D pled to DWI 2nd in July 2009. As part of the plea, she waived her right to an appeal and her right to a new trial. Nevertheless, her attorney filed a MNT 28 days later alleging "new facts" after conviction.

We believe the MNT was filed in bad faith bc (1) the "new facts" were known to the lawyer before the plea, and (2) his grounds for stating the "new facts" warranted a new trial were flat wrong and could never have been seriously advanced if the attorney had done even a smidge of legal research.

Before the MNT was denied, D caught another DWI (her 3rd). She is now indicted and the same attorney says he intends to challenge the 2009 conviction (alleged as a jurisdictional enhancement) bc the MNT was pending at the time of the new offense.

I'll grant that a MNT, if granted, would prohibit us from using the 2009 conviction to enhance. I don't think that applies to pending motions, though. Even if it did, does the situation change when (1) the attorney filed a MNT in spite of his client's waiver and without alleging the waiver was involuntary, or (2) the MNT was based on grounds that any lawyer could easily determine were without merit? It just seems wrong that a defendant gets the benefit of avoiding a felony bc her attorney is either slimy, stupid, or lazy.

[This message was edited by JBS on 03-17-10 at .]

Usually, a properly filed MNT or appeal does prevent a conviction from becoming final for enhancment purposes. But if you have documents or testimony to memorialize the defendant has waived the rights (1) to appeal and (2) seek a MNT, you should be home dry. The CCA said in Blanco that a defendant can waive any right (except the right to a jury in a death penalty case) and has affirmed that position since. While the defendant can seek a writ of habeas corpus to challenge the voluntariness of the waivers, that does not effect the finality of the conviction. In fact, for a writ to lie, the conviction must be final.

Any reasonable trial court should see through this defense ploy, proceed as if the conviction is final, and let the defendant challenge the proceedings on appeal from the felony conviction. If your trial judge is sticky, why not delay prosecuting the 3rd until you have cleared up the MNT issue on the 2nd.

Your argument that the defendant does not challenge the voluntariness of the waivers should prevail. Unfortunately, even when you know the system is being manipulated, it is not always possible to get the proceedings straightened up in time so that you can use the prior for enhancement. A good deal depends on your trial judge (and even the appellate court). But good luck.

[This message was edited by John A. Stride on 03-17-10 at .]

Common sense says that the pendency of a motion for new trial that is ultimately denied does not change the date of the finality of the conviction. Unfortunately, we have the decisions in Jordan, 36 S.W.3d 871 and Milburn, 201 S.W.3d 749. I would still say the logic in such cases as McConnell, 34 S.W.3d 27, Jones, 77 S.W.3d 819, and Barrow, 2007 Tex. App. LEXIS 411 dictates a different result.

Okay, now that the serious answers are out of the way. Where did you find a "Shady Defense Lawyer"? And, how is he different from your common, garden variety defense lawyer?

Is it sort of like the difference between a gopher snake and a rattle snake?