Crocker v. State (Published): Since 2005, DWIs from as far back as records can be found can be used to enhance the sentence of a new DWI. That’s a change. It used to be that DWI convictions more than ten years old couldn’t be used. Like it or not, the change is constitutional. Someone needs to give a heads up to folks currently having a mid-life crisis who are figuring that all of that “college stuff” in the 1970’s, 80’s or 90’s is water under the bridge.
Crocker had 1992 and 1993 convictions and new, 2006 offense. He argued that the ten years had run on his old counts as of 2003, and (under the ex post facto doctrine) the 2005 change in the law should not revive them. The infinite look-back should only apply to offenses committed in 2005 and beyond, after the infinte look-back took effect.
Crocker’s argument is rejected. True, the constitutions of both the United States and the State of Texas prohibit ex post facto laws (i.e., punishing someone for acts that only became criminal because of a law passed after the fact). But Crocker is in trouble because of his 2006 actions; the State is not coming back and trying to give him stiffer sentences for the 1992 and 1993 offenses.
Crocker also argues that the old law, the ten year limit, was a promise that he was entitled to rely on. He makes an analogy to a deferred adjudication case, Scott. In Scott, the defendant plead guilty to a sex crime, was sentenced to deferred adjudication, and successfully completed his sentence. At that time, the law provided that successful completion of deferred adjudication would prevent the offense from ever being used to enhance a sentence for a future crime. Sure enough, the Texas Legislature decided to change the law to allow deferred adjudications to enhance future sentences. And, (also sure enough) Scott committed another crime. But the Court of Criminal Appeals held that Scott was entitled to rely on the law at the time he completed his deferred adjudication. So his prior offense could not be used to enhance the sentence for his current one.
Unfortunately for Crocker, the analogy doesn’t hold. The limitation on the future use of Scott’s deferred adjudication was a clear and definite part of the deal for that offense. The ten year DWI look-back window was not a clear and definite limitation on his 1992 and 1993 sentences. Instead, it was a conditional pledge by the Legislature that could be changed. In the words of the Tyler court :
“the former ten year time limitation on the use of DWI convictions ‘was not an explicit guarantee that those convictions could not be used in the future, but only a restriction on what prior convictions could be used to enhance an offense at that time.'” (quoting a Houston case, and citing cases from Austin and San Antonio that reached the same conclusion on this issue.)