Gibson v. State

995 S.W.2d 693, 1999 Tex. Crim. App. LEXIS 88, 1999 WL 436571

• Court: Court of Criminal Appeals of Texas
• Decided: June 30, 1999
• Docket: 1267-98
• Status: Published

Opinions

OPINION

HOLLAND, J.,

delivered the opinion of the Court,

in which McCORMICK, P.J., and MANSFIELD, KELLER, PRICE, WOMACK, and KEASLER, JJ., joined.

The State charged appellant, David Hill Gibson, with driving while intoxicated and for having been twice before convietqd of offenses relating to operating a motor vehicle while being intoxicated. See Tex. Penal Code § 49.09(b). Pursuant to appellant’s plea of guilty, the trial court convicted appellant for that charged offense. The trial court assessed punishment at ten years imprisonment and $1,000.00 fine. Appellant gave his notice of appeal. The Fifth Court of Appeals affirmed his conviction. Gibson v. State, 972 S.W.2d 148 (Tex.App.-Dallas 1998). Appellant filed a petition for discretionary review, arguing the Dallas Court erred when it concluded he could be convicted under Section 49.09(b) even though his two previous intoxication-related offenses arose “from a •single illegal act.” We will affirm.

On January 23, 1996, the State indicted appellant for driving a motor vehicle while intoxicated. To prove the instant offense amounted to a third degree felony, the State alleged appellant was convicted twice before for offenses related to the operation of a motor vehicle while intoxicated. Specifically, on December 4, 1989, appellant was convicted of involuntary manslaughter as a result of killing two persons while operating a motor vehicle while intoxicated. In one conviction, the trial court assessed punishment at seven years confinement and a $300 fine and a seven year probated sentence in the other. On August 26, 1992, the trial court revoked appellant’s probation and sentenced him to three years confinement.

In a pre-trial motion to “quash the enhancement count” of his indictment, appellant requested that the trial court strike “one of two enhancement allegations” of the indictment. Appellant argued that both prior involuntary manslaughter convictions arose from the same incident. Although appellant conceded that Section 49.09(b) does not require that the convictions be subsequént to one another, he claimed “virtually all, if not all, other enhancement provisions in Texas criminal law do require such prior convictions to be sequential, not simultaneous.” Appellant insisted the State sought to “unfairly enhance” his punishment for “a single prior illegal act.” He requested the trial court “strike one of the enhancement allegations.” The trial court denied appellant’s motion.

On direct appeal, appellant claimed Section 49.09(b) did not apply to a person who “has two previous convictions for manslaughter based on two deaths arising out of a single illegal act of driving while intoxicated.” He argued the use of two prior convictions arising out of the same incident “violates the spirit and rationale of the enhancement scheme of punishment.” Appellant asserted this did “not meet the criteria of two separate convictions pursuant to Penal Code Section 49.09(b).”

The Fifth Court of Appeals disagreed, concluding the Legislature did not intend Section 49.09(b) to require the State to prove that one of the prior intoxication-related offenses be final before the other prior intoxication-related offense had been committed. The court concluded the two alleged prior intoxication-related offenses, which arose from the same criminal transaction and were tried together, were sufficient to establish the instant offense as a third degree felony. Gibson v. State, 972 S.W.2d at 149.

Appellant argues this Court should grant review because “[t]he Court of Appeals erred in holding that Penal Code Section 49.09(b) requirement that a person has been previously convicted two times of an offense relating to a motor vehicle while intoxicated includes a person who has two previous convictions for involuntary manslaughter based on two deaths arising out of a single illegal act of driving while intoxicated.” Appellant contends the use of two prior convictions arising out of the same incident “violates the spirit and rationale of the enhancement scheme of punishment, which seek to take into account the number of prior illegal acts of a defendant, not the consequences of such illegal acts.” The State responds that Section 49.09(b) pertains to the number of convictions and not to the number of illegal acts.

We shall first address the validity of appellant’s assertion that the use of the prior intoxication-related offenses in Section 49.09(b) serve the purpose of an “enhancement scheme of punishment.” This will distinguish the “scheme” of Section 49.09(b) from the “enhancement scheme of punishment” of Section 12.42(d). After addressing that part of appellant’s argument; we shall consider whether the plain language of Section 49.09(b) requires the State to prove the prior intoxication-related offenses occurred sequentially, as the State is required to prove in order to show a defendant is a habitual offender under Section 12.42(d). These are issues of first impression before this Court.¹

There are three grades of the offense of driving while intoxicated. The difference between the grades is set by the number of prior convictions for certain intoxication-related offenses. The offense of driving while intoxicated, without any alleged prior intoxication-related convictions, is a Class B misdemeanor. Tex. Penal Code § 49.04(b) & (c). If the State can prove a defendant had previously been convicted of one offense related to operating a motor vehicle, aircraft or watercraft while intoxicated, the driving while intoxicated offense becomes a Class A misdemeanor. Tex. Penal Code § 49.09(a). Class A and B misdemeanor driving while intoxicated offenses are tried in the county courts. Tex.Code Crim. Proc. art. 4.07. If the State can prove a defendant had “previously been convicted two times of an offense” related to operating a motor vehicle, aircraft or watercraft while intoxicated, the driving while intoxicated offense becomes a felony of the third degree. Tex. Penal Code § 49.0903). Felony driving while intoxicated offenses are tried in either the district courts or the criminal district courts. Tex.Code Crim. PROC. art. 4.05.

The prior intoxication-related offenses, whether they are felonies or misdemeanors, serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated. The prior intoxication-related offenses are elements of the offense of driving while intoxicated. They define the offense as a felony and are admitted into evidence as part of the State’s proof of its case-in-chief during the guilt-innocence stage of the trial. 42 GeoRGe E. Dix & ROBERT 0. Dawson, Texas PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 38.73, at 651-652 (1995 & Supp. 1999).

