The Texas Prosecutor, July–August 2018

A prior conviction in DWI-2nd is an enhancement, not an element

In 2005, a ride in a little red Corvette led to a relatively straightforward test for determining whether an extraneous offense was an element that needed to be proved up at the guilt-innocence phase or an enhancement that was proved only at punishment.1 But parties still debated how that rule applied to DWI-2nd cases: Was the prior conviction an enhancement or an element? In Oliva v. State, the Court of Criminal Appeals finally resolved that issue definitively,2 but in doing so, it left the test more ambiguous than before.

The Calton test
In Calton v. State, the defendant evaded police officers in his infamous little red Corvette and was ultimately charged with evading arrest as a habitual offender.3 The State presented evidence of his prior evading conviction only during the punishment phase. Calton later argued that the prior conviction was an essential element of the crime, and he was convicted only of misdemeanor evading. The CCA agreed. It concluded that an enhancement increases the punishment range for an offense, but it does not change the offense or degree of the offense of conviction.4
    One key factor in the Calton analysis was that the evading arrest statute states that the offense “is” a third-degree felony if the defendant has a prior conviction for the same offense.5 The Calton Court concluded that this wording was unambiguous, and the prior conviction was therefore an element of the offense of felony evading. It rejected the State’s argument that only jurisdictional priors must be proved at guilt-innocence, noting that jurisdiction is not an element of the offense.6

Different levels of DWI
A standard DWI is a Class B misdemeanor.7 However, the law allows for enhancements if the person has prior intoxication offenses. Section 49.09 provides that the offense is a Class A misdemeanor if the person has one prior intoxication conviction, and it’s a third-degree felony if the person has two priors. Under the Calton test, when the statute provides that an offense “is” a higher-degree offense rather than “is punished as” a higher degree, then the enhancement becomes an element of the offense. The Court of Criminal Appeals agreed regarding felony DWIs, holding in 2015 that the two prior convictions elevating a DWI to a felony are elements that must be proved at the guilt-innocence phase.8 The CCA described the two prior convictions as “specific attendant circumstances that serve to define, in part, the forbidden conduct of the crime of felony driving while intoxicated.”9
    But the statute uses identical language to elevate a DWI to a Class A misdemeanor with a single conviction. Because it “is” a Class A misdemeanor, then under Calton, the single prior would also be an element that the State must prove at guilt-innocence. In Oliva, the intermediate court of appeals agreed and found the evidence legally insufficient because the State had not proved the prior conviction at guilt-innocence.10 On PDR, the State and defense both agreed that the prior conviction was an element.
    But the CCA decided to go a new direction.

Oliva v. State
The CCA’s holding in Oliva turns on a conclusion that the statute is ambiguous—despite its conclusion in Calton that “there is nothing ambiguous about” nearly identical language in the evading arrest statute.11 It lists a number of factors to consider in the statutory language. In Calton, the case turned on the fact that the statute stated the offense “is” a felony if the person has a prior conviction, not simply that it is “punished as” a felony.12
    But in Oliva, the CCA dismissed that language as mere dicta because it was broader than necessary to resolve the case, even though it was the primary factor the court previously depended on in resolving the case.13 Rather, it concluded that a fact that increases the degree of the offense might be either an element or a punishment issue.14
    Instead of whether the enhancement changed the degree of offense or merely increased the punishment, the Oliva Court instead focused on the language “if it is shown on the trial of.”15 In the DWI statute, an offense is raised to the next degree “if it is shown at the trial” that the defendant had a prior conviction.16 By contrast, the evading arrest statute simply states that the offense “is” a felony if he was previously convicted.17 The Oliva Court concluded that this indicated “something that is in addition to an element of the offense.”18 It did, however, acknowledge that the DWI-3rd offense also includes the phrasing “if it is shown on the trial of,” but the court has still determined that is an element of the offense. It suggested that the difference between the two is that DWI-3rd contains a jurisdictional prior whereas DWI-2nd does not.19 The Calton Court, however, had previously rejected this precise claim and concluded that “whether something is an element of an offense is a completely separate inquiry from whether it is jurisdictionally required.”20
    In contrast, the Oliva Court concluded that the language of the statute is ambiguous. It therefore turned to extra-textual factors. Primarily, it looked at Art. 36.01 of the Code of Criminal Procedure, which holds that when prior convictions “are alleged for the purposes of enhancement only and are not jurisdictional,” they are not read until the punishment phase.21 This reflects the policy considerations in not informing a jury about prior convictions during the guilt-innocence stage, and this policy weighs toward finding a prior conviction to be a punishment enhancement rather than an element of the offense.22
    Of course, the CCA in Calton rejected the State’s argument that Art. 36.01 should be the deciding factor.23 Rather than overturning this notion, the Oliva Court instead concluded that Art. 36.01 is not a conclusive factor and “can be outweighed by other factors.”24 Because the evading arrest statute provided that the offense “is” a state-jail felony if the defendant used a vehicle and “is” a third-degree felony if the defendant used a vehicle and had a prior conviction, the CCA held that the prior conviction is an element.25
    Finally, the Oliva Court looked at the title of the relevant statutes. Section 49.09 is entitled “Enhanced Offenses and Penalties.” The CCA concluded that the word “enhanced” rather than “aggravated” indicates that the Legislature considered it merely a punishment issue rather than an element of the offense.26 Thus, only jurisdictional priors in the section would be considered elements.
    Considering all of these factors, the Oliva Court concluded that the prior conviction in a DWI-2nd is a punishment issue and is not to be proved at the guilt-innocence phase.27

