior.
4. COMPUTER PRINTOUT AS PROOF OF PRIOR CONVICTION
   • Ex Parte Warren, 353 S.W.3d 490 (Tex.Crim.App. 2011).Flowers v. State, 220 S.W.3d 919 (Tex.Crim.App.2007).
     • Held that a computer printout offered to prove prior conviction contained sufficient information and indicia of reliability to constitute the functional equivalent of a judgment and sentence tied to this particular defendant. In this case, the printout states the defendant’s name, the offense charged, and date of commission; that he was found guilty of and sentenced for the offense; and gives the specifics of the sentence and the amount of time served. Further, the printout is properly authenticated by the Dallas County Clerk in accordance with evidentiary rule 902(4). The other document offered was a certified copy of defendant’s DL record.
5. CERTIFIED DOCUMENTS OFFERED TO PROVE PRIORS NEED NOT BE ORIGINALS
   • Haas v. State, No. 14-15-00445-CR, 2016 WL 1165797 (Tex.App.-Houston (14thDist.) 2016)
     • In this case, the State offered copies of certified documents to prove up a prior DWI conviction. The Defendant objected that copies are not sufficient and the documents need to be originals. He also objected that documentation offered was insufficient to tie him to the prior in the absence of fingerprints. The Court held that a certified document number of each page of the document along with a seal on the last page is all that is needed to authenticate the document. As to the other documents, the Judgment of prior conviction had the name and cause number, an order removing the interlock device which had Defendant’s name, birth date, and drivers license number, and a bail bond in that same cause number listed the Defendant’s name, birth date, and drivers license number were sufficient to prove prior for enhancement purposes.
6. PEN PACK SUFFICIENT EVEN WHEN NON-CORRESPONDING INFORMATION INCLUDED
   • Alberty v. State, 528 S.W.3d 702 (Tex.App. – Texarkana 2017).
     • In this case, the State offered a pen pack that included a fingerprint card, certified copies of judgments of conviction, and a mug shot. The dates shown on the fingerprint cards, as well as the statutes of offenses written on the fingerprint cards, were not associated with the judgments of convictions contained in the pen pack. The Defendant objected to the fingerprint cards and the fingerprint comparison evidence. In addition to the pen packs, the trial court heard evidence from several witnesses that connected the Defendant to the prior convictions. The court overruled the Defendant’s objection stating that it went to “weight not admissibility.” The Court of Appeals upheld the conviction and stated that the State must prove two elements beyond a reasonable doubt to establish that a defendant has been convicted of a prior offense:
       1. a prior conviction exits, and
       2. the defendant is linked to that conviction.

       B. PRIORS FOR WHICH DEFERRED ADJUDICATION GIVEN

       Brown v. State, 716 S.W.2d 939 (Tex.Crim.App. 1986). [reversed on other grounds].

       Order of DFAJ is admissible in punishment phase of trial regardless of whether probation has been completed. (Applies in general, not specific to DWI prosecution).

       C. USE OF DPS RECORDS TO PROVE PRIORS

       1. FOR PURPOSE OF TYING DEFENDANT TO J & S
          • Wilmer v. State, 463 S.W.3d 194 (Tex.App.-Amarillo 2015, no pet)
          • Clement v. State, 461 S.W.3d 274 (Tex.App.-Eastland 2015, aff’d otter grounds), 2016 WL 4938246 (Tex.Crim.App 2016)
          • Jordan v. State, No. 02-12-00301-CR, 2014 WL 2922316 (Tex.App.-Fort Worth 2014, no pet).
          • Gibson v. State, 952 S.W.2d 569 (Tex.App.-Fort Worth 1997, no pet.).
          • Williams v. State, 946 S.W.2d 886 (Tex.App.-Waco 1997, no pet.).
          • Spaulding v. State, 896 S.W.2d 587 (Tex.App.-Houston [1stDist.] 1995, no pet.).
          • Abbring v. State, 882 S.W.2d 914 (Tex.App.-Fort Worth 1994, no pet.).
          • Lopez v. State, 805 S.W.2d 882 (Tex.App.-Corpus Christi 1991, no pet.).
            • Use of DPS records to tie defendant to priors is proper.
       2. DPS RECORDS ALONE WITHOUT J & S – NOT ENOUGH
          • Gentile v. State, 848 S.W.2d 359 (Tex.App.-Austin 1993, no pet.).
            • Use of DPS records alone without judgment and sentence is not sufficient to prove enhanced priors.
       3. DPS RECORDS NOT EXCLUDABLE UNDER COLE
          • Tanner v. State, 875 S.W.2d 8 (Tex.App.-Houston [1st Dist.] 1994, pet. ref’d).
            • Driving records prepared by DPS do not fall under the exclusion of 803(8) (b) described in Cole v. State.

       D. FAXED COPY OF JUDGMENT & SENTENCE ADMISSIBLE

       Englund v. State, 907 S.W.2d 937 (Tex.App.-Houston [1 st Dist.] 1995) affirmed 946 S.W.2d 64 (Tex.Crim.App. 1997).

       Court held that requirements of Rules 1001 (3), 1001 (4), and 901 (a) & (b) (7) of the Texas Rules of Criminal Evidence were met when faxed judgment and sentence were offered in lieu of originals.

       E. ENHANCEMENT OF FELONY DWI WITH NON-DWI PRIORS

       Jones v. State, 796 S.W.2d 183 (Tex.Crim.App. 1990).

       Phifer v. State, 787 S.W.2d 395 (Tex.Crim.App. 1990).

       Seaton v. State, 718 S.W.2d 870 (Tex.App.-Austin 1986, no pet.).

       Rawlings v. State, 602 S.W.2d 268 (Tex.Crim.App. 1980).

       Felony DWI can be enhanced with non-DWI prior convictions. (Point being that if felony convictions other than those of felony DWI are used, a person convicted of felony DWI can be a “habitual” criminal.)

