author: WILLIAM C. KOCH, JR., J.,

text:
    NATIONAL INSURANCE ASSOCIATION v. Katherine Michelle SIMPSON et al.
    Court of Appeals of Tennessee, at Nashville.
    Assigned on Briefs July 23, 2003.
    June 7, 2004.
    Permission to Appeal Denied by Supreme Court Dec. 6, 2004.

      L. Gilbert Anglin and Robert 0. Brag-don, Murfreesboro, Tennessee, for the appellants, Katherine Michelle Simpson and David Franklin.
    David B. Scott, Nashville, Tennessee, for the appellee, National Insurance Association.
   OPINION

WILLIAM C. KOCH, JR., J.,

delivered the opinion of the court,

in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

This appeal involves a dispute regarding an exclusion from liability coverage in an automobile insurance policy for family members. Following a collision injuring its insured’s half brother, the insurer filed suit in the Chancery Court for Rutherford County seeking a declaratory judgment that the exclusion applied to the half brother’s claims against the insured. Following a bench trial, the trial court determined that the exclusion did apply to the half brother’s claims. Both the insured and her half brother have appealed. We affirm the trial court’s construction of the insurance policy.

I.

Katherine Simpson and David Franklin have the same biological mother. They were adopted by different families when they were very young and grew up apart. They were reunited in 1992 after being-separated for seventeen years. Over the next seven years, Mr. Franklin resided with Ms. Simpson on three separate occasions.

In March 1999, Mr. Franklin had been residing with Ms. Simpson for twelve out of the past thirteen months. They were living in a five-bedroom house that Ms. Simpson and her estranged husband had leased. Their older brother also lived with them, along with Ms. Simpson’s three children and a female ward. Ms. Simpson and her two brothers split the rent equally and shared their common living expenses. They had their own bedrooms but shared the common areas of the house and also participated in the cooking and other household chores. Mr. Franklin viewed Ms. Simpson as a “mother figure,” and Ms. Simpson explained that “[w]e didn’t really grow up together and we all wanted to get to know each other, and we just matched together like that. But we helped each other out so we could get to know each other again, because we got separated when we were really young.”

Ms. Simpson regularly gave Mr. Franklin rides to and from work because he did not own an automobile. On March 4,1999, Ms. Simpson and Mr. Franklin were riding in Ms. Simpson’s Jeep when it was struck by a tractor trailer truck at an intersection. Mr. Franklin was injured and spent one week in the hospital with a contusion to the brain, four fractured ribs, a bruised kidney, and broken bones in his right forearm. Following his release from the hospital, Mr. Franklin returned to the house where Ms. Simpson and their brother had been living and remained living there for approximately one year. Ms. Simpson cared for him while he was convalescing.

On March 3, 2000, Mr. Franklin filed suit in the Circuit Court for Rutherford County seeking to recover damages from the owner and driver of the truck that had collided with Ms. Simpson and from Ms. Simpson herself. When Ms. Simpson was informed that Mr. Franklin had sued her, she asked him to move out of the house.

Ms. Simpson was insured by National Insurance Association (“National Insurance”) when the collision occurred. Her policy contained a standard provision excluding both the insured and the insured’s family members from liability coverage. On October 11, 2001, National Insurance filed a declaratory judgment action in the Chancery Court for Rutherford County seeking a determination that its policy excluded Mr. Franklin’s claim against Ms. Simpson and that it had no duty to defend Ms. Simpson in the action fried against her by Mr. Franklin. Both Ms. Simpson and Mr. Franklin responded by asserting that the policy’s exclusion did not apply to Mr. Franklin’s claim.

The trial court conducted a bench trial and, on September 12, 2002, mailed the parties a letter stating that it had determined that the exclusion for family members in Ms. Simpson’s policy applied to Mr. Franklin’s claim because he had been residing with her when the accident occurred. On November 20, 2002, the trial court fried an order declaring that Mr. Franklin’s claim was excluded from coverage and that National Insurance did not have a duty to defend Ms. Simpson against Mr. Franklin’s claim. Both Ms. Simpson and Mr. Franklin appealed.

II.

The sole issue on this appeal concerns whether the “family members” exclusion from liability coverage in Ms. Simpson’s automobile insurance policy applies to Mr. Franklin’s claim. Mr. Franklin insists that the trial court erred by applying the exclusion to his claim because he was not a resident of Ms. Simpson’s household when the collision giving rise to his injuries occurred. We have determined that the trial court’s conclusion that Mr. Franklin was a resident of Ms. Simpson’s household when he was injured was correct.

A.

The courts interpret insurance policies using the principles that guide the construction of other contracts. Am. Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 814 (Tenn.2000); Mass. Mut. Life Ins. Co. v. Jefferson, 104 S.W.3d 13, 20 (Tenn.Ct.App.2002); Williams v. Berube & Assocs., 26 S.W.3d 640, 643 (Tenn.Ct.App.2000). The principal goal is to ascertain and to enforce the intent of the contracting parties. Harrell v. Minn. Mut. Life Ins. Co., 937 S.W.2d 809, 814 (Tenn.1996); Setters v. Permanent Gen. Assurance Corp., 937 S.W.2d 950, 953 (Tenn.Ct.App.1996). The parties’ intent, and therefore the meaning of the contract, should be derived from the provisions in the insurance policy itself. Gredig v. Tenn. Farmers Mut. Ins. Co., 891 S.W.2d 909, 912 (Tenn.Ct.App.1994).

Insurance policies should be construed as a whole in a reasonable and logical manner. English v. Virginia Sur. Co., 196 Tenn. 426, 430, 268 S.W.2d 338, 340 (1954); Standard Fire Ins. Co. v. Chester-O’Donley & Assocs., Inc., 972 S.W.2d 1, 7 (Tenn.Ct.App.1998). Their terms should be given their natural and ordinary meaning. Allstate Ins. Co. v. Barnes, 896 S.W.2d 565, 568 (Tenn.Ct.App.1995); Tata v. Nichols, 848 S.W.2d 649, 650 (Tenn.1993). When the terms of an insurance policy are clear, the courts must avoid favoring one party or the other, Brown v. Tenn. Auto. Ins. Co., 192 Tenn. 60, 63, 237 S.W.2d 553, 554 (1951); Victoria Ins. Co. v. Hawkins, 31 S.W.3d 578, 580 (Tenn.Ct.App.2000), and must avoid construing the policy in a way that would extend or restrict the intended scope of coverage. Merrimack Mut. Fire Ins. Co. v. Batts, 59 S.W.3d 142, 148 (Tenn.Ct.App.2001).

Clauses excluding coverage should be strictly construed against the insurer but in light of their apparent purpose. Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 886 (Tenn.1991); Tenn. Farmers Mut. Ins. Co. v. Moore, 958 S.W.2d 759, 763 (Tenn.Ct.App.1997); Dressier v. State Farm Auto. Ins. Co., 52 Tenn.App. 514, 518, 376 S.W.2d 700, 702 (1963). When the purpose of an exclusion can be ascertained, the courts should avoid construing the language of the exclusion so narrowly that its purpose is undermined. Standard Fire Ins. Co. v. Chester-O’Donley & Assocs., Inc., 972 S.W.2d at 8.

Questions relating to the interpretation of written contracts involve legal rather than factual issues. Brandt v. Bib Enters., Ltd., 986 S.W.2d 586, 592 (Tenn.Ct.App.1998); Rapp Constr. Co. v. Jay Realty Co., 809 S.W.2d 490, 491 (Tenn.Ct.App.1991). Insurance policies are contracts, and thus scope of coverage issues present questions of law. Pile v. Carpenter, 118 Tenn. 288, 296, 99 S.W. 360, 362 (1907); Pa. Lumbermens Mut. Fire Ins. Co. v. Holt, 32 Tenn.App. 559, 566, 223 S.W.2d 203, 206 (1949). A declaratory judgment proceeding is an appropriate vehicle for deciding coverage questions, Standard Fire Ins. Co. v. Chester-O’Don-ley & Assocs., Inc., 972 S.W.2d at 5, and, when the relevant facts are not in dispute, the legal issues regarding a policy’s coverage may be resolved by summary judgment. St. Paul Fire & Marine Ins. Co. v. Torpoco, 879 S.W.2d 831, 834 (Tenn.1994); Allstate Ins. Co. v. Jordan, 16 S.W.3d 777, 779 (Tenn.Ct.App.1999).

B.

Ms. Simpson’s automobile insurance policy explicitly excludes from liability coverage “bodily injury to you or any family member.” It defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.” There is no dispute that Ms. Simpson and Mr. Franklin are related by blood. Therefore, the pivotal question is whether Mr. Franklin was a resident of Ms. Simpson’s household when he received his injuries.

The phrase “resident of your household” and similar phrases appear often in insurance contracts. Appleman § 4411. They have been construed frequently and are not ambiguous. Setters v. Permanent Gen. Assurance Corp., 937 S.W.2d at 954; Gredig v. Tenn. Farmers Mut Ins. Co., 891 S,W.2d at 915. However, courts have recognized that these phrases are necessarily elastic because of the numerous factual settings to which they apply. Montgomery v. Hawkeye Security Ins. Co., 52 Mich.App. 457, 217 N.W.2d 449, 450-51 (1974); Schehen v. North-West Ins. Co., 258 Or. 559, 484 P.2d 836, 838 (1971).

Residence in a household contemplates both a relationship to a place and membership in a group. Allstate Ins. Co. v. Barnes, 896 S.W.2d at 569; State Farm Mut. Ins. Co. v. Thomas, 699 S.W.2d 156, 157-58 (Tenn.Ct.App.1983); Am. States Ins. Co. v. Walker, 26 Utah 2d 161, 486 P.2d 1042, 1044 (1971). It includes the common types of close relationships, varying greatly in detail, where persons live together as a family in a closely knit group, usually because of close relationship by blood, marriage, or adoption, and deal with each other intimately, informally, and not at arm’s length. Quinlan v. Coombs, 105 Wis.2d 330, 314 N.W.2d 125, 127 (1981).

