Aren't Rizoand Serrato about finality rather than the 10 year rule? We know that finality for 6701 convictions is governed by 6701, and finalty of Chpater 49 convictions is governed by Chapter 49. What was the applicable version of the 10 year rule in 6701? Was there one?

Yes, those cases deal with that issue, but once you start saying (d) is strictly limited to the newer cases, you may also be arguing the 1984-94 probated sentences are not final? Just seems a little inconsistent to me. I think the 10-year rule originated in 1994.

Defendant commits DWI offenses:
Nov. 16, 1990 (A)
Apr. 18, 1992 (B)

Both Judgments entered on Aug. 20, 1992. (1 year probation, concurrent)

Felony DWI offense committed:

Aug. 22, 1996 (C)

Judgment entered on February 25, 1998. (5 years probation)

Certificate of probation showing successful of supervision on Feb. 24, 2003.

CURRENT CHARGE:

DWI on Mar. 9, 2003 (13 days after he's completed supervision)

______________________

Now, with the two DWI's within 10 years of each other(DWI A and B), can I use them by themselves to enhance the current to a felony, then add on the previous felony charge (DWI C) to enhance the punishment range to 2-20?

IF DWI A and B are out of range, then is this really a DWI 2nd enhanced by only DWI C?

OR, can I say DWI B + DWI C = Felony DWI?

The defendant cannot meet the requirement of 49.09(e)(3), i.e. show that he was not convicted of an offense related to operating a motor vehicle within ten years of August 20, 1992. Hence neither A nor B are excluded from use under 49.09(b)(2) by subsection (e). Under Green, although proof of the 1996 conviction (C) must be made to show the admissibility of A and B for enhancement to a third degree felony, C also remains available to further enhance the punishment under 12.42 (as interpreted in Phillips, 992 S.W.2d at 493). At least that's how I would do it.

Thank you.

Anyone wanting to use Warren's construction of the statute should at least consider Verhoeven. Since these cases arise on a motion to quash, does anyone think you have to plead the facts to show when the "latest date" is if the date of conviction is more than 10 years before the current offense? I would think that is a matter of proof, but generally no evidence is admitted at a hearing on a motion to quash.

Hate to drag this discussion on, but.....

New DWI committed on May 18, 2004.

DWI 3d ----- offense on Aug. 15, 1991.
DWI 3d (same) convicted Oct. 10, 1994.
DWI 3d (same) prob revoked on July 13, 1994.

So, I'm within 10 of conviction and revocation, but not the offense date.

This is DWI #25.. Yes, #25. Only reason the '94 case is the most recent is b/c he was serving 15 in TDC.

Please advise on if this is a "quashable".

My reading of 49.09 (and heck, I could be wrong) is that it is 10 years from the latest of the final disposition date (the date when the defendant has completed the sentence) which in the case of your guy who had his probation revoked would be the date he finished serving his prison or jail time. I don't think the offense date counts anymore. It sounds like you should be able to use the offense if that final date when the defendant "has finished serving his debt to society" is within 10 years of the current offense date.