       F. ERROR IN ENHANCEMENT PARAGRAPH NOT FATAL

       1. WRONG DATE ALLEGED
          • Valenti v. State, 49 S.W.3d 594 (Tex.App.-Fort Worth 2001, no pet.).
          • Zimmerlee v. State, 777 S.W.2d 791 (Tex.App.-Beaumont 1989, no pet.).
            • Variance between dates in DWI enhancements as alleged and as proved not fatal absent showing that defendant was surprised, mislead, or prejudiced.
       2. WRONG CASE NUMBER ALLEGED
          • Human v. State, 749 S.W.2d 832 (Tex.Crim.App. 1988).
            • In the absence of a showing that the defendant was surprised or prejudiced by discrepancy, the fact that cause number in DWI conviction alleged in felony indictment differed from that proven at trial was not fatal. In this case, it was alleged that prior had cause #F80-1197-MN when proof showed it was cause #F80-11997N.
          • Cole v. State, 611 S.W.2d 79 (Tex.Crim.App. 1981).
            • No fatal variance in enhancement paragraph that alleged prior was in cause #87954 when it was later proven that it was in fact under cause #87594.
       3. WRONG STATE ALLEGED
          • Plessinger v. State, 536 S.W.2d 380 (Tex.Crim.App. 1976).
            • Where the enhancement alleged the prior was out of Texas when it was really out of Arizona, proof is sufficient in absence of a showing that the defendant was misled, prejudiced, or surprised.
       4. WRONG CHARGING INSTRUMENT ALLEGED
          • Hall v. State, 619 S.W.2d 156 (Tex.Crim.App. 1980).
            • Where enhancement alleged that prior arose out of “indictment” when it in fact arose out of an “information” was held not to be a fatal variance.

       G. APPEAL OF REVOKED DWI DOESN’T BAR ITS USE FOR ENHANCEMENT

       State v. Camacho, 827 S.W.2d 443 (Tex.App.-San Antonio 1992, no pet.).

       DWI revocation being appealed doesn’t bar its use to enhance DWI to felony.

