For purposes of DWI enhancement, when is a conviction final? Is it at the time of plea or at the completion of the probation? I have been using the date of the termination of probation for the date within the ten years for enhancement purposes. At what point can this be used for enhancement? If a person is currently on probation for a DWI, how can that conviction be used as an enhancement? Can anybody cite me to some law that is directly on point? What am I missing?

I think what you are looking for is in 49.09 (e)(2) Tex. Penal Code.

Ah, you have come upon one of the many mysteries of criminal law. When is a conviction "final"? You are in luck for a DWI because the Legislature has given you a specific definition. But for everything else, you have to mix in a little statutory language, a little common law, and a little case law. Which makes for one very stinky brew.

The legislature could devote an entire interim study on that issue. Frankly, they haven't done as bad a job on it as the Court of Criminal Appeals. In a series of cases, the court added the word "final" before the word "conviction" in several places throughout the Penal Code and Code of Criminal Procedure.

Perhaps Sarah could get someone with lots of time on their hands to write an article on the subject. It would allow for a really neat chart, and I hear she just loooooves charts.

Charts would be good. Especially if they could demystify the rules regarding license suspension. I know I got such a chart a few years back, but now the game has changed.

By the way, on 49.09(e), subsection (1) can't possibly say what it says, can it? Or am I misreading it when I put it together with (as referenced) subsection (d) and conclude that a "final" committed after 9/1/94 may NOT be used to enhance?

Where is that bundle of energy Richard Alpert when you need him?

What 49.09(e)(1) and (d) mean is that offenses tried under the Penal Code (as opposed to art. 6701) are final convictions whether or not the defendant receives probation for the offense. Thus, a DWI probation can be used to increase the punishment for a subsequent DWI, even if the defendant was never revoked. Art. 6701 had a similar provision, so you can use probations under that law to increase the punishment as well. Serrato v. State, 3 S.W.3d 41 (Tex. Crim. App. 1999). Basically, once a defendant is sentenced, regardless of whether he gets probation, jail time, or pen time, the conviction is final, unless he appeals. Jones v. State, 77 S.W.3d 819 (Tex. Crim. App. 2002). If there is an appeal, the conviction is not final until the mandate issues. Beal v. State, 91 S.W.3d 794 (Tex. Crim. App. 2002).

The remainder of 49.09(e) deals with the 10 year rule. Don't even get me started on that.

I am getting ready to go to trial on what has come to be known as the "windshield" case so I'm afraid the forum will have to be without my "energy" for a couple weeks. By the way, I hear there is a new DWI manual coming out that devotes some paper to that 10 year rule which was "almost" fixed this past session.

Neel: observe that all three parts of (e) must be satisfied before the conviction may not be used, since there is an "and" between (e)(2) and (3). And, of course, remember that all valid convictions on or after September 1, 1994 are "final" (even though the sentence was probated). The ten-year rule merely requires you to identify the latest date of an event described in (e)(2) and count ten years to see if a conviction occurred within that time frame. You can ignore (e)(2)(A) because (B), (C) or (D) are always going to yield a later date. If there is no conviction within the ten years in question, then the offense being tried will necessarily have been committed "more than 10 years after the latest of". At least thats the way I read it.

Go get her Richard.

Martin, don't you remember that awful thread about the 10 year rule from back when?

Thread: 10 yr rule for DWI priors

Richard finally talked me down from the ledge on it. The statute is still goofy, but much better for us.