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TEXAS COURT OF CRIMINAL APPEALS HOLDS THAT A PRIOR DWI IS NOT A JURISDICTIONAL ELEMENT OF THE OFFENSE FOR PURPOSES OF A SECOND DWI OFFENSE.

Posted by Ed McClees | May 23, 2018 | 0 Comments

In Texas, as in many other states, the severity of punishment for a DWI increases when the person charged has prior DWI convictions.  Under Texas law, a person charged with a first DWI faces a Class B misdemeanor so long as that person's BAC is below a 0.15.  A person arrested on a new DWI charge faces a Class A misdemeanor if that person has a prior DWI conviction, and a Third Degree Felony if that person has two prior convictions.

There has been controversy over whether the jury in a trial for a second DWI offense should be allowed to hear evidence during the guilt/innocence phase of the trial that the person on trial had a prior DWI conviction.  For obvious reasons, prosecutors like to use evidence of any prior bad acts or convictions in the guilt phase of a trial to encourage the jury to convict even if the evidence is weak. Their hope is that a juror may think “I'm not sure if he did what they are saying he did, but he did something in the past so let's convict anyway.”  While evidence of prior convictions is sometimes appropriate to consider during the punishment phase of a trial, it is generally not admissible in the guilt/innocence phase of a trial.  This is because the law wants the jury to focus solely on the government's accusations that gave rise to the criminal charges.  The law does not want an innocent person found guilty of a particular crime because of something unrelated to that crime that the person on trial may have done in the past.

 In a devastating blow to those seeking a fair trial, the Fourteenth Court of Appeals held in an opinion called Oliva that a prior DWI conviction was admissible in the guilt/innocence phase of a trial because it is a jurisdictional element of the offense.  This decision allowed prosecutors to present evidence of a prior DWI conviction during the guilt/innocence phase of the trial.  Prosecutors relished this decision because the temptation to use evidence of a prior crime as to why the person should be convicted of a different crime is often too great for a juror to ignore, even though jurors are instructed not to use evidence of a prior crime in deciding whether the person on trial is guilty of the crime for which that person is on trial.

 Today, the Texas Court of Criminal Appeals reversed this holding, and ended this controversy.  Justice Keller, writing for the majority, held that a prior DWI conviction is not a jurisdictional element of the offense.  This means that in most cases it will be unlikely that evidence of a prior DWI conviction will be heard by a jury that is trying to determine whether the person on trial committed the DWI offense for which that person is charged.  If that person is found guilty, then evidence of the prior DWI conviction is still admissible during the punishment phase of the trial to increase the level of the charge to a Class A misdemeanor.  This decision will help the accused get a fair trial and is a very important case for any lawyer who handles cases where the client is charged with a second DWI offense. 

If you have questions regarding how this new court opinion could affect your case, contact us.   

About the Author

Ed McClees

Ed is a criminal trial lawyer who is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a former Harris County District Attorney where he served as chief of the Organized Crime Section, prosecuting cases involving complex organized criminal activities, including Fr...

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