An indictment filed in district court vests jurisdiction in the district court if it alleges a felony offense, even though it subsequently becomes apparent that the State can only prove a misdemeanor. See TEX. CODE CRIM. PROC. ANN. arts. 4.05, 4.06 (West 2005); Ex parte Sparks, 206 S.W.3d 680, 682 (Tex. Crim. App. 2006); Ex parte Arnold, 574 S.W.2d 141, 142 (Tex. Crim. App. [Panel Op.] 1978). In Ex parte Arnold, the defendant was convicted of a DWI enhanced to a felony by a prior DWI conviction that, in fact, never became final.
Thus, a review of the record is necessary to determine whether the State did in fact prove that the two prior offenses occurred within ten years of the primary offense.Ex parte Arnold, 574 S.W.2d 141, 142 (Tex.Crim.App. 1978); McKenzie v. State, 159 Tex.Crim. 345, 263 S.W.2d 562 (1953); Freeman v. State 733 S.W.2d 662, 664 (Tex.App.-Dallas 1987, pet. ref'd). There is no evidence that Renshaw committed the two intoxication offenses during the ten years preceding the primary offense for which he was being tried.
However, in Ex parte Sparks, this Court unanimously held that a post-conviction application for a writ of habeas corpus is available when a felony conviction was rendered on a guilty plea when, in fact, the offense was a misdemeanor. Ex parte Sparks, 206 S.W.3d 680 (Tex.Crim.App. 2006); see also Ex parte Arnold, 574 S.W.2d 141, 142 (Tex.Crim.App. 1978). As in the present case, Sparks was indicted for driving while intoxicated.
Therefore, we determined that the proper relief was to set aside the felony conviction and to instruct the district court to enter a judgment of conviction for the misdemeanor offense and to assess punishment accordingly. 574 S.W.2d 141(Tex.Cr.App. 1978).Id., at 142.
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).
Renshaw v. State, 981 S.W.2d 464 (Tex.App.-Texarkana 1998, pet. ref'd). We based that action on the authority of Ex parte Arnold, 574 S.W.2d 141 142, (Tex.Crim.App. 1978), in which the Court found a petitioner entitled to partial relief because the convicting court was authorized to convict for the lesser included offense only. Citing Evans v. State, 402 S.W.2d 756 (Tex.Crim.App. 1966); McKenzie v. State, 159 Tex.Crim. 345, 263 S.W.2d 562 (1953).
The invalidity of the underlying misdemeanor conviction relates only to punishment, and the district court had jurisdiction to convict appellant of the lesser included offense. Ex parte Arnold, 574 S.W.2d 141 (Tex.Cr.App. 1978). Therefore, the order revoking probation is reversed and the motion to revoke probation is ordered dismissed; the judgment of conviction is reformed to reflect a conviction for driving while intoxicated, first offense; and the cause is remanded to the district court for reassessment of punishment.
Thus, a review of the record is necessary to determine whether the State did in fact prove that the two prior offenses occurred within ten years of the primary offense. Ex parte Arnold, 574 S.W.2d 141, 142 (Tex.Crim.App. 1978); McKenzie v. State, 159 Tex.Crim. 345, 263 S.W.2d 562 (1953). The record before us does not contain a statement of facts. Without a statement of facts properly before us, nothing is presented for our review.
Because the evidence is otherwise sufficient, however, we also conclude the trial court was authorized to find appellant guilty of the lesser-included offense of misdemeanor driving while intoxicated. Ex parte Arnold, 574 S.W.2d 141, 142 (Tex.Cr.App. 1978). See also Cooper v. State, 631 S.W.2d 508 (Tex.Cr.App. 1982).