At page 43 Determining finality of DWI convictions under prior statute8 citing cases“specific intent to keep the law the same as its previous incarnation”
- Rae, Ex Parte Russell Boyd, No. PD-0734-17 (Tex. App. Oct. 9, 2017).publishedIn the event of the latter, the case of Ex parte Serrato, 3 S.W.3d 41, 43 (Tex. Crim.
- Danny Dale Posey v. State, No. 02-10-00039-CR (Tex. App.—Fort Worth Dec. 23, 2010).unpublishedApp. 2010) (analyzing a 1987 judgment under law that a conviction for an offense occurring on or after January 1, 1984, is final whether or not probated); Ex parte Serrato, 3 S.W.3d 41, 43 (Tex. Crim.
- Vrba v. State, 69 S.W.3d 713 (Tex. App.—Waco 2002).published Ex parte Serrato, 3 S.W.3d 41, 43 (Tex.Crim.App.1999); accord Williamson v. State, 46 S.W.3d 463, 466-67 (Tex.App.-Dallas 2001, no pet.).
- Gonzales, Rudy, No. PD-0882-08 (Tex. Crim. App. Apr. 28, 2010).publishedSee also Ex parte Serrato, 3 S.W.3d 41, 43 (Tex. Crim.
- Gonzales v. State, 309 S.W.3d 48 (Tex. Crim. App. 2010).published(concluding that, “by incorporating the prior DWI statute, as that law existed before enactment of the new statute, the Legislature declared its intent to continue the status quo, which included permitting probated DWI c…)
- Williamson v. State, 46 S.W.3d 463 (Tex. App.—Dallas 2001).publishedSee Rizo, 963 S.W.2d at 138 ; see also Ex parte Serrato, 3 S.W.3d 41, 43 (Tex.Crim.App.1999) (per curiam).
At page 42 Defining final conviction for offenses after 19845 citing cases
- Raymond Kirk Butler v. the State of Texas, No. 10-24-00234-CR (Tex. App.—Waco Aug. 7, 2025).unpublishedFor a DWI offense that occurred between January 1, 1984 and September 1, 1994, “a conviction . . . is a final conviction, whether or not the sentence for the conviction is probated.” Ex parte Serrato, 3 S.W.3d 41, 42-43 (Tex. Crim.
- State v. Verhoeven, 151 S.W.3d 637 (Tex. App.—Fort Worth 2004).published The relevant penalty enhancement provision provides: "If it is shown on the trial of an offense under Section 49.04 ... that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle whil…
- State v. Patrick Wayne Verhoeven, 151 S.W.3d 637 (Tex. App.—Fort Worth 2004).published The relevant penalty enhancement provision provides: “If it is shown on the trial of an offense under Section 49.04 ... that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle whil…
- Steele v. State, 22 S.W.3d 550 (Tex. App.—Fort Worth 2000).published NOTES [1] See Tex. Penal Code Ann. §§ 31.03 , 31.06 (Vernon Supp.2000). [2] See id. § 32.21. [3] See id. [4] See id. §§ 31.03, 32.21. [5] Id. § 29.02(a) (Vernon 1994) (emphasis added). [6] See id. § 32.21(a)-(b). [7] See Ex parte Serrato,…
- Donald Wayne Read v. State, No. 02-06-00065-CR (Tex. App.—Fort Worth Mar. 29, 2007).unpublished See Ex parte Serrato , 3 S.W.3d 41, 42 (Tex. Crim.
“When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction on 'mistake of fact'”
- Burns, Andrew J, No. WR-69,222-03 (Tex. Crim. App. Jan. 25, 2012).published“When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction on 'mistake of fact'”
- Okonkwo, Chidiebele Gabriel, 398 S.W.3d 689 (Tex. Crim. App. 2013).published“When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction of 'mistake of fact.'”
Other citing cases
- Terry, Rickey, No. WR-43,360-02 (Tex. Crim. App. Aug. 22, 2007).unpublished
- Carnes, Ronnie Lynn, No. WR-65,597-01 (Tex. Crim. App. Oct. 4, 2006).unpublished
OPINION
The opinion was delivered
PER CURIAM.This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, Y.A.C.C.P. Applicant was convicted of driving while intoxicated, committed on December 2, 1994, enhanced by two prior DWI convictions. The court assessed punishment at five years imprisonment. No appeal was taken from this conviction.
Applicant contends, inter alia, that he has been illegally sentenced because his prior DWI convictions were not final convictions, and thus could not be used to enhance the instant conviction to a felony. After remand, the record reflects that applicant’s prior DWI convictions, two of which occurred in 1993 and one in 1990, were probated, and the probations were not revoked prior to their expiration. We filed and set this case to determine whether a probated sentence imposed under the former DWI statute (Article 6701Z-1 V.A.C.S.) may be used for purposes of enhancement under the current DWI statute (V.T.P.C. § 49.09.)
Art. 49.09(d) provides:
For purposes of this section, a conviction for an offense under Section 49.04, 49.05, 49.06, 49.07, or 49.08 that occurs on or after September 1, 199k, ⅛ a final conviction, whether the sentence for the conviction is imposed or probated.
(emphasis supplied.) Applicant contends that the penal code authorizes the use of a probated DWI sentence only if it occurred after September 1, 1994. All of Applicant’s probated DWI convictions occurred prior to September 1, 1994. Therefore we must consider whether the Legislature intended to allow the use of probated DWI convictions which occurred before the enactment of Penal Code § 49.09 in 1994, for the purpose of enhancement under the newer provision.
In analyzing a legal issue governed by a statute, we apply the plain meaning of its language, unless its application is ambiguous or would lead to an absurd result. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). In this case, the statute clearly resolves the issue, and we need not look further.
Applicant was convicted of driving while intoxicated pursuant to V.T.P.C. § 49.04. The relevant penalty enhancement provision provides: “If it is shown on the trial of an offense under Section 49.04 ... that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated ... the offense is a felony of the third degree.” V.T.P.C. § 49.09(b). Art.[*43] 49.09(e) specifically defines the term “offense relating to the operating of a motor vehicle” to include “an offense under Article 6701Í-1 Revised Statutes, as that law existed before September 1, 199J.” V.T.P.C. § 49.09(e)(emphasis supplied). And the former DWI law to which the statute refers stated: “For purposes of this article, a conviction for an offense that occurs on or after January 1, 1984, is a final conviction, whether or not the sentence for the conviction is probated.” Article 6701Z-1 V.A.C.S.
The Legislature thus provided specifically in Art. 67011-1 that a probated conviction could be used to enhance punishment in a DWI case. In reenacting the provision in the penal code, the Legislature again specifically noted that probated sentences for purposes of DWI enhancement would be permissible. V.T.P.C. § 49.09(d). In light of the Legislature’s specific intent to keep the law the same as its previous incarnation, we do not find applicant’s contention to have merit. This section was enacted to state that probated convictions under the new statute are considered final convictions. And by incorporating the prior DWI statute, as that law existed before enactment of the new statute, the Legislature declared its intent to continue the status quo, which included permitting probated DWI convictions for enhancement if the offense occurred after January 1,1984.
We hold that a probated DWI conviction which occurred after January 1, 1984, but prior to September 1, 1994, may properly be used to enhance a sentence. Applicant has not been illegally sentenced, and his five year prison term falls within the proper range of punishment for a third degree felony. Relief is denied. All other claims are denied.