EX PARTE ARNOLD

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Docket Number

No. 57609.

Attorney(S)

No attorneys appearing.

Judges

PHILLIPS, Judge, dissenting.

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Smart Summary

Factual and Procedural Background

This case involves a postconviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. The petitioner, Lester Obie Arnold, was convicted in Criminal District Court No. 3 of Dallas County for a subsequent offense of driving while intoxicated, with punishment assessed at two years, probated. The prior misdemeanor conviction, which formed the basis for the felony charge, was originally obtained in 1972 but was dismissed on January 5, 1974, after the petitioner successfully completed a probationary term. The present offense occurred in November 1976. The petitioner contended that the prior conviction had been set aside and thus could not be used to elevate the subsequent offense to a felony, challenging the trial court's jurisdiction.

Legal Issues Presented

Whether the prior misdemeanor conviction, having been dismissed after probation, constituted a final conviction sufficient to support jurisdiction over the felony charge for a subsequent driving while intoxicated offense.
Whether the trial court had jurisdiction to convict the petitioner of the felony offense given the status of the prior conviction.
Whether the petitioner is entitled to relief by having the felony conviction set aside and replaced with a conviction for the lesser included misdemeanor offense.

Arguments of the Parties

Petitioner's Arguments

The prior conviction was not final because it was set aside and dismissed after successful completion of probation.
Because the prior conviction was invalid, it could not be used to elevate the subsequent offense to a felony.
The trial court therefore lacked jurisdiction over the felony charge.

Dissenting Judge's Arguments (Phillips, J.)

The prior driving while intoxicated charge alleged in the indictment, necessary to invoke felony jurisdiction, was nonexistent.
Without a valid prior conviction, the felony court lacked jurisdiction, rendering the felony conviction void.
The judgment should be reversed and prosecution in the felony court dismissed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McKenzie v. State, 159 Tex.Crim. R., 263 S.W.2d 562 (1953)	State must prove prior conviction to elevate DWI to felony; if not proven, court has jurisdiction over misdemeanor.	Applied to find trial court had jurisdiction over the misdemeanor offense despite failure to prove felony element.
Evans v. State, 402 S.W.2d 756 (Tex.Cr.App. 1966)	Conviction of felony when only misdemeanor proven is error relating to punishment; defendant entitled to conviction for lesser included offense.	Supported partial relief by ordering conviction be for misdemeanor instead of felony.
Ex parte Murillo, 528 S.W.2d 127 (Tex.Cr.App. 1975)	Procedural guidance on remanding for proper judgment and punishment assessment.	Instructed trial court to enter judgment consistent with opinion.
Ex parte Friday, 545 S.W.2d 182 (Tex.Cr.App. 1977)	Similar procedural principles on conviction and punishment adjustment.	Referenced for directing remand and judgment correction.
Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App. 1976)	Further authority on conviction and punishment adjustments in related contexts.	Used to support court’s remedial instructions.
Ex parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.)	Felony court lacking jurisdiction due to nonexistent prior conviction renders conviction void.	Cited by dissent to argue felony conviction is void and should be reversed.
Ex parte McGee, 552 S.W.2d 850 (Tex.Cr.App.)	Jurisdictional requirements for felony prosecution based on prior convictions.	Referenced by dissent to support lack of jurisdiction argument.
Ex parte Sealy, 563 S.W.2d 817 (Tex.Cr.App.)	Void conviction due to lack of jurisdiction.	Used by dissent in jurisdictional analysis.
Ex parte Pribble, 548 S.W.2d 54 (Tex.Cr.App.)	Authority on jurisdiction and void convictions.	Cited in dissenting opinion to support reversal.

Court's Reasoning and Analysis

The court analyzed the validity of the prior conviction that was used to elevate the subsequent driving while intoxicated charge to a felony. Although the prior conviction had been dismissed after probation, the court found that under the precedent set in McKenzie v. State, the trial court retained jurisdiction over the misdemeanor offense when the State failed to prove the felony element. Applying this principle, the court concluded that the trial court had jurisdiction to entertain the cause.

However, the court recognized that the petitioner was entitled to partial relief because the felony conviction was improper given the status of the prior conviction. Citing Evans v. State and related authorities, the court held that the petitioner should be convicted only of the lesser included misdemeanor offense. The error was deemed related to punishment rather than jurisdiction. Accordingly, the court set aside the felony judgment and remanded the case with instructions to enter a judgment of conviction for the misdemeanor and assess punishment accordingly.

