                                     NUMBER 13-05-132-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


RUDY GONZALES,                                                                                Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                           Appellee.


   On appeal from the 24th District Court of Jackson County, Texas.


                               MEMORANDUM OPINION

                   Before Justices Yañez, Rodriguez, and Garza
                     Memorandum Opinion by Justice Yañez

      A jury convicted appellant, Rudy Gonzales, of felony driving while intoxicated

(“DWI”).1 The jury assessed punishment of six years’ imprisonment and a $5,000 fine, and

recommended that the trial court suspend both. The trial court sentenced appellant to six

years’ imprisonment, suspended the $5,000 fine, and placed appellant on community


      1
          See T EX . P EN AL C OD E A N N . § 49.04 (Vernon 2003), § 49.09(b)(2) (Vernon Supp. 2007).
supervision for a period of ten years.2 By his first issue, appellant contends the trial court

erred in permitting his 1987 DWI conviction to be used to enhance the present offense to

felony DWI because it was too remote. Appellant argues that more than ten years elapsed

between 1989, when his two-year probation for the 1987 offense ended, and 2000, the

date of his second DWI conviction.3 By his second issue, appellant contends the trial court

erred in allowing the State to ask a highly prejudicial hypothetical question. We conclude



         2
           See T EX . C OD E C R IM . P R O C . A N N . art. 42.12, § 4 (Vernon Supp. 2007). W e note that appellant was
sentenced under a prior version of the statute, but because the revisions are not pertinent to this appeal, we
cite to the current version of the statute.

         3
         The “ten-year rule” contained in form er section 49.09(e) of the penal code prohibits the use of a prior
DW I conviction for enhancem ent if the defendant com m itted the charged DW I m ore than ten years after the
judgm ent date of the prior DW I and if the person was not convicted of another DW I within that ten-year period.
See Act of June 13, 2001, 77th Leg., R.S., ch. 648, § 2, 2001 Tex. Sess. Law Serv. 1141-42, repealed by Act
of June 18, 2005, 79th Leg., R.S., ch. 996, § 3, 2005 Tex. Sess. Law Serv. 3365, 3366. The date of the
judgm ent for the previous conviction is one of four possible tim es from which the ten-year periods are
m easured. Form er section 49.09(e), applicable to appellant, provided:

         (e) Except as provided by Subsection (f), a conviction m ay not be used for purposes of
         enhancem ent under this section if:

         (1) the conviction was a final conviction under Subsection (d);

         (2) the offense for which the person is being tried was com m itted m ore than 10 years after
         the latest of:

                  (A) the date on which the judgm ent was entered for the previous conviction;

                  (B) the date on which the person was discharged from any period of com m unity
                  supervision on which the person was placed for the previous conviction;

                  (C) the date on which the person successfully com pleted any period of parole on
                  which the person was released after serving a portion of the term to which the
                  person was sentenced for the previous conviction; or

                  (D) the date on which the person com pleted serving any term for which the person
                  was confined or im prisoned for the previous conviction; and

         (3) the person has not been convicted of an offense under Section 49.04, 49.05, 49.06,
         49.065, 49.07, or 49.08 or any offense related to operating a m otor vehicle while intoxicated
         within 10 years of the latest date under Subdivision (2).

Id.

                                                           2
that the 1987 offense was not a final conviction and could not be used to enhance the

current offense to a felony offense. We therefore reverse the judgment and render a

judgment of acquittal.

                                                 Background

       On February 16, 2002, appellant was arrested for DWI. The State indicted him for

felony DWI, alleging that appellant had two prior DWI convictions: one in November 1987

and a second in January 2000.4 Under the statute, the State was required to prove

appellant had two prior convictions in order to elevate the current DWI offense to a felony.5

Appellant filed a pretrial motion to quash the indictment, arguing that the 1987 offense

could not be used for enhancement purposes because it “was probated and there was no

finding of guilt” and was “too remote.” Specifically, appellant argued that the 1987 offense

could not be used for enhancement because his two-year period of community supervision

for the 1987 offense ended in 1989, resulting in a lapse of more than ten years between

       4
           The indictm ent read as follows:

       The Grand Jurors . . . present . . . that . . . RUDY GONZALES, on or about the 16th day of
       February, A.D., 2002, . . . did then and there unlawfully while not having the norm al use of
       his m ental or physical faculties by reason of the introduction of alcohol and/or a controlled
       substance and/or drugs and/or a com bination of two or m ore of those substances into the
       body and/or having an alcohol concentration of .08 or m ore, as m easured by the num ber of
       gram s of alcohol per 100 m illiliters of blood and/or the num ber of gram s of alcohol per 210
       liters of breath and/or the num ber of gram s of alcohol per 67 m illiliters of urine, drive and
       operate a m otor vehicle in a public place.

