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Ex Parte Serrato

The two prior DWIs alleged as jurisdictional elements for a 2002 felony DWI conviction were 1993 and 1994 misdemeanor DWI convictions that were also used as jurisdictional elements for the instant felony DWI, from which the appellant appeals. The state did not use the two misdemeanor DWI convictions for both jurisdictional and punishment enhancements in violation of Texas Penal Code §49.09(g) by alleging the 2002 felony DWI conviction for punishment enhancement purposes because the 2002 felony conviction was separate from the two misdemeanor DWI convictions, and the state is not required to plead or prove any underlying DWI offenses in order to use the felony DWI conviction to enhance punishment. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-12-00182-CR, 07-12-2012.

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OPINION

Appellant Randy Serrato was charged with the offense of felony driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.09(b)(2) (West Supp. 2011). The indictment included a jurisdictional enhancement paragraph, entitled “DWI — FELONY REPETITION,” alleging that Serrato had been previously convicted of misdemeanor DWI in 1993 (Tarrant County cause number 0474829) and misdemeanor DWI in 1994 (Tarrant County cause number 0525186). See id. The indictment also included a punishment enhancement paragraph entitled, “HABITUAL OFFENDER NOTICE,” which alleged that Serrato had been previously convicted of the offense of felony DWI in 2002 (Tarrant County cause number 0783266D) and the felony offense of possession of a controlled substance in 1994 (Tarrant County cause number 0525261A). See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2011) (providing enhanced punishments for habitual felony offenders). The two prior DWIs alleged as jurisdictional elements for the 2002 felony DWI conviction were the 1993 and 1994 misdemeanor DWI convictions that were used as jurisdictional elements for the instant felony DWI.

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