*1 jury; is eyes in the compromised Doyle GETTS, Bobby Appellant, speaking as an advocate
defense counsel or as witness for defendant v. state?4 of Texas. STATE Pending appeal, is this Court another No. PD-0093-04. County,5 in the court from Kendall prosecutor, noted that this same Appeals of Texas. of Criminal Court “false citing impressions” the creation of counsel, called as a by defense herself 26, 2005. Jan. witness, col- testified to an irrelevant matter, revealed the substance lateral counsel, negotiations with
pre-trial defense
declined allow herself be cross-exam- counsel, “re- by
ined the defense and then her as an advocate for
sumed role try and continued to the case.”6
state in this cause has demonstrated
prosecutor tendency au-
an unfortunate to abuse her
thority to call is witnesses. Such conduct public ought in a official and
reprehensible censured, soundly especially when continuing conduct course of con-
duct, a single lapse. not 2.01
Article of the Texas of Crim- Code that it
inal Procedure states “shall be ..., duty
primary prosecutors, of all
convict, justice but to see that is done.” is not when the
Justice done defendant of a trial
deprived fair actions
prosecutor.
I concur Court. Antonio, September (Tex.App.-San v. at 231. 4. Brown State 2003)(not publication). designated for 04-02-00219-CR, 5. Ramon No. 6.Id., Tex.App. slip op. at 6. WL LEXIS
154
OPINION KEASLER, J., delivered the opinion of PRICE, WOMACK, the Court in which JOHNSON, HERVEY, HOLCOMB, and JJ., joined.
Bobby Doyle Getts with a in committed 2002. The indictment alleged previous two DWI convictions— one and one 1984. We must decide whether these were sufficient to elevate the 2002 offense to a third-degree felony. Based on the 2001 amendments to the DWI conclude that the answer is no. History and Facts Procedural charged by Getts was indictment with driving while intoxicated. The indictment further alleged to the commis- offense, sion of that Getts had been con- victed of DWI on April 1984 and on September an enhancement paragraph, alleged indictment previously Getts had been convicted of fel- in possession of a firearm. lawyer pretrial Getts’s filed a motion to dismiss, arguing that the indictment failed to allege felony because the 1984 prior conviction “occurred more than 10 years before the offense being charged pro this case.” Getts filed se motion to quash grounds. indictment on the same hearing trial court held a and over- pleaded ruled Getts’s motions. Getts then guilty pursuant plea to a bargain agree- ment for three and the State’s aban- donment of paragraph. the enhancement
Getts filed notice of appeal. ap- His brief, pointed counsel filed an Anders1 and pro Getts filed a appellate arguing se brief that the trial court Perkins, denying erred Nancy Athens, Paula Appel- pretrial motion to dismiss lant. jurisdiction trial court lacked because this Paul, Austin, Atty.,
Matthew
State’s
was not a
of Ap-
DWI.
Court
State.
peals agreed.2 It found that the 1984 con-
California,
1. Anders v.
U.S.
S.Ct.
2. Getts v.
156 S.W.3d
2003 WL
Tex.App.
LEXIS 9237
viction (d); under Subsection Penal Code remoteness” under for enhance- therefore was unavailable for which the the offense result, appellate aAs
ment.3 than 10 being committed more tried was *3 a B judgment to class reformed Getts’s of: the latest after to trial misdemeanor and remanded the (A) on which the the date court sentencing.4 for denied previous for the convic- was entered rehearing, noting motion for the State’s tion; unambiguous § its “is (B) person which the date on the face.”5 any period of commu- discharged from granted petition the State’s for dis- We person on which nity supervision the cretionary decide whether the review to conviction; placed previous for the correctly Appeals interpreted Court (C) suc- person on which the the date 49.09(e). completed any pa- cessfully person role on which the was released Analysis to serving portion after of the term for person which was sentenced discerning meaning When conviction; lang previous or begin plain we its with in uage.6 leading Our case (D) person date on which the State,7 terpretation, Boykin v. instructs us any completed serving term for “focus to first our attention on literal person imprisoned was confined or question” text of the statute in because conviction; for If “the text of the statute is the law.”8 (3) the has not been convicted of language unambiguous, is clear and 49.05, 49.04, an offense under Section plain meaning app of those words is 49.07, 49.06, 49.065, of- or or 49.08 if But plain leads lied.9 operating fense a motor vehi- related Legislature results absurd that the could years of cle intoxicated within 10 while intended, possibly or if lan not have date under Subdivision latest ambiguous, may consider ex Initially, states that “a con- the statute tra-textual factors to determine stat for may purposes viction not be used meaning.10 ute’s if....” under this section enhancement 49.09(e) reads as follows: Section conviction, not phrase This refers to one (f), say not con- Except provided by as two. The statute does “two Subsection for may victions not be used not be used Therefore, applies if....” if: of enhancement under section State, S.W.2d Tex.App. 6. v. 785 WL LEXIS 10546 16, 2003) (not (Tex.App.-Tyler, designat Dec. Crim.App.1991). publication). ed for (Tex.Crim.App.1991). S.W.2d at 595. 3. Id. Id. at 596.