Earlier definitions of “household” limited its application to groups of persons living together “under one head.” Boyd v. Peoples Protective Life Ins. Co., 208 Tenn. 280, 286, 345 S.W.2d 869, 872 (1961). However, the legal significance of paterfamilias has given way in modern times to a broader concept of family. The courts cannot force people to live in narrowly defined family patterns. We now recognize that “[o]ut of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and satisfactions of a common home.” Moore v. City of E. Cleveland, 431 U.S. 494, 505, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977). Thus, the prevailing understanding of “household” today does not necessarily require the existence of a family head. For the purposes of this opinion, we, like a majority of jurisdictions, recognize a household as a group or set of persons who dwell together as a family under the same roof.

Residence in a household also requires a degree of permanence and intention to remain in the household for an indefinite period of time. It connotes a settled or permanent status. Thus, a temporary visit by a relative does not make the relative a resident of the household because it is temporary and there is no melding of the family unit. State Farm Mut. Auto. Ins. Co. v. Smith, 206 Va. 280, 142 S.E.2d 562, 565-66 (1965). Likewise, a landlord-tenant relationship or a simple roommate arrangement does not create a household. Great Am. Ins. Co. v. Marshall, 266 F.Supp. 208, 211 (D.S.C.1967); Universal Underwriters Ins. Co. v. Evans, 565 So.2d 741, 743 (Fla.Dist.Ct.App.1990); Shivvers v. Am. Family Ins. Co., 589 N.W.2d at 136.

Over the years, the courts have examined a number of factors to determine whether a person is a resident of a household. These factors include, but are not limited to: (1) the person’s subjective or declared intent to remain in the household either permanently or for an indefinite or unlimited period of time, (2) the formality or informality of the relationship between the person and the other members of the household, (3) whether the place where the person lives is in the same house or on the same premises, (4) whether the person asserting residence in the household has another place of lodging, and (5) the age and self-sufficiency of the person alleged 'to be a resident of the household. E.g., AMCO Ins. Co. v. Rossman, 518 N.W.2d 333, 335 (Iowa 1994); Hartman v. Ins. Co. of N. Am., 106 Mich.App. 731, 308 N.W.2d 625, 630 (1981); Amco Ins. Co. v. Norton, 243 Neb. 444, 500 N.W.2d 542, 547 (1993); Gredig v. Tenn. Farmers Mut. Ins. Co., 891 S.W.2d at 914; State Farm Mut. Auto. Ins. Co. v. Thomas, 699 S.W.2d at 158.

C.

Ms. Simpson, Mr. Franklin, and their older brother considered themselves a family. They decided to live together to renew their family relationship and to share expenses. They lived together in the same house, and during all relevant times, this house was their only dwelling place. The record contains no evidence that any of the siblings considered the arrangement to be temporary. Even though Mr. Franklin had his own entrance and bedroom, the house was not divided into separate living quarters. All its inhabitants shared the living room, dining room, and other common areas of the house. They shared the household expenses, and they cooked and ate many of their meals together.

In light of these facts, we conclude that the trial court did not err by finding that Mr. Franklin was a resident of Ms. Simpson’s household when he was injured on March 4, 1999. Accordingly, the trial court correctly determined that Mr. Franklin’s claim against Ms. Simpson was excluded from the liability coverage under the automobile insurance policy and, therefor, that National Insurance Association did not have a duty to defend Ms. Simpson with regard to Mr. Franklin’s claim against her.

III.

We affirm the judgment and remand the case to the trial court for whatever further proceedings may be required. We tax the costs of this appeal, jointly and severally, to Katherine Michelle Simpson and David Franklin and their surety for which execution, if necessary, may issue.

      . Clauses such as the one involved in this case are not contrary to public policy. Setters v. Permanent Gen. Assurance Corp., 937 S.W.2d at 953. Their purpose is to safeguard the insurance company against the natural partiality of an insured to assist injured persons who are family members. Dressier v. State Farm Mut. Auto. Ins. Co., 52 Tenn.App. at 520, 376 S.W.2d at 702; 6C John A. Appleman & Jean Appleman, Insurance Law and Practice § 4411, at 345-46 (rev.vol. 1979) ("Apple-man”).

      . E.g., Cicciarella v. Arnica Mut. Ins. Co., 66 F.3d 764, 768-69 (5th Cir.1995); Am. Liberty Ins. Co. v. Carpenter, 547 So.2d 402, 403 (Ala. 1989); Sutton v. Shelter Mut. Ins. Co., 971 S.W.2d 807, 808 (Ky.Ct.App.1997); Jones v. Crane Co., 653 So.2d 822, 825 (La.Ct.App.1995); Merrimack Mut. Fire Ins. Co. v. McDill, 674 So.2d 4, 9 (Miss.1996); Shivvers v. Am. Family Ins. Co., 256 Neb. 159, 589 N.W.2d 129, 135 (1999); Minor v. Allstate Ins. Co., Ill Ohio App.3d 16, 675 N.E.2d 550, 553 (1996); see also 7 The Oxford English Dictionary 442 (2d ed.1989).


source: Caselaw Access Project

author: JOHNSON, J., KELLER, Presiding Judge,

license: Public Domain

text:
    Tomas URIAS, Appellant, v. The STATE of Texas.
    No. 335-03.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 20, 2004.
    Opinion Dissenting from Denial of Rehearing Feb. 16, 2005.
    David Greenhaw, Odessa, for Appellant.
    Matthew Paul, State’s Atty., Austin, for State.
   OPINION

JOHNSON, J.,

joined by MEYERS, PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ.,

delivered the opinion of the Court.

Appellant was charged with intentionally and knowingly causing the death of an individual by shooting him with a firearm. A jury found him guilty as charged and assessed punishment at forty-eight years of imprisonment. On appeal, the court of appeals reversed the judgment of the trial court and remanded the cause for a new trial. Urias v. State, 104 S.W.3d 578 (Tex.App.-El Paso 2003). The State Prosecuting Attorney appealed.

Appellant was in jail on a drug charge when police questioned him about the instant murder, which had occurred several years earlier. Although appellant was known by police to be represented in the drug case by counsel and one of the interrogating officers had been informed by counsel that he wanted to be present when officers interviewed appellant, two officers questioned appellant without contacting his attorney. The officers began by continuing discussions about the drug case, but soon went on to the murder. During this interview, parts of which were recorded on audiotape, appellant stated that he wanted to stop. The tape recorder was turned off for eight minutes; it was then turned back on, and appellant made a recorded confession to the murder.

The trial court denied appellant’s motion to suppress. At trial, appellant again objected to the admission of the audiotape of the confession or the transcription of it. The trial court overruled appellant’s objection and admitted those items into evidence, and the jury convicted appellant.

On appeal, appellant’s sole point of error claimed that the trial court erred when it did not suppress the recorded confession, alleging that it was obtained in violation of his Fifth Amendment right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court of appeals concluded that the trial court erred in admitting the confession and that the error was not harmless. It therefore reversed the judgment of the trial court and remanded the cause to that court for a new trial. Urias v. State, 104 S.W.3d at 587-88.

We granted the State Prosecuting Attorney’s petition for discretionary review, which in two grounds challenges the court of appeals’ decision: the court of appeals failed to 1) “ ‘afford almost total deference’ to the trial court’s determination of a mixed question of law and fact that turned on a credibility determination,” and 2) “consider evidence that strongly supports the trial court’s implied factual findings.” The State Prosecuting Attorney asserts that these are mixed questions of law and fact with disputed facts (i.e. whether questioning continued during the eight-minute gap) which are dependent upon credibility determinations; thus, the trial court’s resolution of the issue should be afforded deference.

When the voluntariness of a statement is challenged, article 38.22, § 6, of the Texas Code of Criminal Procedure requires the trial court to make written fact findings and conclusions of law as to whether the challenged statement was made voluntarily. It is well settled that Article 38.22, § 6, “is mandatory in its language and that it requires a trial court to file its findings of fact and conclusions of law regarding the voluntariness of a confession whether or not the defendant objects to the absence of such omitted filing.” Wicker v. State, 740 S.W.2d 779, 783 (Tex.Crim.App.1987), cert. denied, 485 U.S. 938, 108 S.Ct. 1117, 99 L.Ed.2d 278 (1988). See also McKittrick v. State, 535 S.W.2d 873, 876 (Tex.Crim.App.1976). Our review of the record reflects that the trial court did not issue the requisite written findings of fact and conclusions of law. Thus, the court of appeals made its decision without the benefit of the requisite findings and conclusions.

The proper procedure is that the trial judge be directed to make the required written findings of fact and conclusions of law. Wicker, supra. We remand this cause to the court of appeals with instructions to require compliance by the trial court with the provisions of Article 38.22, § 6, and reconsider the voluntariness of appellant’s confession in light of those findings of fact and conclusions of law.

KELLER, P.J., filed a dissenting opinion.

Rehearing denied.

KELLER, Presiding Judge,

dissenting.

When this case was submitted to us on petition for discretionary review, the Court had three options: affirm the decision of the court of appeals, reverse the decision of the court of appeals while affirming the trial court’s judgment, or dismiss the State’s petition as improvidently granted. Instead, the Court chose a fourth option: reversing and remanding to the court of appeals to reconsider the voluntariness question after ensuring that the trial court has made findings of fact. The problem with this fourth option is that no one has ever requested findings of fact. Neither party asked for findings at trial. Neither party complained to the Court of appeals about the absence of findings. The Court of appeals reviewed the voluntariness issue without findings. And no one has complained about the absence of findings in a petition for discretionary review.

Relying upon State v. Terrazas and Marin v. State the State contends in its motion for rehearing that remand is inappropriate when neither party has complained about the absence of findings. The Court’s opinion on original submission cites for support the earlier decisions of Wicker v. State and McKittrick v. State.

