Opinion
No. 1083-03.
September 10, 2003.
Appeal from the County Ct. at Law No. 2, Montgomery County; Jerry Winfree, Judge.
Craig Hughes, Houston, for Appellant.
Gail Kikawa McConnell, Assist. DA, Conroe, Matthew Paul, State's Atty., Austin, for State.
ORDER
Appellant was charged with driving while intoxicated (DWI), with one prior DWI conviction alleged for enhancement. The State filed a pretrial motion requesting that the trial court decide whether it would instruct the jury on the punishment range under Penal Code § 49.09(a) or Penal Code § 12.43(b) if the jury found Appellant guilty and the enhancement paragraph true. The trial court ruled that it would instruct the jury on the punishment range pursuant to § 12.43(b). The State appealed this order.
The Court of Appeals affirmed the trial court's order, holding that an allegation of a prior conviction used to enhance a class B DWI to a class A DWI under Art. 49.09(a) must be read to the jury and proved during the guilt-innocence phase of the trial. State v. Morgan, 110 S.W.3d 512 (Tex.App.-Beaumont, 2003). The State has filed a petition for discretionary review challenging the Court of Appeals' decision. The State's petition is granted.
In addition, this Court grants on its own motion the following ground, "Whether Article 44.01, V.A.C.C.P., or any other law, authorizes the State's appeal in this case." The parties are ordered to brief this issue, along with the issue raised in the State's petition.