Felony DWI

A third DWI offense can be charged as a third-degree felony when the prosecutor can prove two prior convictions for DWI. Also, a third-degree felony can be enhanced to a second-degree felony depending on the number of prior felony convictions. However, the prosecutor cannot use one prior conviction to BOTH elevate the offense to a felony AND enhance the punishment.

In other words, the prosecutor can use a prior felony DWI conviction under Penal Code Section 12.42 for enhancement purposes as long as that prior is not also used to elevate the alleged offense to a felony. For purposes of a third DWI felony charge, the state is not required to prove that the defendant's two prior DWI convictions occurred sequentially when the two prior convictions arose from the same criminal transaction under Section 49.09(b).

The prosecutor must prove, however, the jurisdictional prior offense for felony DWI at the guilt-innocence stage of the trial. In other words, the prior DWI convictions are part of the proof at the guilt or innocence stage of the felony DWI case. The defendant has the ability to stipulate to the prior conviction but that does not prevent the prosecutor from presenting evidence about those priors through the introduction of the stipulation into evidence.

In most cases, the prosecutor will seek to admit a copy of the judgment and sentence to prove the prior conviction. The criminal court docket sheet is not sufficient to prove the prior conviction. Particularly, when the prior conviction is old or occurred in another state, the prosecutor often has a difficult time proving the prior convictions.

Your criminal defense attorney should also fight to exclude any prior conviction that occurred in violation of your right to counsel. If you were not represented by an attorney and did not sign a valid waiver of counsel form before entering a plea on the charges, then the prior offense should not be used against you to elevate the new DWI to a felony.

Attorney for Felony DWI Charges in Tarrant County, TX

If you were charged with the offense of felony driving while intoxicated (DWI) under Tex. Penal Code Ann. § 49.09(b)(2), then contact an experienced criminal defense attorney in Fort Worth in Tarrant County, TX. Many felony DWI charges involve a 3rd DWI in Tarrant County, TX, are reduced to a misdemeanor offense during pre-trial negotiations.

Call us to learn more about your 3rd DUI charges, ways to avoid the typical penalties, how to keep the prior DWI convictions from being used against you, and important defenses that can be used to fight the charges.

Call (817) 422-5350 to discuss your case today.


The Impact of Prior DWI Convictions in Texas

In a felony DWI case, the indictment will often include a jurisdictional enhancement paragraph, entitled “DWI—FELONY REPETITION,” that alleges that the defendant has been previously convicted of misdemeanor DWI on two prior occasions.

The indictment might also include a punishment enhancement paragraph entitled, “HABITUAL OFFENDER NOTICE,” that alleges that the defendant has been previously convicted of two prior felony offenses. Tex. Penal Code Ann. § 12.42(d) provides for enhanced punishments for habitual felony offenders.

An experienced criminal defense attorney can help you fight those enhancements so that the best possible result can be obtained in your case.


Section 49.09 for Felony DWI

Section 49.09 raises a DWI offense to felony grade if it is shown that the defendant has been twice previously convicted of DWI. Id. § 49.09(b)(2). Section 49.09(g) provide that the use of a prior conviction for either jurisdictional enhancement (under section 49.09) or for punishment enhancement (under subchapter D, Chapter 12). Id. § 49.09(g).

In Carroll v. State, 51 S.W.3d 797, 799 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd), the court analyzed former section 49.09(g)) which provides, “A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.” Tex. Penal Code Ann. § 49.09(g). Subchapter D, entitled “EXCEPTIONAL SENTENCES,” provides for enhanced penalties for repeat and habitual felony and misdemeanor offenders. Id. §§ 12.41–.50.

In Gibson v. State, 995 S.W.2d 693, 695–96 (Tex.Crim.App.1999), the court noted that misdemeanor and felony DWI are different grades of driving while intoxicated and are tried in different courts. The courts have explained:

[O]nly felonies may be used to enhance punishment under section 12.42(d), the habitual offender statute. The disjunctive language of section 49.09(b), “a conviction ... may be used for purposes of enhancement under this section or ... under [the habitual offender statute] but not under both,” assumes a section 12.42(d) conviction must be for a felony offense. Misdemeanor convictions may not be alleged to enhance punishment under section 12.42(d), the habitual offender statute. It follows that the disjunctive language of section 49.09(b) applies only to a felony DWI and does not apply to the use of a misdemeanor DWI under section 12.42(d) insofar as section 49.09(f) [now section 49.09(g) ] is limited by section 12.42(d).

Therefore, the plain language of section 49.09(g) prohibits the double use of a “conviction” for both jurisdictional and punishment enhancement. Tex. Penal Code Ann. § 49.09(g).

A misdemeanor DWI conviction is a separate and distinct conviction from a felony DWI conviction, even if that felony DWI conviction included the separate misdemeanor conviction as a jurisdictional element. See Gibson v. State, 995 S.W.2d 693, 695–96 (Tex.Crim.App.1999). For instance, in Carroll v. State, 51 S.W.3d 797, 799-800 (Tex.App.-Houston [1st Dist.] 2001, pet. ref’d), the court explained that elevating a DWI from a misdemeanor to a felony creates an entirely new offense that vests the district court with jurisdiction.


Charges for Both Intoxication Manslaughter or Assault and Felony DWI

If the driver has two or more prior convictions for DWI, then the prosecutor can bring charges for felony DWI for the third offense. Under Texas law, a person can be convicted of both intoxication manslaughter or intoxication assault and felony DWI as a third offense.

For instance, in Rowe v. State, No. 05-02-1516-CR, 2004 WL 1050693 (Tex. App. - Dallas, May 11, 2004, pet. ref'd), the crime of intoxication assault differs from felony DWI in that it requires a showing that the defendant caused serious bodily injury to another and felony DWI differs from intoxication assault because it requires proof of two prior DWI convictions.


Finding Felony DWI Attorney in Fort Worth, TX

If you were charged by indictment with committing felony DWI by driving while intoxicated and having been twice before convicted of DWI under TEX. PENAL CODE ANN. § 49.09(b)(2), then contact an experienced criminal defense attorney in Forth Worth, TX, at Law Offices of Richard C. McConathy.

In a felony DWI case, the indictment will list two prior DWI convictions as an element of the charged offense. Section 49.09(g) provides that a prior DWI conviction may be used to enhance a later DWI offense to a more serious offense, but that the same prior conviction may not be used to enhance both the charged offense and the defendant's punishment.

In some cases, a prior felony DWI conviction can be used to enhance the punishment for felony DWI. Under Section 12.42(a)(3), a prior felony DWI conviction may be used to enhance a defendant's punishment from that for a third-degree felony to that for a second-degree felony. Understanding when this can and cannot occur is extremely important. Your attorney should fight the case aggressively to keep the prosecutor from using priors to enhance the charge or the punishment.

After an arrest for driving under the influence of alcohol or any controlled substance in Fort Worth, TX, or the surrounding areas in Tarrant County, TX, call an experienced criminal defense attorney at Law Offices of Richard C. McConathy. Find out more about the charges pending against you and the best way to fight the charges.


This article was last updated on Friday, April 28, 2016.

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