State v. Barbosa

Opinion on Rehearing

Opinion by:

SARAH B. DUNCAN, Justice.

Michael Carl Barbosa filed a motion for rehearing in this case on December 9, 1999. We grant the motion, withdraw our previous opinion and judgment issued on November 24, 1999, and issue this opinion and judgment in their stead.

The State originally appealed the trial court’s order granting Barbosa’s motion to quash the indictment by which he was charged with felony driving while intoxicated. We issued an opinion holding that Barbosa could not collaterally attack his prior DWI conviction on Sixth Amendment right to counsel grounds without evidence that he was indigent at the time of his prior conviction. Barbosa argues this court erred in its holding and requests a rehearing. In its response to Barbosa’s motion for rehearing, the State concedes that Barbosa is entitled to collaterally attack his prior conviction on Sixth Amendment right to counsel grounds without having to prove indigency. We therefore grant Barbosa’s motion for rehearing, withdraw our previous opinion, and affirm the trial court’s order quashing Barbosa’s felony DWI indictment. See Hawkins v. State, 613 S.W.2d 720, 723 (Tex.Crim.App.1981).