I see several problems that warrant a rehearing. First, whether the statutory requirement that findings be made constitutes “forfeitable” error is an important issue that should be considered — if a remand for findings is contemplated — after notice to the parties and full briefing. It is true that Wicker and prior cases have indicated that a party can raise the trial court’s failure to issue findings for the first time on appeal on the ground that Article 38.22, § 6 “is mandatory in its language” and requires the trial court to file findings concerning the voluntariness of a confession “whether or not the defendant objects to the absence of such omitted filing.” But later cases have cast doubt on whether that continues to be the law. Relying upon Marin, this Court specifically stated in Terrazas that “the ‘right’ to findings and conclusions is a statutory ‘right’ which is forfeited by a party’s failure to insist upon its implementation.” That statement was admittedly dicta, but Marin was “a watershed decision in the law of error preservation” and has required us to reconsider a number prior holdings. Marin indicates that the vast majority of errors are of the forfeitable type. Green v. State, a case decided after Marin but before Terrazas, reaffirmed the proposition of law cited in Wicker but did not address the issue in light of Marin As a result, the law in this area is uncertain. If we are to decide that the absence of findings constitutes one of the few errors that are not forfeitable, we should give the issue more careful consideration than we have done in this case and we should clearly delineate the rule to be followed and the controlling precedent.

But we really should not address the preservation issue because of a second problem. Whether or not the absence of findings constitutes forfeitable error, the fact remains that this error was never brought to the attention of the court of appeals. While an appellate court may in its discretion address “unassigned” error, it is rarely required to do so, and this case does not seem to involve the type of claim that an appellate court must recognize on its own. And since the court of appeals did not address this unassigned error on its own, we should not address it either. No case that addresses the absence of findings holds to the contrary. In Wicker, the issue was raised by the defendant in the court of appeals and was addressed by that court. Green was a death- penalty appeal in which the trial court filed its findings late, and the defendant claimed in a point of error that the appeal should be abated for the timely entering of findings. In Bonham v. State, one of the cases relied upon in Green, the defendant did not raise the issue. But that case was also a death penalty appeal, and therefore did not involve consideration of the issue by a second-level appellate court. McKittrick and prior cases were decided before the intermediate courts had criminal jurisdiction.

Finally, the absence of findings was not raised as an issue in a petition for discretionary review before this Court. The State did not raise it, and appellant did not file a cross-petition. Therefore, we should not address the issue.

In sum, we should not address the issue of the absence of findings because it was not raised at trial, was not raised on direct appeal, was not addressed by the court of appeals, and was not raised in this Court. It should be an exceedingly rare occurrence for this Court to address on discretionary review an issue that has not been raised at any level in the judicial system. In my opinion, this is not one of those occurrences.

I respectfully dissent.

      . Urias v. State, 155 S.W.3d 143, 2004 WL 2347789, *1-2, 2004 Tex.Crim.App. LEXIS 1751 at 4-5 (October 20, 2004).

      . Urias v. State, 104 S.W.3d 578, 585 (Tex.App.-El Paso 2003)("The State correctly points out that because there were no explicit findings of historical facts by the trial court in this case, the evidence must be viewed in a light most favorable to the trial court’s ruling”).

      . 4 S.W.3d 720 (Tex.Crim.App.1999).

      . 851 S.W.2d 275 (Tex.Crim.App.1991).

      . 740 S.W.2d 779 (Tex.Crim.App.1987).

      . McKittrick v. State, 535 S.W.2d 873, 875 (Tex.Crim.App.1976),

      . See Wicker, 740 S.W.2d at 783.

      . 4 S.W.3d at 728.

      . See id. at 728-729 (trial court not required to enter findings to support a conclusion that a confession was in voluntary).

      . Saldano v. State, 70 S.W.3d 873, 888-889.

      . Marin, 851 S.W.2d at 279.

      . 906 S.W.2d 937 (Tex.Crim.App.1995).

      . Green, 906 S.W.2d at 939.

      . Wright v. State, 981 S.W.2d 197, 199, 199 n. 2 (Tex.Crim.App.1998).

      . See e.g. Things Remembered v. Petrarca, 516 U.S. 124, 132, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995)(“every federal court, whether trial or appellate, is obliged to notice want of subject-matter jurisdiction on its own motion”).

      . See Whatley v. State, 946 S.W.2d 73, 76 n. 6 (declining to address "timing” issue because it was not raised before or considered by the Court of appeals).

      . 740 S.W.2d at 782.

      . 906 S.W.2d at 938.

      . 644 S.W.2d 5 (Tex.Crim.App.1983)

      . Id. at 6-8.

      . See McKittrick, supra.

      . Whatley, 946 S.W.2d at 76 n. 6 (declining to address "timing” issue discussed in dissenting opinion: even if Court of appeals opinion could be interpreted as addressing the timing issue as unassigned error, it was not raised in the petition for discretionary review).


author:
HOLCOMB, J.,
      JOHNSON, J.,

text:
    Ramiro FLORES, Jr., Appellant, v. The STATE of Texas.
    No. PD-1908-02.
    Court of Criminal Appeals of Texas.
    Dec. 15, 2004.

      M. Patrick Maguire, Kerrville, for Appellant.
    E. Bruce Curry, District Attorney, Kerrville, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

HOLCOMB, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and MEYERS, WOMACK, HERVEY, and COCHRAN, JJ„ joined.

The issue we decide today is whether, absent a compelling need for the testimony, it is error to order defense counsel to testify over objection when called by the State as a fact witness. We conclude it is and reverse the judgment of the appellate court.

I. The Relevant Facts

A jury convicted appellant of aggravated assault, and the trial court, after finding the enhancement paragraphs true, sentenced him to fifteen years in prison. The victim was stabbed several times during a knife fight in a nightclub restroom. However, the issue of who actually stabbed him was hotly contested at trial. In support of his theory, defense counsel elicited testimony that the victim had been unable to identify the defendant during an earlier pre-trial hearing and had to ask the court interpreter who the defendant was. Although defense counsel never got a straight answer from the victim, the State requested permission to call defense counsel as a witness in an attempt to rebut this “false impression.” Defense counsel objected, but was ordered to testify as to his recollection of the incident between the victim and the interpreter. Defense counsel testified that he did not hear the victim ask the interpreter to identify the defendant.

II. The Appellate Issues

The exact issue upon which we granted review is “whether the court of appeals was correct in holding there is no reversible error when the State calls defense counsel as a witness to testify on behalf of the State during the guilt/innocence phase of appellant’s jury trial.” Appellant complains that (1) he was denied a “fair trial,” and (2) he received ineffective assistance of counsel under the Sixth Amendment.

In addressing these arguments, the court of appeals concluded that appellant’s reliance on our decision in Ford v. State was misplaced; defense counsel’s credibility was not undermined by the ordered testimony; and the ineffective assistance complaint involved a “self-interest conflict,” therefore, harm was not presumed and, moreover, none was shown. As to appellant’s fair-trial complaint, the court of appeals does not expressly hold whether the trial court erred by ordering defense counsel to testify over objection. The opinion suggests that the appellate court found no error, but even if it was error, it was harmless. As to appellant’s Sixth Amendment argument, the appellate court applied our holding in Monreal v. State, 947 S.W.2d 559 (Tex.Crim.App.1997) to find that trial counsel was burdened with a conflict of interest, but found no harm. We find the underpinnings and rationale of the court of appeals’s implicit and express holdings unreasonable for a number of reasons. However, that is not to say that the court of appeals did not take great pains to reach a sound result, or that its reasoning is entirely illogical or lacking in thought. Indeed, the most daunting task before this court, and presumably the lower court too, was fashioning a workable rule that is fair to both the State and the defense bar when there is little Texas precedent and while bearing in mind the primacy of the rights of the accused. Thus, we find that the appellate court’s judgment cannot be affirmed because it failed to consider fully the implications of the practice of calling defense counsel as a fact witness for the State in a criminal proceeding. Accordingly, based on our analysis below, we hold that the court of appeals erred.

III. Analysis

As noted, appellant’s complaint is based on two grounds: (1) his right to a fair trial in violation of Texas and federal law, and (2) a violation of the right to effective assistance of counsel. We find appellant’s argument under the first ground compelling, and therefore do not address his second argument.

It is not surprising that our decisional law is sparse when it concerns defense counsel being called to testify against his own client during the client’s criminal prosecution. In fact, over forty-five years have passed since we have addressed such a complaint. In Ford v. State the State called trial counsel to the stand and elicited testimony in the presence of the jury designed to show that trial counsel had, in some fashion, acted improperly during jury selection. We reversed, holding that “[t]he questions propounded were clearly improper, and the trial court fell into error when he overruled the timely objection made thereto.” Our decision in Ford is the likely reason that prosecutors across the state have since refrained from requesting testimony from defense counsel during a criminal prosecution. This is not a mere supposition, because the practice has been tolerated in varying degrees in other jurisdictions by applying a “compelling need” test. Nevertheless, since Ford, the rule in Texas has been that calling defense counsel as a fact witness for the State is error. However clear our edict was, we did not espouse a test for harm. In fashioning our test today, we considered the policy behind the lawyer-witness rule, authority from other jurisdictions, and federal law.

Those state and federal courts that have addressed the issue of calling defense counsel as a witness in a criminal trial have been very reluctant to permit such an action. Permitting a prosecutor to call the defendant’s attorney as a witness “inevitably confuses the distinctions between advocate and witness, argument and testimony, [and] is acceptable only if required by compelling and legitimate need.” Under the compelling need test, which we adopt today, the State must show that: (1) there is no feasible alternative for obtaining and presenting the information to the jury except through defense counsel’s testimony; and (2) the testimony is essential, not merely relevant, to the State’s case. It is error to order defense counsel to testify as a witness in the trial unless the trial court determines, outside the presence of the jury, that there is a compelling need for defense counsel’s testimony under this two-pronged test.

In Venable v. State, the Court of Special Appeals of Maryland ordered a new trial under circumstances similar to those here. The prosecutor called Venable’s lawyer to the stand to impeach the testimony of a non-party witness. The State argued to the jury that securing defense counsel’s testimony “was the only way I had of showing you at that time that [the non-party witness] was lying.” After concluding that “putting defense counsel in the position of a prosecution witness is something that ‘should be avoided whenever possible,’ ” the Maryland court found that, as a practical matter, the situation prevented the attorney from performing his duties and consulting with his client; that there was no way to assure that the attorney’s credibility would not be adversely affected; and moreover, the record did not reflect the right to introduce impeachment testimony.

