Danny Dale Posey v. State ( 2010 )


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  •                         COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-10-00039-CR
    DANNY DALE POSEY                                                   APPELLANT
    V.
    THE STATE OF TEXAS                                                      STATE
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    FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
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    MEMORANDUM OPINION1
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    Appellant Danny Dale Posey appeals his conviction and sentence for
    driving while intoxicated (DWI). We reverse and remand for a new punishment
    hearing.
    Appellant pled guilty to an information charging him with class B
    misdemeanor DWI, and he pled “not true” to an alleged prior DWI conviction that,
    1
    See Tex. R. App. P. 47.4.
    if proved, raised the offense level to class A.      See Tex. Penal Code Ann.
    § 49.04(a) (Vernon 2003), § 49.09(a) (Vernon Supp. 2010).
    At his bench trial, Appellant objected to State’s Exhibit 2, which the State
    offered to prove the prior conviction. He argued that State’s Exhibit 2 was not
    relevant because it did not link him to the conviction the State had alleged and
    that there was no evidence it represented a final conviction. State’s Exhibit 2 is
    two pages of certified copies of records from the Bell County Sheriff’s
    Department.    The first page is a fingerprint card, and the second is a form
    containing typed identification information related to a DWI offense. The trial
    court admitted State’s Exhibit 2 over Appellant’s objections.
    After closing arguments, the trial court found Appellant guilty, found the
    State’s enhancement allegation true, and sentenced Appellant to 365 days’
    confinement––the maximum for a class A misdemeanor.
    In three related points, Appellant contends that the trial court committed
    reversible error by (1) admitting State’s Exhibit 2, (2) finding the enhancement
    allegation true, and (3) finding that State’s Exhibit 2 is evidence of a valid
    conviction for purposes of enhancement.       Because Appellant’s third point is
    dispositive, we need not address the other two.
    Validity of the Conviction Alleged for Enhancement
    In Appellant’s third point he contends that the prior conviction alleged by
    the State was invalid for enhancement purposes.
    2
    Normally, DWI is a class B misdemeanor.           Tex. Penal Code Ann.
    § 49.04(b) (Vernon 2003).        Under section 49.09(a), however, a DWI may be
    enhanced to a class A misdemeanor if it is shown on the trial of the offense that
    the person has previously been convicted one time of an “offense relating to the
    operating of a motor vehicle while intoxicated.” Tex. Penal Code Ann. § 49.09(a)
    (Vernon Supp. 2010).        Subsection (c)(1)(D) defines “offense related to the
    operating of a motor vehicle while intoxicated” as “an offense under Article
    6701l–2, Revised Statutes, as that law existed before January 1, 1984.”        
    Id. (c)(1)(D). The
    alleged prior offense was in 1976. Article 6701l was the DWI
    statute in effect at the time.
    Appellant argues that the evidence offered by the State to enhance his
    offense to a class A misdemeanor did not show a final, valid conviction for
    enhancement purposes because under the law at the time Appellant was placed
    on probation, a misdemeanor probationer’s conviction was not final––and
    therefore valid for enhancement purposes––unless that probation was revoked.
    The State concedes that, “until 1979, if a jury or the court determined that
    a misdemeanor defendant should be placed on probation, the finding of guilt
    would not become final and no judgment would be rendered unless the probation
    was revoked.” See Taylor v. State, 
    549 S.W.2d 722
    , 724 (Tex. Crim. App. 1977)
    (holding that under former article governing misdemeanor probation, after a trial
    court grants probation, a finding of guilt does not become final and a trial court
    may not render judgment unless the probation is revoked); Ex parte Smith, 493
    
    3 S.W.2d 958
    , 959 (Tex. Crim. App. 1973) (noting that under former statute
    governing misdemeanor probation, no judgment is entered where probation is
    granted in a misdemeanor case). Here, there is no judgment in evidence to
    show that Appellant’s 1976 DWI conviction had become final nor is there any
    evidence that Appellant’s probation for that offense was ever revoked. Thus,
    there is no evidence in the record that Appellant’s conviction for the 1976 DWI
    was final. Accordingly, we hold that under the law that existed before January 1,
    1984, Appellant’s 1976 probation for DWI is invalid for enhancement purposes.
    See 
    Taylor, 549 S.W.2d at 725
    (noting that the court had previously held that
    judgments and sentences entered in misdemeanor cases prior to revocation
    were nullities); Nixon v. State, 
    153 S.W.3d 550
    , 552 (Tex. App.––Amarillo 2004,
    pet. ref’d); cf. Gonzales v. State, 
    309 S.W.3d 48
    , 52 (Tex. Crim. App. 2010)
    (analyzing a 1987 judgment under law that a conviction for an offense occurring
    on or after January 1, 1984, is final whether or not probated); Ex parte Serrato, 
    3 S.W.3d 41
    , 43 (Tex. Crim. App. 1999) (concluding that, “by incorporating the
    prior DWI statute, as that law existed before enactment of the new statute, the
    Legislature declared its intent to continue the status quo, which included
    permitting probated DWI convictions for enhancement if the offense occurred
    after January 1, 1984.” (emphasis added)).
    But for the enhancement with an invalid prior conviction, Appellant would
    have been subjected to the range of punishment only for a class B misdemeanor.
    Because he was sentenced to the maximum for a class A misdemeanor, he was
    4
    harmed by the trial court’s error. We sustain Appellant’s third point, reverse the
    judgment, and remand the case to the trial court for a new punishment hearing
    consistent with this opinion.
    LEE GABRIEL
    JUSTICE
    PANEL: McCOY, MEIER, and GABRIEL, JJ.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: December 23, 2010
    5