No. PD-0398-17 

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

JOSE OLIVA, Appellant

v. 

THE STATE OF TEXAS, Appellee

Appeal from Harris County

* * * * *

STATE PROSECUTING ATTORNEY’S

SUBSEQUENT POST-SUBMISSION AMICUS BRIEF

IN RESPONSE TO AMICI NCDD, DUIDLA, DCCDLA

* * * * *

STACEY M. SOULE

State Prosecuting Attorney

Bar I.D. No. 24031632

P.O. Box 13046

Austin, Texas 78711

information@spa.texas.gov

512-463-1660 (Telephone)

512-463-5724 (Fax)

PD-0398-17

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/5/2018 1:18 PM

Accepted 3/7/2018 11:46 AM

DEANA WILLIAMSON

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 3/7/2018 DEANA WILLIAMSON, CLERK 
TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-5

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

i
INDEX OF AUTHORITIES

Cases

Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005) (en banc). . . . . . . . . . 2-3

Chase v. State, 448 S.W.3d 6 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . 5

Statutes

TEX. CODE CRIM. PROC. art. 4.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. ELEC. CODE § 86.006(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

TEX. ELEC. CODE § 86.006(g), (g-1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. ELEC. CODE § 86.006(g-1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. ELEC. CODE § 86.010(g), (i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. ELEC. CODE § 86.010(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. PENAL CODE § 49.09(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. TRANSP. CODE § 547.614(a-1), (a-2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. TRANSP. CODE § 547.614(b), (c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Rule

TEX. R. APP. P. 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 n.1

ii
No. PD-0398-17

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

JOSE OLIVA, Appellant

v. 

THE STATE OF TEXAS, Appellee

Appeal from Harris County

* * * * *

STATE PROSECUTING ATTORNEY’S

SUBSEQUENT POST-SUBMISSION AMICUS BRIEF1

IN RESPONSE TO AMICI NCDD, DUIDLA, DCCDLA

* * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State Prosecuting Attorney submits this subsequent post-submission

amicus brief in response to Amicus Curiae the National College for DUI Defense

(NCDD), the DUI Defense Lawyer Association (DUIDLA), the Dallas Criminal

 

1

 As the State Prosecuting Attorney, there is no fee attached to this filing. TEX.

R. APP. P. 11. 

1
Defense Lawyer Association (DCDLA), and the Denton County Criminal Defense

Lawyer Association (DCCDLA).

ARGUMENT

Pointing to the State Prosecuting Attorney’s list of offenses using the phrase

“if it shown on the trial of the offense,” Amici claim, 

The list can be broken down into three categories of statutes: (1) statutes

where the fact that must be proven is jurisdictional [e.g. Tex. Transp.

Code 521.457, Tex. Transp. Code 545.420, Tex. Transp. Code 644.151,

Tex. Fam. Code 261.109], (2) statutes where the dollar amount in

controversy determines the jurisdiction of the court and the punishment

range for the offense [e.g. Tex. Gov’t Code 466.306, Tex. Gov’t Code

466.307, Tex. Gov’t Code 466.308, Tex. Nat. Res. Code 151.052, Tex.

Penal Code 33.023], and (3) statutes where an otherwise-non-criminal

act is a fact of consequence providing for a higher punishment [e.g. Tex.

PenalCode 15.031, Tex. PenalCode 20.05,Tex. PenalCode 32.31, Tex.

Penal Code 15.031, Tex. Penal Code 35A.02].

Notably absent is any other statute where a prior non-jurisdictional

criminal offense is treated as an element of the greater offense. Not a

single offense listed by the State makes a prior conviction an element of

the offense unless the conviction effects both the jurisdiction of the

court and the punishment range of the offense.

Amicus Brief of NCDD, DUIDLA, DCCDLA, at 17-18 (emphasis in original). 

This is incorrect. All those weighing in on the issue concede that Calton v.

State recognized the following guiding principle: “whether something is an element

of an offense is a completely separate inquiry from whether it is jurisdictionally

required. We have made clear that jurisdiction is not an element of an offense.” 176

2
S.W.3d 231, 234-35 (Tex. Crim. App. 2005) (en banc). In line with this, Calton’s

interpretation of the phrase “if it is shown at the trial” in the “Evading Arrest or

Detention” statute supports the State Prosecuting Attorney’s argument. Id. There,

jurisdiction vested with the district court due to Calton’s use of a vehicle during the

commission of the offense; his prior conviction was not a “jurisdictional element.” 

Id. 

Additionally, Amici’s distinction between offenses with (1) a jurisdictional

requirement and a fact to be proven or a threshold value element and (2) jurisdiction

and a prior offense element, is inconsequential. See Amicus Brief of NCDD,

DUIDLA, DCCDLA, at 17-18. In Calton, this Court plainly recognized examples of

offense-enhancing statutes that are non-jurisdictional and value-based or factdependent. The property-value-ladder for “Theft,” the Court explained, is not a

jurisdictional requirement because jurisdiction vests when there is an allegation that

the property reaches a certain threshold amount; the value of the property is then an

element of the offense. 176 S.W.3d at 235. Next, the Court pointed out that

commission by a “public servant” is an element for first-degree “Aggravated

Assault.” Id. But the “public servant” element is not a jurisdictional requirement,

however, because jurisdiction lies with the district court regardless of whether a

“public servant” was involved. Id.