On the record before us, we conclude that the State did not demonstrate a compelling need for defense counsel’s testimony because there was no showing that the interpreter was unavailable. Moreover, the testimony was not essential to the State’s case. The State argued that the testimony was necessary to repair a “false impression” by defense counsel. But, in our view, defense counsel did not necessarily leave a “false impression” by questioning the victim about his need to ask the identity of his attacker. The record does not reflect whether someone else told defense counsel that the victim asked about the identity of his attacker. Regardless, these facts do not present an appropriate situation where the testimony could be properly admitted under this exception; therefore, it cannot be fairly said that defense counsel’s testimony was essential to the State’s case under the second prong of our compelling need test. That is, defense counsel did not necessarily leave a false impression-he merely elicited probative testimony. Accordingly, we hold that the trial court erred under both prongs of our compelling need test in ordering the testimony over objection. And, as explained below, we hold that the error was harmful.

The court of appeals reasoned that the substance of the testimony bore only on a trivial matter and therefore could not have affected the jury’s decision. Examining the harm as resulting from just the substance of the testimony is not the proper focus. The court of appeals concluded that the “testimony neither strengthened the State’s case nor weakened Flores’s case,” and it was unlikely that, in view of the overwhelming evidence of guilt, “the average juror would have found the State’s case less persuasive had the State never called defense counsel to testify.” Flores, 90 S.W.3d at 880. This is beside the point. The harm flows, in part, from placing the lawyer in a dual role and the impressions created thereby, which is the primary concern of the lawyer-witness rule cited to us by appellant. Tex. DisciplinaRY R. PROF. Conduct 3.08.

The facts of Venable illustrate the problem with looking to just the substance of the testimony in determining whether a defendant is harmed by this type of error. In Venable, the facts to which the attorney testified were merely collateral — i.e., whether the witness was notified by defense counsel about the criminal trial. The harm, as perceived by the Maryland court, had nothing to do with the substance of the testimony. Instead, the court addressed its concern to the overall effect of such a practice.

We believe a standard harm analysis would be inadequate to address the error which is brought to bear on the proceeding itself. Framing the harm in this fashion demonstrates why a Strickland analysis, as adopted by the court of appeals, is inadequate to address this type of error. If the focus is on the substance of the testimony, it obscures the greater consideration of the continuing credibility of defense counsel as an advocate after testifying as a witness. These policy considerations, at the very heart of the lawyer-witness rule, should be the focus of the harm analysis — not whether, upon the entire record, the substance of the testimony elicited prejudiced appellant’s case.

We hold that, when there is a compelling need to call defense attorney as a witness in the case, the trial court must take all appropriate ameliorative measures to prevent harm. Appropriate ameliorative measures include, but are not limited to: (1) substitution of another attorney to replace defense counsel once it becomes apparent that the testimony is required; and (2) appointment of an additional attorney to represent the defendant during the questioning of defense counsel if there is a compelling need for counsel to testify. The failure to take such measures affects the analysis. The trial court must also be confident that defense counsel’s credibility before the jury will not be impugned, tarnished, or discredited in any way; the jury will not be confused by the testimony, the subsequent argument relating to the testimony, or the break in the proceedings; and the testimony will not involve, relate to or touch upon any privileged communication.

A lawyer acting as witness against his client cannot properly perform his, duties to his client. With the lawyer on the stand and the client at counsel table, “it is impossible for the defendant to consult with his attorney.” And, a lawyer who is testifying for the State cannot adequately protect the record. With our preservation rules, it would be a super-human accomplishment to lodge proper and specific objections to the questions while testifying for the State. Additionally, one would have to avoid divulging any privileged information and inadvertent admissions and anticipate the effect of one’s answers, while keeping in mind the issues upon which cross-examination of oneself would be required. And, after being burdened with this impossible task, the lawyer would then be faced with cross-examining himself and arguing the client’s case to the jury. Putting a defense attorney in the position of arguing his own credibility to the jury is akin to striking the defendant over the shoulder of his attorney. Our overall concerns were succinctly stated by the Ohio Court of Appeals in State v. Livingston:

The adversary system of justice is predicated upon the proposition that justice will most surely prevail when adversaries are pitted one against the other. Under that system, it is the sworn duty of defense counsel to use all honorable and legal means to defend a client charged with a crime. It is inconceivable that a lawyer, seeking to convince a jury of the innocence of his client, or that the accused has not been proven guilty, can perform that high duty when he assumes the dual role of defense counsel and witness for the prosecution. Such a procedure sullies the entire legal profession. More particularly, it is manifestly unfair to the honorable trial counsel in this case, who was forced, against his will, to testify against the very client he was sworn to defend; his credibility as a lawyer immediately becomes suspect in the eyes of the jury. Above all, it was unfair to the defendant, who was convicted with the help of his own lawyer’s testimony.

Thus, in accordance with our holding today, the State may indeed call defense counsel to the stand, and the court may require the lawyer testify, but the State will do so at its own peril.

III. Conclusion

Because the trial court did not undertake any ameliorative measures, the concerns brought about by calling defense counsel as a witness against his own client have not been assuaged here. Therefore, we reverse the court of appeals and remand for a new trial.

JOHNSON, J., filed a concurring opinion in which PRICE, J., joined.

KEASLER, J., concurred in the result.

JOHNSON, J.,

filed a concurring opinion in which PRICE, J., joined.

Today the court adopts the compelling-need test as the standard for determining whether during a criminal trial, the state may properly call, as a fact witness for the state, the defense counsel in that trial. While the test is narrow and the burden on the state properly heavy under this test, I do not believe that it completely addresses the problem.

Very rarely will circumstances permit the state to carry its burden of demonstrating the lack of a feasible alternative and critical need for the testimony. In the few cases in which the state can demonstrate such compelling need, that need will almost always have been evident long before trial begins and should have been addressed before trial by a motion to disqualify or other appropriate motion. See Brown v. State, 921 S.W.2d 227, 231 (Tex.Crim.App.1996)(Keller, J., coneur-ring)(the state must show that the testimony is important to the state’s case or is required to rebut the defense case and that “the need for the testimony could not reasonably have been anticipated”). In such a case, the state should not be permitted to ambush the defense during trial, and a request for the opposing counsel to testify should be denied. The same should be true when a defense attorney seeks to call a prosecutor as a witness.

If the compelling need is claimed to have arisen during trial, as is the assertion here, it will most likely be the result of counsel’s conduct during trial. In this case, the prosecutor’s excuse for calling defense counsel was that counsel had created a “false impression” by questioning the complainant about his identification of the defendant as the person who had stabbed him, a proper inquiry. There was no “false impression,” but even if there had been, as the court of appeals noted, “ ‘false impressions’ left by defense counsel’s questioning of witnesses is best addressed by skillful re-direct or re-cross examination by the State, not by calling defense counsel as a witness.” The most appropriate action by the state would have been to call the interpreter who had allegedly been asked for help in identifying the defendant and who was the only person who could testify from personal knowledge. Instead, the prosecutor improperly called the defense counsel, who had no personal knowledge and who had properly attempted to impeach the complainant’s identification of his client’. When the state disrupts the attorney — client relationship in such a manner, the client is unrepresented during the time that the counsel is testifying, a constitutional violation. The counsel is put in an ethical bind: how to maintain confidentiality, how to zealously represent, how to cross-examine oneself effectively-all without compromising the client’s interests. It is also likely that the jury may be confused by the defense counsel’s dual role or that counsel’s credibility would be compromised in the eyes of the jury; is defense counsel speaking as an advocate for the defendant or as a witness for the state?

Pending in this Court is another appeal, from Kendall County, in which the court of appeals noted that this same prosecutor, citing the creation of “false impressions” by defense counsel, called herself as a witness, testified to an irrelevant and collateral matter, revealed the substance of pre-trial negotiations with defense counsel, declined to allow herself to be cross-examined by the defense counsel, and then “resumed her role as an advocate for the state and continued to try the case.” The prosecutor in this cause has demonstrated an unfortunate tendency to abuse her authority to call witnesses. Such conduct is reprehensible in a public official and ought to be soundly censured, especially when the conduct is a continuing course of conduct, not a single lapse.

Article 2.01 of the Texas Code of Criminal Procedure states that it “shall be the primary duty of all prosecutors, ..., not to convict, but to see that justice is done.” Justice is not done when the defendant is deprived of a fair trial by the actions of the prosecutor.

I concur in the judgment of the Court.

      . Appellant argued that he was denied a fair trial based on Ford v. State, 166 Tex.Crim. 347, 314 S.W.2d 101 (App.1958), Texas Disciplinary Rule of Professional Conduct 3.08 (the lawyer-witness rule), and his right to a fair trial under the Fourteenth Amendment of the United States Constitution.

      . Flores v. State, 90 S.W.3d 875, 880, 883 (Tex.App.-San Antonio 2002).

      . Appellant argues that permitting the State to call defense counsel as a witness in a criminal trial "undermines the adversarial process that is the cornerstone of the principle of Due Process guaranteed by the 14th Amendment to the United States Constitution.” We agree. One can envision the "great mischief” that may result when defense counsel is called as a prosecution witness. Hanks v. United States, 420 F.2d 412, 413 (10th Cir.1970).

      . 314S.W.2dat 102.

      . Id.

      . Ullmann v. State, 230 Conn. 698, 717-18, 647 A.2d 324, 334 (1994) (adopting compelling need test to be applied when either side in a criminal case seeks to call a prosecutor or defense attorney, who is or has been professionally involved in the case, to testify); see also United States v. Freeman, 519 F.2d 67, 68 (9th Cir.1975); United States v. Hall, 346 F.2d 875, 882 (2d Cir.1965) (“Defense counsel served merely as a conduit for transmission of a message.”).

      . See generally LaFave & Israel, Criminal Procedure § 27.6(a) (2d ed.1999) (origins of harmless error review). Texas’s former harmless error rule was promulgated in 1986. TexR.App. P. 81(b)(2).

