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Castillo v. State

Absent a jury finding beyond a reasonable doubt that appellant had been convicted of an intoxication offense committed within 10 years of the date the charged offense was committed, there was insufficient evidence to elevate the alleged DWI to a felony offense.

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A jury found appellant guilty of the offense of felony driving while intoxicated (DWI). See Tex. Pen. Code Ann. �� 49.04, .09(b) (West Supp. 2001). The jury found allegations of other felony offenses alleged in the indictment true and assessed punishment at forty-five years in prison. Raising one issue, appellant contends that the evidence was legally insufficient to support the felony DWI conviction. We will sustain this contention, reform the judgment, and remand the cause to the district court for a new sentencing hearing.

The issue presented in this appeal is whether a defendant is guilty of felony DWI when the prior intoxication offenses used to elevate the offense to a felony are too remote in time and there is no jury finding that the defendant committed an intoxication offense within ten years of the currently charged DWI. Resolution of this issue involves the interpretation and interplay of Texas Penal Code subsections 49.09(b) and (e). Id. � 49.09(b), (e). DWI is a third degree felony if it is shown that the person has previously been convicted two times of intoxication offenses. Id. � 49.09(b). A previous intoxication conviction may not be used for purposes of elevating the charged offense to a felony if the conviction: (1) was for an offense committed more than ten years before the offense for which the person is being tried was committed; and (2) the person has not been convicted of an intoxication offense committed within ten years before the date on which the offense for which the person is being tried was committed. Id. � 49.09(e).

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