When I read the information, am I able to read the enhancement?

Also, during Voir Dire, on video when D admits first conviction.

I should know this, but what are the rules here?

You do not read the enhancement when you arraign the Defendant. The jury is not allowed to hear about prior on video. If the Defendant is going to jury for punishment you can discuss enhancments but keep it hypothetical and never come out and say your defendant has one.

Appreciate it. I thought exactly this, but wanted to verify. Thx.

Exactly what Richard said. I would even redact the video ahead of time, there is no reason the defense should not object, except sloppy work.

Qualifying the jury, if they are doing punishment, is no different than enhanced felony cases.

"members of the panel the range of punishment for DWI is__________________, if at the punishment phase of a trial I introduced evidence a defendant had a prior DWI conviction the court would instruct you that if you found that allegation true, the punishment would be ______________________. Both of those punishments are a range, it would be unfair to ask you what you would decide before you hear all the evidence, but I do have to ask if there is any part of that range, on either end, that you could never under any set of circumstances be able consider in reaching your ultimate decision."

I don't mean to muddy the waters here -- and I would never disagree when Richard and Clay agree -- but, I need to be clear. I have a dwi 2nd against Trichter coming up and I don't want to be the boob that gets a case sent back on this issue!

What do we make of State v. Morgan, 110 S.W.3d 512, 514 (Tex. App.—Beaumont 2003) rev'd, 160 S.W.3d 1 (Tex. Crim. App. 2004)?

"[W]e hold that in order to prosecute a misdemeanor DWI defendant as a Class A 'enhanced offense' offender, the State must properly allege the one intoxication-related prior conviction as an element of the offense, and prove the said prior conviction in its case-in-chief beyond a reasonable doubt. In short, the one intoxication-related prior conviction is an element of the “enhanced offense” of DWI—Class A."

Yes -- i realize this case was reversed by the CCA, but the reversal was on other jurisdictional grounds (which could, of course, be read as tacit disapproval of the court's holding). Beaumont's reasoning is that the prior is an element of a Class A DWI.

also, 49.09 reads that DWI is a class A "if it is shown on the trial" that the defendant has one prior conviction. punishment is different than trial, right? "Separate Hearing on Proper Punishment"?

there's also Pratte, 2008 WL 5423193, where Austin (finding no error in the reading of the prior enhancement because the same was already stipulated) treated the prior as an enhancement and not strictly an element of the offense(unlike Beaumont's treatment in Morgan).

there's a potential appellate issue either way you slice it -- if I do read it and prove it at guilt, that could be error. if I don't read it, and then I argue that there is a 30-day jail minimum or that repeat offender conditions apply to the probation, that could also generate error if the defendant's appellate attorney argues that I was required to prove it at guilt.

is there even a way to play it safe here?

thanks everybody! and HAPPY NEW YEAR!!!

There is a safe way. Exclude it unless the defense does not object after you bring the issue up. Make them take a position and follow it.
Oh and make sure you get this discussion on the record.