DWI second sentencing phase of trial - Texas

Asked over 1 year ago - Fredericksburg, TX

In the sentencing phase of a DWI 2nd, can the prosecution bring up crimes in which you were not convicted? For instance, if you were charged with a DWI second more than 10 years before and it was dismissed and reduced to a reckless driving, can this be discussed in the sentencing phase of your trial?

Attorney answers (5)

  1. Katherine Ellen Shipman

    Pro

    Contributor Level 12

    5

    Lawyers agree

    Answered . Yes, if the prosecution can prove the prior offenses/bad acts beyond a reasonable doubt. The Court should instruct the jury that, if the prosecutor hasn't proven the prior offense/bad act beyond a reasonable doubt, then they cannot consider it. I usually file a request for notice of all prior offenses/convictions/bad acts, and fight hard to exclude any evidence that the State can't prove. Many attorneys will tell you that in the punishment phase of a trial, almost anything goes, with some limitations. If you're represented by counsel, and considering a trial, ask your lawyer these questions.

    Katherine Shipman's response to your question is for general information purposes only. Nothing in this response... more
  2. Stephen A. Gustitis

    Contributor Level 13

    2

    Lawyers agree

    Best Answer
    chosen by asker

    Answered . Prosecutors just love the punishment phase of trial. With a cooperative judge they can throw just about anything up on the wall to see what sticks. A lawyer with experience can blunt this effort to some extent. By anticipating and handling issues at jury selection or by making a good record for appeal, the defense lawyer can sometimes make life miserable enough for the prosecutor that they'll give up on some of this "junk." In any case, good luck.

  3. Martin Ben Zimmerman

    Contributor Level 11

    4

    Lawyers agree

    Answered . Since this case resulted in a conviction for reckless driving, the matter could be discussed. The prosecutor could imply alcohol was involved in the offense and not violate your rights since the matter was originally filed as a DWI but later reduced. The truth, no matter how potentially deceptive is always permitted, since it is the truth.

    You should always let your attorney know about ALL possible problems in your past, especially at the punishment phase, because you have been convicted and the presumptions against harm have been overcome.

    Good luck,
    Martin Zimmerman

    Martin Zimmerman, P.C. 189 E. San Antonio St. P.O. Box 310704 New Braunfels, Texas 78131-0704 Tel: (830) 606-... more
  4. James Richard Butler

    Contributor Level 12

    4

    Lawyers agree

    Answered . Subject to notice requirements, it comes in if the court deems it relevant. Hope this helps.

    James R. "Jim" Butler,Houston,Texas,DWI Lawyer. Free Consultation .Call (713)236-8744. I only represent people... more
  5. Seth J. Bloom

    Contributor Level 12

    1

    Lawyer agrees

    Answered . This could probably come up in your new trial. I would suggest having a criminal defense lawyer in your area review the actual case and prior arrests.

    This answer is provided for informational purposes only, does not constitute legal advice, and does not create an... more

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