Texas Stamp


PD-0398-17 07/26/2017

“In DWI-second-offender cases, is a prior DWI conviction an offense element or a punishment enhancement?”

Oliva was charged with DWI, enhanced by a prior DWI conviction. At the guilt phase of trial, there was no mention of the prior DWI, no evidence of it was offered, and nothing was said about it in the jury charge. The jury convicted and, after the State proved up the prior at punishment, found the prior conviction true. On appeal, Oliva argued that the prior DWI was an element of Class A DWI, not merely a punishment enhancement, and thus should have been proven at guilt. The court of appeals agreed and held the evidence insufficient for Class A DWI.

The State petitioned to resolve the split of authority on this issue but agrees that the prior DWI is an element of DWI-2nd. Section 49.09(a) doesn’t just keep the degree of offense the same and provide for an enhanced penalty range; it creates a new enhanced offense based on the prior. Consequently, the State must prove the prior at guilt.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724