Affirmed in Part and Reversed and Remanded in Part and Opinion filed May 2,
2013.




                                      In The

                        Fourteenth Court of Appeals
                              ___________________

                               NO. 14-12-00499-CR
                              ___________________

                       THE STATE OF TEXAS, Appellant

                                        V.

                    RUSSELL HOWARD COOLEY, Appellee


          On Appeal from the County Criminal Court at Law Number 2
                             Harris County, Texas
                        Trial Court Cause No. 1785744


                                  OPINION
      Appellee Russell Howard Cooley was charged by information with Class A
misdemeanor driving while intoxicated (DWI); a single enhancement paragraph
incorporated appellee’s prior DWI conviction. Appellee pleaded guilty to the
charged offense and the trial court sentenced him to a $2,000 fine but no period of
confinement. The State appeals appellee’s sentence on the ground that Texas Penal
Code section 49.09(a) mandates a minimum sentence of 30 days’ confinement upon
conviction of a second DWI. We agree and vacate the sentence imposed.
                                        BACKGROUND

       Appellee was convicted of his first DWI in Harris County in October 1988.
In October 2011, he was charged with his second DWI, which was enhanced to a
Class A misdemeanor. See Tex. Penal Code § 49.09(a). Having waived a jury
trial, appellee pleaded guilty to his second DWI offense in April 2012. The trial
court accepted his guilty plea, signed a judgment convicting him of a Class A
misdemeanor, and assessed punishment of a $2,000 fine. The trial court did not
sentence appellee to any confinement in jail. The State timely objected to the trial
court’s failure to impose a jail sentence. The State now appeals under Article
44.01(b) of the Texas Code of Criminal Procedure. In a single issue, the State
contends that appellee’s sentence is illegal because the trial court did not sentence
him to a minimum of 30 days’ confinement.

                                          ANALYSIS

       This appeal requires us to interpret sections 12.21 and 49.09(a) of the Penal
Code.1 In a 1993 act, the Legislature amended section 12.21 and added section
49.09. Act of June 19, 1993, 73d Leg., R.S., ch. 900, § 1.01, secs. 12.21, 49.09,
1993 Tex. Sess. Law Serv. 3586, 3602, 3697 (West 1993). A court reviewing a
statute should presume that the Legislature intended the entire statute to be effective.
Tex. Gov’t Code Ann. § 311.021 (West 2013); see also State v. Muller, 829 S.W.2d
805, 810 (Tex. Crim. App. 1992). Consequently, we must attempt to harmonize
sections 12.21 and 49.09 and interpret them in a manner that gives both effect, if
possible. See Tex. Gov’t Code Ann. § 311.026(a) (West 2013).



       1
         When an appellant challenges the trial court’s construction of a statute, the standard of
review is de novo. Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009).
                                                2
      Section 49.09(a) enhances an offense under section 49.04—driving while
intoxicated—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)
(West 2011). The statute requires a person convicted of such an offense to serve a
“minimum term of confinement of 30 days.” Id. Section 12.21 provides that a
person convicted of a Class A misdemeanor “shall be punished by: (1) a fine not to
exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both
such fine and confinement.” Tex. Penal Code Ann. § 12.21 (West 2011). We
must decide whether a trial court can sentence a twice-convicted DWI defendant to a
fine without imposing at least 30 days’ confinement in jail.         The trial court
concluded it could do so, stating at the sentencing hearing that section 49.09(a) only
requires “a minimum confinement of 30 days in jail if jail time is assessed”
(emphasis added). We disagree.

      When a trial court assesses punishment, it “must always be within the
minimum and maximum fixed by law; if the punishment assessed is less than the
minimum provided by law, the judgment of conviction is rendered a nullity.”
Mapes v. State, 187 S.W.3d 655, 658 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d); see also Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).
Section 12.21 of the Penal Code is a general statute broadly delineating the
sentencing options for Class A misdemeanors. See State v. Magee, 29 S.W.3d 639,
640 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (comparing the general nature
of Penal Code section 12.22, Class B misdemeanors, with section 49.04’s specific
confinement mandate for DWI convictions). In contrast, section 49.09(a) is a
special enhancement provision applicable only to persons convicted of operating a
motor vehicle while intoxicated. It specifically addresses sentencing for offenses
                                          3
where, as here, the defendant has one prior DWI conviction. See State v. Morgan,
160 S.W.3d 1, 4 (Tex. Crim. App. 2004).