4. 8. Id. at 785. *1,
5. 2003 WL at Getts Id. 9. Tex.App. (Tex.App.- *3 LEXIS 10546 16, 2003) (not Tyler, designated pub- Dec. lication). Id. at 785-86. (D) individually, (A), (B), (C), victions collectively. est or for the 1984 provides statute case, the framework for deter- conviction. Getts was con- mining if either of Getts’s April victed of DWI on 1984. The is available for enhancement. We must record days reflects that he served three consider jail convicted, one conviction at a being time. apparently custody due credit for time in awaiting begin We will with Getts’s 1984 community trial. He did not receive su- conviction. way The easiest to understand instead, pervision parole; discharged he plug this statute is to the relevant facts the sentence after days. three So the it, into and then read every it. So time (D), latest date under four options those the statute refers to “the previous convic- completed the date he his term. That date *4 tion,” plug we will in the 1984 conviction. 29,1984. April offense, When it refers to the current will in plug Getts’s 2002 offense. We will Now we can read the statute as follows: plug every also “Getts” time the statute may The 1984 conviction not be used for person.” refers to “the Now the statute purposes of if: enhancement reads as follows: (1) the 1984 conviction a final con-
The 1984 conviction not be used for (d); viction under Subsection purposes of if: (1) the 1984 conviction was a final con- (2) the 2002 offense was committed (d); viction under Subsection 29, 1984; years April more than 10 after (2) the 2002 offense was committed and years
more than 10 after the latest of: (3) Getts not any has been convicted of (A) the date on judg- which the 1984 other offense related to operating mo- entered; ment was tor vehicle while intoxicated within 10 (B) the date on which Getts was dis- 29,1984. years April of any period from of communi- (3), We now must consider subsection ty supervision placed on which he was whether Getts was convicted of another conviction; for the 1984 years alcohol-related offense within 10 (C) the date on which Getts success- April 1984. The record reflects that he fully completed any period parole September was convicted of on on which he was released after serv- 1997. That years is more than 10 ing portion of the term to which he April 1984. No other alcohol-related conviction; was sentenced for the 1984 offense is the record. (D) complet- the date on which Getts Under the all three condi serving any ed term for which he was tions must be met for the conviction to be imprisoned confined or for the 1984 Otherwise, unavailable for enhancement. conviction; and the conviction is available for enhance
(3) Getts has not been convicted of case, ment. In this all three conditions are operating other offense related .to a mo- met: tor vehicle while intoxicated within 10 (1) The 1984 conviction is a final convic- years of the latest date under Subdivi- tion. sion (2) step The next filling the blanks is The 2002 offense was committed determine, (2), April under subsection the lat- more than 10 convictions available convicted another would find both Getts most enhancement, within 10 alcohol-related offense and we find 29,1984. April But in the recent conviction available. situations, interpretations remaining met, three are all conditions Because in- our fear of are identical. State’s for enhance- conviction unavailable narrowing ef- terpretation having a drastic And without that ment. is unwarranted. For fect the law offense ceases to be a DWI.