       H. FELONY DWI

       1. ORDER OF ENHANCEMENTS
          • Streff v. State, 890 S.W.2d 815 (Tex.App.-Eastland 1994, pet. ref’d).
          • Peck v. State, 753 S.W.2d 811 (Tex.App.-Austin 1988, pet. ref’d).
            • Prior DWI’s convictions used to enhance case to felony need not be sequential.
       2. UNDERLYING DWI PRIORS ARE ADMISSIBLE IN GUILTY/INNOCENCE STAGE
          • Barfield v. State, 63 S.W.3d 446 (Tex.Crim.App. 2001).
          • Maibauer v. State, 968 S.W.2d 502 (Tex.App.-Waco 1998, pet. ref’d).
          • Will v. State, 794 S.W.2d 948 (Tex.App.-Houston [1stDist.] 1990, pet. ref’d).
          • Addington v. State, 730 S.W.2d 788, 789-90 (Tex.App.-Texarkana, pet. ref’d).
          • Freeman v. State, 733 S.W.2d 662, 663-64 (Tex.App.-Dallas 1987, pet. ref’d).
          • State v. Wheeler, 790 S.W.2d 415 (Tex.App.-Amarillo 1990, no pet.).
            • Defendant’s prior DWI convictions were jurisdictional elements of the offense of felony DWI. Thus, those convictions were properly part of state’s proof at guilt stage of trial.
       3. DEFENDANT’S AGREEMENT TO STIPULATE TO PRIORS DOES PRECLUDE THEIR BEING ADMITTED
          • Hernandez v. State, 109 S.W.3d 491 (Tex.Crim.App. 2003).
          • Smith v. State, 12 S.W.3d 149 (Tex.App.-EI Paso 2000, pet. ref’d).
          • Tamez v. State, 11 S.W.3d 198 (Tex.Crim.App.2000).
            • If a defendant stipulates to two prior convictions, the State may read the indictment at the beginning of the trial mentioning the two prior convictions but may not give any evidence of them during trial. Also, if stipulated that there are two prior DWIs, evidence of more than two DWIs may not be mentioned during trial.
          • Robles v. State, 85 S.W.3d 211 (Tex.Crim.App. 2002).
            • Where the defendant agrees to stipulate to priors, the State can’t offer those priors into evidence. The Court points out that details contained in the priors can be prejudicial to the defendant.
       4. STIPULATION SHOULD BE ADMITTED INTO EVIDENCE
          • Hollen v. State, 117 S.W.3d 798 (Tex.Crim.App. 2003).
          • Hernandez v. State, 109 S.W.3d 491 (Tex.Crim.App. 2003).
          • State v. McGuffey, 69 S.W.3d 654 (Tex.App.-Tyler 2002, no pet.).
          • Orona v. State, 52 S.W.3d 242 (Tex.App.-EI Paso 2001, no pet.).
            • The proper procedure, under Tamez, is for the stipulation to be offered into evidence and published to the jury.
       5. TWO PRIORS THAT ARISE OUT OF A SINGLE CRIMINAL ACT MAY BE USED TO ENHANCE TO A FELONY
          • Gibson v. State, 995 S.W.2d 693 (Tex.Crim.App. 1999).
            • Two previous convictions for manslaughter that were based on two deaths arising out of a single act of driving while intoxicated could be used to enhance a new charge of driving while intoxicated up to a felony charge of driving while intoxicated.
       6. JUDGE HAS NO AUTHORITY TO FIND PRIOR CONVICTION TRUE WHEN ISSUE NOT SUBMITTED TO JURY
          • Martin v. State, 84 S.W.3d 267 (Tex.App.-Beaumont 2002, pet ref’d).
            • In this case the defendant was tried for Intoxication Manslaughter, and the jury was given a lesser included instruction for DWI. The jury found the defendant guilty of the lesser charge, and the trial court found the defendant had two prior DWIs and found him guilty of Felony DWI. The Court reversed the conviction, holding that there is no support for the argument that the trial court was permitted to assume the role of fact-finder on the issue of the two prior convictions. The Court held that the prior convictions are elements and must be included in the jury charge and found to be true before a jury may find a defendant guilty of the offense of Felony DWI.
       7. STIPULATING TO PRIORS WAIVES 10 YEAR OBJECTION
          • Gordon v. State, 161 S.W.3d 188 (Tex.App.-Texarkana 2005, no pet.).
          • Smith v. State, 158 S.W.3d 463 (Tex.Crim.App.2005).
            • This was a case where the defendant agreed to stipulate to two prior convictions in a felony DWI trial. He later challenged the conviction on appeal on the basis that one of the priors was too remote under the current rule for calculating such priors as has been articulated in the Getts case. The Court of Criminal Appeals upheld the conviction and the use of the remote prior stating that the defendant waived appellate challenge to remoteness of the “prior conviction used as predicate conviction for felony sentencing by confessing such prior conviction by stipulation.”
       8. JURY INSTRUCTION MUST ADDRESS THE STIPULATION
          • Martin v. State, 200 S.W.3d 635, (Tex.Crim. App. 2006).
            • This is a felony DWI case that focused on alleged error in the jury instructions regarding failure to address the defendant’s stipulation to his priors. This is a great opinion for those who have any doubts about the rules regarding the acceptance of such stipulations and how the priors may be addressed during the trial. In part, the Court reaffirmed that: “when a defendant offers to stipulate to jurisdictional priors in a felony DWI case, the State may (but is not required) to read the entire indictment, including the two jurisdictional allegations (but only those two) in arraigning the defendant in the presence of the jury”; “both the State and the defense may voir dire the jury concerning the range of punishment for both a felony and misdemeanor DWI”; “the jury need not be informed of the particulars of the prior convictions in reading the indictment, voir dire, opening or closing arguments or in the jury charge itself, a defendant’s stipulation to the two prior DWIs, being in the nature of a judicial admission, has the legal effect of removing the jurisdictional element from contention”; “a defendant may not offer evidence or argument in opposition to his stipulation”; “during the trial, the jury may be informed of the stipulation and any written stipulation may be offered into evidence before the jury, but the evidence is sufficient to support a defendant’s conviction even if the stipulation is not given or read to the jury”; “in a bench trial, the guilt and punishment stages are not bifurcated, so the State is not required to offer the stipulation during the initial portion of the hearing, even if the proceeding is improperly bifurcated”.
            • The new requirements addressed by the Court are that:
              1. The jury charge must include some reference to the jurisdictional element of two prior DWI convictions in a felony DWI trial;
              2. The jury charge must include some reference to the defendant’s stipulation and its legal effect of establishing the jurisdictional element;
              3. Any error in failing to include in the jury charge some reference to the jurisdictional element and the stipulation is analyzed under Almanza.
              • Bryant v. State, 187 S.W.3d 397 (Tex.Crim.App.2005).
                • In this case, the defendant stipulated on the condition that the State not mention or offer evidence of the priors. He then complained on appeal that the priors, elements in the case, were not proven. The Court held that by stipulating to two prior convictions for DWI, the defendant waived any right to contest the absence of proof on stipulated element in prosecution for felony DWI; he could not argue that the State failed to prove its case on an element to which he had stipulated.
                • Bell v. State, 201 S.W.3d 708 (Tex.Crim.App. 2006).
                  • Defendant’s two prior convictions in federal court, under federal Assimilative Crimes Act (ACA), for driving while intoxicated (DWI) were properly used to enhance defendant’s state conviction of DWI to third degree felony; federal convictions under ACA were convictions for offenses under Texas law.
                  • Tietz v. State, 256 S.W.3d 377 (Tex.App.-San Antonio 2008, pet. ref’d).
                    • The defendant tried to attack the use of the underlying DWI’s for enhancement by arguing that the enhancement law that was in effect at the time the priors were committed (ten year rule), as opposed to the enhancement law in effect at the time of the primary offense (no ten year rule), should be applied. This argument was rejected and the court reiterates that the exact dates of prior convictions used for enhancement are not elements of the primary DWI offense.
                    • See also:
                      • Vanderhorst v. State, 52 S.W.3d 237 (Tex.App.-Eastland 2001, no pet.).
                      • In re State ex rel. Hilbig, 985 S.W.2d 189 (Tex.App.-San Antonio 1998, no pet.).
                      • Freeman v. State, 413 S.W.3d 198 (Tex.App.-Houston [14thDist] 2013). Habeas corpus granted by Ex Parte Freeman, No. WR-76787-02, 2014 WL 1871649 (Tex.Crim.App. 2014)
                        • The jury charge in this case correctly stated the law applicable to the case by requiring the jury to find beyond a reasonable doubt that appellant “was twice convicted of an offense related to the operating of a motor vehicle while intoxicated”. The charge stated that the phrase “offenses relating to operating a motor vehicle while intoxicated” included DWI offenses. No greater specificity is required as nothing in the law requires that the jury be informed of the particulars of the prior convictions in the jury charge itself.
                        • Medrano v. State, No. 02-12-00450-CR, 2013 WL 6198841 (Tex.App.-Fort Worth 2013, pdr ref’d).
                          • The convictions alleged and relied upon to raise a DWI to a felony offense need not have occurred before the offenses or convictions used to enhance Defendant’s sentence in rep and habitual counts.
                          • Gaddy v. State, 433 S.W.3d 128 (Tex.App.-Fort Worth 2014, pdr ref’d).
                            • At the Court of Appeals level after finding one of the necessary underlying DWI priors was invalid, the Court of Appeals rendered a judgment of acquittal. This was appealed and reversed by the Court of Criminal Appeals which held that they should reconsider in light of its holding in Bowen v. State which stated that a proper remedy other than acquittal would be to remand case to Trial Court for modification. On remand the Court of Appeals found that in convicting the Defendant of Felony DWI, the jury must have also found sufficient evidence to convict of misdemeanor DWI and therefore remanded the case back to Trial Court for punishment hearing on the misdemeanor DWI charge.

