Defense attorneys come up with neat tricks, but it appears this one should not have been tried.
Client is charged with felony DWI and he has four priors (but one occurs after the instant offense). The State goofs and alleges one good prior conviction and the most recent one in the indictment. Defense attorney decides to have client plead guilty, remain mum about the bad allegation, and then try to convince judge to find client guilty only of Class A offense. Court determines indictment fails to allege a felony when defect is pointed out and dismisses the case for want of jurisdiction. State obliges defendant by re-indicting using two good priors this time, and adds two sequential felony convictions under 12.42(d). Upon re-trial, defendant is now faced with minimum of 25 rather than maximum of 10. Trial judge's decision (as to dismissal)is affirmed on appeal. Gallemore I presume the defendant's acknowledgement of guilt can be used against him in the new case as he never sought to withdraw his plea in the first case.
In retrospect it appears a much better approach for the Defense would have been to plea not guilty, accept the District Court's jurisdiction, and then in the closing on guilt/innocence argue that the State failed to offer convicing proof of all the elments of the felony offense, and that he should be only be found guilty of a misdemeanor under Code of Criminal Procedure 4.06
4.06. WHEN FELONY INCLUDES MISDEMEANOR.
Upon the trial of a felony case, the court shall
hear and determine the case as to any grade of
offense included in the indictment, whether the
proof shows a felony or a misdemeanor.
If the court doesn't have jurisdiction, it doesn't have jurisdiction. The issue wasn't simply that the State couldn't prove the elements, it was that the indictment didn't even properly allege a felony offense. If the indictment had alleged all the proper priors to make it a felony but there was some sort of problem with proving them up, then your argument would work. But the indictment never gave the district court jurisdiction, so it just flat-out didn't have authority to do anything.
Posts: 1116 | Location: Waxahachie | Registered: December 09, 2004
When I read it the first time I was assuming that the indictment referenced the number of previous DWI convictions and their cause numbers but not the actual dates... I thought the the dates weren't actually introduced until the punishment hearing.
On second thought I must have been wrong, how else would the defense attorney have known to cross out the enhancement wording in the plea.
Either way he might have got a lower sentence had he not questeioned the court's jurisdiction.