current part, no different. most the results are need apply There is no the statute to both because are needed this victions to elevate History Legislative felony, the 1984 conviction is argues following The State also unavailable. case, is, literal text the statute in this
No Absurd Result in- counter to intent. if it is structs follow the text us to literal that this is what the The State concedes absurd, that is unambiguous and not provides. literal text of statute It case. is no basis what we do in this There however, argues, creates an ab- *5 fac- for proceeding here extra-textual that, The out points surd result. State legislative tors such as intent. interpretation, 100-year-old this a under be if conviction could used the defendant re- Additionally, argument the State’s conviction, 90-year-old also had a a but garding unpersuasive. intent is 12-year-old conviction cannot used if originated in Bill This statute House just 1-year-old. the other conviction was intoxi- which stated that a conviction for correct, is The State’s assessment but to en- manslaughter cation could be used disagree this result is absurd. § hance matter when it under no nothing is There absurd about Later, the Ju- occurred. House Criminal interpretation which in certain pri- results risprudence a substitute committee issued being for convictions available enhance- lan- version the of the bill added and others being ment available. In- 49.09(e)(2). § in That now found deed, interpretation our of the statute is House, beyond never but its got bill the not all that different from the State’s. in Bill found substance was House appendix comparing is useful in the The The version of HB 2250 introduced two interpretations. possible It takes each involun- language concerning tained the set of facts demonstrates whether the tary When bill went to manslaughter. the would be for available enhance- Senate, the the Senate Justice Criminal interpretation the ment under State’s version presented committee substitute interpretation. the statute under our the now found added sake, simplicity’s For the latest date of the 49.09(e)(2). § 49.09(e)(2) § options four under is referred simply “discharge as the date.” But of HB 2250 made the final version mi- change, an additional one that seems appendix, As is evident from the actually nor but had effect tremendous State differs us two situa- changed what C, on the law. That version In C and D. situation tions—situations 49.09(e)(2) § version pre-2001 would find neither conviction State 49.09(e)(3). enhancement, previ- The into what is now and we find available D, In ous version said: both available. situation State person Legislature’s regardless has not been convicted of an intent of what it interpret Legislature’s wrote. But we [any
offense under intoxication-related statutes, give not its intentions. We must penal provision] committed within 10 Legislature’s change effect to the years before the date on which the of- regardless of the change law whether person being fense for which the is tried Supreme intended. As the Court remind- was committed. year, ed us earlier Congress “[i]f this en- The version created the enrolled ver- acted into something law different from HB says: sion of intended, what it then it should amend the has not been convicted of an statute to conform it to intent. It its offense under [any intoxication-related beyond our province Congress to rescue penal provision] within 10 errors, drafting provide from its and to (2). latest date under Subdivision ... might preferred what we think is the .change The State concedes that this explains, result.”11 D.C. Circuit
significant. previous version mea- degree “whatever of confidence about con- sured time between the date the gressional purpose one derives from the offense was committed and date that legislative history, purpose must find the current offense was committed. The expression permissible ‘within the limits of amended version measures the time be- language’ given before it can be ef- tween the date of the conviction for the fect.” prior offense and the date listed under case, Legis- have been the Subdivision And subdivision refers technical, merely lature’s intent to make the latest date for a changes non-substantive floor not the portion current offense. So this Instead, amendment to HB 2250. it made *6 the completely statute now measures a law, changes substantive to the which we different time than it did before. interpretation must consider in our of the statute. This in change was made what Senator during public Moncrief a hearing described Conclusion merely as “a floor amendment re- 49.09(e) plain language The is clear duplicative moves the language and makes it and does not lead to an absurd result. appropriate clean-ups, technical but no judgment We affirm the of the Court of changes.” substantive He then described Appeals.
it on the in following House floor man- “merely legislative clean-up, ner: council KELLER, P.J., MEYERS, J., and duplicative language, removes makes no opinion. dissented without changes to substantive the bill.” The COCHRAN, J., dissenting filed a is,
problem acknowledges, as the State he opinion. wrong. Regardless of what he or the intended, Legislative Council the amend- COCHRAN, J., dissenting filed a ment was substantive. KELLER, MEYERS, J., which P.J. and joined. Where does that leave a court at
tempting interpret a statute? I respectfully dissent. “Our constitu- course, duty, argues State that we should follow the tional is to effectuate what Tr., 11. Lamie v. United States 540 U.S. 12. United States ex rel. Totten Bombardier 1023, 1034, (D.C.Cir.2004). L.Ed.2d 1024 S.Ct. Corp., 380 F.3d (2004) (internal omitted). quotations Legislature granted intended when it We review determine wheth- enacted appeals correctly interpret- It er the court of beyond peradventure the statute.”1 is I find not amendment.3 Because that the Texas did intend ed Legislature that the amended section changes plain to enact dramatic substantive I felony ambiguous, apply DWI statute in would enhancement I con- statutory its 2001 amendment. The lan- usual construction aids. infelicitous guage ten-year period found amendment to clude that the relevant section 49.09(e) of the is a the time of the Texas Penal Code draft- between commission ing primary mistake the result of a last-minute offense and the date promised discharge probation, floor amendment “no sub- defendant’s change” recent parole, stantive in the law. The Texas or incarceration the most can, will, Therefore, I Legislature DWI. would reverse the probably quickly error, I repair drafting its but think that court of and affirm the ought apply rigid “plain lan- of trial court. guage” interpretation to lan- statutory I. that we know was not intended Legislature, 23, 2002, Bobby created ambi- May appellant, On
guity, Getts, and is more than a nothing Doyle felony technical indicted DWI.
