Can the prior, which makes a DWI a DWI 2nd be read to the jury during the guilt innocence phase of the trial. I have read Love v. State, which seems to indicate "no". However, the statute reads "on the trial of an offense". Can Anybody help?

The 1st Court addressed the "on the trial of an offense" language in Harrell v. State, 1997 WL 230145 at *8 (Tex.App.-Hous. (1 Dist.) May 8, 1997, pet. ref'd) ("The Court of Criminal Appeals has held that such prefatory language is strictly a punishment issue. See Wilson v. State, 772 S.W.2d 118, 122-23 (Tex.Crim.App.1989).")

Cases going the other way include Blank v. State
--- S.W.3d ----, 2005 WL 763255 (Tex.App.-San Antonio April 6, 2005) (acquittal ordered because of lack proof of prior); State v. Morgan, 110 S.W.3d 512, 514 (Tex.App.-Beaumont 2003) (holding that "in order to prosecute a misdemeanor DWI defendant as a Class A 'enhanced offense' offender, the State must properly allege the one intoxication-related prior conviction as an element of the offense, and prove the said prior conviction in its case-in-chief beyond a reasonable doubt. In short, the one intoxication-related prior conviction is an element of the 'enhanced offense' of DWI-Class A."), rev'd on other grounds, 2004 WL 948332 (Tex.Crim.App. May 5, 2004).

Dix & Dawson say this is a punishment issue. 43 Texas Practice sec. 38.123("Second offense is a Class A misdemeanor. This is treated much like a felony enhancement provision in that evidence of the prior conviction is admissible at the penalty phase of the trial, not at guilt/innocence.")

Obviously, the prior is not a "jurisdictional element" of the offense in this situation. Thus, some other theory of relevance and reason for reading that part of the information would have to be offered. Otherwise, it is a mere sentencing consideration, i.e., an issue to be proved at the punishment phase.

Morgan tried to deal with the issue, but that opinion probably lacks any authoritative value at this point. The Courts of Appeals seem hopelessly confused once again because the prior offense has been characterized differently by the Court of Criminal Appeals on each succeeding occasion. Frankly, in my opinion, the "attendant circumstance" language in Weaver would seem to favor this being something the State could talk about at the guilt-innocence phase.

But, you are probably in that "no-win" situation where you lose if don't prove the prior in the case in chief and you may lose if you do, under Rule 403 as interpreted in Tamez. Perhaps the answer will arrive in Calton. Until then, take your choice.

Calton not of as much help as some might have hoped. But, may be important to note that on rehearing, the San Antonio court said "the prior driving while intoxicated conviction is treated as an enhancement provision of the information, and not an element of a separate offense." Blank, 172 S.W.3d at 676.

Alert the defendant that you intend to do it during guilt. When the defendant objects, alert the judge that you won't mind if he sustains the objection and forces you to read it at punishment. Then, if you court decided it should have been read at guilt, at least you can argue that it should be a redo (or harmless error) rather than a Class B misdemeanor forever.