What happened on the motion to quash?

Rolater: Looks like you hit the nail on the head. Apparently the Lege did intend a major change from the prior law (although the San Antonio court does not really say how it determined that intent and certainly doesn't mention the history of the bill or Sen. Moncrief's thoughts). At least now it can be determined whether any further tinkering with subsection (e) is needed.

High praise, but undeserved. All I did was read the thing. Should be fuel to change the statute, and Richard Alpert gave great testimony last session for why the ten year rule should simply go away . . .

Just to reignite the discussion here. I just saw Uriega v. State, 04-03-397-CR, San Antonio, 3/10/04. Seems the SA court reversed Uriega's conviction because he had a 1979 DWI and then a 1994 conviction before his 2002 DWI arrest.The Court said to look forward from 1979 to determine 10 year rule. So according to the SA court, if you're good, you get a free pass after a certain period of time.

Are these folks driving on the same roads the rest of us are?

I think Uriega is the case Martin was talking about from San Antonio . . . Using their logic, if you get two DWI's within 10 years, you are a permanent felon for any future DWI, right?

While those were not the facts in Uriega, seems to me that if he had had the 1979 and 1994 convictions, but also a conviction in, say, 1980 for which he was released from probation in 1981, that the 1979 and 1994 convictions could have been used to enhance, but not the 1980. I am having a hard time reading the opinion or the statute any other way. Whether that scheme makes any sense will have to be left to someone else to decide.

I have to read Uriega, but I thought I understood how this 10 year thing worked and about the effect of the changes until I started reading this string.

Now I am totally confused, but think that it should not matter if you start from the most recent and look back 10 years or from the oldest and look forward 10 years, it still should come out the same. And I don't think that the SA Court meant it, if that is what they said, that if you get two DWI's within 10 years you automatically become a permanent felon. Anyway, thanks for making what I thought was fairly clear, as clear as mud.

It is all about the law of unintended consequences. To some degree, the harder we try to write specific statutes, the easier it becomes for the statute to break down. Section 49.09 of the Penal Code fills 1 and 1/2 pages of the TDCAA Criminal Laws of Texas book. That provides many opportunities for inconsistent terminology, contradictory usage, or as in this case an inartful internal cross-reference. Plus, not every cook in the kitchen in 2001 was trying for the same result: you had one bunch trying for State soup in the House that someone else tried to change to Defendant stew in the Senate. What we got is hard to digest.

Granted for discretionary review:

04-0093 GETTS, BOBBY DOYLE 05/05/04 S HENDERSON DRIVING WHILE INTOXICATED


1. DID THE COURT OF APPEALS CORRECTLY INTERPRET THE 2001 AMENDMENT TO PENAL CODE � 49.09(E) SUCH THAT THE RELEVANT TEN-YEAR PERIOD FOR AN INTERVENING CONVICTION IS NOW THE PERIOD BETWEEN THE TWO PRIOR DWIS, RATHER THAN THE TEN-YEAR PERIOD BEFORE THE DATE OF THE PRIMARY OFFENSE?

The Fort Worth Court of Appeals has entered the fray with an opinion that the 10 year period runs between priors rather than from the current offense backward. Howard v. State

Anything new on this?

I just tried a case with a 1996 prior and a 2nd prior from 1979. Judge denied motion to quash indictment. I tried the case. Jury found guy guilty. Defense goes to judge for punishment and case was reset for PSI. Currently still waiting on PSI.

In the meantime some fellow prosecutors came back from Advanced Criminal convinced that Uriega and Howard are right and you have to look forward from old priors.

I went back and read statute and cases again and I am not so sure I was right.

I guess another question for me is if I feel I was wrong, what are my ethical duties at this point as well?

Ethically you may have the obligation to make sure the judge is aware of Howard-Uriega-Getts, but you have no obligation to make the decision as to the applicable range of punishment under the facts proved. I believe you will get the benefit of Rule 43.2, as explained by Judge Keasler in Collier, 999 S.W.2d at 784 fn. 9, upon appeal even if the court were to assess the wrong punishment. So, you have little to lose by arguing it makes no difference that the defendant went more than 10 years without an offense after the 1979 conviction. But, be prepared for a re-sentencing. If the judge chooses to follow Howard, then of course you will not get the benefit of asking for a longer sentence if it again becomes available.

