                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00076-CR
        ______________________________


       WILLIAM MARBIE JONES, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 124th Judicial District Court
                Gregg County, Texas
             Trial Court No. 38,331-B




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                  MEMORANDUM OPINION

       William Marbie Jones was convicted by a jury for the felony offense of driving while

intoxicated (DWI), “3rd or more.” Jones’ punishment was enhanced to that of a second-degree

felony, and he was sentenced to twenty years’ imprisonment. In a single point of error, Jones

appeals his conviction on the ground that counsel rendered ineffective assistance for failing to

investigate the validity of a Marion County DWI conviction.           We affirm the trial court’s

judgment.

I.     Standard of Review

       We begin our analysis with the rule that any allegation of ineffectiveness of counsel must

be firmly founded in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d

576, 589 (Tex. App.––Texarkana 2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003). From

the record received by this Court, Jones bears the burden of proving that counsel was ineffective by

a preponderance of the evidence. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813;

Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984).

       We apply the two-pronged Strickland test handed down by the United States Supreme

Court to determine whether Jones received ineffective assistance of counsel.          Strickland v.

Washington, 466 U.S. 668 (1984). Failure to satisfy either prong of the Strickland test is fatal.




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Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006). Thus, we need not

examine both Strickland prongs if one cannot be met. Strickland, 466 U.S. at 697.

       First, Jones must show that counsel’s performance fell below an objective standard of

reasonableness in light of prevailing professional norms. Id. at 687–88. There is a strong

presumption that counsel’s conduct fell within the wide range of reasonable professional

assistance and that the challenged action could be considered sound trial strategy. Id. at 689;

Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712

(Tex. Crim. App. 2000). Therefore, we will not second-guess the strategy of Jones’ counsel at

trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v. State,

161 S.W.3d 142, 152 (Tex. App.––Texarkana 2005, pet. ref’d).

       The second Strickland prejudice prong requires a showing that but for counsel’s

unprofessional error, there is a reasonable probability that the result of the proceeding would have

been different. Strickland, 466 U.S. at 687–88.

II.    Claim of Ineffective Assistance of Counsel

       A first offense DWI is a class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04(b)

(Vernon 2003). In contrast with a first offense DWI, it becomes a third-degree felony when the

State proves “the person has previously been convicted . . . two times of any other offense relating

to the operating of a motor vehicle while intoxicated . . . .” See TEX. PENAL CODE ANN.

§ 49.09(b)(2) (Vernon Supp. 2010).        The State’s indictment alleged that Jones had been



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previously convicted of DWI “in cause number 3806 in the 276th District Court of Marion County,

Texas,” “in cause number 97-612 in the County Court at Law of Harrison County, Texas” and “in

cause number 2001-C-137 in the County Court at Law of Panola County, Texas.” Although

Jones pled “true” to the Marion County and Panola County DWI convictions, he did this without

mentioning the Harrison County conviction.

       It should be pointed out that the elevation of a DWI from a misdemeanor to a felony

offense by using previous DWI convictions does not enhance punishment, but creates an entirely

different offense that vests the trial court with jurisdiction. See Harris v. State, 204 S.W.3d 19,

27–28 (Tex. App.––Houston [14th Dist.] 2006, pet. ref’d); Perez v. State, 124 S.W.3d 214, 216

(Tex. App.––Fort Worth 2002, no pet.); Carroll v. State, 51 S.W.3d 797, 800–01 (Tex.

App.––Houston [1st Dist.] 2001, pet. ref’d). On a showing of any two of the three of the above

alleged convictions, the instant offense would be a third-degree felony, punishable by a term of

two years’ to ten years’ imprisonment. See TEX. PENAL CODE ANN. § 12.34 (Vernon Supp.

2010), § 49.09(b). In addition to prosecution of the instant offense as a felony, the State also

sought––pursuant to TEX. PENAL CODE ANN. § 12.42(a)(2) (Vernon Supp. 2010)––to enhance the

punishment range for this offense from that of a third-degree felony to that of a second-degree

felony by alleging a previous conviction of “the felony offense of” DWI “in cause number

2005-C-0151 in the 123rd District Court of Panola County, Texas.” Due to this previous felony




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conviction, Jones’ punishment was enhanced to that of a second-degree felony, and he was

sentenced to twenty years’ imprisonment.

       Jones complains that the Marion County judgment of conviction was invalid and that he

received ineffective assistance of counsel because no challenge was made to the validity of that

prior conviction. Jones also maintains that the validity of the judgment can be raised at this time

because the State relied on it as a predicate to giving the trial court jurisdiction of the instant case

as a felony. In examining Marion County cause number 3806, we note that Jones pled guilty to

DWI and was sentenced to community supervision. Jones rests his challenge to the validity of the

Marion County case on the allegation that Jones was not represented by counsel when he entered a

guilty plea to the charges in that case.