                            I. LIMITS ON USE OF DWI PRIORS FOR ENHANCEMENT

                            1. PRIOR FELONY DWI MAY BE USED TO ENHANCE FELONY UNDER PENAL CODE SECTION 12.42
                               • Maibauer v. State, 968 S.W.2d 502 (Tex.App.-Waco 1998, pet. ref’d).
                                 • The State can use a prior felony DWI conviction under Penal Code Section 12.42 for enhancement purposes, provided that the prior conviction is not also used to elevate the alleged offense to a felony.
                            2. SAME PRIOR CANNOT BE USED TWICE
                               • Ex parte Clay, No. WR-WR-87,763-01
                               • Rodriguez v. State, 31 S.W.3d 359 (Tex.App.-San Antonio 2000, pet. ref’d).
                               • Phillips v. State, 964 S.W.2d 735 (Tex.App.-Waco 1998, pet. granted in part) 992 S.W.2d 491 (Tex.Crim.App. 1999) 4 S.W.3d 122 (Tex.App.-Waco 1999).
                               • Rivera v. State, 957 S.W.2d 636 (Tex.App.-Corpus Christi 1997, pet. ref’d).
                                 • The same prior DWI convictions may not be used both to enhance the underlying DWI charge and to prove habitual felony offender status.
                            3. WHAT IS NOT “USING A PRIOR TWICE”
                               • Perez v. State, 124 S.W.3d 214 (Tex.App.-Fort Worth 2002, no pet.)
                               • Orona v. State, 52 S.W.3d 242 (Tex.App.-EI Paso 2001, no pet.)
                               • Carroll v. State, 51 S.W.3d 797 (Tex.App.-Houston [1st Dist.] 2001, pet. ref’d).
                                 • A misdemeanor DWI conviction was used to elevate the DWI jurisdictionally to a Felony and the Felony DWI was enhanced with other Felony DWIs to make the defendant a habitual offender. One of the Felony DWIs relied upon the same misdemeanor conviction described above. Defendant argued that constituted using the same prior twice. This argument was rejected by the Court which held that the State did not use the misdemeanor offense twice because it did not use it for punishment enhancement purposes but rather only jurisdictional purposes. It based this holding on the fact that no independent proof of the misdemeanor’s existence is required under 12.42(d) of the Texas Penal Code.
                            4. PROBATED DWI CONVICTIONS UNDER 6701L MAY BE USED TO ENHANCE WITH DWI OFFENSES
                               • Ex Parte Serrato, 3 S.W.3d 41 (Tex.Crim.App. 1999).
                                 • The Court points out that the relevant penalty enhancement provision [49.09(b)] provides: when it is shown on the trial of an offense under Section 49.04 that the person has previously been convicted two times of an offense relating to the “operating of a motor vehicle while intoxicated,” the offense is a felony of the third degree. 49.09(c) specifically defines the term “offense relating to the operating of a motor vehicle” to include an offense under Article 6701/ -1 Revised Statutes, as that law existed before September 1, 1994. 67011 stated: “For purposes of this article, a conviction for an offense that occurs on or after January 1, 1984, is a final conviction, whether or not the sentence for the conviction is probated.” So, by incorporating the prior DWI statute, as that law existed before enactment of the new statute, the Legislature declared its intent to continue the status quo, which included permitting probated DWI convictions for enhancement if the offense occurred after January 1, 1984.
                            5. USE OF OUT OF STATE PRIORS WITH DIFFERENT DEFINITIONS OF INTOXICATION/IMPAIRMENT
                               • State v. Christenson, No. 05-10-00940-CR, 2011 WL 2176656 (Tex.App.-Dallas 2011, pet. ref’d).
                                 • The State used a Colorado prior to enhance the Defendant’s DWI charge. The Colorado charge was called DWAI (driving while ability impaired). Defendant argued this was improper because the DWAI did not require “intoxication” but rather a lesser degree of “impairment”. The DWAI statute said impairment occurs when the consumption of alcohol “affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically […] to exercise clear judgment, sufficient control, or due care in the safe operation of a vehicle.” The Defendant pointed out that Colorado had a separate statute prohibiting DUI (driving under the influence) which further required the person’s impairment render the person “substantially incapable” of safe operation of a vehicle. In rejecting this argument, the Court held that Colorado DWAI met the requirement of Texas Penal Code Section 49.09(b) (2) and observed that the fact that Colorado recognizes different degrees of impairment through its DUI and DWAI laws does not mean a person “impaired” for the purposes of the DWAI statute is not “intoxicated” for the purpose of the Texas Penal Code. The Court found the definition of impairment under the DWAI statute to be almost identical to the definition of “Intoxication” under Texas law.
                               • Johnson v. State, No. 04-13-00509-CR, 2014 WL 3747256 (Tex.App.-San Antonio 2014, no pet).
                                 • New York prior was used to enhance Defendant to felony DWI. The Defendant’s motion to quash the indictment for use of the New York prior was denied and he appealed. The Defendant argued that the New York statute under which the State was trying to enhance his charge was not a law that prohibits their operation of a motor vehicle while intoxicated. The New York law was called DWAI (driving while ability impaired) which is committed when a person’s ability to operate a motor vehicle is impaired by consumption of alcohol. There was a separate statute which said DWI is committed if a person operates a motor vehicle in an intoxicated condition. Under the DWAI statute, a person is “impaired” if the consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which one is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver. The issue before the Court was therefore whether the definition of “impairment” under the New York law meets the definition of “intoxication” under Texas law. The Court of Appeals found that it did.
                            6. AN OUT-OF-STATE CONVICTION MUST BE A FINAL CONVICTION UNDER TEXAS LAW
                               • Ex parte Pue, No. WR-85, 447-01 (Tex.Crim.App. 2018)
                                 • The trial court used a prior conviction from California to enhance the Defendant’s sentence under CCP 12.42. However, the Court of Criminal Appeals said this was error because the Defendant was on probation for the California offense and it was not a final conviction under Texas Law. Texas law requires that a defendant be “finally convicted” of the alleged prior offense before punishment can be enhanced. It is well established that a conviction (in Texas) is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted. Furthermore, a successfully served probation is not available for enhancement purposes. However, a probated sentence can turn into a final conviction if probation is revoked.
                            7. PUNISHMENT — STACKING SENTENCES
                               • Mireles v. State, 444 S.W.3d 679 (Tex.App.-Houston [14thDist.] 2014, pet ref’d).
                                 • A Defendant pled guilty to a jury on two cases charging him with Intoxication Manslaughter and Intoxication Assault and the jury assessed his punishment as four years in prison on the first charge and seven years probation on the second charge. The Judge stacked the sentences so that his probated sentence would not begin until he had served his prison sentence. The Defense challenged the Judge’s stacking decision. The opinion discusses a potential conflict between the application of 42.04 CCP and 3.03 of the Texas Penal Code but ultimately finds the Judge had the authority to order the stacked sentences.

