Opinion
No. 01-06-00321-CR
Opinion issued April 8, 2008.
On Appeal from the County Court at Law Washington County, Texas, Trial Court Cause No. 05-554.
Panel consists of Justices NUCHIA, KEYES, and HIGLEY.
MEMORANDUM OPINION
Appellant, Peter R. Wood, was convicted by a jury of the enhanced offense of operating a motor vehicle in a public place while intoxicated with a previous one-time conviction for operating a motor vehicle while intoxicated. See Tex. Penal Code Ann. §§ 49.04, .09(a) (Vernon 2003 Supp. 2007). The jury assessed punishment at six months in jail and a $4,000 fine. The trial court suspended appellant's sentence and placed him on community supervision for 24 months, including 30 days confinement in jail.
Appellant does not challenge the facts related to the offense, so we do not address them. In his sole point of error, appellant contends his trial counsel rendered ineffective assistance by allowing the State to introduce evidence of appellant's prior operating-a-motor-vehicle-while-intoxicated conviction during the guilt/innocence phase. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon 2007) ("When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07."). Appellant filed a motion for new trial, and the trial court set a hearing, but the record does not reflect that the hearing was held.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington. 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984); Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App. 1999). Appellant must show both that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel's error or omission, the result of the proceedings would have been different, i.e., the error or omission is sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69.
Without citing any case authority, appellant argues that counsel could have no reasoning or strategy for not objecting. Both appellant and the State assume that appellant's prior operating-a-motor-vehicle-while-intoxicated conviction was merely relevant for enhancement purposes. They are incorrect. The prior operating-a-motor-vehicle-while-intoxicated conviction is an element of the enhanced offense. See Mapes v. State, 187 S.W.3d 655, 658 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). It would have been error to convict appellant of the enhanced offense without evidence of the prior conviction. See Martin v. State, 200 S.W.3d 635, 641 (Tex.Crim.App. 2006).
Trial counsel was not ineffective in not objecting to the introduction of the prior conviction, which was admissible. See Burnett v. State, 959 S.W.2d 652, 660 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). We overrule appellant's sole point of error.
We affirm the judgment of the trial court.