      . Comment 4 to the lawyer-witness rule provides in its entirety as follows; "In all other circumstances, the principal concern over allowing a lawyer to serve as both an advocate and witness for a client is the possible confusion that those dual roles could create for the finder of fact. Normally those dual roles are unlikely to create exceptional difficulties when the lawyer's testimony is limited to the areas set out in sub-paragraphs (a)(l)-(4) of this Rule. If, however, the lawyer's testimony concerns a controversial or contested matter, combining the roles of advocate and witness can unfairly prejudice the opposing party. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” Tex. Disciplinary R. Prof. Conduct 3.08 (1994).

      . C.f. United States v. Prantil, 764 F.2d 548, 551-54 (9th Cir.1985) (discussing advocate-witness rule and concluding that, while there is no absolute bar to calling a prosecutor as a witness, sponsoring party must show "a 'compelling need’ before a participating prosecutor will be permitted to testify”); Ullmann v. State, 647 A.2d at 333-37 (adopting "compelling need” test when either party in a criminal case seeks testimony from an opposing advocate).

      . United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir.1975).

      . C.f. Prantil, 764 F.2d at 551; United States v. Torres, 503 F.2d 1120, 1126 (2d Cir.1974) ("[t]here was no showing that any of the other people who were in the courtroom at the time Ortiz and Torres allegedly conversed, such as marshals, court clerks, court reporters or interpreters, were unavailable to testify”).

      . 108 Md.App. 395, 672 A.2d 123 (Md.Ct. Spec.App.1996). Venable was charged with distribution of cocaine.

      . Id. at 128.

      . Id. (citing Kaeser v. State, 96 Nev. 955, 620 P.2d 872, 874 (1980)).

      . Id. at 128-29.

      . As noted by the court of appeals, "[t]he interpreter's availability to testify was never explored at trial.” Flores, 90 S.W.3d at 880 n. 2.

      . An exception to the general rule that a party is not entitled to impeach a witness on a collateral matter exists where a witness has left a false impression concerning a matter relating to his or her credibility. Flannery v. State, 676 S.W.2d 369, 370 (Tex.Crim.App.1984). In such a case, the opposing party is allowed to correct that false impression.

      . It is clear to us that the situation here did not trigger the exception to the general rule preventing cross-examination on a collateral matter. See Flannery v. State, 676 S.W.2d at 370.

      . We find appellant’s additional argument on this point persuasive. In his brief on the merits, he states that “[t]o permit this practice breaches the integrity of the constitutional process leading to a defendant's conviction. If we are to maintain the integrity of the process, it is not enough to simply say 'the evidence against the defendant was overwhelming, or the testimony of the defendant’s attorney did not harm defendant, therefore, the conviction stands despite the impropriety of calling the defense attorney as a witness.' ”

      . State v. Livingston, 30 Ohio App.2d 232, 285 N.E.2d 75, 77 (1972) ("the fact that defendant’s counsel was called as a witness for the state taints this entire trial so that the defendant was denied the fair trial to which he is entitled.").

      . Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Moreover, our examination of the record reveals that the evidence of guilt was not "overwhelming” as the court of appeals found. Flores, 90 S.W.3d at 880. For example, during the investigation, the complaining witness first identified appellant's brother as the perpetrator, who, when called to testify at appellant's trial, refused to testify, asserting his Fifth Amendment right against self-incrimination.

      . The trial court must inquire of the defendant — not defense counsel — whether a new attorney is desired. See Venable, 672 A.2d at 129.

      . Kaeser v. State, 620 P.2d at 873-74 (finding that right to appear and defend in person under Nev. Const, art 1, § 8, and an accused’s "sixth-amendment right” to counsel, offended by calling defense counsel as rebuttal witness).

      . Id.

      . See id.; Tex.R.Apf. P. 33.1.

      . We note that the most likely source of the information concerning the complaining witness’s inability to name his attacker was appellant, who was seated next to his'attorney.

      . Attempts to cross-examine oneself may take on a ludicrous appearance. State v. Thomas, 53 Or.App. 375, 631 P.2d 1387, 1390 (1981).

      . Id. (whether an attorney is able to retain a truly adversary posture, when it may appear to a jury that he is playing on both teams, is at least problematical.).

      . Bray v. State, 478 S.W.2d 89, 90 (Tex.Crim.App.1972); Summers v. State, 147 Tex.Crim. 519, 182 S.W.2d 720, 721-22 (1944).

      . 285 N.E.2d at 77.

      . Flores v. State, 90 S.W.3d 875, 884 (Tex.App-San Antonio 2002).

      . The burden is on the proponent to show the unavailability of a witness. Boyd v. State, 643 S.W.2d 708, 709 (Tex.Crim.App.1982)(appellant's proffered testimony by a witness in a prior proceeding was excluded; "He could have presented the witness in person to testify, or, by making proper demonstration of unavailability of that witness, he could have presented evidence of the defensive theory by alternative means.”) There is nothing in the record to indicate that any inquiry was made as to the availability of the interpreter.

        .See Texas Disciplinary Rules of Professional Conduct, Rule 3.08, Comment 4 (2003)("the principal concern over allowing a lawyer to serve as both an advocate and witness for a client is the possible confusion that those dual roles could create for the finder of fact.”).

      . Brown v. State at 231.

      . Ramon v. State, No. 04-02-00219-CR, 2003 WL 22082410, 2003 Tex.App. LEXIS 7892 (Tex.App.-San Antonio, September 10, 2003)(not designated for publication).

        .Id., slip op. at 6.


author: KEASLER, J., COCHRAN, J.,

text:
    Bobby Doyle GETTS, Appellant, v. The STATE of Texas.
    No. PD-0093-04.
    Court of Criminal Appeals of Texas.
    Jan. 26, 2005.

      Nancy Paula Perkins, Athens, for Appellant.
    Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court

in which PRICE, WOMACK, JOHNSON, HERVEY, and HOLCOMB, JJ., joined.

Bobby Doyle Getts was charged with a DWI committed in 2002. The indictment alleged two previous DWI convictions— one in 1997 and one in 1984. We must decide whether these previous convictions were sufficient to elevate the 2002 offense to a third-degree felony. Based on the 2001 amendments to the DWI statute, we conclude that the answer is no.

Facts and Procedural History

Getts was charged by indictment with driving while intoxicated. The indictment further alleged that prior to the commission of that offense, Getts had been convicted of DWI on April 26, 1984 and on September 11, 1997. In an enhancement paragraph, the indictment alleged that Getts had been previously convicted of felon in possession of a firearm.

Getts’s lawyer filed a pretrial motion to dismiss, arguing that the indictment failed to allege a felony DWI because the 1984 prior conviction “occurred more than 10 years before the offense being charged in this case.” Getts filed a pro se motion to quash indictment on the same grounds. The trial court held a hearing and overruled Getts’s motions. Getts then pleaded guilty pursuant to a plea bargain agreement for three years and the State’s abandonment of the enhancement paragraph.

Getts filed notice of appeal. His appointed counsel filed an Anders brief, and Getts filed a pro se appellate brief arguing that the trial court erred in denying the pretrial motion to dismiss and that the trial court lacked jurisdiction because this was not a felony DWI. The Court of Appeals agreed. It found that the 1984 conviction “[met] each of the requirements for remoteness” under Penal Code § 49.09(e) and therefore was unavailable for enhancement. As a result, the appellate court reformed Getts’s judgment to a class B misdemeanor and remanded to the trial court for sentencing. The court denied the State’s motion for rehearing, noting that § 49.09(e) “is unambiguous on its face.”

We granted the State’s petition for discretionary review to decide whether the Court of Appeals correctly interpreted § 49.09(e).

Analysis

When discerning the meaning of a statute, we begin with its plain language. Our leading case in statutory interpretation, Boykin v. State, instructs us to first “focus our attention on the literal text of the statute in question” because “the text of the statute is the law.” If that language is clear and unambiguous, the plain meaning of those words is applied. But if the plain language leads to absurd results that the Legislature could not possibly have intended, or if the language is ambiguous, we may consider extra-textual factors to determine the statute’s meaning.

Section 49.09(e) reads as follows:

Except as provided by Subsection (f), a conviction may not be used for purposes of enhancement under this section if:
(1) the conviction was a final conviction under Subsection (d);
(2) the offense for which the person is being tried was committed more than 10 years after the latest of:
(A) the date on which the judgment was entered for the previous conviction;
(B) the date on which the person was discharged from any period of community supervision on which the person was placed for the previous conviction;
(C) the date on which the person successfully completed any period of parole on which the person was released after serving a portion of the term to which the person was sentenced for the previous conviction; or
(D) the date on which the person completed serving any term for which the person was confined or imprisoned for the previous conviction; and
(3) the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2).

Initially, the statute states that “a conviction may not be used for purposes of enhancement under this section if....” This phrase refers to one conviction, not two. The statute does not say “two convictions may not be used for enhancement if....” Therefore, it applies to prior convictions individually, not collectively. The statute provides the framework for determining if either of Getts’s prior convictions is available for enhancement. We must consider one prior conviction at a time.

We will begin with Getts’s 1984 prior conviction. The easiest way to understand this statute is to plug the relevant facts into it, and then read it. So every time the statute refers to “the previous conviction,” we will plug in the 1984 conviction. When it refers to the current offense, we will plug in Getts’s 2002 offense. We will also plug in “Getts” every time the statute refers to “the person.” Now the statute reads as follows:

The 1984 conviction may not be used for purposes of enhancement if:
(1) the 1984 conviction was a final conviction under Subsection (d);
(2) the 2002 offense was committed more than 10 years after the latest of:
(A) the date on which the 1984 judgment was entered;
(B) the date on which Getts was discharged from any period of community supervision on which he was placed for the 1984 conviction;
(C) the date on which Getts successfully completed any period of parole on which he was released after serving a portion of the term to which he was sentenced for the 1984 conviction; or
(D) the date on which Getts completed serving any term for which he was confined or imprisoned for the 1984 conviction; and
(3) Getts has not been convicted of any other offense related .to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2).

