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

K. PROPER TO ALLEGE DATE PROBATION GRANTED AS OPPOSED TO DATE
PROBATION REVOKED
Oqaz v. State, 2005 WL 2898139 (Tex.App.-Fort Worth 2005, no pet.) (Not designated for
publication).
Defendant argued that the indictments should have alleged the date on which his probation in the
prior cases was revoked and should have relied on those judgments revoking probation, not the
older judgments of conviction. Even though his probation was revoked, the underlying convictions
were final for enhancement purposeg so fhe indictment referred to the proper dates and judgments.
L. DEFECT IN WORDING OF JUDGMENT/PROBATION ORDER = BAD PRIOR
1. YES
Mosqueda v. State, 936 S.W.2d714 (Tex.App.-Fort Worth 1996, no pet.).
Ihis was a felony DWI case where there was a defect in the paperwork supporting one of the
underlying misdemeanor DWI convictions. The order of probation contained the language "it is
therefore considered, ordered, and adjudged, that the verdict and findinq of quiltv herein shall not
be final. that no iudqment be rendered thereon. and that the defendant be, and is hereby placed on
probation. lf you see fhe underlined wording on the probation order of your DWI prior, it violates
42.01 of the lexas Code of Criminal Procedure in that it does not show that the defendant was
"adjudged to be guilty"as rs required. The result in this case u/as that the defendant was ordered
acquitted.
NOTE: IF YOU SPOT IHIS PROBLEM EARLY YOU CAN PROBABLY SAVE THE PRIOR BY
SEEKING A NUNC PRO TUNC ORDER FROM THE JUDGE OF THE COURT OUT OF WHICH
THE PRIOR I4IAS /SSUED.
2.
NO
Gonzales v. State, 309 S.W.3d 48 (Tex.Crim.App. 2010).
Williamson v. State, 46 S.W.3d 463 (Tex.App.-Dallas 2001, no pet.).
Rizo v. State, 963 S.W.2d 137 (Tex.App.-Eastland 1998, no pet.)
3. NOT A PROBLEM FOR UNDERLYING PRIORS
State v. Vasquez, 140 S.W.3d 758 (Tex.App.-Houston [14th Dist.] 2004, no pet.).
State v. Duke, 59 S.W.3d 789 (Tex.App.-Fort Worth 2001, pet. ref'd).
IhiswasaSfafe's appealof anordersetting asrde anindictmentforFelonyDWl. TheStaterelied
upon two Felony DWI priors to raise the new charge to a felony. The defense attacked the felony
enhancement pointing out that priors that had been relied upon to raise fhose cases fo a felony were
faulty. The specific problem with the underlying priors, both out of Dallas, was that the judgments
contained language stating the priors "shall not be final." So rn a "domino" theory, the defendant
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