error. alleged The indictment that he had two for DWI: convictions one case, jurisdictional In this en- the two 26, 1984, and April Septem- another on hancement paragraphs alleged Appellant ber motions to filed and 1997. trial indictment, quash argu- dismiss and to appellant’s court overruled motions to dis- ing the 1984 conviction could not be quash miss or indictment which assert- used for ed that the 1984 too conviction was remote because it occurred outside the to use because occurred more than ten section window set out amended years before the present offense. The 49.09(e). After the trial denied the reversed, Court of Appeals Twelfth hold- motions, pleaded appellant guilty ing the 2001 amendments to Section *7 years DWI and was sentenced three 49.09(e) prior limited of the use DWI con- prison. victions for enhancement those appeals appel- which occur within ten of each oth- The reversed concluding er.2 lant’s that the conviction State, 29, (No. (Tex. 2003) App.-Tyler, v. 1. 75 S.W.3d 433 Oct 12-03-00047- Kutzner State, CR), Crim.App.2002); reh’g overruled 2003 WL v. S.W.2d Tex.App. (Tex.App.-Tyler, (Tex.Crim.App.1991) (beginning LEXIS 10546 its 16, 2003) (not designated publica Dec. for statutory interpretation discussion of with this tion). interpret "[w]hen statement: statutes ... we seek to effectuate the ‘collective’ intent granted Prosecuting Attorney’s 3.We State purpose legislators who enacted the question sole for review: legislation. We so because our state con do assigns lawmaking stitution function to Appeals correctly interpret Did the Court of Legislature assigning the law inter while Code the 2001 amendment to Penal (citations Judiciary”) preting function to the 49.09(e) ten-year that the such relevant omitted, emphasis original). intervening period is now for an conviction period prior DWI’s between the two ten-year period before the
2. Getts 156 S.W.3d 2003 WL rather than the 22456104,2003 Tex.App. primary date offense? LEXIS 9237 of the expressed,
use of the 1984 DWI conviction to enhance mean what it has and is not from a misdemeanor for the to add or from such courts subtract felony improper.4 ap- court of However, plain a statute.”8 when the lan- peals concluded that the 2001 amendment ambiguous straightforward or its prior to section limits the use of results, application would lead to absurd purposes by DWIs may courts consider extra-textual factors changing ten-year the relevant remoteness interpretation.9 to arrive at a sensible Our years from period from the former “ten overriding goal carry legisla- is to out the prior the most recent offense to the date of tive intent of the law.10 offense” to “ten between prior the most recent conviction and the A. En- Historical Overview DWI
date of the earlier Be- conviction.”5 hancements greater ten-year cause was a than there gap appellant’s between most recent Although normally DWI is a misde- and earlier conviction his offense, meanor has when two the court of convictions, the third DWI judgment, reversed the trial court’s or- charge felony.11 to a elevated dered that be reformed to public policy pen- for increased rationales a conviction for a B
reflect class misde- repeat alties for DWI offenders include: meanor, and remanded the case for a new punishment hearing.6 (1) repeat punished offenders should be severely repeatedly endanger-
more (2) welfare; ing public pen- harsher II. function as a repeat alties for offenders presents statutory This case an issue of deterrent, the offender and discouraging interpretation Legislature’s of the Texas driving; and drinking others from 2001 amendment to the remote- jail repeat sentence for offenders ness rule for enhancement. physically ... reflects the need to re- Under our traditional rules of public move drunk streets drivers interpretation, plain we must look time, punishment for a both as meaning used.7 When the protection for the rest for them as statutory language unambigu- is “clear and ous, Legislature society.12 must be understood to Getts, *1, appropriate at 2003 WL at 9. Id. at 785-86. The extra-textu- Tex.App. at LEXIS 9237 *3. al factors to consider are set out in Tex. Gov’t *8 § Code 311.023. phras- parallel
5. at two set-off See id. 595. The quotations es are not direct from the court of 427, State, (Tex. 10. v. 75 S.W.3d 433 Kutzner appeals’ opinion, my rephrasing of but rather Crim.App.2002). appeals. used the 6. Id. at 596. seq.; § Tex. Pen Code 49.09 et. see also State, 557, (Tex.Crim.App.2002), 560 Weaver v. 87 S.W.3d State, 782, 7. See v. 818 S.W.2d 785 denied, 911, t. 538 U.S. (Tex.Crim.App.1991); Badgett see also v. cer 1491, State, 136, 234 123 S.Ct. 155 L.Ed.2d (Tex.Crim.App. 42 S.W.3d 138 2001). State, 436, (Tex. 438 Guinn v. 696 S.W.2d 12. (citations Boykin, at 8. 818 S.W.2d. 785 omit- 1985, ref'd). pet. App.-Houston [14th Dist.] ted).
