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

The same prior DWI convictions may not be used both to enhance the underlying DW! charge and
to prove habitualfelony offender sfafus.
3. WHAT IS NOT "USING A PRIOR TWICE''
Perez v. State, 124 S.W.3d 214 (Tex.App.-Fort Worth 2002, no pet.).
Orona v. State, 52 S.W.3d 242 (Tex.App.-El Paso 2001, no pet.).
Carroll v. State, 51 S.W.3d797 (Tex.App.-Houston [1"1Dist.] 2001, pet. ref'd).
A misdemeanor DWI conviction uras used to elevate the DWI jurisdictionally to a Felony and the
Felony DWI was enhanced with other Felony DWls to make the defendant an habitual offender.
One of the Felony DWIs relied upon the same misdemeanor conviction described above. Defendant
argued that constituted using the same prior twice. This argument was rejected by the Court which
held that fhe Sfafe did not use the misdemeanor offense twice because it did not use it for
punishment enhancement purposes but rather only jurisdictional purposes. /f base d this holding on
the fact that no independent proof of the misdemeanor's existence is required under 1 2.42(d) of the
Iexas Penal Code.
J. OPEN CONTAINER
1. SUFFICIENT PROOF OF
Walters v. State , 757 S.W .2d 41 (Tex.App.-Houston [14th Dist.] 1988, no pet.).
Half futl can of beer found lodged between windshietd and dash immediatety in front of steering
wheel, defendant alone in car, no evidence that can smelled or tasted of alcohol = sufficient.
Troff v. State, 882 S.W.2d 905 (Tex.App.-Houston [1st Dist.] 1gg4,pet. ref'd).
Not required to prove defendant held beer while driving.
2. EFFECT OF IMPROPER READING OF OPEN CONTAINER
ENHANCEMENT IN GUILT/INNOCENCE PHASE
Doneburq v. State, 44 S.W.3d 651 (Tex.App.-Fort Worth 2001, pdr ref'd.).
The State erroneously read the open container enhancement to the jury when it arraigned the
defendant at the beginning of trial. That this was a mistake is conceded by all. The Defense
requested that the "open container" paragraph be included as an element that the State had to
prove in the guilt innocence jury instructions. This request was denied by the trial court and the
Court affrrmed the conviction explaining that when the State alleges evidentiary matters that are not
necessary to be proved under Article 21.03 of the CCP, the allegations are considered surplusage.
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