DWI Repetition Enhancement is a Punishment Enhancement, Not an Element
The Court of Criminal Appeals has ruled that for purposes of misdemeanor DWIs, the fact that a person has been previously convicted of one DWI is an issue to be reserved for punishment and is not an element of the offense that can be brought before a jury in the guilt-innocence phase. The decision handed down by the Court of Criminal Appeals this week could mean that cases tried by the Tarrant County District Attorney’s Office over the last couple of years could be reversed.
The issue before the Court of Criminal Appeals was whether one prior DWI (which enhances the DWI from a Class B misdemeanor to a Class A misdemeanor) is a punishment enhancement or whether the existence of a prior DWI was an element of the offense. This question is crucially important to every DWI-Misdemeanor Repetition (sometimes called DWI-Second) case tried to a jury in the state because the answer tells us whether the jury gets to hear about the prior DWI while they are determining guilt-innocence.
Typically, juries in criminal cases do not hear about prior bad acts or convictions when they are determining whether a person is guilty or not guilty of an alleged offense. There are many exceptions to this rule, but the rule allows the jury to focus on the question of guilt at hand. Those other bad acts and prior convictions are generally reserved for the punishment phase of a trial so the jury can determine what the appropriate sentence is in light of all those facts. The answer from the Court of Criminal Appeals is that for misdemeanors, the fact that there is one prior DWI conviction is a punishment issue and not an element of the offense which can be brought before the jury unless the punishment phase is reached.
[This is different than when a person has two prior DWIs because a third DWI is a felony offense. To get to a felony court, those priors must be proven as a “jurisdictional element” so the jury does get to hear about the jurisdictional priors in a felony DWI.]
Intermediate Court on Prior DWI as an Element vs. Punishment Issue
Defendant Jose Olivia was charged by information with Driving While Intoxicated. The information contained two pertinent paragraphs: one regarding the DWI currently being tried, and a second paragraph alleging a prior DWI conviction. Olivia was found guilty on the current DWI charge without any mention of the prior DWI conviction to the jury.
At the punishment stage of the trial, the State provided the jury with evidence of the prior DWI conviction. The jury found the prior conviction to be true and assessed a punishment of 180 days in jail. The final judgment on Olivia’s current DWI was labeled “DWI 2ND,” indicating that Olivia was convicted of a Class A Misdemeanor DWI.
On appeal, the 14th Court of Appeals in Houston reversed the conviction, reasoning that “a fact that elevates the degree of an offense” is an element of the underlying offense and must be proven beyond a reasonable doubt before the punishment stage. Specifically, the court pointed to the fact that Texas Penal Code §49.09 does not expressly state an individual “shall be punished,” which is significant because “shall” indicates mandatory action required by law. Ultimately, the court determined that introducing the prior conviction at punishment was “legally insufficient” to enhance the current DWI from a Class B misdemeanor to a Class A misdemeanor.
Court of Criminal Appeals on Prior DWI as an Element vs. Punishment Issue
The Court of Criminal Appeals granted a Petition for Discretionary Review to settle the element vs. punishment question for the entire state because there was disagreement among the intermediate court as to whether the one prior DWI conviction is an element of a DWI Misdemeanor Repetition case, or whether it was an enhancement to be proven in guilt-innocence. Notably, both the position of both the prosecutor and the defense before the Court of Criminal Appeals was that the prior DWI was an element of the offense, but the Court of Criminal Appeals disagreed with both sides in rendering its decision.
The Court of Criminal Appeals distinguished between priors that are raised in felony cases at the guilt-innocence phase as elements of the offense because those are necessary for a felony district court to have jurisdiction over the case. In a misdemeanor, although the offense level increases from a Class B misdemeanor to a Class A misdemeanor, it would still be tried in a misdemeanor court. The issue is one of punishment, not of guilt-innocence.
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