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RAE, RUSSELL BOYD,

PD-0734-17 09/13/2017

“Did the Court of Appeals err in finding that the prior conviction for operating a watercraft while intoxicated was a final conviction?”

Rae pleaded guilty to DWI third or more and was placed on probation. When the State moved to revoke, he filed a writ challenging the use of a 1993 conviction for operation of a watercraft while intoxicated because it was not “final”; his probation was never revoked in that case. The trial court denied relief, and he lost on appeal.

Rae argues that there is no basis for treating unrevoked probation for Tex. Parks & Wild. Code § 31.097(b) as a final conviction. Penal Code section 49.09(c)(3)(C) includes such convictions as “[a]n offense of operating a watercraft while intoxicated” for enhancement purposes but only “as that law existed before September 1, 1994.” Rae contends that, in the absence of statutory language from the time saying that unrevoked probation counts as a final conviction, the common law controls and his conviction was not final for enhancement purposes. Rae adds that the Court of Criminal Appeals previously decided in a separate writ that his counsel in that case was ineffective for not making the same argument he presents now.

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