                                          NO. 07-03-0072-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                        APRIL 8, 2004
                               ______________________________

                                       LESTER MURL NIXON,

                                                                            Appellant
                                                      v.

                                       THE STATE OF TEXAS,

                                                          Appellee
                            _________________________________

                  FROM THE 106TH DISTRICT COURT OF LYNN COUNTY;

              NO. 02-2590; HON. CARTER R. SCHILDKNECHT, PRESIDING
                         _______________________________

                                          Opinion
                              _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

        Appellant Lester Murl Nixon challenges his conviction for driving while intoxicated

(DWI) “with two or more previous convictions for the same offense.” His sole issue

involves whether the evidence was legally sufficient to support his conviction. Specifically,

appellant contends the State failed to prove that both prior convictions alluded to in the

indictment were final. We reverse the judgment.



        1
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
                                               Background

        Appellant was indicted in January 2002 for DWI. Included in the indictment was the

allegation that he previously had been convicted of DWI by the County Court of Real

County in 1995 (Cause No. 903) and by the County Court of Randall County in January of

1984 (Cause No. 20,900-L). It is the latter offense which underlies the dispute at bar. The

parties stipulated that the offense resulting in the January 1984 conviction actually

occurred in September of 1983. Furthermore, and as reflected by the judgment that the

State submitted into evidence at trial, the trial court suspended the one year sentence

levied against appellant in Cause No. 20,900-L and placed him on probation for two years.

No evidence was presented at trial illustrating that his probation was ever revoked.2

                                                 Authority

        Statute provides that one commits an offense if he is intoxicated while operating a

motor vehicle in a public place. TEX . PEN . CODE ANN . §49.04(a) (Vernon 2003). Though

the offense is generally a class B misdemeanor, id. §49.04(b), it becomes a felony of the

third degree “if it is shown . . . that the person has previously been convicted . . . two times

of any other offense relating to the operating of a motor vehicle while intoxicated . . . .” Id.

§49.09(b)(2) (Vernon Supp. 2004). In other words, statute permits the enhancement of the

charge to a felony if the accused was twice finally convicted of DWI before.

        Generally, a conviction wherein the defendant’s sentence was suspended and he

was placed on probation is not final until probation has been revoked. Ex parte Langley,



        2
         At a pretrial hearing on appellant’s motion to quash the indictment, the trial court received a copy of
an order entered in C ause No . 20,90 0-L. A s evinced in that order, the C ounty C ourt fo r Randall County set
aside the finding of guilt, dismissed the complaint and information, and discharged appellant from probation.

                                                       2
833 S.W.2d 141, 143 (Tex. Crim. App. 1992); Ex parte Murchison, 560 S.W.2d 654, 656

(Tex. Crim. App. 1978). And, given that such a conviction is not final, it normally cannot

be used for enhancement purposes. Therein lies the heart of the dispute before us. We

must determine whether appellant’s conviction in January of 1984 was final for purposes

of elevating his latest DWI charge from a class B misdemeanor to a felony of the third

degree. Normally, the answer would be an easy one for we would need only apply the

general rule described in Langley and Murchison. However, via art. 6701l-1(h) of the

Texas Revised Civil Statutes, the legislature modified the general rule.3 Through it, the

legislature declared that “a conviction for an offense that occurs on or after January 1,

1984, is a final conviction, whether or not the sentence for the conviction is probated.” Act

of May 27, 1983, 68th Leg., R.S. ch. 303 §3, 1983 Tex. Gen. Laws 1574, 1576.4 Given this

and the fact that the offense ultimately resulting in the Randall County conviction occurred

in September of 1983 but appellant was not convicted until January of 1984, the question

before us is whether art. 6701l-1 serves to prevent application here of the general rule

mentioned in Langley and Murchison. To resolve it, we must construe whether the phrase

“that occurs on or after January 1, 1984" modifies the word “conviction” or “offense.”

Appellant contends that it modifies the latter while the State argues that it refers to the

former.

       When interpreting a statute, we attempt to effectuate the collective intent or purpose

of the legislature. Griffith v. State, 116 S.W.3d 782, 785 (Tex. Crim. App. 2003). This



       3
           Th is article w as s ubs equ ently repealed an d rep laced by §4 9.09 (d) of the T exa s Pe nal C ode .

       4
           Th e statute beca m e effective on Janu ary 1, 19 84.

                                                           3
requires us to interpret an unambiguous statute literally, unless doing so would lead to an

absurd result. Id. And, only when a literal reading of the statute leads to an absurd result

will we resort to the use of extratextual factors to determine legislative intent. Id. Finally,

authority obligates us to assume not only that every word contained in the statute has been

used for a purpose but also that each word, phrase, and clause should be given effect.

Campbell v. State, 49 S.W.3d 874, 876 (Tex. Crim. App. 2001). Application of these rules

leads us to but one conclusion.

        Article 6701l-1(h) is not ambiguous and, when literally read, means that the offense

must occur after January 1, 1984. This is clear given the legislature’s placement of the

phrase “that occurs on or after January 1, 1984" after the word “offense.” Indeed, to read

the phrase as referring to “conviction,” as suggested by the State, would not only change

the location of the phrase in the statute but also render the word “offense” meaningless.

Simply put, there would be no reason to include the term if the date of conviction was all

that mattered. Yet, the legislature included the term, and we must give it meaning.

Campbell v. State, supra.

        So, upon reading the statute literally and giving effect to each word contained in it,

we hold that before a probated 1984 conviction can be deemed final under art. 6701l-1(h),

the offense must occur after January 1, 1984.5 And, the record discloses that such was

not the case viz the Randall County conviction at bar. Though appellant was convicted of

the offense in January of 1984, he actually committed it several months earlier, that is, in


        5
          The State’s reliance on Ex parte Serrato, 3 S.W .3d 41 (T ex. C rim . App . 1999), Vrba v. S tate, 69
S.W .3d 713 (Tex. App.–W aco 2002, no pet.) and W illiam son v. State, 46 S.W .3d 463 (Tex. App.–Dallas 2001,
no pet.) is m isplaced. None involved a prior DW I conviction wherein the offense actually occurred b efore
Jan uary 1, 1984.

                                                      4
September of 1983. Consequently, art. 6701l-1(h) does not apply while the general rule

in Langley and Murchison does, and the State could not use the Randall County conviction

to elevate the 2001 DWI charge to a felony. 6

        There being no evidence that appellant was twice convicted of DWI before his trial

upon the 2001 charge, the verdict of the jury is legally insufficient. Consequently, we

reverse the judgment of the trial court and remand for further proceedings. See Ex parte

Arnold, 574 S.W.2d 141, 142 (Tex. Crim. App. 1978) (instructing the trial court to enter a

judgment of conviction for a misdemeanor and remanding for a new punishment hearing).



                                                           Brian Quinn
                                                              Justice



Publish.




        6
        Given that the 1984 judgment offered by the State itself revealed that the 1984 conviction was
probated, we reject the State’s comment that there was no evidence illustrating the conviction was not fina l.

                                                      5