       And the said RUDY GONZALES had previously been convicted two or m ore tim es for the
       offense of driving and operating a m otor vehicle while intoxicated in a public place and upon
       a public road, to-wit:

       (1) in Cause No. 10,153 of the county Court of Colorado County, Texas, on the 23rd day of
       Novem ber, 1987; and

       (2) in Cause No. 14,915 of the County Court of Colorado County, Texas, on the 18th day of
       January, 2000.

       5
           See T EX . P EN AL C OD E A N N . § 49.09(b)(2) (Vernon Supp. 2007).

                                                         3
1989 and his conviction for the 2000 offense. The State argued that because a motion to

revoke was filed before the two-year community supervision period ended, the period of

community supervision was extended until July 24, 1991, when appellant was actually

discharged from community supervision. According to the State, because the date of

appellant’s discharge (1991) was within ten years of his 2000 conviction, the 1987 offense

could be used for enhancement. The trial court agreed with the State and overruled

appellant’s motion to quash.6

                            Standard of Review and Applicable Law

        The two prior intoxication-related offenses referred to in section 49.09(b)(2) are

elements of the offense of felony DWI.7 Proof of the prior misdemeanor convictions was

essential in proving the felony, and, in its absence, the evidence was insufficient to support

the felony conviction.8 To carry its burden of establishing the two prior convictions, the




        6
          At the m otion-to-quash hearing on February 7, 2005, appellant’s counsel cited Getts v. State, 155
S.W .3d 153 (Tex. Crim . App. 2005), issued on January 26, 2005. In Getts, the Texas Court of Crim inal
Appeals explained the application of the ten-year rule in form er section 49.09(e). Getts, 155 S.W .3d at 156-
57. In order to exclude a prior conviction from use for enhancem ent, the three conditions of section 49.09(e)
m ust be m et: (1) the prior conviction m ust be final; (2) the current offense m ust have been com m itted m ore
than ten years after the latest date determ ined under subdivision 49.09(e)(2); and (3) the defendant m ust not
have been convicted of any other intoxication-related offense within ten years of the latest date under
subdivision (2). Id. The latest date under subdivision (2) is the later of the date of judgm ent of the prior
conviction, the date of discharge from com m unity supervision, the date of com pletion of parole, or the date
the defendant com pleted serving a term of confinem ent or im prisonm ent for the prior conviction. Id. at 156;
see Act of June 13, 2001, 77th Leg., R.S., ch. 648, § 2, 2001 Tex. Sess. Law Serv. 1141-42, repealed by Act
of June 18, 2005, 79th Leg., R.S., ch. 996, § 3, 2005 Tex. Sess. Law Serv. 3365, 3366;.

        7
           Martin v. State, 200 S.W .3d 635, 641 (Tex. Crim . App. 2006) (“The law that applies to any felony
DW I offense includes the jurisdictional elem ent of two prior DW I convictions.”); Gibson v. State, 995 S.W .2d
693, 696 (Tex. Crim . App. 1999); Mapes v. State, 187 S.W .3d 655, 658 (Tex. App.–Houston [14th Dist.] 2006,
pet. ref’d); Uriega v. State, 136 S.W .3d 258, 259 (Tex. App.–San Antonio 2004, pet. ref’d); State v. Kindred,
773 S.W .2d 766, 768 (Tex. App.–Corpus Christi 1989, no pet.).

        8
            See Mosqueda v. State, 936 S.W .2d 714, 717 (Tex. App.–Fort W orth 1996, no pet.).

                                                       4
State was required to make a prima facie showing of the validity of the prior convictions.9

To make such a prima facie showing, the State must prove that the prior convictions were

reflected in final judgments entered pursuant to article 42.01 of the code of criminal

procedure.10 Because appellant is challenging the use of his 1987 conviction—an essential

element of his conviction for felony DWI—we construe his claim as a challenge to the legal

sufficiency of the evidence supporting his conviction.11 Evidence is legally insufficient if,

when viewed in a light most favorable to the verdict, a rational jury could not have found

each element of the offense beyond a reasonable doubt.12 The legal sufficiency of the

evidence is measured against the elements of the offense as defined by a hypothetically

correct jury charge for the case.13

                                                   Analysis

        By his first issue, appellant makes the same argument that he made to the trial court

at his motion-to-quash hearing: that his 1987 conviction was unavailable for enhancement

because more than ten years had elapsed between the expiration of his community

supervision for that offense in 1989 and his conviction in 2000. In response, the State

makes the same argument that it made to the trial court at the motion-to-quash hearing:

that the date of appellant’s discharge from community supervision—which did not occur


        9
            Id. at 716.

        10
       T EX . C OD E C R IM . P R O C . A N N . art. 42.01 (Vernon 2006) (listing the requirem ents of a judgm ent);
Mosqueda, 936 S.W .2d at 716.

        11
             See Mosqueda, 936 S.W .2d at 717.

        12
         Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jones v. State, 944 S.W .2d 642, 647 (Tex. Crim .
App. 1996).