       The record in the Marion County case is somewhat contradictory. Some of the records in

it reflect that Jones was represented by counsel during the proceeding, and the final judgment

entered after Jones’ written plea contains counsel’s name. Contrarily, although the written waiver

in that case recites “[t]hat my attorney has [advised] me of the consequences of a plea of guilty,”

the same document contains the word “waived” in the signature line for Jones’ counsel. Despite

what was written on the waiver, the written plea states that Jones pled guilty to the Marion County

offense “in open Court, joined by his attorney with whom he has previously consulted.” No

record of the proceedings in open court or testimony from Jones’ counsel in the Marion County

case was presented to us.



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       In any event, Jones’ counsel submitted an affidavit containing the following:

               As part of my trial strategy, I advised Mr. Jones stipulate that he had twice
       before been convicted of DWI so that we could minimize the evidence placed
       before the jury about Mr. Jones[’] prior DWI convictions. At the time, I had
       reviewed the discovery, which include the copies of each DWI conviction on Mr.
       Jones[’] record. Everything appeared to be in order and I did not perceive any
       problem the State would have proving any of the convictions. I did not obtain a
       copy of the entire file on any of the underlying convictions or review the clerk’s file
       of any of the convictions but relied on what the District Attorney’s Office provided.

              . . . . The Marion County conviction was used as a jurisdictional element for
       this conviction and also the felony conviction that was used to enhance his
       punishment to that of a second degree.

             Mr. Cassel provided me with a certified copy of the entire file from the
       Marion County conviction . . . .

               There is no written waiver or warning of Mr. Jones’ right to counsel
       contained in the entire Marion County file though it appears R. Daryl Bennett
       represented Mr. Jones. There is no Motion to Withdraw either. Thus, it would
       appear that Mr. Jones[’] plea was obtained without his lawyer and without a proper
       waiver of his right to counsel or warning of proceeding pro se. Accordingly, had I
       known these issues existed, I would have filed a motion to quash the indictment or
       otherwise challenged the ability of the State to prove the jurisdictional DWI
       convictions because [the] Marion County conviction would be constitutionally
       infirm.

       On the assumption (based upon an incomplete record of the Marion County cause) that

Jones waived his right to counsel involuntarily and without proper admonishments and that this

ground could be used to render a final judgment void without preservation of such a point of error

because it was relied on to give the trial court in this case jurisdiction of the third-degree felony




                                                 6
offense, Jones argues his counsel was ineffective for failing to investigate whether the Marion

County conviction was invalid.

        Although, in the face of contrary evidence in the record which contradicts the conclusion,

we doubt that simply the inclusion of the word “waived” in the space for Jones’ counsel’s

signature on the waiver form is sufficient to affirmatively show that he waived his right to counsel

involuntarily and without proper admonishments (thus rendering the Marion County conviction

invalid for these purposes),1 we will examine as if it did. In other words, we will assume for the

purpose of argument that Jones has met the first prong of the Strickland test. Be that as it may,

even making the assumption under that premise that Jones could meet the first Strickland prong,

the second Strickland prong certainly cannot be met.

        In order to establish jurisdiction as a felony, the State was only required to prove the

existence of two prior convictions for offenses relating to operating a motor vehicle while

intoxicated for jurisdictional purposes. Jones stipulated to the Panola County conviction, cause

number 2001-C-137. A stipulation is “a kind of judicial admission” such that a defendant will not

be heard to question the stipulated fact on appeal. Bryant v. State, 187 S.W.3d 397, 400 (Tex.

Crim. App. 2005). This established the first jurisdictional offense. In addition to the Panola

County misdemeanor offense, the record contains a written plea of guilt signed by Jones and final


1
 If the defendant in a misdemeanor case where guilt is not contested signs a written waiver of counsel in court and
there is no contradicting evidence or any evidence that the defendant was coerced or intimidated, then the record is
sufficient to support a finding that the defendant’s waiver of counsel was valid. Hatten v. State, 89 S.W.3d 160, 163
(Tex. App.––Texarkana 2002, no pet.). The Marion County case was a misdemeanor.

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judgment of conviction “in cause number 97-612 in the County Court at Law of Harrison County,

Texas.” This established the second jurisdictional offense. As a consequence, even if Jones had

successfully contested the validity of the Marion County conviction, there would still have been

the requisite two convictions (i.e., the Panola County case and the Harrison County case) to

establish this case as a third-degree felony. Therefore, Jones would not be able to demonstrate

harm such that the result of the proceedings would have been different.

III.   Conclusion

       We affirm the trial court’s judgment.



                                               Bailey C. Moseley
                                               Justice

Date Submitted:       November 2, 2010
Date Decided:         December 15, 2010

Do Not Publish




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