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

o.
IF YOU ALLEGE MORE PRIOR DWI'S THAN YOU NEED, MUST YOU PROVE
THEM ALL?
1. YES
Jimenez v. State, 981 S.W.2d 393 (Tex.App.-San Antonio 1998, pdr. ref'd).
tn this felony DWI case, the State atteged three prior DWI's in the charging instrument and then the
court charged the jury that if it found any two of three to have been proved, it was sufficient. Court
held that it was error in thatthe state. bv alleoins three priors had increased its burden of proof and
thus had to prove allthree priors. Error was found to be harmless rn fhis case.
NOTE: ANOTHER CONTROVERSIAL OPINION THAT SEEMS TO DEFY LOGIC AND
PRECEDENT.
2. NO
Biederman v. State ,724 S.W .2d 436 (Tex.App.-Eastland 1987, pet. ref'd).
Read v. State, 955 S.W.2d 435 (Tex.App.-Fort Worth 1997, pet. ref'd).
Wesley v. State, 997 S.W.2d 874 (Tex.App.-Waco 1999, no pet.).
Washinqton v. State,350 S.W.2d924 (Tex.Crim.App. 1961).
State may allege as many prior DWI's as it wants and still need not prove any more than two of
them.
P. PROOF THAT PRIOR DWI IS WITHIN 10 YEARS OF OFFENSE DATE
1. ONLY ONE OF THE TWO PRIORS MUST BE WTHIN 10 YEARS
(FOR DWl OFFENSES PRTOR TO 9-1-01)
Smith v. State, 1 S.W.3d 261 (Tex.App.-Texarkana 1999, pet ref'd).
Held that State need only prove that one of the defendant's two prior DWI convictions was for an
offense committed within 10 years of new offense date. The Court further admits it made a mistake
in the dicta of its opinion in Renshaw v. State.987 S. W.2d 464 (Tex.App.-Texarkana 1998) . "The
State correctly points out that dicta in the Renshaw case is in error in stating that the State would
have to prove fuvo prior DWI convictions within the same ten year period."
2. PROOF OF 10 YEARS NOT NECESSARY
Summers v. State, 172 S.W.3d 102 (Tex.App.-Texarkana 2005, no pet.).
St.Clair v. State,101 S.W.3d737 (Tex.App.-Houston [1"tDist.] 2003, pet. ref'd).
Weaver v. State, 87 S.W.3d 557 (Tex.Crim.App. 2002).
Priors tisted in enhancement paragraphs were too remote (no intervening conviction to bring it under
10 year rule was alleged). /ssue raised is whether the State must present evidence of interuening
conviction to the jury? Is 49.09 (e) an element of the offense of Felony DWI? Court of Appeals said
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