Summary
concluding that a 1991 conviction was "final" for purposes of Section 49.09 because it adjudicated defendant's guilt
Summary of this case from Ex parte RaeOpinion
No. 11-02-00242-CR
September 4, 2003. DO NOT PUBLISH. See TEX.R.APP.P. 47.2(b).
Appeal from Dallas County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
OPINION
The trial court convicted Joseph Glen Willis, upon his plea of guilty, of felony driving while intoxicated. A plea bargain agreement was not reached. The trial court assessed appellant's punishment at confinement for 5 years and a $2,500 fine. However, the trial court suspended the imposition of the confinement portion of the sentence and placed appellant on community supervision for 10 years. We affirm. The indictment alleged that appellant had two prior DWI convictions: one in 1991 and one in 1993. The present offense was alleged to have been committed in 2001. By alleging the two prior DWI convictions, the present offense became a felony. TEX. PENAL CODE ANN. § 49.09(b)(2) (Vernon 2003). In his sole point of error, appellant contends that the 1991 conviction was not a "final" conviction. Therefore, appellant argues that the motion to quash the indictment should have been granted. A copy of the 1991 order granting appellant probation for the 1987 offense is contained in the clerk's record. The order recites that the trial court is adjudicating appellant's guilt for the 1987 offense, assessing his sentence at confinement for 120 days and a $350 fine in the Dallas County Jail, and suspending the imposition of the sentence and placing appellant on community supervision for 2 years. The record further reflects that appellant signed a judicial confession admitting his guilt to the offense of felony DWI as charged in the indictment (a third offense with prior convictions in 1991 and 1993), that appellant entered his plea of guilty to the indictment in open court, and that appellant testified on cross-examination that he had gone over the indictment with his counsel and that "all the allegations [were] true and correct." Appellant further testified that he had pleaded guilty to DWI offenses committed in 1976, 1985, 1987, and 1992 and that his community supervision was revoked on the 1987 DWI. Appellant's counsel explained to the trial court that the 1987 offense was the subject of the 1991 conviction. The record is sufficient to establish that appellant's 1991 conviction was "final" for the purposes of Section 49.09(b)(2). Williamson v. State, 46 S.W.3d 463 (Tex.App.-Dallas 2001, no pet'n); Rizo v. State, 963 S.W.2d 137 (Tex.App.-Eastland 1998, no pet'n). Appellant has not established that the trial court abused its discretion in denying the motion to quash. Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App. 1980); Williamson v. State, supra. The sole point of error is overruled. The judgment of the trial court is affirmed.