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Enhancing DWI 2d to felony

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October 21, 2020, 13:19
Enhancing DWI 2d to felony
Defendant arrested for DWI 2d on 2/26/18 in Aransas County. Complaint and Information (DWI 2d) filed 7/20/18. Defendant was deported 4/19/18, prior to filing, Defendant re-crosses border (illegally) and picks up DWI on 9/18/20 in Bexar County. Defendant pleads and is convicted of DWI 2d on 10/13/20 in Bexar and receives 30 day jail sentence. So, now defendant has two priors. Can the Aransas County case be amended and enhanced to DWI 3d, felony. And, if so, do you have suggestions on how to do that or am I safer sticking with the misdemeanor charge? Does the SOL time period apply to this fact pattern?
October 21, 2020, 13:52
Jon English
Dismiss the misdemeanor and indict on the felony DWI before the SOL runs in February based on the two prior convictions. DWI convictions don’t have to be sequential to provide the basis for a felony because they are elements of the crime itself, you’re not just enhancing the penalty range (12.42 punishment enhancements have to be sequential, but different rules for DWIs).
October 21, 2020, 14:49
I may be reading your fact pattern incorrectly. If one of your DWI convictions is AFTER the offense date of the case you seek to indict, you cannot. The convictions must pre-date the offense date of the DWI you seek to charge as a felony.
October 21, 2020, 15:12
Jon English
I’m not so sure if that’s correct, even though that’s what I originally thought. Check out Gibson v. State, 995 S.W.2d 693 (Tex. Crim. App. 1999). The court makes a specific point of saying it doesn’t matter what order the prior convictions happened. It matters VERY much for enhancements, but this isn’t an enhancement, it’s a whole new offense that is a 3rd degree felony, not a misdemeanor with an enhanced punishment range.
October 23, 2020, 12:16
Jon, the way I read your fact pattern, it sounds like he wasn't convicted of one of his misd DWI's until after he had committed the one that you want to enhance to a felony. Is that right? If so, you can't enhance to a felony. He has to have two prior CONVICTIONS (not just arrests/charges) prior to the commission of the third one for it to be a felony.

You are correct that the two priors do not have to be sequential or anything. They could've been pled the same day and that's fine.
October 23, 2020, 13:08
Jon English
Ah. Gotcha. I see the distinction. I may have rushed through the fact pattern myself. Thanks for the clarification.
October 23, 2020, 13:14
Jon English
And to clarify, this isn’t a case of mine. I just jumped in on the case law research here on this thread. I haven’t done a DWI in 4 years now! I don’t know if I could even try a DWI anymore. They’re some of the hardest cases I ever had to try.