                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00039-CR


DANNY DALE POSEY                                                   APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

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                        MEMORANDUM OPINION1
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      Appellant Danny Dale Posey appeals his conviction and sentence for

driving while intoxicated (DWI). We reverse and remand for a new punishment

hearing.

      Appellant pled guilty to an information charging him with class B

misdemeanor DWI, and he pled “not true” to an alleged prior DWI conviction that,



      1
      See Tex. R. App. P. 47.4.
if proved, raised the offense level to class A.      See Tex. Penal Code Ann.

§ 49.04(a) (Vernon 2003), § 49.09(a) (Vernon Supp. 2010).

      At his bench trial, Appellant objected to State’s Exhibit 2, which the State

offered to prove the prior conviction. He argued that State’s Exhibit 2 was not

relevant because it did not link him to the conviction the State had alleged and

that there was no evidence it represented a final conviction. State’s Exhibit 2 is

two pages of certified copies of records from the Bell County Sheriff’s

Department.    The first page is a fingerprint card, and the second is a form

containing typed identification information related to a DWI offense. The trial

court admitted State’s Exhibit 2 over Appellant’s objections.

      After closing arguments, the trial court found Appellant guilty, found the

State’s enhancement allegation true, and sentenced Appellant to 365 days’

confinement––the maximum for a class A misdemeanor.

      In three related points, Appellant contends that the trial court committed

reversible error by (1) admitting State’s Exhibit 2, (2) finding the enhancement

allegation true, and (3) finding that State’s Exhibit 2 is evidence of a valid

conviction for purposes of enhancement.       Because Appellant’s third point is

dispositive, we need not address the other two.

Validity of the Conviction Alleged for Enhancement

      In Appellant’s third point he contends that the prior conviction alleged by

the State was invalid for enhancement purposes.




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      Normally, DWI is a class B misdemeanor.           Tex. Penal Code Ann.

§ 49.04(b) (Vernon 2003).        Under section 49.09(a), however, a DWI may be

enhanced to a class A misdemeanor if it is shown on the trial of the offense that

the person has previously been convicted one time of an “offense relating to the

operating of a motor vehicle while intoxicated.” Tex. Penal Code Ann. § 49.09(a)

(Vernon Supp. 2010).        Subsection (c)(1)(D) defines “offense related to the

operating of a motor vehicle while intoxicated” as “an offense under Article

6701l–2, Revised Statutes, as that law existed before January 1, 1984.”        Id.

(c)(1)(D). The alleged prior offense was in 1976. Article 6701l was the DWI

statute in effect at the time.

      Appellant argues that the evidence offered by the State to enhance his

offense to a class A misdemeanor did not show a final, valid conviction for

enhancement purposes because under the law at the time Appellant was placed

on probation, a misdemeanor probationer’s conviction was not final––and

therefore valid for enhancement purposes––unless that probation was revoked.

      The State concedes that, “until 1979, if a jury or the court determined that

a misdemeanor defendant should be placed on probation, the finding of guilt

would not become final and no judgment would be rendered unless the probation

was revoked.” See Taylor v. State, 549 S.W.2d 722, 724 (Tex. Crim. App. 1977)

(holding that under former article governing misdemeanor probation, after a trial

court grants probation, a finding of guilt does not become final and a trial court

may not render judgment unless the probation is revoked); Ex parte Smith, 493


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S.W.2d 958, 959 (Tex. Crim. App. 1973) (noting that under former statute

governing misdemeanor probation, no judgment is entered where probation is

granted in a misdemeanor case). Here, there is no judgment in evidence to

show that Appellant’s 1976 DWI conviction had become final nor is there any

evidence that Appellant’s probation for that offense was ever revoked. Thus,

there is no evidence in the record that Appellant’s conviction for the 1976 DWI

was final. Accordingly, we hold that under the law that existed before January 1,

1984, Appellant’s 1976 probation for DWI is invalid for enhancement purposes.

See Taylor, 549 S.W.2d at 725 (noting that the court had previously held that

judgments and sentences entered in misdemeanor cases prior to revocation

were nullities); Nixon v. State, 153 S.W.3d 550, 552 (Tex. App.––Amarillo 2004,

pet. ref’d); cf. Gonzales v. State, 309 S.W.3d 48, 52 (Tex. Crim. App. 2010)

(analyzing a 1987 judgment under law that a conviction for an offense occurring

on or after January 1, 1984, is final whether or not probated); Ex parte Serrato, 3

S.W.3d 41, 43 (Tex. Crim. App. 1999) (concluding that, “by incorporating the

prior DWI statute, as that law existed before enactment of the new statute, the

Legislature declared its intent to continue the status quo, which included

permitting probated DWI convictions for enhancement if the offense occurred

after January 1, 1984.” (emphasis added)).

      But for the enhancement with an invalid prior conviction, Appellant would

have been subjected to the range of punishment only for a class B misdemeanor.

Because he was sentenced to the maximum for a class A misdemeanor, he was


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harmed by the trial court’s error. We sustain Appellant’s third point, reverse the

judgment, and remand the case to the trial court for a new punishment hearing

consistent with this opinion.



                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: McCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 23, 2010




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