In contrast, the dissenting judge emphasized that the prior conviction was nonexistent for jurisdictional purposes and that the felony court lacked jurisdiction, rendering the felony conviction void and warranting dismissal of the prosecution in the felony court.

Holding and Implications

The Court held that the trial court had jurisdiction to convict the petitioner of the lesser included misdemeanor offense, but not the felony offense.

The judgment convicting the petitioner of the felony offense was set aside, and the case was remanded with instructions for the trial court to enter a conviction for the misdemeanor driving while intoxicated offense and to assess punishment accordingly. This decision directly affects the parties by reducing the conviction from felony to misdemeanor but does not establish new precedent beyond applying existing case law. The dissent disagreed, advocating for dismissal due to lack of jurisdiction.

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Ex parte Lester Obie ARNOLD.

OPINION

DOUGLAS, Judge.

This is a postconviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

Petitioner was convicted in Cause No. F77-932-IJ in the Criminal District Court No. 3 of Dallas County for a subsequent offense of driving while intoxicated. The court assessed his punishment at two years, probated.

The prior misdemeanor conviction for driving while intoxicated was obtained on February 2, 1972, in Cause No. CCR72-4373-B. Petitioner entered a plea of guilty to the present offense on April 8, 1977. No appeal was taken. Then, on September 7, 1977, petitioner filed an application for writ of habeas corpus in the trial court contending that the prior conviction in Cause No. CCR72-4373-B had been set aside and the complaint and information had been dismissed.

The trial court's findings of fact disclose that petitioner was assessed a fine of $125.00 and a jail term of thirty days in the prior offense. The jail term was probated for a period of one year. Petitioner successfully completed the probationary term and on January 5, 1974, the prior conviction was dismissed. The present offense did not occur until November 28, 1976.

Petitioner argues that the conviction in the prior offense failed to meet the requirements of a final conviction and could not be used to transform the subsequent driving while intoxicated offense into a felony. He thus contends that the trial court did not have jurisdiction of the present offense.

In McKenzie v. State, 159 Tex.Crim. R., 263 S.W.2d 562 (1953). The defendant was prosecuted under an indictment which charged that he had committed a subsequent offense of driving while intoxicated. The State failed to establish the allegation of the prior conviction. On appeal, the Court stated that the misdemeanor offense of driving while intoxicated was included within the allegations of the indictment and was a constituent element of the felony offense charged. The Court held, therefore, that the criminal district court had jurisdiction over such misdemeanor offense when the State failed to prove the felony.

Because the facts which controlled in McKenzie exist here, we find that the trial court had jurisdiction to entertain the cause.

However, petitioner is entitled to partial relief since the court was authorized to convict petitioner of the lesser included offense only. See Evans v. State, 402 S.W.2d 756 (Tex.Cr.App. 1966); McKenzie v. State, supra. Although a judgment of conviction for the felony was entered, we perceive the error to relate essentially to punishment.

The judgment in Cause No. F77-932-IJ is set aside but the cause is remanded for proceedings consistent with this opinion. The trial court is instructed to enter a judgment of conviction for the misdemeanor offense of driving while intoxicated and to assess the punishment accordingly. Ex parte Murillo, 528 S.W.2d 127 (Tex.Cr.App. 1975); Ex parte Friday, 545 S.W.2d 182 (Tex.Cr.App. 1977). See Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App. 1976).

It is so ordered.

PHILLIPS, Judge, dissenting.

It is undisputed that the prior driving while intoxicated charge alleged in the indictment as a necessary condition precedent to invoking the jurisdiction of the felony tribunal was nonexistent. See Article 42.13, Sections 4(a), 7(a) and (b), V.A.C.C.P. Thus, the felony court lacking jurisdiction, the felony conviction is void. Ex parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.); Ex parte McGee, 552 S.W.2d 850 (Tex.Cr.App.); Ex parte Sealy, 563 S.W.2d 817 (Tex.Cr.App.); Ex parte Pribble, 548 S.W.2d 54 (Tex.Cr.App.); Article 6701L -2, V.A.C.S.; Article 6701L -1, V.A.C.S.

The judgment should be reversed and the prosecution in the felony tribunal (district court) dismissed. For the foregoing reasons, I dissent.