I have a defendant (that was intaked as a DWI 1st) who was convicted on three counts of involuntary manslaughter (under 19.05 TPC)due to opertating a motor vehicle while intoxicated. He was sentenced to probation in 1988, he was violated in 1994 and sentenced to six years.

Here is my problem.

The plain reading of 49.09(1) allows me to enchance to a third degree if the prior conviction was under 49.08 or an offense under the laws of a another state if the offense contains elements that are substantially similar to the elements of 49.08.

Any way to enhance? I dont see that 49.09(1) will allow me to do so.

All help appreciated!

Does this help:

In his two points of error, appellant contends he should not have been convicted of felony driving while intoxicated because the indictment's enhancement allegation was insufficient to trigger enhancement under the Texas Penal Code section 49.09(b)(1) and, as a result, his conviction was improper. Appellant argues that section 49.09(b)(1) provides for felony enhancement with a prior intoxication manslaughter conviction under the Texas Penal Code section 49.08, but not for an involuntary manslaughter conviction under superceded section 19.05(a)(2).
In Gowans v. State, we determined that the offense of involuntary manslaughter under former Texas Penal Code section 19.05(a)(2) was modified and placed in chapter 49 of the Penal Code as the offense of intoxication manslaughter. See Tex. Pen.Code Ann. § 49.08(a) (Vernon Supp.2003). Therefore, we held that although modified into its present form, the offense remained substantively the same. Gowans v. State, 995 S.W.2d 787, 792 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). We hold that the trial court did not err in using appellant's involuntary manslaughter conviction for enhancement purposes. Additionally, we hold that appellant was properly charged and sentenced. We overrule appellant's two points of error.

Louviere v. State, NO. 01-02-00504-CR, 2003 WL 360909 (Tex.App.-Hous. (1 Dist.) Feb 20, 2003, no pet.) (not designated for publication)

Thanks David.

I was hoping there was a case out there. Your help sure saved me a lot of time researching this.

Again, much thanks!

"I have a def. (who was intaked as a DWI 1st", you wrote.

Joel, I don't want to sound like a "Wise Acre"-- as my 8th grade shop teacher used to call me--but is "intaked" the proper word? Shouldn't it be "intook" or possibly "intooked"?

I wasn't an English Major, so I don't know.

But maybe Martin knows the answer, or some other wordsmith. Curious minds want to know.

Intaken?
Dang Joel, I knew you couldn't get along in Hunt County without me by your side...

quote:

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"I have a def. (who was intaked as a DWI 1st", you wrote

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I vote for "intaken," but I'm sure the great minds on this site can come up with something more creative.

How about "was booked in as DWI 1st"

When we file a charge as a "to be [arrested later]" rather than an "in custody" case, we refer to the charge as having been "to-beed".

To-beed or not to-beed, that really is the question when we prosecutors decide to go forward with a case: whether its nobler in the mind to suffer the slings and arrows of an outrageous criminal, or to take arms against a sea of troubles, and by opposing his criminality, end them.

Obviously, JS, your office has some pretty heavy-duty English Majors to come up with term like "To-beed."

Another vote for intaken.

Terry, I refuse to be taken in by this discussion.(Assuming you were referring to me). Besides, even the non-English majors know "intake" is never a verb and thus cannot properly be conjugated as such. But, I am curious whether those of us performing the function might be known as intakers (since there are undertakers). I always wanted to beed an intaker some day.

Yes, Martin, I was referring to you.

I suppose if you intake cases, this makes you an intaker. But I prefer to say that I have screened a case. This makes me a screener. Intaker, as you note, reminds one of being an undertaker, while screener sounds like a job in Hollywood, which is much more glamerous.

But shouldn't Joel, to be 100% grammatically correct, have said the case was "intooked" or perhaps "intooken"?