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Click here for the full text of this decision FACTS:On April 5, 1984, James Roger Pieper committed the offense of DWI. Pieper pled nolo contendere to that charge on May 23, 1984, and was placed on probation. On May 22, 1986, the court found that Pieper had complied with the terms and conditions of his probation and discharged him. On Aug. 17, 1989, Pieper again committed the offense of DWI. Pieper pleaded guilty to that charge on Oct. 26, 1989, and was again placed on probation. On Dec. 20, 1990, the court found that Pieper had complied with the terms and conditions of his probation, terminated the probation early and discharged him. Authorities charged Pieper with committing DWI a third time on Oct. 9, 2005, indicting him for felony DWI pursuant to Texas Penal Code ��49.04(a) and 49.09(b)(2). To establish felony jurisdiction and a third-degree punishment range, the state alleged that Pieper had been previously convicted of DWI in 1984 and again in 1989, which were “offense[s] under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994.” Pieper subsequently filed a pretrial motion to quash the indictment, arguing that the state’s attempt to use the enhancement allegations to increase his alleged offense to the felony level violated the federal and Texas Constitutions’ prohibition against using ex post facto laws. Specifically, Pieper claimed that the law applicable when he pled nolo contendere and guilty to his previous DWI charges explicitly restricted the state’s future use of those convictions and, thus, provided him protection from collateral consequences arising out of those prior offenses. The trial court granted Pieper’s motion and quashed the indictment. The state appealed, arguing that the statutes used to enhance Pieper’s charge were in effect when he engaged in the conduct at issue in this appeal and, thus, he had fair notice of that conduct’s consequences. The state also argues that no ex post facto violation existed, because the Legislature in amending the DWI enhancement statute in 2005 did not redefine criminal conduct or increase the punishment after Pieper allegedly committed the underlying offense. HOLDING:Reversed and remanded. The ex post facto clauses, the court stated, found in both the U.S. and Texas Constitutions prohibit: laws that criminalize and punish an action that was innocent when done; every law that aggravates a crime, or makes it greater than it was, when committed; every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; and every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense in order to convict the offender. Both the U.S. and Texas supreme courts have found that enhancement statutes do not result in ex post facto violations. The general principle, the court stated, is that enhancement statutes penalize the new criminal offense being enhanced rather than the prior offense used for enhancement. The punishment is for the new crime only, but is heavier because the perpetrator is a habitual criminal offender. Turning to Pieper’s case, the court noted that his third alleged DWI occurred on Oct. 9, 2005, more than a month after the new statute took effect on Sept. 1, 2005. Since the DWI enhancement statute did not change after Oct. 9, 2005, the statute did not assign more severe criminal or penal consequences to Pieper’s alleged act than did the law in place when Pieper’s alleged criminal conduct occurred. Therefore, the court held that DWI enhancement statute was not an ex post facto law as applied to Pieper, as it did not assign more severe criminal or penal consequences to the act than did the law in place when the act occurred. OPINION:Anderson, J.; Yates, Anderson and Hudson, J.J.

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