In contrast, the State can use any prior felony conviction under Section 12.42(d) to increase the potential range of punishment for someone already convicted of a felony. The prior felony convictions do not determine whether the case will be tried in district court or county court. As felonies, those cases were already set in the district courts. The prior felony convictions are not admitted into evidence until the punishment stage of a trial after the defendant has already been convicted of the primary felony offense. 6 Michael B. Chaelton, Texas Practice: Texas Criminal Law § 29.4, at 338 (1994 & Supp.1998). We conclude that prior intoxication-related convictions serve the purpose of enhancing the offense in Section 49.09(b) whereas the prior convictions used in Section 12.42(d) serve the purpose of enhancing punishment.² Section 49.09(b) is distinguishable from Section 12.42(d) on this basis. Next, we will consider the plain language of Article 49.09(b).

Our reading of the plain language of Section 49.09(b) also indicates it should not be viewed as a punishment-enhancement statute similar to Section 12.42(d). In the course of interpreting the language of Section 49.09(b) we will attempt “to effectuate the collective intent of the legislators who enacted” it. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

Section 49.09(b) expressly states that the State must prove a defendant committed two prior offenses related to operating a motor vehicle, aircraft or watercraft while intoxicated.³ The statute’s language is clear and unambiguous. Section 49.09 requires only a showing that a defendant has been convicted twice before for offenses relating to the operation of a motor vehicle, aircraft or watercraft while intoxicated. In writing this statute, the Legislature did not say the convictions had to occur in a specified order, or that they needed to arise from separate transactions. The Legislature expressed only that the State must prove a defendant had two prior convictions for intoxication-related offenses. It is not for this Court to add or subtract from that. Coit v. State, 808 S.W.2d 473, 475 (Tex.Crim.App.1991); and cases cited therein.

At the time they passed Section 49.09, the Legislature was aware of the language of the habitual offender statute and their requirement that the State must prove “the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final.” See Tex. Penal Code § 12.42(d). The Legislature chose neither to include similar language nor to make reference to Section 12.42(d). This indicates a legislative resolve not to include a sequential requirement in the proof required for showing the prior convictions in Section 49.09(b). Cf. Jones v. State, 979 S.W.2d 652, 657 (Tex.Crim.App.1998)(wherein this Court cited the Legislature’s decision to not include language from Tex.Code Crim. Proc. art. 18.15 into Article 13.08 as proof of legislative resolve to not carry forward the language from Article 13.15 into Article 13.08.).

Accordingly, we conclude that Section 49.09(b) does not require the State to prove the prior convictions occurred sequentially. Instead, the State must show a defendant was twice previously convicted for offenses related to operating a motor vehicle, aircraft, or watercraft while intoxicated. This interpretation of the text of Section 49.09(b) should have been plain to the legislators who voted on it. Boykin, 818 S.W.2d at 785. We hold the Fifth Court of Appeals correctly determined the State did not err in relying on appellant’s two previous convictions for involuntary manslaughter based on two deaths arising out of a single illegal act in order to prove the instant offense was a third degree felony.

Appellant’s ground for review is overruled. The judgment of the Court of Appeals is affirmed.

JOHNSON, J., filed a dissenting opinion, in which MEYERS, J., joined.

1 . Several courts of appeals have addressed this question with regard to Section 49.09(b)’s predecessor, Article 67011 — 1(e). Tex.Rev.Civ. Stat. art. 67011-1 (e) (Vernon Supp.1985), repealed by Act of May 29, 1993, 73 rd Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3589, 3707. In Guinn v. State, 696 S.W.2d 436 (Tex.App.-Houston (14 th Dist.) 1985, pet. ref'd), the Fourteenth Court of Appeals held that “two prior misdemeanor DWI offenses becoming final on the same day function as two separate offenses for DWI enhancement purposes.’’ Id. at 437. The Fourteenth Court concluded the Legislature placed a special enhancement scheme in Article 67011-l(e), and excluded the general enhancement scheme of Section 12.42(d), in order to address "the human misery and widespread destruction caused by drunk drivers.” Id. at 438.

In Streff v. State, 890 S.W.2d 815 (Tex.App.-Eastland 1994, no pet.) the Eleventh Court held that Article 67011-l(e) did not require that the prior intoxication offenses be proven sequentially in the felony DWI statute.

In Peck v. State, 753 S.W.2d 811 (Tex.App.Austin 1988, pet. ref’d), the defendant argued that 67011-1 (e) was analogous to the general enhancement statute. The Third Court disagreed, noting that "[l]he Legislature’s failure to employ in art. 67011-l(e) the language it used in Section 12.42(d) is, at the least, suggestive that it did not intend that the second previous conviction for driving while intoxicated necessarily be for an offense committed after the previous conviction became final." Peck, 753 S.W.2d at 812.

2 . Several Courts of Appeals have also concluded that the prior convictions are used in Section 49.09(b) to establish jurisdiction and are not used for enhancement. Tamez v. State, 980 S.W.2d 845, 847 (Tex.App.-San Antonio 1998); Hampton v. State, 977 S.W.2d 467, 468 (Tex.App.-Texarkana 1998, pet. ref'd); and Maibauer v. State, 968 S.W.2d 502, 507 (Tex.App.-Waco 1998, pet. ref'd).

3 . The statute sets out in pertinent part, "If it is shown on the trial of an offense under Section 49.04, 49.05, or 49.06 that the person has previously been convicted two times of an offense relating to the operation of a motor vehicle while intoxicated, _, the offense is a felony of the third degree.”