I was at San Antonio and recited the San Antonio and Fort Worth cases to the audience; however, I also mentioned that a different tactic might be tried by prosecutors which would, at this point in time, make the 10 year rule irrelevant for another month.

My basic proposition was that there is no ten year rule at this time if you are are not working in jurisdictions that have decided differently. Chapter 49.09 (e) has three requirments. The first is that the offense not be an enumerated final conviction under 49.09 (d) [as opposed to enumerated 49.09 (c) final convictions]. Literally translated, that would allow any 6701 conviction to be used for enhancement purposes no matter the age of the conviction (assuming the conviction meets the 6701 definition of a final conviction). Since Chapter 49 offenses have only been in effect since 09.01.1994, none of them are older than ten years. Ergo: since no convictions are voided by the first prong, there is no need to address the next two prongs.

It might be worth a try to pass this one onto your judge??? Even if you practice in the San Antonio or Fort Worth appellate districts, you might argue this interpretation (I think some prosecutors in those jurisdictions are not following those opinions because of the absurd results). Whatever tactic you take, the statute needs to be rewritten and the ten year rule abolished.

Warren makes a good point that is also in Richard Alpert's book. The Getts court rejected that argument, though, on the state's motion for rehearing. Hopefully, the CCA will give us some insight soon.

Both those replies are helpful. Thank you.

Warren, under the thinking you propose, assuming the statute is not changed and courts continue to take the approach of looking forward from older priors to bridge them to the primary offense, does that mean now in 2004 and into 2005 we will only begin seeing priors rendered unuseable for enhancement purposes under 49.09(e)?

That is the conclusion that I propose.

Therefore, the first date that a person's conviction would be out of date would be a 72 hour sentence received on September 1, 1994. With the change in the statute, that would make it September 4, 2004 before the first convictions start to be in violation of the 10 year rule.

Also, Getts is unpublished (I think) and out of Tyler. The 1st and 14th have not addressed the issue. John, what is Dallas County doing???

We have a state's appeal of a quashed indictment with both arguments squarely presented and the arguments (hopefully, I did 'em) properly articulated. It is set for submission next month. We've had a couple other indictments quashed. Dallas has accepted the argument that the time period is between priors in Anderson v. State, 110 S.W.3d 98, 99 (Tex. App.�Dallas 2003, no pet.). Note that it wasn't really the issue in the case, though.

I do not claim to be an appellate guru since I am in "sales" and not "warranties," but it appears to me that all the opinions on this particular enhancement issue are for offenses committed after 09.01.2001 but before 09.01.2003?? My claim that there is no ten year rule (yet) is for offenses committed on or after 09.01.2003. The changes in 2003 can be read literally to exclude 6701 convictions whereas the 2001 change seems to have included 6701 convictions according to the Tyler court in Getts.

Uriega says that after the 09.01.2001 amendment, 49.09 (e) read that a conviction could not be used if it was a final conviction under (d) (which would presumably include 6701 convictions), etc. However, the current language for post 08.31.2003 offenses does not refer to (d) but only Chapter 49 offenses. Therefore, Anderson, Getts, and Uriega are not applicable.

What do y'all think??

Getts did a really poor analysis on the issue. As I read it, the rule is the rule post 9/1/01. There were no relevant changes to 49.09 in the last session. The only change I see in my book is the one that adds flying while intoxicated to the list of offenses "relating to the operation of a motor vehicle while intoxicated."

[This message was edited by John Rolater on 08-06-04 at .]

Getts is a published opinion. The Clerk in Tyler just follows the advice given in Davis, 636 S.W.2d at 198 that "submission of the opinion to the publisher be delayed until after the mandate of the Court of Appeals has issued." The court issued no opinion on the State's motion for rehearing, so whatever argument was implicitly denied does not yet play a role in our jurisprudence.

I too fail to see that there has been any relevant change in the statute since 2001. But the purpose of (e)(1) is intriguing. I am a bit hesitant to say it limits the subsection (e) convictions only to those mentioned in subsection (d). Subsection (d) was really just the Legislature's attempt to move 6701 l-1 (h) to the Penal Code wasn't it?

Does your argument conflict at all with the reasoning in Rizo, 963 S.W.2d at 139 or Serrato, 3 S.W.3d at 43? We certainly prefer the holdings in Rizo and Camacho, 827 S.W.2d at 444 to that in Nixon, (No. 07-03-072-CR).