      In Morgan, the State charged Morgan with DWI and alleged a prior DWI
conviction. Id. at 2. In a pretrial motion, the State asked the trial court to consider
the information as alleging a Class A misdemeanor under Penal Code section 49.09.
Id. The trial court ruled that it would treat the information as charging a Class B
misdemeanor with an enhancement alleged pursuant to Penal Code section
12.43—the general enhancement statute for misdemeanor convictions. Id. The
State filed an interlocutory appeal of the trial court’s ruling, seeking resolution of the
seemingly conflicting statutory provisions. Id. As relevant to this case, the Court
of Criminal Appeals explained the statutory provisions in this way:

      Driving while intoxicated is a Class B misdemeanor with a maximum
      term of confinement for 180 days. But under Penal Code § 49.09, it is
      a Class A misdemeanor, with a minimum term of confinement of 30
      days, if it is shown on trial of the offense that the person has previously
      been convicted of an intoxication-related offense. In that situation, the
      maximum confinement is one year.

Id. at 4 (citations omitted).      While the court ultimately concluded it lacked
jurisdiction to resolve the underlying substantive issue in the State’s interlocutory
appeal, its explanation of the statutes at issue helps inform our analysis.

      The Legislature created a special “progression of more severe penalties . . .
specifically for repeat DWI offenders” to “address the human misery and
widespread destruction caused by drunk drivers.” Guinn v. State, 696 S.W.2d 436,
438 (Tex. App.—Houston [14th Dist.] 1985, pet. ref’d).                The enhancement
scheme’s rationale is that:

      (1) Repeat offenders should be punished more severely for repeatedly
      endangering the public welfare; (2) harsher penalties for repeat
                                            4
       offenders function as a deterrent, discouraging the offender and others
       from drinking and driving; and (3) the jail sentence for repeat offenders
       . . . reflects the need to physically remove drunk drivers from public
       streets for a period of time, both as punishment for them and as
       protection for the rest of society.
Id.2 As part of this DWI enhancement scheme, the Legislature has applied specific
statutory exceptions to the general misdemeanor sentencing provisions at both the
Class A and Class B levels, mandating a jail sentence at each step notwithstanding
the general provisions giving the trial court discretion to impose a fine or
confinement or both.        Compare Tex. Penal Code § 12.21 (general Class A
misdemeanor punishment), and id. § 12.22 (general Class B misdemeanor
punishment), with id. § 49.09(a) (Class A misdemeanor with mandatory minimum
30 days’ confinement for second DWI offense), and id. § 49.04(b) (Class B
misdemeanor with mandatory minimum 72 hours’ confinement for first DWI
offense).

       The State urges us to hold that sections 12.21 and 49.09(a) irreconcilably
conflict, and to resolve this conflict by applying the special provision as an
exception to the general provision.          We conclude, however, that the general
misdemeanor sentencing statute can largely be harmonized with the special DWI
enhancement statute. The only irreconcilable conflict is that while section 12.21
makes confinement optional, section 49.09(a) makes it mandatory for at least 30
days. Because section 49.09(a) is specific to the DWI context, we hold that section


       2
          In Guinn, this Court answered the question that the Court of Criminal Appeals did not
reach in Morgan, holding that the “special enhancement provision in the DWI law [now section
49.09] excludes all other enhancement schemes, such as the general enhancement provision [for
felonies in section 12.42].” Guinn, 696 S.W.2d at 438; see also Mapes, 187 S.W.3d at 659–60.
Because the general enhancement provision for misdemeanors in section 12.43 was not applied in
this case, the Guinn holding is not dispositive here, though its analysis is instructive.
                                              5
49.09(a) prevails. See Tex. Gov’t Code Ann. § 311.026(b) (West 2013).3 Outside
this narrow area of conflict, section 12.21 continues to apply.                   Thus, the
confinement must be for at least 30 days and not more than one year, and a trial court
retains the option to impose a fine of up to $4,000 in addition to confinement.

       In sum, we hold that a trial court convicting a Class A misdemeanor defendant
of his or her second DWI must sentence the defendant to a minimum of 30 days’
confinement in accordance with Penal Code section 49.09(a). Because the trial
court did not sentence appellee to confinement in this case, its sentence was illegal.
We therefore sustain the State’s sole issue on appeal.

                                       CONCLUSION

       For these reasons, we vacate the sentence imposed by the trial court and
remand the case to that court for resentencing consistent with this opinion. See Tex.
Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 2012).




                                           /s/       J. Brett Busby
                                                     Justice


Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Publish — TEX. R. APP. P. 47.2(b).



       3
        Courts addressing a similar conflict between the general Class B misdemeanor
punishment statute and the statute prescribing mandatory minimum confinement for Class B
misdemeanor DWI convictions have reached the same conclusion. See, e.g., Moffett v. State, 230
S.W.3d 250, 251 (Tex. App.—Eastland 2007, no pet.); State v. Turner, No. 05-03-1263-CR, 2004
WL 308507, at *1 (Tex. App.—Dallas Feb. 19, 2004, no pet.) (not designated for publication);
Magee, 29 S.W.3d at 640.
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