            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0914-09



                               TROY A. BOWLEY, Appellant

                                                v.

                                  THE STATE OF TEXAS

           ON STATE’S’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SEVENTH COURT OF APPEALS
                           LUBBOCK COUNTY

       J OHNSON, J., filed a dissenting opinion.

                             DISSENTING OPINION

       In this case, the state used two prior convictions for driving while intoxicated (DWI) to

increase the degree of the offense to a felony, then two more convictions for felony DWI to enhance

the range of punishment to that of a first-degree felony. This is prohibited by our case law.

       In Phifer v. State, 787 S.W.2d 395 (Tex. Crim. App. 1990), this Court determined that a

felony DWI could be enhanced under Chapter 12, Subchapter D, of the Penal Code and that a felony

DWI could be used to enhance the range of punishment of a felony under Subchapter D, but it could

not be used to do so if the indictment alleged the offense of felony DWI.
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       Additionally, special enhancement provisions for a primary offense have long been
       held to bar enhancement under general statutes only for prior offenses that could be
       used within the special provisions. See Rawlings v. State, 602 S.W.2d 268
       (Tex.Cr.App. 1980); Heredia v. State, 468 S.W.2d 833 (Tex.Cr.App. 1971); Tomlin
       v. State, 170 Tex.Crim. 108, 338 S.W.2d 735 (1960); Edwards v. State, 166
       Tex.Crim. 301, 313 S.W.2d 618 (1958). Applying that principle to this cause would
       preclude use of prior felony DWI convictions, but not other felony convictions, to
       enhance under Chapter 12.

Phifer, 787 S.W.2d at 396.

       I understand this concept to be set out in Penal Code Section 49.09(g): “A conviction may

be used for purposes of enhancement under this section or enhancement under Subchapter D,

Chapter 12, but not under both this section and Subchapter D.” During the late1980s, various courts

of appeals decided cases in which the issue was whether felony DWI convictions could be used to

enhance a range of punishment under Subchapter D, with mixed results. See, e.g., Jones v. State,

762 S.W.2d 330 (Tex. App.–Austin 1988)(can enhance DWI under Subchapter D); Childress v.

State, 756 S.W.2d 11 (Tex. App.–Houston [1st])(cannot enhance DWI under Subchapter D). Phifer

settled the question, deciding that a felony DWI conviction could be enhanced under Subchapter D,

but not with another DWI conviction. Section 49.09(g) first appears in the Penal Code after the 1995

session of the legislature and may be a validation of Phifer, even if poorly phrased.

       Section 49.09(g) is clear as to permitting the use of felony DWI to enhance a non-DWI

felony, but not so clear as to using different prior DWI convictions to enhance the offense under both

Chapter 49 and Subchapter D. In Phillips v. State, 992 S.W.2d 491 (Tex. Crim. App. 1999), we

interpreted the language of Section 49.09(g)(49.09(f) at the time of Phillips) to allow the use of prior

DWI convictions to both raise the offense to a felony and enhance it under Subchapter 12, the precise

use prohibited by Phifer. Phillips did not overrule Phifer, thus Phifer remains good law and stands
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in stark contradiction of Phillips. Under Phifer, the indictment in this case was subject to being

quashed. Perhaps the legislature would care to revisit Section 49.09(g) and clarify its intent.

       I respectfully dissent.



Filed: May 5, 2010
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