Driving While Intoxicated Case Law Update - Texas District ...

argues that if the underlying priors were infirm, then the resulting felony convictions used in the
actual enhancement are infirm as well. The Court of Appeals, even granting that the underlying
priors were not final, distingurshes f/rs case from Mosqueda by holding that even if the underlying
Dallas priors are void, there is no reason to say that the felony DWI's could not be reformed to
reflect misdemeanor convictions for DWI and fhe sfafus of the underlying priors being
misdemeanors or felonies is immaterial. The trial Court's order setting aside the indictment was
reversed.
4. UNSIGNED JUDGMENT CAN BE USED TO PROVE ENHANCEMENT
Gaflardo v. State, 2010 WL 99011 (Tex.App.-Amarillo 2010, no pet.) (Not designated for
publication).
The validity of a judgment of conviction and the ability fo use it to enhance a DWI to a felony rs nof
affected by the failure of the trial judge to sign the judgment. Court cited, Mulder v. State, 707
S.W.2d 908 (Tex.Crim.App. 1986).
M. ERRONEOUS DISMISSAL OF PROBATION BY THE COURT WON'T AFFECT
FINALITY OF THE CONVICTION
Anderson v. State, 110 S.W.3d 98 (Tex.App.-Dallas 2003, reh. overruled).
Jordy v. State, 969 S.W.2d 528 (Tex.App.-Fort Worth 1998, no pet.).
Mahaffey v. State, 937 S.W.2d 51 (Tex.App.-Houston [1"tDist], 1996, no pet.).
The problem here was not with the face of the judgment but rather with a subseguent order by the
sentencing court which r'ssued an order that discharged the defendant from probation, sef aside fhe
verdict, drsmrssed the complaint, and released him from all penalties and disabilities resulting from
commission of the offense. The defense argued such an order should prevent the State from
offering said prior into evidence as a final conviction. The Court of Appeals rejects that argument
pointing out that said order was purportedly made under a section of the code that was at the time
of the order repealed. (The section referred to is now Article 42.12 Secfion 20 of the CCP which
then, as now, does not apply to DWI cases.) Since the order was rssued without authority to do so,
its order is void and has no effect on the finality of the defendant's conviction.
N. MANDATORY JAIL TIME AS CONDITION OF PROBATION-REPEAT
OFFENDERS
State v. Lucero, 979 S.W.2d 400 (Tex.App.-Amarillo 1998, no pet.).
Trial court erred when it probated defendant convicted of DWI who was proven to be a repeat
offender [49.09(a)] by not ordering a minimum of three days in jail as a condition of probation.
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