161
to the
Historically,
provided
Texas law
that
B.
2001 Amendments
DWI
any
driving while intoxicated
prior
me
Enhancement
Statute
remote,13
conviction, matter
could
no
how
2001,
changes
made
Legislature
In
the
a
enhance a misdemeanor DWI offense to
section 49.09.
provisions
to three
within
1983,
felony.14
that requirement
First,
manslaughter
any prior intoxication
prior DWI
increased to two
convictions.15
conviction,
in-
regardless of whether
Then,
1993,
Legislature
the
limited the
boat,
car, airplane, or
volved the use of a
felony only
of a
to a
when
elevation
DWI
a misdemeanor
can be used to elevate
prior
the
had two
convic-
defendant
DWI
Second,
felony
to a
offense.18
tions,
which had been
one of
committed
any
manslaughter
intoxication
ten-year period
within the
before the com-
remote,
used
matter
can be
no
how
present
mission
the
offense.16
Under
DWI offense.19
enhance
law,
ten-year
the 1993
remoteness
Third,
Legislature
amended Section
began ticking
clock
backwards from the
49.09(e),
are now
provision we
date
offense to
of the
the date
“modif[y] the
person
interpreting,
with
committed his most recent
DWI.17
after the
begin
time
individual’s
that,
State,
619,
(Tex.
sowing
13.
v.
563 S.W.2d
tate themselves and
after
wild
Joles
622
stable,
Crim.App.1978).
youth, they may
oats as a
become
solid
purpose
society.
members of
State,
268,
Rawlings
14.
v.
602
See
S.W.2d
upon
the DWI enhancement
limitation
(Tex.Crim.App.1980) (setting out enhance-
statute has
the same since 1993.
remained
67011-2,
(sub-
provisions
ment
of art.
V.A.C.S.
514,
State,
v.
See Bower
77 S.W.3d
intoxicated));
sequent
driving
offense
while
(not
ref’d)
pet.
App.-Houston
Dist.]
[1st
301, 302,
Tex.Crim.
Edwards
ing
purpose
of subsection
"[t]he obvious
(1958) (setting
S.W.2d
out enhance-
(e)
prevent
sending
is to
the State from
(subse-
802(b)
provisions of art.
ment
V.A.P.C.
prison
person to
for the offense of DWI when
intoxicated)).
