Has anyone successfully used these to enhance a new Texas DWI to a felony? It seems that Louisiana treats probated sentences following guilty pleas as final. Does an absence of a guilty finding by the trial judge on the Louisiana judgments alter the anlyasis for enhancement purposes? Any thoughts?
As a recent Texas prosecutor and now back to practicing at the DA's office in New Orleans, I can tell you that the Judge will never have a finding of guilty. The defendant pleads guilty and that is enough. Louisiana considers a probation sentence to be a final conviction so what you have is enough to use to enhance. Good luck.
The legislative intent of the jurisdiction of DWI case (not Texas law) determines whether the DWI is a conviction. See Tucker, 136 SW3d 699; Dotson, 28 SW3d 53; Skillern, 890 SW2d 849; Dominique, 890 SW2d 107.
JAS initially posted this question on my behalf. I am currently arguing this issue before the trial court in response to the Defendant's Motion to Quash. I have cited Skillern and Dominique, arguing that Louisiana law prevails over Texas as to the enhancements. That Louisiana law provides that a probated sentence may be used for enhancement purposes, unlike Texas law. I am also arguing that the prior convictions are "final" under Louisiana without a finding of guilty by the judge; that a guilty plea, having been "Boynkinized", and the imposition of a sentence is the equivalent of a "final" judgment in Texas.
Sound like I"m on track?
That is correct. Having worked both places, you are arguing the right points.
And, by the way, none of that is a matter for a motion to quash. A motion to quash challenges notice, not sufficiency of the evidence. Don't let the defendant trick the judge into acquitting the defendant before a trial even takes place.
I appreciate all of the feedback from those of you familiar with LA. law.
JB...appreciate the "motion to quash" information. That totally got past me. I'll try to "quash" the motion to qaush first...and then all of the other research would support me on the sufficiency argument in the case-in-chief.
Thanks to all!
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