Trying to get an answer on what date to look at for possible enhancements. Defendant was placed on deferred probation for Injury to Child on 12-3-01. Committed new offense of Intox Assault on 1-6-02. His deferred probation was revoked and he was sentenced to 10 years on 8-1-02. He also pled guilty to the Intox Assault on that same date, 8-1-02 and got 10 years. Both sentences ran concurrently. On what date was the first conviction for Injury to Child final for purposes of enhancement? Am I out of luck on using both priors for enhancement of his newest DWI 3rd charge? Thanks in advance!

You can’t reach habitual with those priors. The deferred only became a final conviction for enhancement purposes when it was adjudicated & revoked. See Ex parte Langley, 833 SW2d 141. The date the probation is revoked and sentence is imposed is the date the conviction is final, not the date sentence was suspended or judgment was deferred. There are several recent(ish) cases that support this, including the 2012 opinion in Wilson, 02-10-00439-CR, 2012 WL 662339 (unpublished). But all of the cases cite back to the 1965 golden oldie Capuchino v State 389 SW2d 296.

So, your second pen trip isn’t subsequent to the first. But, it will still make good punishment evidence, right?

But just to clarify, the punishment range for the felony DWI is going to be 2-20 instead of 2-10. So you've got that going for you. Which is nice.

Thanks for the help. Glad to have him up to at least a second degree. Going to offer him 20 or trial. This is his 3rd felony DWI since April. Keeps bonding out, getting drunk, and doing it again. Actually got booked in mid-July for the second one, bonded out last Sunday. Monday at 4:00 pm wrecked on a very busy street, BAC came back as .40. Oh, and one of his prior intox offenses was intox assault where a passenger in the other car lost a leg.

Time for him to go.