                            J. OPEN CONTAINER

                            1. SUFFICIENT PROOF OF
                               • Walters v. State, 757 S.W.2d 41 (Tex.App.-Houston [14th Dist.] 1988, no pet.).
                                 • Half full can of beer found lodged between windshield and dash immediately in front of steering wheel, defendant alone in car, no evidence that can smelled or tasted of alcohol = sufficient.
                               • Troff v. State, 882 S.W.2d 905 (Tex.App.-Houston [1st Dist.] 1994, pet. ref’d).
                                 • Not required to prove defendant held beer while driving.
                            2. EFFECT OF IMPROPER READING OF OPEN CONTAINER ENHANCEMENT IN GUILT/lNNOCENCE PHASE
                               
                               • Doneburg v. State, 44 S.W.3d 651 (Tex.App.-Fort Worth 2001, pet. ref’d.).
                                 • The State erroneously read the open container enhancement to the jury when it arraigned the defendant at the beginning of trial. That this was a mistake is conceded by all. The Defense requested that the “open container” paragraph be included as an element that the State had to prove in the guilt innocence jury instructions. This request was denied by the trial court and the Court affirmed the conviction explaining that when the State alleges evidentiary matters that are not necessary to be proved under Article 21.03 of the CCP, the allegations are considered surplusage.

                            K. PROPER TO ALLEGE DATE PROBATION GRANTED AS OPPOSED TO DATE PROBATION REVOKED

                            Ogaz v. State, No. 2-03-419-CR, 2005 WL 2898139 (Tex.App.-Fort Worth 2005, no pet.) (not designated for publication).

                            Defendant argued that the indictments should have alleged the date on which his probation in the prior cases was revoked and should have relied on those judgments revoking probation, not the older judgments of conviction. Even though his probation was revoked, the underlying convictions were final for enhancement purposes, so the indictment referred to the proper dates and judgments.

                            L. DEFECT IN WORDING OF JUDGMENT/PROBATION ORDER = BAD PRIOR

                            1. YES
                               • Mosqueda v. State, 936 S.W.2d 714 (Tex.App.-Fort Worth 1996, no pet.).
                                 • This was a felony DWI case where there was a defect in the paperwork supporting one of the underlying misdemeanor DWI convictions. The order of probation contained the language “it is therefore considered, ordered, and adjudged, that the verdict and finding of guilty herein shall not be final. that no judgment be rendered thereon, and that the defendant be, and is hereby placed on probation”. If you see the underlined wording on the probation order of your DWI prior, it violates 42.01 of the Texas Code of Criminal Procedure in that it does not show that the defendant was “adjudged to be guilty” as is required. The result in this case was that the defendant was ordered acquitted.
                                 • NOTE: IF YOU SPOT THIS PROBLEM EARLY YOU CAN PROBABLY SAVE THE PRIOR BY SEEKING A NUNC PRO TUNG ORDER FROM THE JUDGE OF THE COURT OUT OF WHICH THE PRIOR WAS ISSUED.
                            2. NO
                               • Gonzales v. State, 309 S.W.3d 48 (Tex.Crim.App. 2010).
                               • Williamson v. State, 46 S.W.3d 463 (Tex.App.-Dallas 2001, no pet.).
                               • Rizo v. State, 963 S.W.2d 137 (Tex.App.-Eastland 1998, no pet.)
                            3. NOT A PROBLEM FOR UNDERLYING PRIORS
                               • State v. Vasguez, 140 S.W.3d 758 (Tex.App.-Houston [14th Dist.] 2004, no pet.).
                               • State v. Duke, 59 S.W.3d 789 (Tex.App.-Fort Worth 2001, pet. ref’d).
                                 • This was a State’s appeal of an order setting aside an indictment for Felony DWI. The State relied upon two Felony DWI priors to raise the new charge to a felony. The defense attacked the felony enhancement pointing out that priors that had been relied upon to raise those cases to a felony were faulty. The specific problem with the underlying priors, both out of Dallas, was that the judgments contained language stating the priors “shall not be final.” So in a “domino” theory, the defendant argues that if the underlying priors were infirm, then the resulting felony convictions used in the actual enhancement are infirm as well. The Court of Appeals, even granting that the underlying priors were not final, distinguishes this case from Mosqueda by holding that even if the underlying Dallas priors are void, there is no reason to say that the felony DWI’s could not be reformed to reflect misdemeanor convictions for DWI and the status of the underlying priors being misdemeanors or felonies is immaterial. The trial Court’s order setting aside the indictment was reversed.
                            4. UNSIGNED JUDGMENT CAN BE USED TO PROVE ENHANCEMENT
                               • Gallardo v. State, No. 07-09-0064-CR, 2010 WL 99011 (Tex.App.-Amarillo 2010, no pet.) (not designated for publication).
                                 • The validity of a judgment of conviction and the ability to use it to enhance a DWI to a felony is not affected by the failure of the trial judge to sign the judgment. Court cited, Mulder v. State, 707 S.W.2d 908 (Tex.Crim.App. 1986).

