Application for Writ of Habeas Corpus
by Doug Murphy
CAUSE NO.

STATE OF TEXAS		IN THE DISTRICT COURT
	§
V.	§	232nd JUDICIAL DISTRICT
	§
	§	HARRIS COUNTY, TEXAS
 
APPLICATION FOR WRIT OF HABEAS CORPUS
TO THE HONORABLE JUDGE OF SAID COURT:
	COMES NOW, _____________, Applicant in the above-styled and numbered cause, by and through his attorney of record, DOUG MURPHY, and presents this Application for Writ of Habeas Corpus. In support, Applicant shows this Court the following:
I.
	1.	Applicant is illegally restrained of his liberty by virtue of an indictment alleging 2 prior mis­de­meanor DWI convictions granting this court jurisdiction over him. 
	2.	Habeas corpus is the appropriate remedy to challenge the validity of enhancement for misde­meanor DWI to a felony. Ex Parte Sparks, 206 S.W.3d 680 (Tex.Crim.App. 2006).
A. FACTUAL HISTORY
	3.	On February 3, 2008, Defendant was arrested for driving while intoxicated (DWI). Defendant was indicted for felony DWI, using his two prior DWI convictions.
	4.	Specifically, the indictment alleged Defendant was convicted of DWI on July 26, 1978 (1978 DWI), and again on September 5, 1996 (1996 DWI). 
	5.	In the 1978 DWI, Defendant received 1 year probation, which was successfully completed and terminated. Accordingly, the court set aside and dismissed the charge on July 25, 1979. This dismissal was both permissible and consistent with the law at that time.
B. DWI LAW BACKGROUND
	6.	A DWI 1st and 2nd are generally misdemeanor offenses. Tex. Penal Code §49.04 (Vernon 2007). The statute, however, permits enhancement of the charge to a felony where the accused has been twice finally convicted of DWI prior to the commission of the arrested offense. Tex. Penal Code §49.09(d); Ex parte Serrato, 3 S.W.3d 41 (Tex.Crim.App. 1999). The previous DWI convictions are elements of the offense of felony driving while intoxicated. Prior intoxication-related convictions enhance the offense under §49.09(b); however, prior convictions used in §12.42(d) enhance punishment. Weaver v. State, 87 S.W.3d 557, 560 (Tex. Crim. App. 2002); Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999).
C. 1978 DWI ENHANCEMENT IS NOT A FINAL CONVICTION
	7.	The 1978 DWI law provided that where a sentence was suspended and probated, the conviction was not final unless the probation was revoked. Tex. Rev. Civ. Stat. Ann. Art. 6701l-1; Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex.Crim.App. 1978). Thus, the 1978 DWI was not a final conviction and is not usable for enhancement purposes. 
	8.	The law changed in 1984 making convictions after Jan. 1, 1984—regardless of whether they were probated or suspended—final convictions and usable for enhancement purposes. See State v. Verhoe­ven, 151 S.W.3d 637, 638 (Tex. App.—Fort Worth 2004, pet. ref’d); State v. Nixon, 153 S.W.3rd 550 (Tex. App.—Amarillo 2004, pet. ref’d). This 1984 law change, however, did not make the pre-1984 DWIs final convictions.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Applicant prays that this court issue the writ and granting him relief and preclude the state from using the 1978 DWI as a predicate to enhance his third DWI arrest to a felony.
Respectfully submitted,

TRICHTER & MURPHY, P.C.

By: ___________________________
DOUG MURPHY
SBN 24013215
The Kirby Mansion
2000 Smith Street
Houston, Texas 77002
Tel: (713) 524-1010 
Fax: (713) 524-1080

Attorney for Defendant,
__________________________

CERTIFICATE OF SERVICE

	I hereby certify that a true and correct copy of the above and foregoing Motion has been furnished to the Assistant District Attorney presently assigned to this case on this the _____ day of February, 2009.

________________________________________
DOUG MURPHY

CAUSE NO.

STATE OF TEXAS		IN THE DISTRICT COURT
	§
V.	§	232nd JUDICIAL DISTRICT
	§
	§	HARRIS COUNTY, TEXAS
ORDER
	Before the Court is Applicant’s Petition for Writ of Habeas Corpus. The writ having issued, return having been made as required by law, and after considering the petition, the response, the evidence, and the arguments of the parties, the Court finds that the application is well taken and that relief should be granted. 
	IT IS THEREFORE ORDERED that the State is prohibited from using the 1978 DWI conviction as a predicate to turn this DWI arrest into a felony. 
	IT IS FURTHER ORDERED that the indictment is dismissed.

	Signed and entered this _____ day of ___________, 2009.

______________________________ 
JUDGE PRESIDING