Gibson, 995 S.W.2d at 696, most recently followed with disastrous and completely illogical consequences for the State in Martin, 84 S.W.3d at 269 said: "Our reading of the plain language of Section 49.09(b) indicates it should not be viewed as a punishment-enhancement statute similar to Section 12.42(d)." When virtually identical language was first construed in 1991, the Austin court said: "the conclusion is inescapable that [the language of the statute] does not create a separate offense, but only provides an extraordinary punishment for the single offense of driving while intoxicated." Pope, 802 S.W.2d at 420-1. Personally, the analysis of the language in Pope makes more sense to me. At the very least, the Beaumont court should not have treated the prior convictions as a "conduct element" of felony DWI. Cf. Almendarez-Torrez v. United States, 523 U.S. at 226 and McMillan v. Pennsylvania, 477 U.S. at 91. Besides, the defendant would have objected if the prior offense evidence had been presented to the jury (especially if it were not pleaded in the indictment). Maybe the "plain reading" of the statute needs to be made even a little plainer. Dan, I presume you guys proved a contemporaneous death, and that the defendant was DWI, so did the jury just not buy that one was by reason of the other? The court conveniently omits all the facts of the case in its opinion. Maybe its not a good idea to submit any lesser included offense. It doesn't seem to be a rational alternative unless causation of the death is really screwed up. Could Mr. Martin not have been indicted for felony DWI as well as IM if the court is correct that the DWI offense has elements which are not part of the IM? Is not that another reason not to submit the DWI as a lesser included offense of IM (since the DWI of which the defendant was guilty was not, in fact, a lesser included offense)?
Dan Bradley, you have no comment on what happened in Martin or whether felony DWI should be considered as a separate offense? I know you are familiar with Martin and could help us better understand how to deal with any lesser included offenses of intoxication manslaughter. I still think there is no need to make the prior convictions elements of "the offense" which must be submitted to the jury and proved beyond reasonable doubt and that the statute should be amended to make this clear (if it isn't already).
Will all the prosecutors who want to try a felony DWI without being able to tell the jury that the defendant has two prior DWI convictions please raise your hands? I'm sorry, I can't see any hands.
Have I missed something? Your response seems to indicate you believe the only way the State would have of informing a jury that a defendant is on trial for at least his third DWI offense is if 49.09(b) is interpreted as creating an offense separate from that defined in 49.04(a). That was not the holding in Pope.
While the statement in Gibson which I quoted would probably have supported the conclusion in Maibauer that the State is entitled to offer proof of prior convictions during the guilt phase of a DWI trial to meet its burden of proving the crime, after Robles the means of even informing the jury why the offense is a felony are extremely limited. There is no reason to believe the reading of the indictment or the admission of or reference to the Tamez stipulation will be affected if the false logic of Gibson is discarded. The statute is undeniably drafted in the manner described in Pope. It is unlike former art. 6701l-2. Recognizing this would not even change the result in Gibson. The jury will still be asked to find whether it has been shown that the defendant has previously been convicted at the guilt phase whether you ask them to determine his guilt of DWI-enhanced or felony DWI. But maybe the result in Martin could have been prevented if Gibson had been successfully challenged as I advocate.