                            M. ERRONEOUS DISMISSAL OF PROBATION BY THE COURT WON’T AFFECTFINALITY OF THE CONVICTION

                            Chughtai v. State, No. 05-15-01275-CR, 2016 WL 4010833 (Tex. App. – Dallas 2016)

                            Anderson v. State, 110 S.W.3d 98 (Tex.App.-Dallas 2003, reh. overruled).

                            Jordy v. State, 969 S.W.2d 528 (Tex.App.-Fort Worth 1998, no pet.).

                            Mahaffey v. State, 937 S.W.2d 51 (Tex.App.-Houston [1 st Dist], 1996, no pet.).

                            The problem here was not with the face of the judgment but rather with a subsequent order by the sentencing court which issued an order that discharged the defendant from probation, set aside the verdict, dismissed the complaint, and released him from all penalties and disabilities resulting from commission of the offense. The defense argued such an order should prevent the State from offering said prior into evidence as a final conviction. The Court of Appeals rejects that argument pointing out that said order was purportedly made under a section of the code that was at the time of the order repealed. (The section referred to is now Article 42. 12 Section 20 of the CCP which then, as now, does not apply to DWI cases.) Since the order was issued without authority to do so, its order is void and has no effect on the finality of the defendant’s conviction.

                            N. MANDATORY JAIL TIME AS CONDITION OF PROBATION-REPEATOFFENDERS

                            State v. Lucero, 979 S.W.2d 400 (Tex.App.-Amarillo 1998, no pet.).

                            Trial court erred when it probated defendant convicted of DWI who was proven to be a repeat offender [49.09(a)] by not ordering a minimum of three days in jail as a condition of probation.

                            O. IF YOU ALLEGE MORE PRIOR DWl’S THAN YOU NEED, MUST YOU PROVE THEM ALL?

                            1. YES
                               • Jimenez v. State, 981 S.W.2d 393 (Tex.App.-San Antonio 1998, pet.. ref’d).
                                 • In this felony DWI case, the State alleged three prior DWI’s in the charging instrument and then the court charged the jury that if it found any two of three to have been proved, it was sufficient. Court held that it was error in that the state. by alleging three priors had increased its burden of proof and thus had to prove all three priors. Error was found to be harmless in this case.
                                 • NOTE: ANOTHER CONTROVERSIAL OPINION THAT SEEMS TO DEFY LOGIC AND PRECEDENT.
                            2. NO
                               • Biederman v. State, 724 S.W.2d 436 (Tex.App.-Eastland 1987, pet. ref’d).
                               • Read v. State, 955 S.W.2d 435 (Tex.App.-Fort Worth 1997, pet. ref’d).
                               • Wesley v. State, 997 S.W.2d 874 (Tex.App.-Waco 1999, no pet.).
                               • Washington v. State, 350 S.W.2d 924 (Tex.Crim.App. 1961).
                                 • State may allege as many prior DWI’s as it wants and still need not prove any more than two of them.

                            P. PROOF THAT PRIOR DWI IS WITHIN 10 YEARS OF OFFENSE DATE

                            1. ONLY ONE OF THE TWO PRIORS MUST BE WITHIN 10 YEARS (FOR DWI OFFENSES PRIOR TO 9-1-01)
                               • Smith v. State, 1 S.W.3d 261 (Tex.App.-Texarkana 1999, pet ref’d).
                                 • Held that State need only prove that one of the defendant’s two prior DWI convictions was for an offense committed within 10 years of new offense date. The Court further admits it made a mistake in the dicta of its opinion in Renshaw v. State, 981 S.W.2d 464 (Tex.App. – Texarkana 1998). “The State correctly points out that dicta in the Renshaw case is in error in stating that the State would have to prove two prior DWI convictions within the same 10 year period.”
                            2. PROOF OF 10 YEARS NOT NECESSARY
                               • Summers v. State, 172 S.W.3d 102 (Tex.App.-Texarkana 2005, no pet.)
                               • St. Clair v. State, 101 S.W.3d 737 (Tex.App.-Houston [1stDist.] 2003, pet. ref’d).
                               • Weaver v. State, 87 S.W.3d 557 (Tex.Crim.App. 2002).
                                 • Priors listed in enhancement paragraphs were too remote (no intervening conviction to bring it under 10 year rule was alleged). Issue raised is whether the State must present evidence of intervening conviction to the jury? Is 49.09 (e) an element of the offense of Felony DWI? Court of Appeals said it is. Court of Criminal Appeals in this opinion says it is not an element and the State does not need to offer evidence of that conviction to the jury, but rather just needs to submit the proof to the trial court which it did in this case.
                               • Bower v. State, 77 S.W.3d 514 (Tex.App.-Houston [1stDist.] 2002, pet ref’d).
                                 • This was a felony DWI trial where the Defendant stipulated to his prior DWI’s and pied true to the enhancements. The enhancements did not contain the offense dates of the priors and no evidence of the offense dates was presented by the State during the guilt/innocence phase of the trial. The defendant argued this was a failure of proof and cited Renshaw and Smith. This Court finds that the reasoning of those two opinions is wrong in that the accusation of two priors is all that is needed to give the Court jurisdiction. It distinguishes 12.42(d) from 49.09(b). It also points out that if the State’s priors were stale, the proper remedy would have been to move to quash the indictment, object to the admission of the priors, or ask for a lesser charge of misdemeanor DWI. While we wait for the Court of Criminal Appeals to address this issue, it would seem prudent to go ahead and mention at least one of the offense dates in the body of our stipulations in felony DWI cases.
                            3. THE 10 YEAR RULE FOR OFFENSES FROM 9-01-01 TO 8-31-05
                               • Getts v. State, 155 S.W.3d 153 (Tex.Crim.App.2005).
                                 • This case tells us how to apply the 2001 amendment to the DWI statute to the question of how to calculate in prior DWI convictions to bump the charge up to a felony under 49.09 of the Texas Penal Code. The Court holds that prior DWI convictions are available for enhancement so long as they are within ten years of each other, calculating that time period by using the closest possible dates, whether that be the offense date, date of sentencing, or date of release from sentence, including probation or parole. For example, if a defendant has a 2005 DWI arrest and his record includes two priors from 1987 and 1993, this case should be filed as a felony DWI because the two prior DWI offenses are within ten years of each other-even though more than ten years’ time has lapsed since the priors and the current offense.
                            4. THE 10 YEAR RULE’S DEMISE DOES NOT VIOLATE EX POST FACTO LAW
                               • Effective September 1, 2005, the legislature repealed subsections (d) and (e) of Section 49.09 of the Texas Penal Code. This means that there are no age limitations on the use of DWI priors to enhance to Class A or Felony DWIs.
                               • Crocker v. State, 260 S.W.3d 589 (Tex.App.-Tyler 2008, no pet.).
                                 • This appeal was based on the argument that the statute that did away with the ten year rule was a violation of the ex post facto law. In rejecting that argument that court held that the previous version of the law that restricted the use of priors was “not an explicit guarantee that those convictions could not be used in the future, but only a restriction on what prior convictions could be used to enhance an offense at that time”. As a result, changing the statute did not increase defendant’s punishment for his prior conviction and did not violate his right of protection against ex post facto laws.