The next step in filling in the blanks is to determine, under subsection (2), the latest of (A), (B), (C), or (D) for the 1984 conviction. In that case, Getts was convicted of DWI on April 26, 1984. The record reflects that he served three days in jail after being convicted, apparently due to credit for time in custody awaiting trial. He did not receive community supervision or parole; instead, he discharged the sentence after three days. So the latest date under those four options is (D), the date he completed his term. That date is April 29,1984.

Now we can read the statute as follows:

The 1984 conviction may not be used for purposes of enhancement if:
(1) the 1984 conviction was a final conviction under Subsection (d);
(2) the 2002 offense was committed more than 10 years after April 29, 1984; and
(3) Getts has not been convicted of any other offense related to operating a motor vehicle while intoxicated within 10 years of April 29,1984.

We now must consider subsection (3), whether Getts was convicted of another alcohol-related offense within 10 years of April 29, 1984. The record reflects that he was convicted of DWI on September 11, 1997. That is more than 10 years from April 29, 1984. No other alcohol-related offense is in the record.

Under the statute, all three conditions must be met for the conviction to be unavailable for enhancement. Otherwise, the conviction is available for enhancement. In this case, all three conditions are met:

(1) The 1984 conviction is a final conviction.

(2) The 2002 offense was committed more than 10 years after April 29, 1984.

(3) Getts was not convicted of another alcohol-related offense within 10 years of April 29,1984.

Because all three conditions are met, the 1984 conviction is unavailable for enhancement. And without that conviction, the current offense ceases to be a felony DWI. There is no need to apply the statute to the 1997 conviction because both prior convictions are needed to elevate this offense to a felony, and the 1984 conviction is unavailable.

No Absurd Result

The State concedes that this is what the literal text of the statute provides. It argues, however, that this creates an absurd result. The State points out that, under this interpretation, a 100-year-old conviction could be used if the defendant also had a 90-year-old conviction, but a 12-year-old conviction cannot be used if the other conviction was just 1-year-old.

The State’s assessment is correct, but we disagree that this result is absurd. There is nothing absurd about a statutory interpretation which results in certain pri- or convictions being available for enhancement and others not being available. Indeed, our interpretation of the statute is not all that different from the State’s. The appendix is useful in comparing the two interpretations. It takes each possible set of facts and demonstrates whether the convictions would be available for enhancement under the State’s interpretation of the statute and under our interpretation. For simplicity’s sake, the latest date of the four options under § 49.09(e)(2) is referred to simply as the “discharge date.”

As is evident from the appendix, the State differs from us in only two situations — situations C and D. In situation C, the State would find neither conviction available for enhancement, and we find both available. In situation D, the State would find both convictions available for enhancement, and we find only the most recent conviction available. But in the remaining situations, the interpretations are identical. The State’s fear of our interpretation having a drastic narrowing effect on the law is unwarranted. For the most part, the results are no different.

Legislative History

The State also argues that following the literal text of the statute is, in this case, counter to legislative intent. Boykin instructs us to follow the literal text if it is unambiguous and not absurd, and that is what we do in this case. There is no basis here for proceeding to extra-textual factors such as legislative intent.

Additionally, the State’s argument regarding legislative intent is unpersuasive. This statute originated in House Bill 314, which stated that a conviction for intoxication manslaughter could be used to enhance under § 49.09(e) no matter when it occurred. Later, the House Criminal Jurisprudence committee issued a substitute version of the bill which added the language now found in § 49.09(e)(2). That bill never got beyond the House, but its substance was found in House Bill 2250. The introduced version of HB 2250 contained the language concerning involuntary manslaughter. When the bill went to the Senate, the Senate Criminal Justice committee presented a substitute version that added the language now found in § 49.09(e)(2).

But the final version of HB 2250 made an additional change, one that seems minor but actually had a tremendous effect on the law. That version changed what was the pre-2001 version of § 49.09(e)(2) into what is now § 49.09(e)(3). The previous version said:

the person has not been convicted of an offense under [any intoxication-related penal provision] committed within 10 years before the date on which the offense for which the person is being tried was committed.

The version created by the enrolled version of HB 2250 says:

the person has not been convicted of an offense under [any intoxication-related penal provision] within 10 years of the latest date under Subdivision (2).

The State concedes that this .change is significant. The previous version measured the time between the date the prior offense was committed and the date that the current offense was committed. The amended version measures the time between the date of the conviction for the prior offense and the date listed under Subdivision (2). And subdivision (2) refers to the latest date for a previous conviction, not the current offense. So this portion of the statute now measures a completely different time period than it did before.

This change was made in what Senator Moncrief described during a public hearing as “a floor amendment that merely removes the duplicative language and makes appropriate technical clean-ups, but no substantive changes.” He then described it on the House floor in the following manner: “merely a legislative council clean-up, removes duplicative language, makes no substantive changes to the bill.” The problem is, as the State acknowledges, he was wrong. Regardless of what he or the Legislative Council intended, the amendment was substantive.

Where does that leave a court attempting to interpret a statute? The State argues that we should follow the Legislature’s intent regardless of what it wrote. But we interpret the Legislature’s statutes, not its intentions. We must give effect to the Legislature’s change in the law regardless of whether the change was intended. As the Supreme Court reminded us earlier this year, “[i]f Congress enacted into law something different from what it intended, then it should amend the statute to conform it to its intent. It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think ... is the preferred result.” The D.C. Circuit explains, “whatever degree of confidence about congressional purpose one derives from the legislative history, that purpose must find expression ‘within the permissible limits of the language’ before it can be given effect.”

In this case, it may have been the Legislature’s intent to make merely technical, non-substantive changes in the floor amendment to HB 2250. Instead, it made substantive changes to the law, which we must consider in our interpretation of the statute.

Conclusion

The plain language of § 49.09(e) is clear and it does not lead to an absurd result. We affirm the judgment of the Court of Appeals.

KELLER, P.J., and MEYERS, J., dissented without opinion.

COCHRAN, J., filed a dissenting opinion.

COCHRAN, J.,

filed a dissenting in which KELLER, P.J. and MEYERS, J., joined.

I respectfully dissent. “Our constitutional duty, of course, is to effectuate what the Legislature intended when it enacted the statute.” It is beyond peradventure that the Texas Legislature did not intend to enact any dramatic substantive changes to the felony DWI enhancement statute in its 2001 amendment. The infelicitous language found in the amendment to section 49.09(e) of the Texas Penal Code is a drafting mistake and the result of a last-minute floor amendment which promised “no substantive change” in the law. The Texas Legislature can, and probably will, quickly repair its drafting error, but I think that we ought not apply a rigid “plain language” interpretation to statutory language that we know was not intended by the Legislature, created a statutory ambiguity, and is nothing more than a technical error.

In this case, the two jurisdictional enhancement paragraphs alleged prior DWI convictions in 1984 and 1997. The trial court overruled appellant’s motions to dismiss or quash the indictment which asserted that the 1984 conviction was too remote to use because it occurred more than ten years before the present offense. The Twelfth Court of Appeals reversed, holding that the 2001 amendments to Section 49.09(e) limited the use of prior DWI convictions for enhancement purposes to those which occur within ten years of each other.

We granted review to determine whether the court of appeals correctly interpreted the 2001 amendment. Because I find that the plain language of amended section 49.09(e) is ambiguous, I would apply the usual statutory construction aids. I conclude that the relevant ten-year period is the time between the commission of the present or primary offense and the date of the defendant’s discharge from probation, parole, or incarceration for the most recent prior DWI. Therefore, I would reverse the court of appeals and affirm the judgment of the trial court.

I.

On May 23, 2002, appellant, Bobby Doyle Getts, was indicted for felony DWI. The indictment alleged that he had two prior convictions for DWI: one conviction on April 26, 1984, and another on September 11, 1997. Appellant filed motions to dismiss and to quash the indictment, arguing that the 1984 conviction could not be used for enhancement of the present DWI because it occurred outside the ten-year window set out in amended section 49.09(e). After the trial court denied the motions, appellant pleaded guilty to felony DWI and was sentenced to three years in prison.

The court of appeals reversed appellant’s conviction after concluding that the use of the 1984 DWI conviction to enhance the present offense from a misdemeanor to a felony was improper. The court of appeals concluded that the 2001 amendment to section 49.09(e) limits the use of prior DWIs for enhancement purposes by changing the relevant ten-year remoteness period from the former “ten years from the most recent prior offense to the date of the present offense” to “ten years between the most recent prior conviction and the date of the earlier prior conviction.” Because there was a greater than ten-year gap between appellant’s most recent prior conviction in 1997 and his earlier prior conviction in 1984, the court of appeals reversed the trial court’s judgment, ordered that the judgment be reformed to reflect a conviction for a class B misdemeanor, and remanded the case for a new punishment hearing.

II.

This case presents an issue of statutory interpretation of the Texas Legislature’s 2001 amendment to the ten-year remoteness rule for felony DWI enhancement. Under our traditional rules of statutory interpretation, we must look to the plain meaning of the language used. When the statutory language is “clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.” However, when the plain language is ambiguous or its straightforward application would lead to absurd results, courts may consider extra-textual factors to arrive at a sensible interpretation. Our overriding goal is to carry out the legislative intent of the law.

A. Historical Overview of DWI Enhancements

Although DWI is normally a misdemeanor offense, when a person has two prior DWI convictions, the third DWI charge may be elevated to a felony. The public policy rationales for increased penalties for repeat DWI offenders include:

(1) repeat offenders should be punished more severely for repeatedly endangering the public welfare; (2) harsher penalties for repeat offenders function as a deterrent, discouraging the offender and others from drinking and driving; and (3) the jail sentence for repeat offenders ... reflects the need to physically remove drunk drivers from public streets for a period of time, both as punishment for them and as protection for the rest of society.

Historically, Texas law provided that any me prior driving while intoxicated conviction, no matter how remote, could enhance a misdemeanor DWI offense to a felony. In 1983, that requirement was increased to two prior DWI convictions. Then, in 1993, the Legislature limited the elevation of a DWI to a felony only when the defendant had two prior DWI convictions, one of which had been committed within the ten-year period before the commission of the present offense. Under the 1993 law, the ten-year remoteness clock began ticking backwards from the date of the present offense to the date the person committed his most recent prior DWI.

