Edwards v. State, 29649
| Decision Date | 28 May 1958 |
| Docket Number | No. 29649,29649 |
| Parties | Walter R. EDWARDS, with aliases, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
[166 TEXCRIM 301] W. B. Spell, McAllen, J. P. Darrouzet, Austin, Bridges & Oxford, Mission, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
Our prior opinions are withdrawn, and the following is substituted in lieu thereof.
No statement of facts appears in the record, and the sole question presented for review is whether or not the repetition of offenses statutes (Articles 61, 62, and 63, Vernon's Ann.P.C.) are applicable to subsequent convictions for the offense of driving while intoxicated. This question does not appear to have been heretofore answered.
The jury's verdict did not assess the punishment. We quote it.
'We the Jury, find the Defendant guilty of driving a motor vehicle upon a public highway while intoxicated, subsequent offense, as charged in the first count of the indictment herein and we further find that each and all of the allegations set out in the second count of the indictment herein, charging a prior final conviction of a felony less than capital and one of like character as alleged against the Defendant in the first count of said indictment, to wit, driving a motor vehicle upon a public highway while intoxicated, subsequent offense, are true.'
Upon such verdict, the court, giving application to Article 62, Vernon's Ann.P.C., assessed the appellant's punishment at five years.
[166 TEXCRIM 302] The case at bar presents a situation one step removed from that before us in Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93. In Hill, we held that the prior use of a misdemeanor does not prevent its subsequent re-use for the same purpose; that is, to create a new and independent felony offense of driving while intoxicated, and that a prosecution under Article 802b, V.A.P.C., was not to be governed by the rules applicable in a prosecution under enhancement statutes (Articles 61-64, V.A.P.C.).
Here, however, we have a prior felony conviction for driving while intoxicated being used to enhance a subsequent felony conviction for the same offense by the application of the enhancement statute.
If Article 802b, V.A.P.C. () is a special statute, then Article 62 () can have no application. Such statute reads, in part, as follows:
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