Michael Lee Neal v. The State of Texas--Appeal from 158th District Court of Denton County

IN THE

TENTH COURT OF APPEALS

No. 10-97-353-CR

MICHAEL LEE NEAL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 158th District Court

Denton County, Texas

Trial Court # F-97-0006-B

O P I N I O N

Appellant Neal appeals his felony conviction for driving while intoxicated, for which he was sentenced to five years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $800.

Appellant was charged by indictment with the felony offense of DWI which was alleged to have occurred on July 23, 1995. Jurisdiction in the felony count was pled by alleging two prior DWI convictions. The indictment alleged Appellant was convicted of DWI in MB-87-29153-B on November 23, 1987, in County Criminal Court No. 2 of Dallas County; and also alleged Appellant was convicted of DWI in MB-87-4870-B in the County Criminal Court No. 2 of Dallas County on November 23, 1987.

Appellant filed a motion to quash the enhancement allegations of the indictment. He alleged that the judgments did not meet the requirements of Article 42.01, Texas Code of Criminal Procedure. The motion to quash was denied.

Appellant then pled guilty to the main allegation in the indictment, that he drove while intoxicated on July 23, 1995, and pled "not true" to the two enhancement allegations.

The trial court found Appellant guilty of DWI and found that the State had proved the two alleged prior convictions. Appellant was sentenced to five years in TDCJ-ID, probated for five years, and fined $800.

Appellant appeals on two points of error:

Point I: "The prior DWI convictions alleged for enhancement are void in that the underlying documents do not reflect valid judgments and sentences by which it could be shown the convictions were final."

In MB-87-4870-B, Exhibit 3 reflects a judgment. It is dated November 23, 1987, is signed by the judge, and states that defendant Michael Lee Neal was found guilty on a plea of guilty of DWI, and sentenced to 120 days in jail, probated for 24 months, and fined $250. There also appears in evidence a copy of an order revoking Neal's probation and stating that the prior finding of guilty is made a final finding.

In MB-87-29153-B, Exhibit 4 reflects a judgment. It is dated November 23, 1987, is signed by the judge, and states that defendant Michael Lee Neal was found guilty of DWI, on a plea of guilty and sentenced to 60 days in jail, probated for 24 months, and fined $350. There also appears in evidence a copy of an order discharging Neal from probation on November 23, 1989.

Neither judgment was void. Both show final convictions of Appellant for DWI's as alleged in the indictment.

The attack on such judgments is collateral. To be successful in collaterally attacking a prior conviction, Appellant had to demonstrate that the prior convictions were void. German v. State, No. 1036-95 (Tex. Crim. App. Oct. 7, 1998). Lesser infirmities may not be raised in a collateral attack even if such lesser infirmities might have resulted in a reversal had they been presented on appeal. Id.

Some of the blanks in the two prior judgments were not filled in, but Appellant has not shown that either one was void. Appellant urges further that it is not shown that his probation was revoked in MB-87-29153-B and hence was not a final judgment. A DWI conviction is a final conviction, whether the sentence for conviction is imposed or probated. Section 49.09(d), Texas Penal Code; Section 1.19(b), Chapter 900, 73rd Legislature.

Point I is overruled.

Point II: "The State failed to prove Appellant was the person previously convicted of the prior DWI offenses used for enhancement purposes."

State's Exhibits 3 and 4 contained fingerprints of the person shown to be convicted in such judgments. Investigator Mooney, a fingerprint expert, testified that he took the fingerprints of Appellant and compared them with the fingerprints on Exhibits 3 and 4 and, in his opinion, the known fingerprints of Appellant matched the prints on Exhibits 3 and 4. This is sufficient to prove identity. Littler v. State, 726 S.W.2d 26, 28 (Tex. Crim. App. 1984).

Point II is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed November 4, 1998

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