









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-76,407


EX PARTE VICENTE GARCIA, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1223756 IN THE 176TH DISTRICT COURT

FROM HARRIS COUNTY



 Per curiam.

O P I N I O N


	Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for writ of habeas corpus.  Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).  Applicant was convicted of driving while
intoxicated and sentenced to two years' imprisonment.  He did not appeal his conviction. 
	Applicant contends  he suffered a due process violation because one of  his prior convictions
for driving while intoxicated used as a jurisdictional enhancement to elevate the present offense to
a third-degree felony was obtained by the use of inaccurate intoxilyzer results.  Specifically, he
claims the intoxilyzer used in the underlying misdemeanor case was operated by Deetrice Wallace,
who has since been convicted of tampering with a government record for her part in falsifying
records pertaining to the maintenance of the intoxilyzer.  
	The trial court entered findings of fact and conclusions of law, which are supported by the
record in this case, that the Presiding Judge of County Court at Law No. 15, the convicting court in
the underlying misdemeanor cause, set aside that conviction and granted Applicant a new trial.   The
State subsequently dismissed the misdemeanor cause.  The trial court in this case recommends
granting relief since Applicant now only has one prior conviction for driving while intoxicated,
rendering his felony sentence illegal.  See Tex. Penal Code § 49.09(b)(2).  We agree.   
	Relief is granted.  The judgment and sentence in Cause No. 1223756 in the 176th Judicial
District Court of Harris County is set aside, and Applicant is remanded to the custody of the sheriff
of Harris County to answer the charges as set out in the indictment. Copies of this opinion shall be
sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and
Paroles Division.
Delivered: September 29, 2010
Do Not Publish