3
Even if Amici’s distinction were a key point, criminal statutes with a nonjurisdictional prior offense enhancing element do exist (in addition to Evading Arrest

or Detention). Id. at 234-35. The offense “Restrictions on Airbags” provides, in part:

(b) Except as provided by Subsections(c), (d), and (e), an offense under

this section is a state jail felony.

(c) An offense under this section is a felony of the third degree if it is

shown on the trial of the offense that the defendant has been previously

convicted of an offense under this section.

TEX. TRANSP. CODE § 547.614(b), (c). A district court’s jurisdiction does not need

to be invoked for a primary offense under TEX. TRANSP. CODE § 547.614(a-1), (a-2)

to be elevated to a third degree felony with a prior conviction under the same

provision. See TEX.CODECRIM.PROC. art. 4.05 (“District courts and criminal district

court shall have original jurisdiction in criminal cases of the grade felony”). 

The Election Code provides two more examples. Consider the offense of

“Unlawfully Assisting Voter Voting Ballot By Mail.” TEX.ELEC.CODE § 86.010(g),

(i). An offense under that provision is a state jail felony and is “increased to the next

higher grade of offense if it is shown on the trial of an offense that: (1) the defendant

was previously convicted of an offense under this code.” TEX. ELEC. CODE §

86.010(i)(1). The offense of “Method of Returning Marked Ballot” shares this

feature as well, though the statute presents a more complicated scheme. TEX. ELEC.

CODE § 86.006(g), (g-1). Subsection (g), states: “An offense under Subsection (f) is

4
a Class A misdemeanor unless the defendant possessed the ballot or carrier envelope

without the request of the voter, in which case it is a felony of the third degree.” 

TEX. ELEC. CODE § 86.006(g). Subsection (g-1), effective December 31, 2017,

provides: “An offense under Subsection (g) is increased to the next higher category

of offense if it is shown on the trial of an offense under this section that: (1) the

defendant was previously convicted of an offense under this code.” TEX.ELEC.CODE

§ 86.006(g-1). So a third-degree enhanced to a second-degree is non-jurisdictional.

Asthe foregoing statutes demonstrate, a Class B misdemeanor DWI would not

be the only offense where a prior conviction is an offense element that does not affect

jurisdiction. The State Prosecuting Attorney’s statement that the “phrase ‘shown on

the trial of an offense’ when paired with language directed at offense classification

has acquired a technical meaning apart from punishment enhancement”2has not been

undermined in any way. Thus, Amici’s arguments under state law (the only law

applicable) have been proven to be unpersuasive. See Chase v. State, 448 S.W.3d 6,

17-18 (Tex. Crim. App. 2014) (applicability of defensive issue to a single criminal

provision (TEX. PARKS & WILDLIFE CODE § 43.002) a reason to reject the State’s

argument that TEX. PARKS & WILDLIFE CODE § 822.013 is purely a civil statute and

not applicable to the Penal Code offense of “Cruelty to Non-Livestock Animals”). 

 

2

 State Prosecuting Attorney’s Post-Submission Amicus Brief, at 7. 

5
PRAYER FOR RELIEF 

Again, the State Prosecuting Attorney prays that this Court hold that TEX.

PENAL CODE § 49.09(a) is a habitual offense enhancer that, by statute in a bifurcated

proceeding, must be proven to be the defendant’s beyond a reasonable doubt. 

Further, it is urged that the Court hold that the statutory error here, relating to only

timing, notsufficiency, be declared harmless because the prior was established during

punishment.

 Respectfully submitted,

 /s/ Stacey M. Soule

 State Prosecuting Attorney

 Bar I.D. No. 24031632

 P.O. Box 13046

 Austin, Texas 78711

 information@spa.texas.gov

 512-463-1660 (Telephone)

 512-463-5724 (Fax)

6
CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool

this document contains 1,071 words, exclusive of the items excepted by TEX.R. APP.

P. 9.4(i)(1).

 

/s/ Stacey M. Soule

 State Prosecuting Attorney

7
CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the State Prosecuting Attorney’s

Subsequent Post-Submission Amicus Brief in Response to Amici NCDD, DUIDLA,

DCCDLA has been served on March 5, 2018, via email or certified electronic to:

Hon. Patricia McLean

1202 Franklin

Suite 600

Houston, Texas 77002

mclean_patricia@dao.hctx.net

Hon. Ted Wood

1201 Franklin

13

th

 Floor

Houston, Texas 77002

ted.wood@pdo.hctx.net

Hon. J. Edward Niehaus

207 W. Hickory Street, 

Suite 309

Denton, Texas 76201

jason@bndlegal.com

/s/ Stacey M. Soule

State Prosecuting Attorney