quent
driving
offense
while
person
any
has not had
DWI convictions
Guinn,
(noting
ture’s to section broadened (3)the person not has been convicted drastically prior or restricted the use of any operating offense ... related to a prior DWI convictions when there are two motor vehicle while intoxicated within simply convictions rather than one. years of the latest date under Sub- (2). Analy- Language division C. The Plain
sis (A)-(D), Legisla- Under Subsections In interpreting Boykin, a statute under unambiguously changed ture the time at plain language we look first to the used.21 prior begins which the conviction clock pri- Amended section states that a ticking. Formerly, it had been the date of or DWI conviction not be used for Now, it the commission of the offense. is enhancement if: a much later date —whichever date is the (1) the conviction was a final conviction judgment, latest of the date of termination (d);
under Subsection community supervision parole, or or re- person for which the jail change from That prison. lease being tried was committed more than clearly single prior broadens the use of a after the latest of it moves conviction because forward —clos- er to the time of the offense—-the (A) the date on which the judgment ten-year window.22 was entered for the viction; difficulty interpreting Subsection
(B) person the date on which the was (e) deciding applies how it when the any
discharged period of prior defendant has two convictions. community supervision on which (as it Does the clock run backward did person placed pre- was for the prior single for a under law and as does conviction; vious conviction) prior to the date that the most (C) person prior expires the date on which the suc- recent conviction sentence and, remote,
cessfully
any period of
if that
revi-
completed
conviction is
parole
person
on which the
talize
other earlier conviction? Or
clock,
of two
serving portion
released after
of does the
convictions,
which the
now run forward to mea-
term to
pre-2001
1990. Under the
November
20.
House Comm. On Criminal
Jurisprudence,
Leg.,
amendment,
77th
R.S.
Tex. H.B.
is too re-
conviction
Analysis,
Bill
under
mote to use as an enhancement. But
amendments,
the 2001
if the defendant was
Boykin,
163
that earliest conviction.25
years of
ten
ten-year
interval between
only
sure
vacuum,
prior conviction?
this is a reasonable
first and second
in a
Viewed
words of the statute.
of the literal
reading
clock
said that the
appeals
The court of
prior
from
earliest
runs forward
now
However,
plain language
I think that
It reasoned:
conviction.
ambiguous under
of this statute
for DWI
Appellant’s 1984 conviction
other rea-
are at least three
because there
for re-
requirements
each of the
meets
lan-
plain
of the
interpretations
sonable
1) the conviction was
moteness because
First, as
in the amended statute.26
2)
conviction,
of-
final
the 2002 DWI
on this
during
argument
oral
suggested
than ten
committed more
fense was
case,
read to mean
statute could be
of conviction
years after the 1984 date
both had
be
prior
that the two
DWIs
3)
DWI, and
the 1997 DWI convic-
of the
years
ten
within
year’s
within ten
of the
tion did not occur
en-
they could be used
before
1984 conviction.23
Second,
purposes.27
hancement
have fol-
other courts
Several
require
read to
statute could be
amended
Tyler
reasoning
of the
Court
lowed
convictions—the sen-
“chaining”
prior
that, under the
Appeals. They have stated
conviction used
prior
tence on each
DWI
amendments,
ap-
pre-2001
proper
“the
completed
been
to enhance must have
year’s from
proach was to ‘look back’ ten
Third, as
years of the next one.
within ten
primary
the date of the
DWI offense to
Dix and Dawson read
Professors
intervening
an
determine whether
DWI
mean that “if the
amended
it could
the remote
conviction had occurred since
prior
convictions
proves
State
two
After
the 2001 amend-
conviction.”24
is not
date of either conviction
and the
ments, however, these courts reason that
the commis-
more than ten
before
they
required
are
to “look
forward”
offense,”
primary
the State
sion of the
to see
prior
the earliest of the
convictions
felony.28
the offense to a
intervening
if
is an
conviction within
elevate
there
Getts,
22456104,
*2,
at -,
pre-2001 enhancement stat-
at
court under the
2003 WL
23.
*
464,
ute,
State,
v.
981 S.W.2d
Tex.App.
see Renshaw
2003
LEXIS 9237 at 5.
1998,
ref’d),
pet.
but
(Tex.App.-Texarkana
466
State,
258,
(Tex.
Uriega
v.
136 S.W.3d
that it erred
24.
court later stated
the Texarkana
2004,
pet.);
App.-San Antonio
no
see also
State,
S.W.3d
Smith v.
in Renshaw. See
State,
v.
287-88
Howard
137 S.W.3d
(Tex.App.-Texarkana
pet.
pet.);
(Tex.App.-Fort Worth
no
ref'd)
requires
(concluding that
statute
"[t]he
110 S.W.3d
Anderson
only
prior D.W.I. con-
prove
one
the State to
pet.).
App.-Dallas
no
ten-year period and one other
viction in
subject
ten-
to the
D.W.I.
(stating
Uriega,
at 261
136 S.W.3d
Bower, 77
25.
limiting period”);
also
year
see
49.09(e) "prohibits the use
section
amended
that,
(holding
art.
under
S.W.3d at 516-17
DWI conviction if
defendant
49.09(e),
one
than ten
committed the
DWI more
years of the
of-
ten
must
within
date of the
fense).
not convicted
and if the defendant was
related offense within
of another intoxication
George W. Dix and Robert O. Daw-
See
28.
