DISMISS; and Opinion Filed December 7, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-00078-CR

                            JUSTIN COLE DRYMAN, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 1
                                 Kaufman County, Texas
                            Trial Court Cause No. 12CL-0355

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Brown, and Schenck
                                    Opinion by Justice Brown
       Justin Cole Dryman appeals following the revocation of his community supervision for

misdemeanor driving while intoxicated.        In a single issue, he contends the evidence is

insufficient to prove he committed a prior DWI that was alleged in the charging instrument. For

the following reasons, we dismiss appellant’s appeal for want of jurisdiction.

       In March 2012, appellant was charged by information with DWI, alleged to have

occurred on about December 13, 2011. The information further alleged that:

       [P]rior to the commission of the aforesaid offense, on the 25th day of February,
       2010, in the County Court at Law of Kaufman County, Texas, in cause number
       09CL-1756, the defendant was convicted of an offense relating to the operating of
       a motor vehicle while intoxicated.

On March 23, 2013, appellant pleaded guilty to Class A misdemeanor DWI pursuant to a plea

bargain agreement. The plea bargain agreement contained appellant’s judicial confession that he

“committed the offense of DRIVING WHILE INTOXICATED 2ND on 12/13/2011 exactly as
alleged in the charging instrument.” The trial court found appellant guilty and sentenced him to

confinement for one year. The court suspended imposition of the sentence and placed appellant

on community supervision for two years. Appellant did not appeal from the order placing him

on community supervision. He waived the right to appeal as a condition of the plea agreement.

       In July 2014, the State filed a motion to revoke appellant’s community supervision. The

State alleged appellant violated the conditions of community supervision by committing the

offenses of driving while license invalid and public intoxication. At a December 2014 hearing,

appellant pleaded not true to the allegations in the motion to revoke. After hearing evidence, the

trial court granted the State’s motion, revoked appellant’s community supervision, and assessed

punishment at eleven months’ confinement in the county jail. This appeal followed.

       In a single issue, appellant contends the evidence is insufficient to prove his prior DWI

conviction. He maintains his prior conviction was used to enhance his punishment and that

nothing in the record shows he pleaded true to the enhancement or otherwise proves the

conviction. He asserts his eleven-month sentence is void because it exceeded the range of

punishment for a Class B misdemeanor. See TEX. PENAL CODE ANN. § 12.22 (West 2011) (Class

B misdemeanor punishable by confinement in jail for term not to exceed 180 days). The State

responds that appellant’s issue is not properly before the Court because it is too late for him to

complain about the evidence of a prior conviction. We agree with the State.

       A defendant placed on community supervision may raise issues relating to the original

plea proceedings only in an appeal taken when community supervision is first imposed. See

Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999); see also TEX. CODE CRIM.

PROC. ANN. art. 42.12 § 23(b) (West Supp. 2015). The relevant part of article 42.12, section

23(b) provides:

       The right of the defendant to appeal for a review of the conviction and
       punishment, as provided by law, shall be accorded the defendant at the time he is
                                               –2–
           placed on community supervision. When he is notified that his community
           supervision is revoked for violation of the conditions of community supervision
           and he is called on to serve a sentence in jail or in the Texas Department of
           Criminal Justice, he may appeal the revocation.

TEX. CODE CRIM. PROC. ANN. art. 42.12 § 23(b).

            Appellant attempts to make this an issue about his punishment, arguing that his sentence

following revocation is void. But in actuality, appellant’s complaint concerns the sufficiency of

the evidence to support his conviction for a second DWI offense. A first DWI offense is

generally a Class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2015). But

if it is shown on the trial of the offense that the defendant has one prior conviction for DWI, or

certain other intoxication-related offenses, the offense becomes a Class A misdemeanor. See id.

§ 49.09(a) (West Supp. 2015); see also id. § 12.21 (Class A misdemeanor punishable by

confinement in jail for term not to exceed one year). Under these circumstances, the prior DWI

conviction is an element of the offense. See Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim.

App. 1999). The prior DWI conviction defines the new offense as a Class A misdemeanor and

therefore enhances the offense, rather than the punishment. See id. It thus becomes part of the

State’s proof of its case-in-chief during the guilt/innocence stage of trial. 1 See id. Accordingly,

it is too late for appellant to raise a complaint about the sufficiency of the evidence to support his

conviction.         See Manuel, 994 S.W.2d at 661. Because appellant’s issue concerns his original

conviction, not the revocation of his community supervision, we cannot address it. See Leach v.

State, 170 S.W.3d 669, 675 (Tex. App.—Fort Worth 2005, pet. ref’d). We dismiss appellant’s

sole issue.




     1
        In his brief, appellant cites Prihoda v. State, 352 S.W.3d 796 (Tex. App.—San Antonio 2011, pet. ref’d), for the proposition that the prior
conviction was not an element of the offense. Prihoda relies only on Blank v. State, 172 S.W.3d 673 (Tex. App.—San Antonio 2005, no pet.),
for this proposition. Blank in turn relies only on Love v. State, 833 S.W.2d 264 (Tex. App.—Austin 1992, pet. ref’d), which predates the court of
criminal appeals’s decision in Gibson.



                                                                      –3–
       We dismiss this appeal for want of jurisdiction.




                                                    /Ada Brown/
                                                    ADA BROWN
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b).

150078F.U05




                                              –4–
                                      S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

JUSTIN COLE DRYMAN, Appellant                      On Appeal from the County Court At Law
                                                   No. 1, Kaufman County, Texas
No. 05-15-00078-CR        V.                       Trial Court Cause No. 12CL-0355.
                                                   Opinion delivered by Justice Brown, Justices
THE STATE OF TEXAS, Appellee                       Lang-Miers and Schenck participating.

        Based on the Court’s opinion of this date, we DISMISS the appeal for want of
jurisdiction.


Judgment entered this 7th day of December, 2015.




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