The Tex. Penal Code, § 49.09(e) prohibits use of a prior intoxication-related conviction which is more than 10 years old to increase the penalty for driving while intoxicated (DWI) to a felony unless there had been an intervening conviction for an intoxication-related offense committed within 10 years of the date of commission of the offense for which the defendant is being tried. The state may not increase the penalty by using such a remote prior intoxication-related conviction without submitting to the jury proof beyond a reasonable doubt of that intervening offense. See Jones v. United States, 526 U.S. 227, 232 (1999).

We have specifically held that the prior intoxication-related offenses are "elements" of the offense of felony DWI. In Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999), we stated, "[t]he prior intoxication-related offenses are elements of the offense of felony driving while intoxicated. They define the offense as a felony and are admitted into evidence as part of the State's proof of its case-in-chief during the guilt-innocence stage of the trial." We have also held that, in a felony DWI case, "[p]roof of the [jurisdictional prior] convictions is necessary in that the prior convictions are elements of felony DWI.." Robles v. State, ___ S.W.3d ___, ___ (Tex. Crim. App. No. 1305-00, delivered May 8, 2002, slip op. at 5).

Because the prior DWI convictions are elements of felony DWI, the provisions of § 49.09(e), which set out precisely when a prior conviction for a intoxication-related offense may be used for purposes of enhancement, are more than merely "akin to a rule of admissibility." The Legislature has chosen to set limits on the use of remote convictions and thereby has modified that element of the offense, as it has also done in other statutes. For example, Tex. Penal Code, § 46.04, sets out the elements of unlawful possession of a firearm. All elements of that offense are contained within § 46.04, yet the Legislature has limited "firearm" to that defined in § 46.01(3), that is, it modified an element of an offense in a separate section. Even if an air pistol might be considered a "firearm" by some, a prosecution for unlawful possession of a firearm based on possession of an air pistol must fail because of the limitations of § 46.01(3). Likewise, the Legislature chose to instruct us that the required element of a prior intoxication-related offense may be proved and used to increase the penalty only if the prior conviction satisfies the limitations expressed in § 49.09(e). If a prior conviction does not meet the criteria of § 49.09(e), that prior conviction cannot be used to satisfy the requisite jurisdictional element of felony DWI. Section 49.09(e) does not involve questions of admissibility, i.e. relevance and legislative ideas of fairness as expressed in the dictates of Rules of Evidence 404 and 403; prior convictions are clearly relevant, are likely to indicate character conformity, and are clearly prejudicial, although not unfairly so. Rather, § 49.09(e) defines the parameters that determine which prior intoxication-related convictions can be used to satisfy the required jurisdictional element of two prior convictions. Proof of the prior convictions is not the issue; the issue is whether the state may attempt to prove them at all. Section 49.09(e) is more akin to a plea in bar alleging that the statute of limitations has run or to the limitation on the use of a type of prior conviction to impeach a witness than to a rule of admissibility. The issue is prohibition versus appropriate use.

Our Penal Code and Code of Criminal Procedure both provide that "no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt." Tex. Penal Code Ann. § 2.01 (2002); Tex. Code Crim. Proc. art. 38.03 (2002). If it is true that the elements of an offense must be charged in the indictment, submitted to the jury, and proven by the state beyond a reasonable doubt, as was said in Jones, 526 U.S. at 232, then in a trial by jury, the jury must determine that all of the elements of the crime have been proven beyond a reasonable doubt, even elements that have been modified and are themselves subject to statutory limitations. Apprendi v. New Jersey, 530 U.S. 466 (2000), teaches us that the finding of an element that increases a criminal penalty must be done by the jury. The finding of two prior convictions for an alcohol-related offense is the element which elevates the offense from a misdemeanor to a felony and thereby increases the penalty. The jury could not have found appellant guilty of felony DWI based on the evidence presented to it, as the state had failed to present to the jury any evidence that jurisdiction was properly in the district court. The increase in penalty was accomplished by the actions of the trial court in allowing the state to use remote convictions without proof to the jury of an intervening conviction.

No evidence complying with the jurisdictional requirements of § 49.09(e) was submitted to the jury, which was therefore legally unable to find that the jurisdictional element of felony DWI had been proved beyond a reasonable doubt. I would hold that the court of appeals correctly held that state failed to meet its burden of proof. Weaver v. State, 56 S.W.3d 896, 899 (Tex. App. - Texarkana 2001). I respectfully dissent.

Johnson, J.

En banc

Filed: September 11, 2002

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