Going forward
The ruling on DWI-2nds is the primary takeaway on Oliva. But it leaves the law in a confusing jumble on what other prior-offense enhancements are elements of the offense, as opposed to mere punishment enhancements. Calton’s relatively straightforward test is replaced with a series of factors that must all be balanced together, without any solid indication of which factors outweigh the others. Combing through the case reveals three factors that seem to be the most important in the Court’s calculus:
1. Whether the statute reads “if it is shown at trial that …”  This language—which is included in the DWI statutes but not the evading arrest statute—suggests that the prior conviction is a punishment-phase enhancement;
2. Whether the prior conviction is jurisdictional. Two prior convictions are required to elevate a DWI to district court, and thus they are jurisdictional and must be proven at the guilt-innocence phase. Non-jurisdictional priors merely might need to be proven at guilt-innocence; and
3. Whether the enhancement is in the body of the offense’s statute or in a separate section. Again, this is one of the few distinctions between the DWI and evading arrest statutes. The prior conviction enhancement is found in the main body of §38.04, but for DWIs, the offense is described in §49.04 while the prior conviction enhancements are found in a separate section, §49.09. And this section is labeled “enhanced” offenses rather than “aggravated” ones.
    Whether these factors will continue to be the ones the CCA focuses on in the future is, unfortunately, anyone’s guess. The CCA’s focus seemed to be on the policy considerations of not informing a jury about prior convictions in the guilt-innocence stage. Indeed, the concurrence joined with the majority based solely on that factor.28 This seems to indicate that court will look askance at any interpretations that involve proving a prior conviction before the punishment phase. Only if the statute specifically states that it is a guilt-innocence phase issue or the element is jurisdictional will the CCA approve of an earlier introduction.
    Oliva did not overrule Calton or other prior cases finding that certain offenses do or do not require the proof of a prior conviction at the guilt-innocence phase. But for any offense that has not already been expressly decided, expect new litigation on the matter. Let’s hope the CCA will clarify the test in a future proceeding, but for now, it leaves a great deal of uncertainty.


1  Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005).

2  Oliva v. State, No. PD-0398-17, slip op. (Tex. Crim. App. May 23, 2018).

3  Calton, 176 S.W.3d at 232.

4  Id. at 233.

5  Id. at 234, citing Tex. Penal Code §38.04(b)(2).

6  Id. at 234-35.

7  Tex. Penal Code §49.04(b).

8  Ex parte Benson, 459 S.W.3d 67, 75-76 (Tex. Crim. App. 2015).

9  Id. at 75.

10  Oliva v. State, 525 S.W.3d 286, 292-93 (Tex. App.—Houston [14th Dist.] 2017).

11  Compare Oliva, slip op. at 6, with Calton, 176 S.W.3d at 234.

12  Calton, 176 S.W.3d at 234.

13  Oliva, slip op. at 10-11.

14  Id., slip op. at 13.

15  Id., slip op. at 15-16.

16  Tex. Penal Code §49.04(b).

17  Tex. Penal Code §38.04(b).

18  Oliva, slip op. at 16.

19  Id., slip op. at 17-18.

20  Calton, 176 S.W.3d at 234-35.

21  Tex. Code Crim. Proc. Art. 36.01(a)(1).

22  Oliva, slip op. at 19-20.

23  Calton, 176 S.W.3d at 235-36.

24  Oliva, slip op. at 20.

25  Id.

26  Id, slip op. at 27.

27  Id, slip op. at 28.

28  Id, slip op. at 5 (Richardson, J., concurring).