Anderson,
period”);
S.W.3d
and Pro-
son,
Criminal Practice
Texas Practice:
at 99.
Part).
(2004
at 204
Pocket
38.128
cedure
Dix and Dawson state:
Professors
Boykin,
26. See
818 S.W.2d
changed
totally
legislature
29, 2004).
ban.
Instead
of the remoteness
Argument (September
the nature
Tr. Oral
measuring
between the commis-
the time
accepted
one
interpretation had been
This
*11
ing
triggering
D. Extra-textual
of the time-window
the en-
Considerations
Legislative Intent
charged
hancement of the
DWI offense
(increasing it from
date of the commis-
“plain
Because each one of these four
sion of the
offense to the latest date
language” interpretations
plausible,
I
for which
would affect the
sentence
ambiguous
believe that the statute is
un-
defendant). Additionally,
circum-
Therefore,
Boykin.29
der
I would look to
stances under which the
amendments
extra-textual considerations
determine
support
legisla-
were enacted further
Legislature.30
intent of the
The Code
scope
eligible
tive intent to broaden the
Act,
provides
Construction
the tools
purposes.
offenses used for enhancement
for interpretation
plain language
when the
Analysis
The Bill
of HB 814 clarifies the
that,
ambiguous,31
of a
law is
states
of the 2001
background
purpose
construing
a court
consider
stating:
amendments in
law, if an individual is
(1)
Under current
attained;
object sought to be
convicted of a third
within ten
(2) circumstances under which the stat-
of the date the
enacted;
ute was
was committed the offense is increased
(3) legislative history;
degree felony
to a third
offense. How-
(4)
common law or former
ever,
ten-year period begins
with the
provisions,
including laws on the
incarceration and could
individual’s
subjects;
same or similar
partially
completely
during
executed
(5) consequences
particular
of a
confinement. House Bill
individual’s
struction;
314 modifies the
time
(6) administrative construction of the
sentence
begin after
individual’s
statute; and
and authorizes a
completely discharged
(caption), preamble,
title
and emer-
of intoxication man-
previous conviction
gency provisions.32
for the
slaughter
be used
I
apply
would
the first two factors —the
regardless
of when the
object
the circum-
be attained and
conviction occurred.33
stances under which the statute was enact-
Thus,
purpose
the amendment’s stated
together
similarity
because of their
ed—
scope
to broaden the
of DWI convictions
Legislature’s
this instance. The 2001
first
pur-
that could be used for enhancement
two amendments to Section 49.09 show the
poses.
expansion
(any
and all
of offenses
Further,
history of the
manslaughter
intoxication
convictions re-
remoteness)
broadening
gardless of
and the broaden-
2001 amendment also reflects
Kuester,
id.;
primary
parte
30. See
see also Ex
sion of the
DWI offense and the
DWI,
date of
of the latest
(Tex.Crim.App.2000).
commission
S.W.3d
provision
the amended
measures the time
primary
from the commission of the
31. See Brown v.
943 S.W.2d
offense to the date the defendant was dis-
1997).
Crim.App.
probation, parole or
incarcer-
ation for the newest of the
offenses.
Tex.
311.023.
Code
Gov’t
course,
note,
they
Id. As
further
"[o]f
substantially extends the reach of the
Jurisprudence,
Comm. On Criminal
House
Id.
DWI statute to include more offenses."
Leg.,
77th
R.S.
Tex. H.B.
