In a recent jury trial on a DWI second, the prosecutor mentioned in voir dire that "The Defendant is charged with Driving While Intoxicated with a prior offense of DWI" The Defense immediately objected to the mention of the prior conviction citing Pratte v. State 03-08-00258-CR. The Defense issue is that since the prior conviction is not jurisdictional in a DWI 2nd, there can be no mention of it prior to punishment. The State's position is that DWI first and DWI second are different offenses and the proof is different so the prior can be mentioned in voir dire and proved in guilt/innocence The judge punted and asked for briefs...any ideas?

Prosecutors can only voir dire on what the punishment range would be in a hypothetical case if a defendant had a prior DWI. This is permitted so that the prosecutor can make sure the panel is capable of considering the full range of punishment should they get to the punishment stage of the trial.

The prosecutor may not reveal the actual prior of the defendant, as that would be more likely to influence the panel into thinking the defendant is a repeat offender.

I agree with JB - and think you can only/just cover it when discussing possible punishment ranges during voir dire. Since both DWI-1st and DWI-2nd are misdemeanors, and the misdemeanor court would have jurisdiction, it's not a jurisdictional paragraph/element. It's a punishment enhancement that the Leg has given us.