                            Q. JUDGE MAY NOT TERMINATE OR SET ASIDE DWI PROBATION EARLY

                            In re State ex rel. Hilbig, 985 S.W.2d 189 (Tex.App.-San Antonio, 1998, no pet.).

                            Judge had no authority to terminate and set aside felony DWI probations early—writ of prohibition granted by the Court of Appeals.

                            R. INTRODUCED JUDGMENT AND SENTENCE PRESUMED PROPER

                            1. NO WAIVER OF RIGHT TO JURY TRIAL
                               • Battle v. State, 989 S.W.2d 840 (Tex.App.-Texarkana 1999, no pet.).
                                 • Where State introduced copies of judgments which were silent as to waiver of a jury trial, the Court held that the priors were properly admitted as the “regularity of the conviction was presumed unless […] [the defendant] affirmatively showed that he did not waive his right to a jury trial”.
                            2. IN THE ABSENCE OF JUVENILE TRANSFER ORDER
                               • Johnson v. State, 725 S.W.2d 245 (Tex.Crim.App. 1987).
                                 • State offered a proper judgment and sentence and defendant challenged the lack of documentation of a proper transfer from juvenile giving district court jurisdiction. The defendant fails to offer any evidence that there was no transfer. The Court spells out the rule as regards priors as follows: “Once the State properly introduced a judgment and sentence and identifies appellant with them, we must presume regularity in the judgments. The burden then shifts to the defendant, who must make an affirmative showing of any defect in the judgment, whether that be to show no waiver of indictment or no transfer order.”

                            S. MISDEMEANOR PRIORS ARE VALID WHEN DEFENDANT WAIVES JURYWITHOUT AN ATTORNEY

                            Redfearn v. State, 26 S.W.3d 729 (Tex.App.-Fort Worth 2000, no pet.).

                            Defendant tried to quash enhancement paragraphs because he had not been appointed an attorney prior to waiving the right to a jury. Court points out that under 1.13(c) of Texas Code of Criminal Procedure that right applies only to felony pleas.

                            See also: Moore v. State, 916 S.W. 2d 696 (Tex.App.-Beaumont 1996, no pet.).

                            T. DWI SENTENCE MUST INCLUDE JAIL TIME

                            State v. Cooley, 401 S.W.3d 748 (Tex.App.-Houston [14th Dist.] 2013, no pet.).

                            This case involves a Defendant who pied open to the Court on a DWI second (Class A) where the Judge assessed punishment at $2,000 fine with no jail time. The State objected to this illegal sentence. The Court holds that a conviction for a second DWI must be assessed a minimum of 30 days confinement in accordance with 49.09(a) of the Texas Penal Code and vacates the sentence and remands the case for re-sentencing.

                            State v. Magee, 29 S.W.3d 639 (Tex.App.-Houston [1st Dist.] 2000, pet ref’d).

                            Judgment reversed where judge sentenced Defendant charged with first offense DWI to pay a $250 fine with no confinement in jail. Statute clearly requires a minimum 72 hours confinement in jail.

                            U. ILLEGAL SENTENCE ENFORCEABLE IF DEFENDANT ASKED FOR IT ORAGREED TO IT

                            Mapes v. State, 187 S.W.3d 655 (Tex.App.-Houston [14 th Dist.] 2006, pet. ref’d).

                            Since defendant had enjoyed the benefit of a lesser sentence under his prior conviction pursuant to plea agreement, he was estopped from asserting on appeal that because one of his prior driving while intoxicated (DWI) convictions was void for imposition of a sentence that was less than the minimum sentence required under the statutory range, the Trial Court was precluded from finding defendant guilty of current felony DWI charges.

                            Ex Parte Shoe, 137 S.W.3d 100 (Tex.App.-Fort Worth 2004), petition for discretionary review granted (Nov 10, 2004), petition for discretionary review dismissed (Oct 10, 2007).

                            Though the defendant’s plea bargain which sentenced him to jail but did not assess any fine was illegal, he could not later complain about a sentence that he requested, accepted the benefit from when he entered in the plea agreement.

                            V. EXPUNCTION WILL NOT ALWAYS RENDER UNDERLYING FACTS OF CASEINADMISSIBLE IN PUNISHMENT PHASE

                            Doty v. State, No. 03-03-00668-CR, 2005 WL 1240697 (Tex.App.-Austin May 26, 2005) (mem.op., Not designated for publication), pet. dism’d, improvidently granted, No. PD-1159-05, 2007 WL 841112 (Tex.Crim.App.2007) (not designated for publication).

                            In the punishment phase of an Intoxication Manslaughter case, the evidence of Defendant’s bad driving, appearance, admission of drinking, and result of FSTs was held to be admissible with the fact that the Defendant was arrested was held to be inadmissible. This was the case even though the DWI case in question resulted in an acquittal and the case was expunged. The officer said his testimony was based on his memory and not on the records.

