Supernaw, Douglas v. The State of Texas--Appeal from Co Crim Ct at Law No 13 of Harris County

Affirmedand Opinion filed December 12, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00110-CR

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DOUGLAS SUPERNAW, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 13

Harris County, Texas

Trial Court Cause No. 1084065

M E M O R A N D U M O P I N I O N

Appellant, Douglas Supernaw, appeals from his conviction for driving while intoxicated. See Tex. Pen. Code Ann. ' 49.04 (Vernon Supp. 2002). A jury found him guilty and assessed punishment at five day=s incarceration and a fine of $2,000. Pursuant to section 521.341(3) of the Texas Transportation Code, when a person is convicted of DWI, his or her driver=s license is automatically suspended. Tex. Transp. Code Ann. ' 521.341(3) (Vernon 1994). Appellant=s sole contention on appeal is that the trial court erred in failing to indicate the date upon which the suspension period was to begin. He requests that the case be remanded for the trial court to enter a date. We affirm.

Under the Transportation Code, the automatic suspension of a driver=s license for a DWI conviction begins on a date set by the court that is not earlier than the date of the conviction or later than the 30th day after the date of the conviction, as determined by the court . . . . Tex. Transp. Code Ann. ' 521.344(a)(1) (Vernon Supp. 2003). The automatic suspension comes into effect only upon a final conviction. Id. ' 521.341; Lugo v. Tagle, 783 S.W.2d 815, 816 (Tex. App.CCorpus Christi 1990, no pet.). Cf. Jones v. State, 77 S.W.3d 819, 821B23 (Tex. Crim. App. 2002) (discussing automatic suspension of a person=s driver=s license on final conviction of drug offense). Therefore, the trial court cannot properly set a date for the suspension to begin until the conviction becomes final.

In Jones, the court of criminal appeals held that when there is no evidence that a notice of appeal has been filed, a conviction is considered final on the date of sentencing. 77 S.W.3d at 820. However, when an appeal is taken, the conviction does not become final until it is affirmed by the appellate court and mandate from that court has issued. Id. at 822. Very specifically, the Jones court noted that, when a defendant appeals a DWI conviction, the period of automatic license suspension does not begin until the mandate is received by the trial court. Id. at 822 n.11 (citing Lugo, 783 S.W.2d at 816); see also Allen v. Texas Dep=t of Pub. Safety, 411 S.W.2d 644, 648 (Tex. App.CTexarkana 1966, no writ) (holding final conviction, as used in the statutes referring to time license suspension commenced, means a judgment of conviction for DWI upon which all appeals have been exhausted and mandate has been received by the trial court).

In the present case, the appellant filed his notice of appeal immediately after sentencing. Consequently, the trial court could not have entered a date for the automatic suspension to begin until all appeals were exhausted and mandate issued. In other words, the trial court could not enter the date until this court affirmed the judgment and issued a mandate to that effect. Accordingly, the trial court did not err in refusing to enter a date for the suspension to begin.

The judgment of the trial court is affirmed.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed December 12, 2002.

Panel consists of Justices Anderson, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.3(b).