X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Bobby Doyle Getts was charged with DWI in 2002. The indictment alleged two prior DWI convictions, which elevated his 2002 offense to a third-degree felony. One offense occurred on April 26, 1984, and the other one occurred on Sept. 11, 1997. There was also an enhancement paragraph for a prior conviction for being a felon in possession of a firearm. Getts moved to dismiss for failure to allege a felony, claiming the 1984 conviction could not be counted. The trial court denied the motion. Getts pleaded guilty pursuant to a plea bargain which set his imprisonment at three years. The 12th Court of Appeals in Tyler reversed, agreeing with Getts that the 1984 conviction did not count, and finding Penal Code 49.09(e) “unambiguous on its face.” HOLDING:Affirmed. The court sets out the provisions of 49.09(e), which says that a conviction cannot be used for purposes of enhancement if: 1. The conviction was a final under another subsection; 2. The offense for which the person is being tried was committed more than 10 years after the latest of four possible dates; and 3. The person has not been convicted of an offense under one of several other DWI-related statutes within 10 years of the latest date under the second subdivision. Of the four possible dates, there are 1. the date judgment was entered in the previous conviction, 2. the date the person was discharged from any community supervision ordered in connection with the previous conviction, 3. the date when the person successfully completed any assigned parole for the previous conviction, or 4. the date the person was released from prison. The court finds that each conviction must be analyzed under this section; they are not to be analyzed together. Consequently, the court says it will restate 49.09(e)’s provisions using Getts’ name, the 1984 conviction for “prior conviction,” and the 2002 offense as the “current offense.” Now the statute reads that the 1984 conviction may not be used for enhancement if: 1. The 1984 conviction was final under the other subsection; 2. the 2002 offense was committed more than 10 years after one of four possible dates; and 3. Getts has not been convicted of an offense under one of several other DWI-related statutes with 10 years of the latest date under the second subdivision. Of the four possible dates, it would be the latest of 1. the date the 1984 judgment was entered, 2. the date Getts was discharged from any community supervision ordered in connection with the 1984 conviction, 3. the date when Getts successfully completed any assigned parole for the previous conviction, or 4. the date Getts was released from prison. Noting that Getts served three days in jail after the April 26, 1984, conviction, the court finds the date in No. 4 applicable, which would be April 29, 1984. The court then plugs this information into its re-reading of the statue. Under this reading, the 1984 conviction may not be used for purposes of enhancement if: 1. The 1984 conviction was final under another subsection; 2. The 2002 offense was committed more than 10 years after April 29, 1984; and 3. Getts has not been convicted under one of several other DWI-related statutes within 10 years of April 29, 1984. Getts’ 1997 DWI conviction was more than 10 years after April 29, 1984. Because this negates the third condition for using the 1984 conviction, the court finds the 1984 conviction could not be used to enhance Getts’ 2002 offense. The court rejects the notion that its ruling leads to an absurd result. The court finds the statute plain and clear. Though there is some indication in the legislative history that this result is not what the Legislature intended, the court says it must interpreted the statutes themselves, not the intentions. The court includes an appendix comparing examples analyzed under its interpretation of 49.09(e) and the state’s interpretation. OPINION:Mike Keasler, J., delivered the opinion of the court in which Price, Womack, Johnson, Hervey, and Holcomb, JJ., joined. Keller, P.J., and Meyers, J., dissented without opinion. Cochran, J., filed a dissenting opinion. DISSENT:Cathy Cochran, J. “It is beyond peradventure that the Texas Legislature did not intend to enact any dramatic substantive changes to the felony DWI enhancement statute in its 2001 amendment. The infelicitous language found in the amendment to section 49.09(e) of the Texas Penal Code is a drafting mistake and the result of a last-minute floor amendment which promised ‘no substantive change’ in the law. The Texas Legislature can, and probably will, quickly repair its drafting error, but I think that we ought not apply a rigid ‘plain language’ interpretation to statutory language that we know was not intended by the Legislature, created a statutory ambiguity, and is nothing more than a technical error.” The dissent notes its belief that under the majority’s literal, plain-meaning approach, no conviction obtained before Sept. 1, 1994, would ever be barred for enhancement purposes.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.