Analysis,
Bill
29.Boykin,
purpose. The change to the billft37 stantive (the the eventually created bill that 49.09(e)) in- addressed amendment indi- floor amendment Moncriefs Senator However, HB manslaughter.34 not make toxication amendment did that the cates HB but changes of lan- by any amended the addition substantive 2250 was above, rather, language the subsec- made HB guage from discussed tion(e)(3) changes with the congruent ten-year rule and was which modified (e)(2). this Under to subsection made of for version the basis (e)(3) (e)(2) pro- change, subsections 49.09(e).35 language-interpre- current is that relevant time vide that the by a floor tation dilemma was created the commission of looking backward from by HB Mon- amendment to Senator date un- offense to the latest Moncriefs introduction of crief. Senator Subseetion(e)(2) (i.e., the der the revised proposed amend- HB 2250 stated date of the or the date of way closing loop-holes in the ment was a confine- probation, parole, or from release He previous enhancement statute. DWI ment) prior conviction. of the most recent explained: Thus, history indicates that legislative Members, this bill closes some of the not intended the 2001 amendment was statutes, in the to en- loop-holes DWI eligible prior radically scope limit the repeat offenders face sure DWI purposes, but DWIs used for enhancement charges. provides It that a appropriate scope. to broaden rather man- person convicted of intoxication any source is no indication There is, slaughter someone who kills —that type of intended the Legislature that the driving any subse- someone drunk —that limitation of the DWI radical revision and felony. It also quent would be a that would oc- felony enhancement statute apply penalty states enhancements by interpretation given cur under the completion up to ten appeals, or majority, the court of the sentence convic- possi- “plain language” alternate first two tions,36 single within the prior DWIs bilities—both before the commission ten-year window purpose explaining further “chaining” of DWIs to HB floor amendment Senator the one ten with each within Moncrief stated: by the interpretation given before it. The President, merely Legisla Mr. this is in this case majority and court of lan clean-up amendment of tive Council it un- deleterious effect: has an additional the House youth that was added on the sins of one’s duly emphasizes floor. The House added new more recent reforma- regard for without statute, and removing very the old remote DWIs would without tion because two long as as removes enhancement to permit amendment] floor [current oc- those DWI convictions to avoid confusion both of duplicative language http//www.senate.state.tx.us/ram/ar- Organization, Tex. H.B. See See House Research May (2001). chive/May2001/ 052102Session—A.ram. Leg. 77th Session, (emphasis Part 1. Senate added). Jurisprudence, On Criminal 35. House Comm. Leg., 77th R.S. Tex. H.B. Analysis, Bill added). (emphasis 37. Id. The clear legislature curred within window.38 what the intended. (d) intent of is to include within subsection agree majority’s I cannot that the inter- the definition of “final conviction” in-
pretation
accords with the
1, 1994,
September
viction obtained after
tent or with the other two simultaneous
probated
whose sentence was
as well as
signifi-
amendments to section 49.09 which
“im-
those in which the sentence was
cantly
man-
broaden
use of intoxication
posed.” But that is not what the literal
slaughter convictions to enhance a DWI
*13
say.
words of the
If we are to
statute
felony.
legis-
offense to a
I think that the
“plain meaning”
adhere to the
of the literal
broaden,
drastically
lature intended to
49.09,
in
of
we
words
one subsection
article
limit,
use
DWI convictions for
should,
consistency,
for the sake of
adhere
purposes.39
enhancement
“plain meaning”
to the technical
Furthermore, under
literal “plain
other
subsection of article 49.09.
pertinent
words,
meaning” of the
no conviction ob-
ap-
But in neither subsection
strict
would
1, 1994,
September
tained
is
before
barred
plication of the literal words of the statute
for enhancement
under the stat-
interpretation
a reasonable
of the law
be
out,
aptly points
ute. As the
under
State
legislative
or one that
is
accord with
49.09(e)(1),
pro-
section
rule
intent.
only if
hibits the use of a
“the
sum,
I would find that the most rea-
a final conviction under
interpretation of the 2001 amend-
(d).”40
(d),
sonable
howev-
Subsection
Subsection
ments is that of Professors Dix and Daw-
er,
occurring
on
refers
convictions
Therefore,
interpretation
son. That
is also most
September
or after
1994.41
legislative
faithful to the
intent and histo-
purely
application
under a
technical
of the
rule,
ry. Although
of the 2001
“plain meaning”
no conviction—re-
infelicitous, I
amendment to the statute is
gardless of how remote —obtained before
ten-year period
relevant
that date is barred from use under subsec- believe
(e).
Now,
course,
time from
tion
that is not at all under section
is the
Prosecuting Attorney points
38. As the State
commission conviction— the defen- pur- to the date on which backwards committed —for probation, pa- discharged from dant was poses.
role, for the most recent or confinement reverse the decision I would was dis- If that conviction prior offense. affirm the ten charged within the trial court. offense, any other earlier it revitalizes
Appendix *14 MASTERSON, Allen
Richard Appellant, of Texas. The STATE AP-74344. No.