DWI ENHANCEMENT

The State must prove the jurisdictional prior offenses for felony DWI at the guilt innocence stage of trial.  The prior DWI convictions are not enhancements to be used at the punishment phase, but are part of the proof at the guilt/innocence stage for felony DWI.  A defendant has the ability to stipulate to his prior convictions and keep the jury from hearing evidence about them.  A faxed copy of judgment and sentence will be admissible to prove prior convictions.  In a felony DWI, Penal Code does not require the State to prove the defendant’s prior tow DWI convictions occurred sequentially, and the two prior convictions can arise from the same criminal transactions.

10 Year Rule

The 79th Legislature repealed sections 49.09 of the Penal Code, which effectively ended the 10 year rule.  Before September 1, 2005, if the defendant had two priors with no more than 10 years between discharge on the first and conviction on the second, the prior convictions could be used to enhance the current offense to a felony.  With the repeal of the 10 year rule, after September 1, 2005, the date of an offend, judgment, or discharge of judgment in a prior DWI need not be proven to enhance DWI to a Class A misdemeanor or felony DWI.

A. Discharge date of pone prior conviction within 10 years of current offense; other prior conviction within 10 years of current offense; both prior convictions within 10 years of one another:

Both prior convictions available for enhancement

B. Discharge date of one prior conviction within 10 years of current offense; other prior conviction more than 10 years before current offense; both prior convictions within 10 years of one another:

Both available for enhancement; the less than 10 years between two makes older one available.

C.  Discharge date of one prior conviction more than 10 years before current offense; other prior convictions also more than 10 years before current offense; both prior convictions within 10 years of one another:

Both available for enhancement; the less than 10 years between two makes both available.

D.  Discharge date of one prior conviction within 10 years of current offense; other pros conviction more than 10 years before current offense; proper convictions more than 10 years apart.

Recent conviction available; older one not

E.  Discharge date of one prior conviction more than 10 years before current offense; other prior conviction also more than 10 years before current offense; prior convictions more than 10 years apart.

Neither available; over 10 years between both convictions.

Errors in Enhancement Paragraphs

Mistakes in the wording of enhancement paragraphs will not negate the effect of that enhancement unless the defendant can show surprise or prejudice from the discrepancy.  Variances in information as alleged and as proven that have not called for reversal include:

• conviction dates in DWI enhancements
• case numbers
• state where prior convictions occurred
• using word “indictment” rather than “information”

Prior Probations

Probated sentences imposed under the former DWI statute can be used to enhance a sentence under the current DWI statute.  An erroneous dismissal of probation by the court won’t affect the finality of the conviction for enhancement purposes.

Felony DWI & Stipulations

Upon request of the defense, the State is required to stipulate to a defendant’s prior convictions used to enhance a DWI to a felony.  The State is permitted to read the indictment at the beginning of trial, mentioning the two prior convictions, but if the defendant stipulates, the State may not present evidence of the convictions beyond the details in the stipulation, and those should be limited to only what is necessary to prove the jurisdictional prior.  Examples of details the prosecutor should not attempt to bring before the jury would include references to the case being a felony DWI or a DWI rep.  The jury can be informed of the defendant’s stipulation, and in fact, the trial court can admit the stipulation itself into evidence.  The prosector can also discuss the prior convictions in voice dire, opening statements, and closing argument.  The prior convictions, as elements of the offense that must be found by the fact finder, must be mentioned in the jury charge.

Bond Conditions

A trial court has the power to impose conditions on bail that are reasonable.  Although pretrial bond conditions must meet three conditions, reasonableness, securing a defendant’s attendance at trial, and related to the safety of the victim or community, condition of bond on appeal do not have to meet all three conditions and must only be reasonable.

Condition of an appeal bond are subject to review for abuse of discretion by the trial court.  Conditions that have been found to be reasonable include not operating a motor vehicle, home confinement electronic monitoring payment for probation supervision fees, the safety of the victim, remaining in the country, abstention from drug use, urinalysis and posting the results, paying for urinalysis, and staying away from victims.

Art. 44.04. [815-818] [901-904] [875, 876] BOND PENDING APPEAL

(a) Pending the determination of any motion for new trial or the appeal from any misdemeanor conviction, the defendant is entitled to be released on reasonable bail.

(b) The defendant may not be released on bail pending the appeal from any felony conviction where the punishment equals or exceeds 10 years confinement or where the defendant has been convicted of an offense listed under Section 3g(a)(1), Article 42.12, but shall immediately be placed in custody and the bail discharged.

(c) Pending the appeal from any felony conviction other than a conviction described in Subsection (b) of this section, the trial court may deny bail and commit the defendant to custody if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail, permit the defendant to remain at large on the existing bail, or, if not then on bail, admit him to reasonable bail until his conviction becomes final. The court may impose reasonable conditions on bail pending the finality of his conviction. On a finding by the court on a preponderance of the evidence of a violation of a condition, the court may revoke the bail.

(d) After conviction, either pending determination of any motion for new trial or pending final determination of the appeal, the court in which trial was had may increase or decrease the amount of bail, as it deems proper, either upon its own motion or the motion of the State or of the defendant.

(e) Any bail entered into after conviction and the sureties on the bail must be approved by the court where trial was had. Bail is sufficient if it substantially meets the requirements of this code and may be entered into and given at any term of court.

(f) In no event shall the defendant and the sureties on his bond be released from their liability on such bond or bonds until the defendant is placed in the custody of the sheriff.

(g) The right of appeal to the Court of Appeals of this state is expressly accorded the defendant for a review of any judgment or order made hereunder, and said appeal shall be given preference by the appellate court.

(h) If a conviction is reversed by a decision of a Court of Appeals, the defendant, if in custody, is entitled to release on reasonable bail, regardless of the length of term of imprisonment, pending final determination of an appeal by the state or the defendant on a motion for discretionary review. If the defendant requests bail before a petition for discretionary review has been filed, the Court of Appeals shall determine the amount of bail. If the defendant requests bail after a petition for discretionary review has been filed, the Court of Criminal Appeals shall determine the amount of bail. The sureties on the bail must be approved by the court where the trial was had. The defendant’s right to release under this subsection attaches immediately on the issuance of the Court of Appeals’ final ruling as defined by Tex.Cr.App.R. 209(c).

Contact

Dallas criminal lawyer Constantine Anagnostis dedicates his practice to people who are facing criminal charges, with a primary emphasis on DWI, Drug Offenses, Expunction & Nondisclosure Agreements, and Occupational Driver’s License Issues. Dallas criminal lawyer Constantine G. Anagnostis understands the law, procedures, and penalties pertaining to criminal law, and will aggressively fight to protect your rights. Dallas criminal lawyer Constantine Anagnostis provides the utmost personal dedication to each and every case, and truly cares about his clients. You may call 817-229-0319 to schedule a free consultation, or submit a sample case form. At the Law Office of Constantine G. Anagnostis, we look forward to helping you.