I have a writ in which the inmate is claiming that he comes under the old mandatory release statute instead of the new discretionary mandatory supervision (Gov't Code 508.149). The crux of his argument is that although he drove drunk AFTER 9-1-96 when the discretionary portion of the law went into effect, his prior DWI convictions came BEFORE 9-1-96. He claims that the priors constitute an element of the offense of DWI 3rd, and therefore, he comes under the old law in that he committed any part of the offense back when early release was mandatory.
Interesting argument. I'm sure it is B.S., but have not found a case that says what is obvious to me. Anybody have an experience like this one?
My first glance reaction is that the priors (whenver they were committed) are not elements of "the offense", but are elements of the punishment.
Sec. 49.09 (a) states, in pertinent part, "...if it is shown on the trial of the offense that the person has been previously convicted..." and the following subsections follow the same language. Accordingly, had the Defendant not committed a new offense, he would not be on trial. The enhancement is to the punishment for the new offense, not an element of the offense itself. The elements of the offense are found in another section, 49.04, not in the enhancement section.
Otherwise, every enhancement by convictions prior to the new provisions would be subject to the old provisions.
I agree with you that it is B.S. Maybe someone with more sense can help us out!
Isn't this argument pretty much disposed of in State v. Mason,980 S.W.2d 635 (Tex. Crim. App. 1998)? In that case, the CCA rejected the notion that prior convictions were elements that occured at the time of the conviction. Note also that "element" is defined in 1.07(22) of the penal code--prior conviction is not one of the definitions. In essence, the prior conviction is a circumstance under which the new offense occurs, i.e. he committed the new offense on X date, and at that time he had a prior conviction. Mason came out of Harris County, and the prosecutor on appeal wrote a really good brief. The CCA opinion was not so good, but helpful. Maybe you could get a copy of the brief from Harris County.
[This message was edited by John Rolater on 12-19-01 at .]
Cases such as Dickens, 981 S.W.2d at 188 are not dispositive because DWI is not a continuing offense. DWI cases often refer to the prior convictions as "jurisdictional elements", something that must be proved to show the court has jurisdiction to determine the guilt of the defendant, as opposed to "conduct elements". cf. Rodriguez, 31 S.W.3d at 362-3; Barfield, 999 S.W.2d at 926. But, they are not a true "element of the offense" for the purpose of determining whether a new law applies (within the meaning of the "savings clause" language often used in enacting new laws). The reason almost all changes in the parole laws are prospective in nature is concern over the ex post facto clause (although I would argue that unless a right to release has accrued under the old law, then eligibility for release could be altered without violating the constitution). Mason says the new offense occurs when it does without regard to the fact that some prior conduct is playing a role. While it is not directly on point, its rationale defeats Mr. Habeas' claim. See also Moore, 38 S.W.3d 232; Sheppard, 5 S.W.3d at 340; Cannady, 913 S.W.2d at 743. I note that Barfield was overruled today by the CCA, although it did not specifically address the holding that the prior convictions were elements of the offense.
[This message was edited by Martin Peterson on 12-19-01 at .]
Thanks for the input. I did come around to both John and Martin's points in my reply. Essentially, Felony DWI calls for prior convictions, but not that they are part of the offense itself as set out in the DWI statute. Nor do the priors fit into the definition of element as set out in the penal code.
Thanks again, guys.
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