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Click here for the full text of this decision FACTS:The appellant and the state stipulated to the two prior convictions needed to raise a driving-while-intoxicated offense from a misdemeanor to a felony. No other evidence of any prior conviction was admitted during the guilt-innocence stage of trial. The court of appeals found that the evidence conclusively established that more than ten years elapsed between the date the 1983 offense was committed and the date of the primary offense, Sept. 4, 1999. The court of appeals further concluded that the state did not prove the date on which the 1990 conviction was committed (April 24, 1990 being the date of judgment), and therefore, the state did not prove that the 1990 conviction was a qualifying intervening conviction (one that was committed within 10 years of the primary offense), as required to establish felony DWI by the DWI enhancement scheme in effect in appellant’s case. The intermediate appellate court quoted the Court of Criminal Appeals’ pronouncement from Weaver v. State, 87 S.W.3d 557 (Tex. Crim. App. 2002), that “[t]he State must, however, at some point during its case-in-chief, submit proof of the intervening conviction to the trial court.” The court of appeals held that, by failing to show that the 1990 conviction was a qualifying intermediate conviction, the state failed to prove that the 1983 offense could be used as a prior conviction for enhancement under Texas Penal Code 49.09(e). The court of appeals reversed the conviction and rendered a judgment of acquittal. Chief Justice Tom Gray dissented. HOLDING:The judgment of the court of appeals is reversed, and the case is remanded to that court to address appellant’s remaining points of error. In Weaver, the prior-convictions element of felony DWI was contested. “It was this contested context that prompted our remark that a qualifying intervening conviction must be presented to the trial court during the State’s case-in-chief. Even so, the court specifically held that the existence of a qualifying intervening conviction was not an element of the offense of felony DWI but more akin to a rule of admissibility, and therefore, the qualifying intervening conviction did not need to be submitted to the jury.” In this case, the prior-convictions element was not contested but was instead confessed to by stipulation. Under these circumstances, the court holds, the appellant has lost the ability to complain about the remoteness of the prior conviction. OPINION:Sharon Keller, P.J.; Price, Womack, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Johnson, J., filed a concurring opinion. Meyers, J., did not participate. CONCURRENCE:Cheryl A. Johnson, J. “The instant offense occurred on September 4, 1999. The conviction date for the next previous offense is April 24, 1990. Given that there is always a period of time between commission of an offense and a resulting conviction, it is at least conceivable that the commission of the offense, which is the critical date, occurred before September 4, 1989, and thus falls outside the statutory limitation of ten years. Tex. Penal Code, 49.09(e)(1999). Appellee, in his brief, asserts that the date in question is September 3, 1989, one day beyond the ten-year limit. That, however, is an issue to be raised on an application for habeas corpus.”

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