Reversed and Remanded, and Opinion Filed June 27, 2018.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00561-CR

                         MICHAEL RICHARD DURHAM, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                        On Appeal from the County Court at Law No. 6
                                    Collin County, Texas
                            Trial Court Cause No. 006-84383-2016

                              MEMORANDUM OPINION
                            Before Justices Lang, Myers, and Stoddart
                                     Opinion by Justice Lang
       Michael Richard Durham appeals the trial court’s judgment convicting him of driving

while intoxicated (D.W.I.), second offense, a class A misdemeanor. The jury found Durham guilty

and the trial court assessed his punishment at forty-five days of confinement. Durham raises two

issues on appeal, arguing: (1) the trial court erred when it denied his motion to suppress; and (2)

the trial court erred when it allowed the State to disclose to the venire panel he had been previously

convicted of a prior D.W.I. and required the State to prove his prior conviction as an element of

the offense.

       A review of the record in this appeal shows that evidence of Durham’s prior conviction

was introduced during the guilt or innocence phase of the trial. After the parties briefed the issues

in this appeal, the Texas Court of Criminal Appeals issued its opinion in Oliva v. State, No. PD-
0398-17, 2018 WL 2329299 (Tex. Crim. App. May 23, 2018). In Oliva, the Texas Court of

Criminal Appeals held that “litigation of the prior-conviction allegation” under section 49.09(a) is

a punishment issue. Oliva, 2018 WL 2329299, at *12. In light of that ruling, the portion of

Durham’s second issue, arguing the trial court erred when it required the State to prove his prior

conviction as an element of the offense, is decided in his favor. Accordingly, we need not address

Durham’s remaining arguments on appeal.

       The trial court’s judgment is reversed and remanded for further proceedings consistent with

this opinion.




                                                   /Douglas S. Lang/
                                                   DOUGLAS S. LANG
                                                   JUSTICE



Do Not Publish
TEX. R. APP. P. 47
170561F.U05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 MICHAEL RICHARD DURHAM,                              On Appeal from the County Court at Law
 Appellant                                            No. 6, Collin County, Texas
                                                      Trial Court Cause No. 006-84383-2016.
 No. 05-17-00561-CR         V.                        Opinion delivered by Justice Lang. Justices
                                                      Myers and Stoddart participating.
 THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.

       It is ORDERED that appellee THE STATE OF TEXAS recover its costs of this appeal
from appellant MICHAEL RICHARD DURHAM.


Judgment entered this 27th day of June, 2018.




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