B. The 2001 Amendments to the DWI Enhancement Statute

In 2001, the Legislature made changes to three provisions within section 49.09. First, any prior intoxication manslaughter conviction, regardless of whether it involved the use of a car, airplane, or boat, can be used to elevate a misdemeanor DWI to a felony DWI offense. Second, any intoxication manslaughter conviction, no matter how remote, can be used to enhance the present DWI offense. Third, the Legislature amended Section 49.09(e), the provision we are now charged with interpreting, to “modif[y] the ten-year time period to begin after the individual’s sentence is completely discharged.” The first two amendments broaden the enhancement provisions considerably by allowing for the use of any prior intoxication manslaughter convictions for enhancement, regardless of type or remoteness. At issue in this case is whether the Legislature’s change to section 49.09(e) broadened or drastically restricted the use of prior DWI convictions when there are two prior convictions rather than simply one.

C. The Boykin Plain Language Analysis

In interpreting a statute under Boykin, we look first to the plain language used. Amended section 49.09(e) states that a pri- or DWI conviction may not be used for enhancement if:

(1) the conviction was a final conviction under Subsection (d);
(2) the offense for which the person is being tried was committed more than 10 years after the latest of
(A) the date on which the judgment was entered for the previous conviction;
(B) the date on which the person was discharged from any period of community supervision on which the person was placed for the previous conviction;
(C) the date on which the person successfully completed any period of parole on which the person was released after serving a portion of the term to which the person was sentenced for the previous conviction; or
(D)the date on which the person completed serving any term for which the person was confined or imprisoned for the previous conviction; and
(3)the person has not been convicted of any offense ... related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2).

Under Subsections (A)-(D), the Legislature unambiguously changed the time at which the prior conviction clock begins ticking. Formerly, it had been the date of the commission of the offense. Now, it is a much later date — whichever date is the latest of the date of judgment, termination of community supervision or parole, or release from jail or prison. That change clearly broadens the use of a single prior conviction because it moves forward — closer to the time of the present offense — -the ten-year window.

The difficulty in interpreting Subsection (e) is deciding how it applies when the defendant has two prior DWI convictions. Does the clock run backward (as it did under prior law and as it does for a single prior conviction) to the date that the most recent prior conviction sentence expires and, if that conviction is not remote, revitalize any other earlier conviction? Or does the clock, for purposes of two prior DWI convictions, now run forward to measure only the ten-year interval between the first and second prior conviction?

The court of appeals said that the clock now runs forward from the earliest prior conviction. It reasoned:

Appellant’s 1984 conviction for DWI meets each of the requirements for remoteness because 1) the conviction was a final conviction, 2) the 2002 DWI offense was committed more than ten years after the 1984 date of conviction for DWI, and 3) the 1997 DWI conviction did not occur within ten year’s of the 1984 conviction.

Several other courts of appeals have followed the reasoning of the Tyler Court of Appeals. They have stated that, under the pre-2001 amendments, “the proper approach was to ‘look back’ ten year’s from the date of the primary DWI offense to determine whether an intervening DWI conviction had occurred since the remote conviction.” After the 2001 amendments, however, these courts reason that they are required to “look forward” from the earliest of the prior convictions to see if there is an intervening conviction within ten years of that earliest conviction. Viewed in a vacuum, this is a reasonable reading of the literal words of the statute.

However, I think that the plain language of this statute is ambiguous under Boykin because there are at least three other reasonable interpretations of the plain language in the amended statute. First, as suggested during oral argument on this case, the statute could be read to mean that the two prior DWIs both had to be within ten years of the present offense before they could be used for felony enhancement purposes. Second, the amended statute could be read to require “chaining” of prior convictions — the sentence on each prior DWI conviction used to enhance must have been completed within ten years of the next one. Third, as Professors Dix and Dawson read the amended statute, it could mean that “if the State proves two prior DWI convictions and the date of either conviction is not more than ten years before the commission of the primary offense,” the State may elevate the offense to a felony.

D. Extra-textual Considerations and Legislative Intent

Because each one of these four “plain language” interpretations is plausible, I believe that the statute is ambiguous under Boykin. Therefore, I would look to extra-textual considerations to determine the intent of the Legislature. The Code Construction Act, which provides the tools for interpretation when the plain language of a law is ambiguous, states that, in construing a statute, a court may consider the

(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws on the same or similar subjects;
(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provisions.

I would apply the first two factors — the object to be attained and the circumstances under which the statute was enacted — together because of their similarity in this instance. The 2001 Legislature’s first two amendments to Section 49.09 show the expansion of offenses (any and all prior intoxication manslaughter convictions regardless of remoteness) and the broadening of the time-window triggering the enhancement of the charged DWI offense (increasing it from the date of the commission of the prior offense to the latest date for which any sentence would affect the defendant). Additionally, the circumstances under which the 2001 amendments were enacted further support the legislative intent to broaden the scope of eligible offenses used for enhancement purposes. The Bill Analysis of HB 814 clarifies the background and purpose of the 2001 amendments in stating:

Under current law, if an individual is convicted of a third DWI within ten years of the date the previous offense was committed the offense is increased to a third degree felony offense. However, the ten-year period begins with the individual’s incarceration and could be partially or completely executed during the individual’s confinement. House Bill 314 modifies the ten-year time period to begin after the individual’s sentence is completely discharged and authorizes a previous conviction of intoxication manslaughter to be used for the purposes of enhancement regardless of when the conviction occurred.

Thus, the amendment’s stated purpose was to broaden the scope of DWI convictions that could be used for enhancement purposes.

Further, the legislative history of the 2001 amendment also reflects a broadening purpose. The original version of HB 2250 (the bill that eventually created the amendment to 49.09(e)) addressed only intoxication manslaughter. However, HB 2250 was amended by the addition of language from HB 314, discussed above, which modified the ten-year rule and was the basis for the present version of 49.09(e). The current language-interpretation dilemma was created by a floor amendment to HB 2250 by Senator Mon-crief. Senator Moncriefs introduction of HB 2250 stated that the proposed amendment was a way of closing loop-holes in the previous DWI enhancement statute. He explained:

Members, this bill closes some of the loop-holes in the DWI statutes, to ensure that repeat DWI offenders face appropriate charges. It provides that a person convicted of intoxication manslaughter — that is, someone who kills someone driving drunk — that any subsequent DWI would be a felony. It also states DWI penalty enhancements apply for up to ten years after the completion of the sentence for previous convictions,

In further explaining the purpose of the floor amendment to HB 2250, Senator Moncrief stated:

Mr. President, this is merely a Legislative Council clean-up amendment of language that was added on the House floor. The House added new language without removing the old statute, and this [current floor amendment] removes duplicative language to avoid confusion within the statute. It makes no substantive change to the billft

Senator Moncriefs floor amendment indicates that the amendment did not make any substantive changes to HB 2250, but rather, made the language in subsection(e)(3) congruent with the changes made to subsection (e)(2). Under this change, subsections (e)(2) and (e)(3) provide that the relevant time period is that looking backward from the commission of the present offense to the latest date under the revised Subseetion(e)(2) (i.e., the date of the conviction, or the date of the release from probation, parole, or confinement) of the most recent prior conviction. Thus, the legislative history indicates that the 2001 amendment was not intended to radically limit the scope of eligible prior DWIs used for enhancement purposes, but rather to broaden that scope.

There is no indication from any source that the Legislature intended the type of radical revision and limitation of the DWI felony enhancement statute that would occur under the interpretation given by the majority, the court of appeals, or by the first two alternate “plain language” possibilities — both prior DWIs within the single ten-year window before the commission of the charged offense or “chaining” of DWIs with each prior within ten years of the one before it. The interpretation given by the majority and court of appeals in this case has an additional deleterious effect: it unduly emphasizes the sins of one’s youth without regard for more recent reformation because two very remote DWIs would permit enhancement to a felony as long as both of those prior DWI convictions occurred within a ten-year window.

I cannot agree that the majority’s interpretation accords with the legislative intent or with the other two simultaneous amendments to section 49.09 which significantly broaden the use of intoxication manslaughter convictions to enhance a DWI offense to a felony. I think that the legislature intended to broaden, not drastically limit, the use of prior DWI convictions for enhancement purposes.

Furthermore, under the literal “plain meaning” of the words, no conviction obtained before September 1, 1994, is barred for enhancement purposes under the statute. As the State aptly points out, under section 49.09(e)(1), the ten-year rule prohibits the use of a prior DWI only if “the conviction was a final conviction under Subsection (d).” Subsection (d), however, refers only to convictions occurring on or after September 1, 1994. Therefore, under a purely technical application of the “plain meaning” rule, no conviction — regardless of how remote — obtained before that date is barred from use under subsection (e). Now, of course, that is not at all what the legislature intended. The clear intent of subsection (d) is to include within the definition of “final conviction” any conviction obtained after September 1, 1994, whose sentence was probated as well as those in which the sentence was “imposed.” But that is not what the literal words of the statute say. If we are to adhere to the “plain meaning” of the literal words in one subsection of article 49.09, we should, for the sake of consistency, adhere to the technical “plain meaning” in the other pertinent subsection of article 49.09. But in neither subsection would strict application of the literal words of the statute be a reasonable interpretation of the law or one that is in accord with legislative intent.

In sum, I would find that the most reasonable interpretation of the 2001 amendments is that of Professors Dix and Dawson. That interpretation is also most faithful to the legislative intent and history. Although the language of the 2001 amendment to the statute is infelicitous, I believe that the relevant ten-year period under section 49.09(e) is the time from the commission of the present DWI offense backwards to the date on which the defendant was discharged from probation, parole, or confinement for the most recent prior offense. If that conviction was discharged within ten years of the present offense, it revitalizes any other earlier DWI conviction — regardless of the date it was committed — for enhancement purposes.

I would reverse the decision by the court of appeals and affirm the judgment of the trial court.

