





 



IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

 



NO. 74,840


EX PARTE RUSSELL BOYD RAE, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM GREGG COUNTY COUNTY



	Per Curiam.

O P I N I O N


 This is an application for a writ of habeas corpus which was transmitted to this Court
pursuant to the provisions of Article 11.07,  § 3, et seq., V.A.C.C.P.   Applicant was convicted
of driving while intoxicated, and punishment was assessed at ten years imprisonment.  No
direct appeal was taken. 
	Applicant contends, inter alia, that his trial counsel was ineffective for failing to
investigate one of the prior convictions used to elevate this offense to a felony.  Counsel
acknowledges that he did not investigate the offense and claims that this was an oversight. 
	The trial court finds that the prior offense alleged in the indictment was not a final
conviction available for enhancement purposes, and that counsel was ineffective for failing to
investigate the prior conviction.  The court recommends granting relief.
	We agree with the recommendation.  Counsel's failure to investigate resulted in an
improper enhancement of this offense.  Habeas corpus relief is granted and the judgment in
Cause Number 28,841-B from the 124th District court of Gregg County is vacated and set
aside.  Applicant is remanded to the custody of the Sheriff of that county to answer the
charging instrument.
	Copies of this opinion shall be sent to the Texas Department of Criminal Justice,
institutional divisions.


DO NOT PUBLISH
DELIVERED: DECEMBER 3, 2003
 
