                                 NO. 07-07-0396-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                  APRIL 18, 2008
                         ______________________________

                        ADELAIDA E. TIJERINA, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2007-416,214; HONORABLE CECIL G. PURYEAR, JUDGE
                      _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant Adelaida E. Tijerina seeks a reversal of her sentence and remand of her

cause for a new punishment hearing. The State joins appellant in her request. We reverse

the judgment in part and remand to the trial court for a new punishment hearing.


                                     Background


      Appellant was convicted of the offense of driving while intoxicated, with two prior

convictions for driving while intoxicated, making the offense a third degree felony.
Additionally, the State sought to enhance the charged offense with a prior felony offense,

thus making the offense punishable as a second degree felony.


         At the inception of the guilt-innocence phase of the trial, the State read the

indictment along with the two prior convictions necessary for the jurisdictional

requirements. Appellant pled true to the jurisdictional prior convictions. At the conclusion

of the guilt-innocence phase of the jury trial, the jury found appellant guility of the offense.

The trial then proceeded to the punishment phase. At the punishment phase, the State

read the felony enhancement and introduced a pen packet demonstrating a prior felony

conviction for driving while intoxicated. The jury found the enhancement true, making the

offense punishable as a second degree felony, and returned a verdict of fifteen years

confinement in the Institutional Division of the Texas Department of Criminal Justice.


         Appellant now appeals raising five issues relating to the use and admission of the

prior felony offense for enhancement purposes and has requested that the matter be

remanded for a new hearing on punishment. The State, conceding that the prior felony

offense involved an unrevoked probated sentence and should not have been used for

enhancement purposes, has also filed a brief requesting that the case be remanded for a

rehearing on punishment. See Diremiggio v. State, 637 S.W.2d 926, 928 (Tex. Crim. App.

1982).


         Without reviewing the issues presented, we hereby grant appellant and the State

the prayer requested and reverse the trial court’s judgment as to punishment and remand

this cause to the trial court for a rehearing on punishment. TEX . R. APP. P. 43.2(d).


                                               2
                                       Conclusion


      We affirm the trial court's judgment of conviction, vacate the sentence imposed, and

remand to the trial court for a new sentencing hearing. TEX . CODE CRIM . PROC . ANN . art.

44.29(b) (Vernon Supp. 2006).




                                  Mackey K. Hancock
                                       Justice




Do not publish.




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