Appendix

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Getts v. State, 156 S.W.3d 593, 2003 WL 22456104, 2003 Tex.App. LEXIS 9237 (Tex.App.-Tyler, Oct. 29, 2003), reh'g denied, 2003 WL 22956392, 2003 Tex.App. LEXIS 10546 (Tex.App.-Tyler, Dec. 16, 2003) (not designated for publication).

      . Id. at 595.

      . Id. at 596.

      . Getts v. State, 2003 WL 22956392, at *1, 2003 Tex.App. LEXIS 10546 *3 (Tex.App.Tyler, Dec. 16, 2003) (not designated for publication).

      . Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

      . 818 S.W.2d 782 (Tex.Crim.App.1991).

      . Id. at 785.

      . Id.

      . Id. at 785-86.

      . Lamie v. United States Tr., 540 U.S. 526, 542, 124 S.Ct. 1023, 1034, 157 L.Ed.2d 1024 (2004) (internal quotations omitted).

      . United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 495 (D.C.Cir.2004).

      . Kutzner v. State, 75 S.W.3d 427, 433 (Tex.Crim.App.2002); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991) (beginning its discussion of statutory interpretation with this statement: "[w]hen we interpret statutes ... we seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation. We do so because our state constitution assigns the lawmaking function to the Legislature while assigning the law interpreting function to the Judiciary”) (citations omitted, emphasis in original).

      . Getts v. State, 156 S.W.3d 594, 2003 WL 22456104,2003 Tex.App. LEXIS 9237 (Tex.App.-Tyler, Oct 29, 2003) (No. 12-03-00047-CR), reh’g overruled by 2003 WL 22956392, 2003 Tex.App. LEXIS 10546 (Tex.App.-Tyler, Dec. 16, 2003) (not designated for publication).

      .We granted the State Prosecuting Attorney’s sole question for review:
      Did the Court of Appeals correctly interpret the 2001 amendment to Penal Code § 49.09(e) such that the relevant ten-year period for an intervening conviction is now the period between the two prior DWI’s rather than the ten-year period before the date of the primary offense?

      . Getts, at 596, 2003 WL 22456104, at *1, 2003 Tex.App. LEXIS 9237 at *3.

      . See id. at 595. The two set-off parallel phrases are not direct quotations from the court of appeals’ opinion, but rather my rephrasing of language used by the court of appeals.

      . Id. at 596.

      . See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991); see also Badgett v. State, 42 S.W.3d 136, 138 (Tex.Crim.App.2001).

      . Boykin, 818 S.W.2d. at 785 (citations omitted).

      . Id. at 785-86. The appropriate extra-textual factors to consider are set out in Tex. Gov’t Code § 311.023.

      . Kutzner v. State, 75 S.W.3d 427, 433 (Tex.Crim.App.2002).

      . Tex. Pen Code § 49.09 et. seq.; see also Weaver v. State, 87 S.W.3d 557, 560 (Tex.Crim.App.2002), cert. denied, 538 U.S. 911, 123 S.Ct. 1491, 155 L.Ed.2d 234 (2003).

      . Guinn v. State, 696 S.W.2d 436, 438 (Tex.App.-Houston [14th Dist.] 1985, pet. ref'd).

      . Joles v. State, 563 S.W.2d 619, 622 (Tex.Crim.App.1978).

      . See Rawlings v. State, 602 S.W.2d 268, 270 (Tex.Crim.App.1980) (setting out enhancement provisions of art. 67011-2, V.A.C.S. (subsequent offense driving while intoxicated)); Edwards v. State, 166 Tex.Crim. 301, 302, 313 S.W.2d 618, 619 (1958) (setting out enhancement provisions of art. 802(b) V.A.P.C. (subsequent offense driving while intoxicated)).

      . See Guinn, 696 S.W.2d at 437 (noting that the 1983 law "is more lenient than the prior DWI statute in that the prior law required elevation of a DWI offense to felony status after only one prior offense rather than two ”) (emphasis in original). See Act of June 16, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1576 (former Tex.Rev.Civ. Stat. art. 67011-1) (art. 67011-l(e) stated: "If it is shown on the trial of an offense under this article that the person has previously been convicted two or more times of an offense under this article, the offense is punishable by: (1) a fine of not less than $500 or more than $2,000; and (2) confinement in jail for a term of not less than 30 days or more than two years or imprisonment in the state penitentiary for a term of not less than 60 days or more than five years”). That provision was repealed in 1993. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Law 3586, 3704.

      . See Tex Pen.Code § 49.09(e) (1993). The 1993 law recognized that people can rehabilitate themselves and that, after sowing wild oats as a youth, they may become stable, solid members of society. The legislative purpose of the limitation upon the DWI enhancement statute has remained the same since 1993. See Bower v. State, 77 S.W.3d 514, 517 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d) (noting that "[t]he obvious purpose of subsection (e) is to prevent the State from sending a person to prison for the offense of DWI when that person has not had any DWI convictions in the previous ten years”).

      . The former version of Section 49.09(e) read:
      A conviction may not be used for purposes of enhancement under this section if:
      (1) the conviction was a final conviction under Subsection (d) and was for an offense committed more than ten years before the offense for which the person is being tried was committed; and
      (2) the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated committed within ten years before the date on which the offense for which the person is being tried was committed.
      Tex. Pen.Code § 49.09(e) (2000).

      . See Tex. Pen.Code § 49.09(f)(1) (2001).

      . See Tex Pen.Code § 49.09(f)(2) (2001).

      . House Comm. On Criminal Jurisprudence, Bill Analysis, Tex. H.B. 314, 77th Leg., R.S. (2001).

      . Boykin, 818 S.W.2d at 785.

      . Suppose, for example, that a defendant is charged with a DWI alleged to have occurred on November 1, 2004. He has a prior conviction for a DWI which was committed on November 1, 1990. Under the pre-2001 amendment, that prior conviction is too remote to use as an enhancement. But under the 2001 amendments, if the defendant was not sentenced for that 1990 DWI until November 10, 1992, and then served two years on community supervision which terminated on November 9, 1994, that prior conviction can be used to enhance the present offense.

      . Getts, at -, 2003 WL 22456104, at *2, 2003 Tex.App. LEXIS 9237 at * 5.

      . Uriega v. State, 136 S.W.3d 258, 260 (Tex.App.-San Antonio 2004, no pet.); see also Howard v. State, 137 S.W.3d 282, 287-88 (Tex.App.-Fort Worth 2004, no pet.); Anderson v. State, 110 S.W.3d 98, 99 (Tex.App.-Dallas 2003, no pet.).

      . Uriega, 136 S.W.3d at 261 (stating that amended section 49.09(e) "prohibits the use of a prior DWI conviction if the defendant committed the charged DWI more than ten years after the judgment date of the prior DWI and if the defendant was not convicted of another intoxication related offense within that ten-year period”); Anderson, 110 S.W.3d at 99.

      . See Boykin, 818 S.W.2d 782.

      . Tr. Oral Argument (September 29, 2004). This interpretation had been accepted by one court under the pre-2001 enhancement statute, see Renshaw v. State, 981 S.W.2d 464, 466 (Tex.App.-Texarkana 1998, pet. ref’d), but the Texarkana court later stated that it erred in Renshaw. See Smith v. State, 1 S.W.3d 261, 263 (Tex.App.-Texarkana 1999, pet. ref'd) (concluding that "[t]he statute requires the State to prove only one prior D.W.I. conviction in the ten-year period and one other prior D.W.I. conviction, not subject to the ten-year limiting period”); see also Bower, 77 S.W.3d at 516-17 (holding that, under art. 49.09(e), only one of the prior convictions must be within ten years of the present offense).

      . See 43 George W. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 38.128 at 204 (2004 Pocket Part). Professors Dix and Dawson state:
      In 2001, the legislature totally changed the nature of the remoteness ban. Instead of measuring the time between the commission of the primary DWI offense and the date of commission of the latest prior DWI, the amended provision measures the time from the commission of the primary DWI offense to the date the defendant was discharged from probation, parole or incarceration for the newest of the prior offenses.

        Id. As they further note, "[o]f course, this substantially extends the reach of the felony DWI statute to include more offenses." Id.

        .Boykin, 818 S.W.2d at 785.

      . See id.; see also Ex parte Kuester, 21 S.W.3d 264, 268 (Tex.Crim.App.2000).

      . See Brown v. State, 943 S.W.2d 35, 38 (Tex.Crim.App.1997).

      . Tex. Gov’t Code § 311.023.

      . House Comm. On Criminal Jurisprudence, Bill Analysis, Tex. H.B. 314, 77th Leg., R.S. (2001).

      . See House Research Organization, Tex. H.B. 2250, 77th Leg. (2001).

      . House Comm. On Criminal Jurisprudence, Bill Analysis, Tex. H.B. 314, 77th Leg., R.S. (2001).

      . See http//www.senate.state.tx.us/ram/ar-chive/May2001/ 052102Session — A.ram. May 21, 2001, Senate Session, Part 1. (emphasis added).

      . Id. (emphasis added).

      . As the State Prosecuting Attorney points out, under this interpretation, a teenager could have two DWI convictions in the halcyon days of his youth, then lead an exemplary life for the next forty years, and, celebrating his sixtieth birthday, commit a new offense. He could be charged with a felony DWI. On the other hand, the town drunk who finishes each of his five prior DWI sentences exactly eleven years apart, except for the most recent one which was just two years before the present offense, could not be charged with a felony.

      . The majority quotes the Supreme Court’s recent statement that, "[i]f Congress enacted into law something different from what it intended, then it should amend the statute to conform it to its intent. It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think ... is the preferred result." Lamie v. United States Tr., 540 U.S. 526, 542, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). But in Lamie, the Supreme Court had, in fact, looked to the conflicting and competing legislative history as support for its application of a technical "plain meaning” interpretation of the pertinent bankruptcy statute, in part because there was no clear and unambiguous legislative intent. Id. ("[tjhese uncertainties illustrate the difficulty of relying on legislative history here and the advantage of our determination to rest our holding on the statutory text”) (emphasis added).

      . Tex. Penal Code § 49.09(e)(1).

      . Tex. Penal Code § 49.09(d) reads: "For the purpose of this section, a conviction for an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence fqr the conviction is imposed or probated.”