Can a misdemeanor DWI conviction from 1999, which was punished only with a $500 fine (no jail time imposed or probated)be properly used as an enhancement dwi conviction? I've got a felony DWI about to go to grand jury but the defense lawyer is claiming that the '99 prior is not a proper DWI conviction for enhancement purposes because no jail time was involved in the punishment.

I am fairly certain, not having done any research, that a fine-only conviction is still final and can be used for enhancement purposes.

I had this issue come up, and the attorney filed a motion to quash. My judge "strongly hinted" that he was going to grant it, so we pled the defendant to a misdemeanor. I called the county that pled the defendant to a fine only, in hopes that it was an error and we could do a nunc pro tunc, and was told that "we do this all the time." How hard is it to do 3 days with credit for 2-3 days instead of just a fine???

This came up in our court once and the defense attorney got the 2nd paragraph quashed-- his argument was it was an illegal sentence.

State v. Magee, 29 SW3d 639 (Tex.App. - Houston[1st Dist] 2000). Judgement was reversed for conviction where only punishment was a fine of $250. I think the prior is bad.

Magee indeed holds that a DWI sentence lacking a minimum period of confinement of 72 hours as part of the punishment is illegal under 49.04(b). But, I still question whether this means the prior case cannot be used for purposes of enhancement under 49.09. In e.g., Williams, 71 S.W.3d at 865 the court rightly notes that a void sentence does not necessarily invalidate the conviction. Furthermore, the courts have now made clear that a judgment is void only in rare instances, usually tied to jurisdiction. Plus, the question being raised is a collateral attack. e.g., Egger, 62 S.W.3d at 224. I recognize that the conviction itself was said to be void in Hern, 892 S.W.2d 894 and Wilson, 677 S.W.2d at 524 and that it has been said a prior conviction reflecting an illegal sentence cannot be used for purposes of enhancement. Walker, 95 S.W.3d at 521. But, I still think there is some room for argument. The distinction between a void conviction and void sentence seems intact in Mizell, CCA 11-05-03. Furthermore, there is always the chance of procedural default. Patterson, 969 S.W.2d at 19.

[This message was edited by Martin Peterson on 11-28-03 at .]

We have a case that is about to be submitted in the Fort Worth Court where we're arguing that a defendant who agreed to a plea bargain cannot later attack that bargain as being illegally too lenient on the defendant. Ex parte Shoe. (Our guy complained that the old conviction was void because the plea agreement did not include a required fine.)

The CCA remanded the case on our PDR and ordered the coa to address our estoppel argument -- so we have high hopes.

The courts of California, Indiana and Florida have addressed this issue and held that estoppel prevents a defendant who accepts the benefit of an illegally lenient sentence from later attacking the conviction on the basis of the sentence.

My understanding of the court's opinion in McGee is that the appellate court found that the trial court erred by not sentencing McGee to at least 72 hours in jail because Section 49.04 controlled over the general punishment provisions of Section 12.22.

Also, wouldn't a DWI conviction still be usable for enhancement purposes given the language of Section 49.09(e)(2)(A) (one of the qualifying dates is date on which judgment is entered)?

Janette Ansolabehere

We won the estoppel case I mentioned above.
http://www.2ndcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=15246

David: Did Shoe appeal the revocation of his 1999 conviction? Seems like the very issue Ben asks about would have to be involved in that appeal.

Since he didn't object to the enhancement count (i.e., this conviction) in his 1999 felony plea bargain, he tried to complain on appeal of his revocation that his plea 1999 plea attorney was ineffective. That point of error was dismissed as untimely. A month later they ruled on his pre-trial habeas appeal filed before the revocation -- they ruled that 1999 plea attorney was not ineffective because there were other DWI's that could have been used.