             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-0398-17

                                  JOSE OLIVA, Appellant

                                              v.

                                 THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FOURTEENTH COURT OF APPEALS
                             HARRIS COUNTY

      R ICHARDSON, J., filed a concurring opinion.

                                CONCURRING OPINION

      According to the majority opinion, the fact of a prior DWI conviction is an element

of a felony DWI offense, but it is not an element of a Class A misdemeanor DWI offense.

This conclusion has support in our precedent. In 1986, in the case of Luedke v. State,1 we

held that the “felony offense of driving while intoxicated is a different offense than




      1
          711 S.W.2d 657 (Tex. Crim. App. 1986).
                                                                    Oliva Concurring Opinion — 2


misdemeanor driving while intoxicated.”2 We found the prior DWI convictions that raise a

DWI offense to a felony are “historical fact[s],” and not “merely a punishment

consideration.” 3

       However, as correctly noted by Judge Keasler’s dissenting opinion, the majority’s

holding conflicts with our 2005 opinion in Calton v. State.4 In Calton, the defendant’s prior

conviction for evading arrest elevated his conviction from a state jail felony to a third degree

felony, and we held that such prior conviction was an element of the offense. In Calton, we

explained the differences between elements and enhancements: “[T]he elements of an

offense [are] the forbidden conduct, the required culpability, any required result, and the

negation of any exception to the offense.”5 “A prior conviction alleged for enhancement ‘is

not really a component element of the primary offense.’”6 Significantly, we said in Calton

that, “An enhancement ‘increase[s] the punishment range to a certain range above that

ordinarily prescribed for the indicted crime.’ It does not change the offense, or the degree

of the offense, of conviction. There can be no enhancement until a person is first convicted




       2
           Luedke, 711 S.W.2d at 659.
       3
           Id.
       4
           176 S.W.3d 231 (Tex. Crim. App. 2005). We note that Calton did not cite to Luedke.
       5
           Id. at 233 (citing T EX. P ENAL C ODE § 1.07(22)).
       6
           Id. (citing Brooks v. State, 957 S.W.2d 30, 32 (Tex. Crim. App. 1997)).
                                                                      Oliva Concurring Opinion — 3

of an offense of a certain degree.”7 We concluded in Calton that the prior conviction for

evading arrest was an element of the charged evading offense and had to be proved at the

guilt phase of trial.8

        Although the fact of the prior conviction not being a “jurisdictional element” seems

to be the deciding factor in the instant case, in Calton we expressly rejected the argument that

when the prior conviction affects jurisdiction it constitutes an element of the offense:

        So the relevant question is whether the prior conviction is an element of the
        offense, not whether it is jurisdictional. . . . And whether something is an
        element of an offense is a completely separate inquiry from whether it is
        jurisdictionally required. We have made clear that jurisdiction is not an
        element of an offense. [citing State v. Mason, 980 S.W.2d 635 (Tex. Crim.
        App. 1998)] . . . We reject the State’s contention that there is no third category
        of “non-jurisdictional element of the offense.”

        We also expressly rejected the argument that Article 36.01 of the Texas Code of

Criminal Procedure9 controls:

        The State contends that our result violates Art. 36.01. . . . [T]he State’s
        interpretation renders a portion of Art. 36.01 meaningless. . . . [T]he fact that
        the prior conviction was not jurisdictional satisfies only the second part of Art.
        36.01. The first part of the statute is that the prior conviction is alleged for
        purposes of enhancement only. That language is not satisfied in this case. In




       7
        Id. at 233–34 (emphasis added) (citing Ex parte Beck, 769 S.W.2d 525, 527 (Tex. Crim.
App. 1989)).
        8
            Id. at 236.
       9
         Article 36.01(a)(1) provides that, “When prior convictions are alleged for purposes of
enhancement only and are not jurisdictional, that portion of the indictment or information reciting such
convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.”
                                                                     Oliva Concurring Opinion — 4

       this case, the prior conviction was not alleged for enhancement purposes only.
       As a result it needed to be proved at the guilt phase of trial.10

       We touched on this topic in our 2015 decision in Ex parte Benson, but that case was

not directly on point with the issue before us today.11 Benson involved whether a double

jeopardy violation occurs when a defendant is convicted of intoxication assault and felony

