             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,407



                        EX PARTE VICENTE GARCIA, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. 1223756 IN THE 176TH DISTRICT COURT
                           FROM HARRIS COUNTY



       Per curiam.

                                           OPINION

       Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while

intoxicated and sentenced to two years’ imprisonment. He did not appeal his conviction.

       Applicant contends he suffered a due process violation because one of his prior convictions

for driving while intoxicated used as a jurisdictional enhancement to elevate the present offense to

a third-degree felony was obtained by the use of inaccurate intoxilyzer results. Specifically, he

claims the intoxilyzer used in the underlying misdemeanor case was operated by Deetrice Wallace,
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who has since been convicted of tampering with a government record for her part in falsifying

records pertaining to the maintenance of the intoxilyzer.

       The trial court entered findings of fact and conclusions of law, which are supported by the

record in this case, that the Presiding Judge of County Court at Law No. 15, the convicting court in

the underlying misdemeanor cause, set aside that conviction and granted Applicant a new trial. The

State subsequently dismissed the misdemeanor cause. The trial court in this case recommends

granting relief since Applicant now only has one prior conviction for driving while intoxicated,

rendering his felony sentence illegal. See TEX . PENAL CODE § 49.09(b)(2). We agree.

       Relief is granted. The judgment and sentence in Cause No. 1223756 in the 176th Judicial

District Court of Harris County is set aside, and Applicant is remanded to the custody of the sheriff

of Harris County to answer the charges as set out in the indictment. Copies of this opinion shall be

sent to the Texas Department of Criminal Justice–Correctional Institutions Division and Pardons and

Paroles Division.

Delivered: September 29, 2010
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