I have a felony DWI where my priors are from 1985 and 1994. I have the judgment and Information for the 1994 case but not for the 1985 case because Dallas County has destroyed the file. Can I use the 1994 Judgment and Information to prove up the 1985 case. The 1985 DWI is included in the enhancement paragraph of the DWI-2nd and my argument is that the defendant had to plead 'true' to the 1985 prior when he pleaded guilty to 1994 DWI-2nd.

I haven't done any research on it, but I have done the same thing you're describing. I don't see why it would not work, since it is a judicial confession and a finding by the Court, as long as you make sure that the prior is sufficiently alleged in the last DWI and that the judgment clearly reflects that the conviction was for DWI-2nd or that it was for a Class A misdemeanor DWI. I had a situation where I was ready to do what you are doing, looked at the judgment closer, and found that, although it was alleged as DWI-2nd in the information, the defendant was actually convicted of a DWI-1st.

Another possible solution to your records problem is to get someone to look through the prosecutor's file from the last DWI case. We tried a case a couple of months ago where the pen packet we got had a set of fingerprints that were incapable of comparison. Also, no photo was available. Fortunately, we had prosecuted the same guy and sent him to the pen 10 years ago. When I looked at the old file, we had the pen packet from the enhancement that we used in that case in our old file. At trial, we just introduced a really old pen packet to prove up the oldest of our habitual enhancements.

Good luck!

A certified copy of the Defendant's driving record should/may have all the info you need to prove up the prior. You just have to tie him to that D.L. number in trial.

Just because Dallas County says it destroyed the file doesn't mean it doesn't exist in electronic form. Many counties destroy the file but preserve the records in microfilm or some electronic form. Keep asking and don't take no for an answer.

To follow up on the post about the DPS driving packets, while they can link the defendant to a prior conviction in lieu of fingerprints or other proof, the appellate courts have held that they are insufficient, by themselves, to prove a prior. You have to have a judgment.

I agree with John. See if they have anything on microfilm that you can use. If they do, you can link it to your defendant with the driving packet.