        13
             Malik v. State, 953 S.W .2d 234, 240 (Tex. Crim . App. 1997).

                                                         5
until 1991—is the controlling date for finality of the 1987 conviction, and therefore, the 1987

conviction occurred within ten years of the 2000 conviction under the statute and may be

used for enhancement of the current offense.

       We conclude that we need not apply Getts to determine the “latest” date for

calculating the ten-year period under former section 49.09(e) because there was no final

conviction for appellant’s 1987 offense, and it is therefore unavailable for enhancement

purposes.

       During the State’s case-in-chief, the State introduced State’s Exhibit #7, which

included the purported judgment for appellant’s 1987 DWI. The document states that

appellant pleaded “guilty” and that “it is considered and adjudged by the Court that the

Defendant is guilty as charged in the information of the offense of driving while intoxicated.”

The next paragraph states that appellant will be granted probation.            The following

paragraph states: “IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that

the finding of guilty herein shall not be final, that no judgment be rendered thereon, and

that Defendant be, and is hereby placed on probation in this cause for a period of two

years . . . .”14 In State v. Kindred, 773 S.W.2d 766, 767-68 (Tex. App.–Corpus Christi

1989, no pet.), this Court, relying on Savant v. State, 535 S.W.2d 190, 191-92 (Tex. Crim.

App. 1976), held that instruments containing exactly the same language “[did] not contain

adjudications of guilt, and therefore, [were] not judgments.”15 The language at issue in

Kindred—and the language in the purported judgment here—is very similar to the language



       14
            Em phasis added.

       15
            Kindred, 773 S.W .2d at 768.

                                              6
that the court of criminal appeals found insufficient to constitute a judgment in Savant.16

The court of criminal appeals held that because the instrument did not contain an

adjudication of guilt, it was not a judgment.17

        The language in appellant’s 1987 purported judgment is identical to the language

we found insufficient to constitute a judgment in Kindred.18 As in Kindred, we hold that the

instrument offered by the State to establish appellant’s 1987 prior conviction is insufficient

to constitute a judgment. Because the State failed to carry its burden of establishing two

prior convictions, we hold the evidence is insufficient to support appellant’s conviction for

felony DWI.

        Accordingly, the trial court’s judgment is reversed and an order of acquittal is

rendered.19 Because of our disposition of appellant’s first issue, we need not address




        16
         In Savant, the purported judgm ent contained the following language: “It is therefore CONSIDERED,
ORDERED AND ADJUDGED that the Verdict and finding of guilty herein shall not be final, that no Judgm ent
be rendered thereon, . . . .” Savant v. State, 535 S.W .2d 190, 191-92 (Tex. Crim . App. 1976).

        17
            Id. W e also note that several of our sister courts have reached the sam e conclusion. See, e.g.,
Ramirez v. State, No. 07-96-0147-CR, 1997 Tex. App. LEXIS 5049, at **3-8 (Tex. App.–Am arillo 1997, pet.
dism ’d) (not designated for publication) (finding purported judgm ent containing language sim ilar to that in
Savant insufficient to establish prior conviction); Mosqueda, 936 S.W .2d at 715-16 (following Savant and
Kindred finding nearly identical language insufficient to constitute judgm ent); McFarland v. State, 727 S.W .2d
43, 45 (Tex. App.–San Antonio 1987, no pet.) (following Savant in finding identical language in purported
judgm ent defective). But see W illiamson v. State, 46 S.W .3d 463, 465-66 (Tex. App.–Dallas 2001, no pet.)
(citing Rizo v. State, 963 S.W .2d 137, 138 (Tex. App.–Eastland 1998, no pet.) and construing language
identical to that in Savant, but distinguishing Savant and Kindred and declining to follow Mosqueda); but see
also Gibson v. State, No. 05-99-01309-CR, 2000 Tex. App. LEXIS 6921, at *12 (Tex. App.–Dallas 2000, pet.
ref’d) (not designated for publication) (finding Kindred, Savant, and Mosqueda distinguishable).

        18
             See Kindred, 773 S.W .2d at 767-68.

        19
          W e note that the jury charge did not authorize appellant’s conviction for the lesser-included offense
of m isdem eanor DW I with one prior conviction. Thus, we have no authority to reform the judgm ent to reflect
conviction on the lesser-included offense. See Mosqueda, 936 S.W .2d at 717 (citing Gentile v. State, 848
S.W .2d 359, 360-61 (Tex. App.–Austin 1993, no pet.) and Bigley v. State, 865 S.W .2d 26, 27-28 (Tex. Crim .
App. 1993)).

                                                       7
appellant’s remaining issue.20




                                                LINDA REYNA YAÑEZ,
                                                Justice




Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 3rd day of April, 2008.




       20
            See T EX . R. A PP . P. 47.1.

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