DWI. Somewhat consistent with Calton, in Benson we recognized that a “statutorily

prescribed aggravating fact plays one of three roles in enhancing an offense: (1) creating a

new aggravated offense in which the aggravating fact is an element, (2) enhancing the level

of the offense, or (3) enhancing the punishment for the offense.” 12 But in direct contrast to

what we said in Calton, we observed that Article 36.01 was “a legislative recognition that

prior convictions that are needed to make an offense a felony (vesting jurisdiction in the

district court) were not mere enhancements but were elements of the offense.” 13

Nevertheless, we ultimately opined in Benson, as the majority does today, that section 49.09

created “two sorts of enhancements”—one that is jurisdictional (two prior DWI’s) and one

that is not (one prior DWI).14


       10
            Calton, 176 S.W.3d at 235 (emphasis added).
       11
            Ex parte Benson, 459 S.W.3d 67, 74 (Tex. Crim. App. 2015).
       12
            Id. at 74 (emphasis added).
       13
          Id. at 83 (emphasis added). We did acknowledge (in a footnote) our opinion in Calton as
standing for the proposition that “a prior-conviction requirement in a statute can be an element of an
offense even if it is not jurisdictional.” Id. at n.95.
       14
            Id. at 88.
                                                                     Oliva Concurring Opinion — 5

       So where does that leave us? Calton clearly holds that a prior-conviction requirement

in a statute that changes the degree of the offense is an element of that offense that must be

proved during the guilt/innocence stage of the trial. But today’s majority opinion holds that

a prior DWI conviction that changes the degree of the offense from a Class B misdemeanor

to a Class A misdemeanor is not an element, but only a punishment enhancement. I agree

with Judge Keasler that the Court’s opinion runs afoul of Calton. Moreover, despite the

jurisdictional component, it seems illogical to hold that having one prior DWI is not an

element of a Class A misdemeanor DWI, but having two prior DWI’s is an element of a

felony DWI. And, it makes sense that a prior conviction for DWI would be part of the

“forbidden conduct”15 of a higher degree of DWI since it is the prior DWI that raises the

level of the offense.

       Nevertheless, the DWI statute is ambiguous on this issue, and the Legislature has not

clarified whether a prior conviction that changes the degree of the DWI offense constitutes

an “element” of the enhanced offense or serves merely as a punishment enhancement.

Because I ultimately agree with the majority that there are policy considerations in preventing




       15
         “‘Element of the offense’ means: (A) the forbidden conduct; (B) the required culpability; (C)
any required result; and (D)the negation of any exception to the offense.” T EX. P ENAL C ODE §
1.07(22)).
                                                                      Oliva Concurring Opinion — 6


prejudice that would arise from informing the jury of extraneous offenses before a finding

of guilt,16 respectfully, I concur in the result.

FILED:          May 23, 2018

PUBLISH




       16
           See T EX. R. E VID. 403 and 404(b)(1); see also Hernandez v. State, 109 S.W.3d 491, 494
(Tex. Crim. App. 2003) (If a defendant stipulates to prior offenses used as jurisdictional enhancements,
a trial court should not permit the admission of evidence of the prior convictions during the
guilt/innocence phase because the danger of unfair prejudice from the introduction of such evidence
substantially outweighs its probative value.) These policy considerations will affect several criminal
statutes that elevate the degree of the offense based on a prior conviction of that offense. See T EX .
H EALTH & S AFETY C ODE § 822.045 (owning a “dangerous dog” goes from a Class C misdemeanor to
a Class B misdemeanor if the person has a prior conviction under that section); T EX. H EALTH &
S AFETY C ODE § 145.0096 (If a sexually oriented business advertises using the word “tan” or “tanning”
the Class C misdemeanor jumps to a Class A if there is a previous conviction for that offense); T EX.
W ATER C ODE § 7.184 (A violation relating to low-level radioactive waste goes from a Class B
misdemeanor to a Class A misdemeanor with a prior conviction under that section); T EX. A GRIC.
C ODE § 161.141(c), (d) (A Class C offense for moving a quarantined animal becomes a Class B
misdemeanor with a prior offense under that section, and violating a quarantine established in relation
to foot-and-mouth disease increases from a Class A misdemeanor to a felony if it is a second or
subsequent offense); T EX. P ARKS & W ILD. C ODE § 90.011 (unlawfully prohibiting public use of a
protected freshwater area goes from a Class C misdemeanor to a Class B if convicted two or more
times of that offense); T EX. P ENAL C ODE § 21.17 (a Class C offense for voyeurism goes to a Class B
misdemeanor with two or more previous convictions under that section); T EX. T RANSP .
C ODE § 521.457 (A Class C offense of driving while license invalid goes to a Class B with a prior
offense under that section); T EX. A LCO. B EV. C ODE § 101.76 (A Class B offense of unlawful display
or use of a permit or license goes to a Class A with a prior offense under that section).
