Edwards v. State, 29649

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMORRISON
Citation166 Tex.Crim. 301,313 S.W.2d 618
PartiesWalter R. EDWARDS, with aliases, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 29649,29649
Decision Date28 May 1958

Page 618

313 S.W.2d 618
166 Tex.Crim. 301
Walter R. EDWARDS, with aliases, Appellant,
v.
The STATE of Texas, Appellee.
No. 29649.
Court of Criminal Appeals of Texas.
May 28, 1958.

[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.

MORRISON, Presiding Judge.

Our prior opinions are withdrawn, and the following is substituted in lieu thereof.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. (subsequent offense driving while intoxicated) is a

Page 619

special statute, then Article 62 (being a general statute) can have no application. Such statute reads, in part, as...

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23 practice notes
  • Watson v. State, 50912
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 11, 1976
    ...and must yield to special statutes on enhancement involving the subject matter in controversy. Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618 (1958), is cited in support thereof. In Edwards the Page 621 court held that the statute dealing with subsequent offense of driving while intoxi......
  • Collection Consultants, Inc. v. State, s. 53162
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 3, 1977
    ...can be harmonized by giving effect to the special statute when it is applicable to the facts. In Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618 (1958), the defendant was convicted of driving while intoxicated and the jury assessed punishment under the general enhancement statute, Artic......
  • Heredia v. State, 43856
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 9, 1971
    ...168 Tex.Cr.R. 525, 329 S.W.2d 864; Parasco v. State, 165 Tex.Cr.R. 547, 309 S.W.2d 465. See also Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618. The judgment is reversed and the cause 1 Appellant was indicted for the primary offense of unlawful possession of a narcotic drug, to-wit: he......
  • Tomlin v. State, 31317
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 23, 1960
    ...for a first, the enhancement of punishment statutes, Arts. 62 and 63, can have no application. He cites Edwards v. State, Tex.Cr.App., 313 S.W.2d 618, as supporting this The answer to such contention lies in the fact that Art. 725b, V.A.P.C. does not provide an enhanced punishment by reason......
  • Request a trial to view additional results
23 cases
  • Watson v. State, 50912
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 11, 1976
    ...and must yield to special statutes on enhancement involving the subject matter in controversy. Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618 (1958), is cited in support thereof. In Edwards the Page 621 court held that the statute dealing with subsequent offense of driving while intoxi......
  • Collection Consultants, Inc. v. State, s. 53162
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 3, 1977
    ...can be harmonized by giving effect to the special statute when it is applicable to the facts. In Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618 (1958), the defendant was convicted of driving while intoxicated and the jury assessed punishment under the general enhancement statute, Artic......
  • Heredia v. State, 43856
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 9, 1971
    ...168 Tex.Cr.R. 525, 329 S.W.2d 864; Parasco v. State, 165 Tex.Cr.R. 547, 309 S.W.2d 465. See also Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618. The judgment is reversed and the cause 1 Appellant was indicted for the primary offense of unlawful possession of a narcotic drug, to-wit: he......
  • Tomlin v. State, 31317
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 23, 1960
    ...for a first, the enhancement of punishment statutes, Arts. 62 and 63, can have no application. He cites Edwards v. State, Tex.Cr.App., 313 S.W.2d 618, as supporting this The answer to such contention lies in the fact that Art. 725b, V.A.P.C. does not provide an enhanced punishment by reason......
  • Request a trial to view additional results

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