Driving While Intoxicated Case Law Update - Texas District ...

E. ENHANCEMENT OF FELONY DWI WITH NON.DWI PRIORS
Jones v. State, 796 S.W.2d 183 (Tex.Crim.App. 1990).
Phifer v. State, 787 S.W.2d 395 (Tex.Crim.App. 1990).
Seaton v. State, 718 S.W.2d 870 (Tex.App.-Austin 1986, no pet.).
Rawlinqs v. State, 602 S.W.2d 268 (Tex.Crim.App. 1980).
Felony DWI can be enhanced with non-DWl prior convictions. (Point beingthat if felony convictions
other than those of felony DWI are used, a person convicted of felony DWI can be a "habitual"
criminal.)
F. ERROR IN ENHANCEMENT PARAGRAPH NOT FATAL
1, WRONG DATE ALLEGED
Valenti v. State, 49 S.W.3d 594 (Tex.App.-Fort Worth 2001, no pet.).
Zimmerlee v. State,777 5.W.2d791(Tex.App.-Beaumont 1989, no pet.).
Variance between dafes in DWI enhancements as alleged and as proved notfatal absent showing
that defendant was surprised, mislead, or prejudiced.
2. WRONG CASE NUMBERALLEGED
Human v. State, 749 S.W.2d 832 (Tex.Crim.App. 1988).
ln the absence of a showing that the defendant was surprised or prejudiced by discrepancy, the fact
that cause number in DWI conviction alleged in felony indictment differed from that proven at trial
was not fatal. ln thr.s case, it was alleged that prior had cause #F80-1197-MN when proof showed
it was cause #F80-11997N.
Cole v. State, 611 S.W.2d 79 (Tex.Crim.App. 1981).
No fatal variance in enhancement paragraph that atleged prior was in cause #87954 when it was
later proven that it was in fact under cause #87594.
3. WRONG STATE ALLEGED
Plessinoer v. State, 536 S.W.2d 380 (Tex.Crim.App. 1976).
Where the enhancement alleged the prior was out of Texas when it was really out of Arizona, proof
is sufficient in absence of a showing that the defendant was misled, prejudiced, or surprised.
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