Chapter 12
Punishment Instructions
12.27 General Comments on Intoxication Offenses
If the enhancement offense at issue was committed before January 1, 1984, the definition of final must be modified by removing the phrase “or suspension.” It might also be supplemented with an explanation that the state can prove finality by evidence that community supervision or probation was revoked and sentence ultimately imposed.
Suspension of Driver’s License. A driver’s license is automatically suspended on conviction of driving while intoxicated, intoxication assault (if the defendant used a motor vehicle in the commission of the offense), or intoxication manslaughter. Tex. Transp. Code § 521.341(3)(4).
Suspension is not permitted if the jury has “recommended that the license not be revoked.” Tex. Transp. Code § 521.344(d)(1). Jury recommendation that the license not be suspended is set out in Tex. Code Crim. Proc. art. 42A.407(a).
Jury submission does not require that the defendant establish on the record that the defendant holds a driver’s license. Hernandez v. State, 842 S.W.2d 294 (Tex. Crim. App. 1992).
The instruction and verdict form should include the provisions in the instruction at CPJC 12.38 in this chapter if—
- the defendant has been convicted of—
- driving while intoxicated (not enhanced to a class A misdemeanor or a third-degree felony), or
- intoxication assault (if the defendant used a motor vehicle in the commission of the offense), or
- intoxication manslaughter; and
- the conviction is not for an offense relating to the operation of a motor vehicle while intoxicated that was committed within five years of the commission of a prior offense relating to the operation of a motor vehicle while intoxicated; and
- the jury is instructed that it may recommend community supervision.
Comment
Approach to Instructions Specific to Intoxication Offenses. The basic intoxication offenses in chapter 49 of the Texas Penal Code present some special problems in applying the Committee’s approach to punishment stage instructions. Consequently, the Committee undertook to draft punishment stage instructions for several of these offenses.
The most basic offense, of course, is driving while intoxicated under Tex. Penal Code § 49.04. Very similar in structure are the offenses of flying while intoxicated, under Tex. Penal Code § 49.05; boating while intoxicated, under Tex. Penal Code § 49.06; and assembling or operating an amusement ride while intoxicated, under Tex. Penal Code § 49.065. These are all class B misdemeanors with special provisions for minimum period of confinement. All can be enhanced to class A misdemeanors with an increased minimum period of confinement under Tex. Penal Code § 49.09(a).
For felony DWI status under Tex. Penal Code § 49.09(b), the prior intoxication-related offenses are elements of the offense of felony DWI and must be submitted to the jury during the guilt-innocence phase. Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). By contrast, the prior DWI for class A DWI–second offense must be submitted to the jury at the punishment phase. Oliva v. State, 548 S.W.3d 518, 534 (Tex. Crim. App. 2018). CPJC 12.34 through CPJC 12.37 set out the various possibilities of punishment charges involving an allegation of a prior intoxication offense.
Driving while intoxicated and assembling or operating an amusement ride while intoxicated provide for an increased minimum period of confinement on proof at the penalty stage of possession of an open container of alcohol. Tex. Penal Code §§ 49.04(c), 49.065(c).
Fine-Only Punishment. The Committee encountered an initial question regarding the options open to a sentencing jury in a prosecution of many of the chapter 49 offenses.
Driving while intoxicated, flying while intoxicated, boating while intoxicated, and assembling or operating an amusement ride while intoxicated each have a minimum term of confinement of seventy-two hours. Tex. Penal Code §§ 49.04(b), 49.05(b), 49.06(b), 49.065(b). Driving while intoxicated with an open container and assembling or operating an amusement ride with an open container have a minimum term of confinement of six days. Tex. Penal Code §§ 49.04(c), 49.065(c). These offenses are all class B misdemeanors. Tex. Penal Code §§ 49.04(b), 49.05(b), 49.06(b), 49.065(b).
There appears to be a conflict with the mandatory confinement provisions in these sections of the Penal Code and the punishment options for class B misdemeanors. Class B misdemeanors “shall be punished by: (1) a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement.” Tex. Penal Code § 12.22. Some Texas jurisdictions, giving effect to section 12.22, give juries the option of assessing only fines.
The Committee concluded that chapter 49 requires assessment of some period of confinement. Some case law supports this. State v. Magee, 29 S.W.3d 639, 639–40 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (trial court erred in sentencing defendant convicted of driving while intoxicated to fine only). Accord Price v. State, No. 06-19-00011-CR, 2019 WL 6598671, at *9 (Tex. App.—Texarkana Dec. 5, 2019, no pet.) (not designated for publication); See also State v. Cooley, 401 S.W.3d 748, 751 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (finding that section 49.09(a)’s more specific requirement of thirty-days’ confinement for a prior DWI conviction controls over general-misdemeanor-punishment provision in section 12.21 that makes confinement optional).
The instructions for these offenses, then, do not permit a sentencing jury to assess a fine only.
Open Container Provision. The open container accusation applies to only the first-offender offenses of class B misdemeanor driving while intoxicated and assembling or operating an amusement ride while intoxicated. Tex. Penal Code §§ 49.04(c), 49.065(c). The effect of finding the open container accusation true is that the minimum confinement is increased from three days to six days. Tex. Penal Code §§ 49.04(c), 49.065(c). Because prosecutors often charge alternative paragraphs, the Committee addressed the situation of an information alleging driving while intoxicated or assembling or operating an amusement ride while intoxicated with a prior conviction paragraph and with an open container paragraph. The jury instructions tell the jury that on finding the prior conviction true, it need not determine whether the open container accusation is true.
Special Definition of “Final” Conviction. Several parts in chapter 49 of the Texas Penal Code make special provision for enhancing offenses by proof of prior convictions. Section 49.09(a) provides for enhancing basic class B misdemeanor offenses to class A misdemeanors by proving one prior conviction. Section 49.09(b) provides for enhancing these offenses to felony status. Neither statutory provision explicitly requires the prior convictions to be final.
Tex. Penal Code § 49.09(d), however, refers to certain circumstances in which a conviction “is a final conviction [for purposes of § 49.09],” which strongly implies a requirement of finality. This is consistent with traditional Texas case law, discussed earlier in this chapter (CPJC 12.3), which holds that the term conviction means final conviction.
The Committee concluded that Texas law requires convictions used to enhance intoxication offenses to be final.
The Committee also concluded that the same approach should be taken here as is proper in other enhancement situations. The instructions should tell the jury that the conviction must be final. They should not elaborate on that requirement, or define finality, unless the evidence presents an issue concerning finality.
If the facts raise an issue of finality, the definition of that term should take notice of section 49.09(d) and (g). Under those provisions, a conviction for driving while intoxicated that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated, and certain deferred adjudications for DWI can also be used for enhancement after September 1, 2019. Tex. Penal Code § 49.09(d), (g) (amended by Acts 2019, 86th Leg., R.S., ch. 1298 (H.B. 3582). Probated art. 6701/–1 convictions can be used for the purpose of enhancement as long as those convictions are for offenses committed on or after January 1, 1984. See Ex parte Serrato, 3 S.W.3d 41 (Tex. Crim. App. 1999).
The definition used might be something along the following lines:
Final Conviction
A final conviction is the entry of a judgment reflecting the defendant’s conviction of an offense and the imposition or suspension of a sentence for that offense.
[Include the following if the evidence indicates an appeal may have been taken.]
If an appeal was taken by the defendant, the conviction is final only if after that appeal the conviction was affirmed and a mandate affirming the conviction was issued by the appellate court.