You have found the defendant, [name], guilty of [driving/flying/boating/assembling or operating an amusement ride] while intoxicated. The state has accused the defendant of having been convicted of [or placed on deferred adjudication for] [offense] once before.

The defendant has pleaded that this accusation is “not true.”

The range of punishments from which you must assess the defendant’s punishment depends on whether you find the state has proved the prior offense accusation.

Relevant Statutes—Punishment If Accusation of Prior Offense “Not True”

If the state does not prove the accusation of a prior [conviction/deferred adjudication] is true, this offense is punishable by—

1. a term of confinement in the county jail for no less than seventy-two hours and no more than 180 days, or
2. a term of confinement in the county jail for no less than seventy-two hours and no more than 180 days and a fine of no more than $2,000.

Relevant Statutes—Punishment If Accusation of Prior Offense Proved “True”

If the state proves the accusation of a prior [conviction/deferred adjudication] is true, this offense is punishable by—

1. a term of confinement in the county jail for no less than thirty days and no more than one year, or
2. a term of confinement in the county jail for no less than thirty days and no more than one year and a fine of no more than $4,000.

Burden of Proof

The state must prove, beyond a reasonable doubt, the prior offense accusation.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, three elements of its accusation of a prior offense. The elements are that—

1. the defendant was [convicted/placed on deferred adjudication] on [date], in Cause No. [number] in the [County/District] Court of [county] County, [state]; and
2. this [conviction/deferred adjudication] was for [driving while intoxicated/flying while intoxicated/driving while intoxicated with a child passenger/intoxication assault with a motor vehicle/intoxication manslaughter with a motor vehicle/boating while intoxicated/operating or assembling an amusement ride while intoxicated/an offense under article 6701l-1, Revised Civil Statutes, as that law existed before September 1, 1994/an offense under article 6701l-2, Revised Civil Statutes, as that law existed before January 1, 1984/criminally negligent homicide under section 19.05(a)(2), Penal Code, as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle/an offense of the laws of another state that prohibit the operation of a motor vehicle while intoxicated]; and
3. this [conviction/deferred adjudication] became final before the commission of the offense for which the defendant was convicted in this trial.

You must all agree on elements 1, 2, and 3 listed above.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the prior offense accusation is “not true.” In this event, you are to determine and state in your verdict—

1. the term of confinement in the county jail to be imposed on the defendant for no less than seventy-two hours and no more than 180 days, or
2. the term of confinement in the county jail to be imposed on the defendant for no less than seventy-two hours and no more than 180 days and a fine of no more than $2,000.

If you all agree the state has proved, beyond a reasonable doubt, each of the three elements listed above, you must find the prior offense accusation is “true.” In that event, you are to determine and state in your verdict—

1. the term of confinement in the county jail to be imposed on the defendant for no less than thirty days and no more than one year, or
2. the term of confinement in the county jail to be imposed on the defendant for no less than thirty days and no more than one year and a fine of no more than $4,000.

VERDICT—ACCUSATION OF PRIOR OFFENSE “NOT TRUE”

We, the jury, having found the defendant, [name], guilty of the offense of [offense], find that the accusation of a prior offense has not been proved true. We assess the defendant’s punishment at: (select one)

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Foreperson of the Jury

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Printed Name of Foreperson

VERDICT—ACCUSATION OF PRIOR OFFENSE “TRUE”

We, the jury, having found the defendant, [name], guilty of the offense of [offense], find that the accusation of a prior offense has been proved true. We assess the defendant’s punishment at: (select one)

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Foreperson of the Jury

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Printed Name of Foreperson