                            W. FELONY DWI CAN BE THE UNDERLYING FELONY IN A “FELONY MURDER” CHARGE

                            Alami v. State, 333 S.W.3d 881 (Tex.App.-Fort Worth 2011, reh. overruled).

                            Felony DWI can serve as the underlying felony in a felony-murder prosecution.

                            Jones v. State, No. 14-06-00879-CR, 2008 WL 2579897 (Tex.App.-Houston [14 Dist.] 2008, pet. filed) (not designated for publication).

                            In upholding this felony murder conviction, the court rejected all of the defendant’s points. The Court found that the underlying DWI was properly considered as a felony, that there was no need to allege a culpable mental state, and that felony murder and intoxication manslaughter were not in pari materia.

                            Mendoza v. State, No. 08-04-00369-CR, 2006 WL 2328508 (Tex.App.-EI Paso, 2006, pet. ref’d) (not designated for publication).

                            In affirming this felony murder conviction, the Court held that since felony DWI is not a lesser­ included offense of manslaughter, felony DWI may be the underlying felony for the offense of felony murder. It further held that when felony DWI is the underlying felony, the State is not required to prove a culpable mental state as felony DWI requires no such proof.

                            Strickland v. State, 193 S.W.3d 662 (Tex.App.-Fort Worth 2006, pet. ref’d).

                            This case involved an offender who in the course of committing a felony DWI drove the wrong way down a highway and crashed into an oncoming vehicle, killing the front seat passenger. The defense argued that the proper charge was “intoxication manslaughter” and that the State was barred from proceeding by the doctrine of “pari materia.” In rejecting that argument, the Court of Appeals found that the felony murder statute and intoxication manslaughter required different elements of proof Penalties for felony murder and intoxication manslaughter were different; although both statutes served general purpose of imposing criminal responsibility for death and preventing homicide, their objectives were not so closely related as to justify interpreting statutes together, and statutes were not enacted with common purpose.

                            Lomax v. State, 233 S.W.3d 302 (Tex.Crim.App.2007), habeas relief denied, 2008 WL 5085653 (Tex.App.-Houston [14 th Dist.] 2008, pet. ref’d).

                            This case involved an offender who in the course of committing felony DWI was speeding, weaving in and out of traffic, tail-gating and engaging in aggressive driving which resulted in a crash and a death. The defense raised a number of arguments against the state’s decision to charge the defendant with felony murder. The issues raised were: the indictment failed to allege a mental state, that felony driving while intoxicated merges with felony murder, insufficient evidence he committed an “act clearly dangerous to human life,”—all of which were rejected by the Court of Criminal Appeals.

                            Hollin v. State, 227 S.W.3d 117 (Tex.App.-Houston [1st Dist.] 2006, pet. ref’d).

                            This case involved a charge of felony murder where the underlying felony was a felony DWI. The felony murder and intoxication manslaughter statutes were not in pari materia, and accordingly, defendant’s conduct, namely killing someone with his vehicle while he was driving under the influence, was not exclusively governed by the offense of intoxication manslaughter, and therefore it was within State’s discretion to charge defendant with felony murder, penalties for felony murder and intoxication manslaughter were different, the two statutes were not contained in the same legislative acts, intoxication manslaughter and felony murder did not require same elements of proof, and the statutes were not intended to achieve same purpose.

                            X. DWI W/CHILD CAN BE THE UNDERLYING FELONY IN A FELONY MURDER CHARGE

                            Bigon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008).

                            The defendant was convicted of felony murder, intoxication manslaughter and manslaughter. The Court dismissed the intoxication manslaughter and manslaughter as it found they were the same as the felony murder for double jeopardy purposes. The Court rejects the argument that the charge could not stand because the State failed to allege or prove a mental state. It further rejected the argument that the act clearly dangerous was not done in furtherance of the underlying felony of DWI with Child. Court of Criminal Appeals affirmed.

                            Y. INVOLUNTARY MANSLAUGHTER PRIOR MAY NOT BE USED TO ENHANCE A DWI TO A FELONY

                            Ex Parte Roemer, 215 S.W.3d 887 (Tex.Crim.App. 2007).

                            Defendant’s prior conviction for involuntary manslaughter which was an “offense relating to the operating of a motor vehicle while intoxicated,” could be used to enhance his offense of driving while intoxicated (DWI) from a Class B misdemeanor to a Class A misdemeanor, but could not, by itself, be used to enhance his DWI offense to a felony; to raise DWI to a felony. The statute required either a prior conviction for intoxication manslaughter, not involuntary manslaughter as was used in this case. Louviere v. State, abrogated by this opinion.

                            Z. IN DWI SECOND TRIAL PRIOR NOT ADMISSIBLE IN GUILT INNOCENCE PHASE OF CASE

                            Oliva v, State, No. PD-0398-17, 2018 Tex. Crim. App. LEXIS 139

                            The Court of Criminal Appeals reversed the decision in Oliva (see below). The existence of a prior conviction in a DWI second case is a punishment issue. This opinion ends the split of authority as to when the jury hears about the prior offense.

                            Oliva v. State, 525 S.W.3d 286 (Tex. App. – Houston [14 th District, 2017]

                            This case involved a DWI charged as a second offense, class A misdemeanor. The Court reversed and remanded the conviction to the trial court to reform the sentence to reflect a class B misdemeanor DWI offense because the State failed to present proof that the defendant had been previously convicted of a DWI during the guilt-innocent phase. In this case, the State presented evidence of the prior DWI during the punishment phase. That was not sufficient. The prior offense is an element of the class A offense.

                            Wood v. State, 260 S.W.3d 146 (Tex.App.-Houston (1 st Dist) 2008)

                            This case involved an allegation of ineffective assistance of counsel in a DWI Misdemeanor-Rep case because he failed to object to introduction of evidence about the alleged prior. The Court of Appeals reversed the case and in doing so confirmed that the prior in a DWI Misdemeanor-Rep case is not admissible until the punishment phase of the case.