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DWI second sentencing phase of trial - Texas

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?

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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.


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) 606-7886 Fax: (830) 627-2890 The information contained in and transmitted with this e-mail is: 1) Subject to the Attorney-Client Privilege; 2) Attorney Work Product; or 3) Confidential It is intended only for the individual or entity designated above. Any distribution, copying, use of, or reliance upon the information contained in and transmitted with this facsimile by or to anyone other than the recipient designated above by the sender is unauthorized and strictly prohibited. If you have received this e-mail in error, please notify Martin Zimmerman, P.C. by telephone


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 should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.


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 accused of DWI in Texas. My answer is based upon the limited amount of information supplied in your question. The answers I give on this site are intended for general educational purposes only. If you already have an attorney, I always suggest that you consult with that attorney first.


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 attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.