Section 49.09 and 49.04 Texas Penal Code Interpretation
Texas Penal Code 49.04 and 49.09(b) together define the offense of felony driving while intoxicated.
Section 49.04 provides, in relevant part:
(a) a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. (b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Section 49.09(b), at the time the offense was committed, provided that: If it is shown on the trial of an offense under Section 49.04, 49.05, 49.06, or 49.065 that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or the offense of operating or assembling an amusement ride while intoxicated, the offense is a felony of the third degree.
In Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App. 1999), the Court explained:
The two prior intoxication-related offenses referred to in 49.09(b), whether they are felonies or misdemeanors, serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated.
The prior intoxication-related offenses are elements of the offense of felony driving while intoxicated.
They define the offense as a felony and are admitted into evidence as part of the State's proof of its case-in-chief during the guilt/innocence stage of the trial.
In other words, under our penal statutes, two (or more) prior intoxication-related offenses are specific attendant circumstances that serve to define, in part, the forbidden conduct of the crime of felony driving while intoxicated. See 1 W. LaFave & A. Scott, Substantive Criminal Law 1.2(c) (2d. ed. 1986) (discussing the fact that the definitions of some offenses require the presence or absence of specific attendant circumstances).
Thus, if a person, such as appellant, commits DWI with the requisite attendant circumstances (i.e., two or more prior intoxication-related offenses), then that person has committed felony DWI.