ROBERT LEE CODY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed April 11, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01222-CR
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ROBERT LEE CODY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-60454-IM
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OPINION
Before Justices Whittington, Francis, and Lang
Opinion By Justice Lang
        Robert Lee Cody appeals the trial court's judgment convicting him of driving while intoxicated. Cody pleaded guilty to the offense of driving while intoxicated and true to the two enhancement paragraphs in the indictment. The trial court assessed Cody's punishment at forty years of imprisonment.
        Cody raises two issues on appeal: (1) he did not knowingly and voluntarily plead guilty because he was under the false impression the trial court could assess his punishment at community supervision with drug rehabilitation treatment as a condition; and (2) the trial court erred when it allowed the State to use his prior 1985 felony DWI conviction to elevate the charged offense to a third degree felony and to enhance his punishment.         We conclude the trial court did not abuse its discretion when it accepted Cody's plea of guilty. Also, we conclude Cody failed to preserve for appellate review his claim that the trial court allowed the State to use his prior 1985 felony DWI conviction to elevate the charged offense to a third degree felony and to enhance his punishment. However, even if Cody had preserved this issue for appellate review, we conclude the trial court did not err when it allowed the State to use his prior 1985 felony DWI conviction to enhance his punishment. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Cody was indicted for the offense of DWI. The indictment alleged two prior DWI convictions as jurisdictional elements to elevate his offense to a third degree felony. Also, the indictment alleged two prior felony DWI convictions to enhance his punishment range under the habitual felony offender statute.
        Cody entered an open plea of guilty to the trial court and pleaded true to the enhancements. Also, Cody signed a plea agreement, a judicial confession, and a stipulation of evidence. The trial court found appellant guilty and the enhancements true. During the punishment hearing, Cody asked the trial court for drug treatment, but the trial court assessed his punishment at forty years of imprisonment.
II. KNOWING AND VOLUNTARY GUILTY PLEA
 
        In his first issue, Cody argues he did not knowingly and voluntarily plead guilty because he was under the false impression the trial court could assess his punishment at community supervision with drug rehabilitation treatment as a condition. He argues the record shows he believed the trial court could assess community supervision with drug treatment. However, the trial court lacked the authority to assess community supervision because the minimum punishment for his offense was twenty-five years of imprisonment. The State responds that Cody assured the trial court he was pleading guilty freely and voluntarily, he affirmed that he understood the punishment range in this case was twenty-five years to life imprisonment, and neither the trial court nor counsel made any oral representations on the record indicating Cody was eligible for community supervision.
A. Applicable Law
 
        A guilty plea shall not be accepted by the trial court unless it appears the plea is free and voluntary. See Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2005). If the trial court properly admonished the defendant before a guilty plea was entered, there is a prima facie showing the plea was both knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Substantial compliance by the trial court is sufficient. See Tex. Code Crim. Proc. Ann. art. 26.13(c). Where the record shows the defendant received an admonishment with respect to the range of punishment, there is a prima facie showing the defendant's guilty plea was knowingly and voluntarily made, even though the trial court failed to inform the defendant that by pleading true to the enhancement paragraphs he could be sentenced to a longer prison term. See Gomez v. State, 921 S.W.2d 329, 336 (Tex. App.-Corpus Christi 1996, no pet.). A trial court has no duty to admonish a defendant about his eligibility for community supervision. See Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986); Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.).
        Once substantial compliance has been shown, the burden shifts to the defendant to show: (1) he pleaded guilty without understanding the consequences of his plea; and (2) he was misled or harmed by the admonishment of the court. See Tex. Code Crim. Proc. Ann. art. 26.13(c). When considering the voluntariness of a guilty plea, an appellate court must examine the entire record. See Martinez, 981 S.W.2d at 197. A plea is not rendered involuntary simply because a defendant received a greater punishment than he anticipated. See Tovar-Torres, 860 S.W.2d at 178; Rice v. State, 789 S.W.2d 604, 607 (Tex. App.-Dallas 1990, no pet.).
B. Application of the Law to the Facts
 
        Cody entered an open plea of guilty before the trial court. The trial court asked Cody if he was pleading guilty freely and voluntarily and Cody answered “Yes.” The trial court also asked Cody if he was freely and voluntarily pleading true to the two enhancement paragraphs and again, Cody answered “Yes.” Although the trial court did not orally admonish Cody of the range of punishment, Cody signed a written plea agreement, which states he understands the range of punishment for the offense and his plea is knowingly, freely, and voluntarily made with a full understanding of the consequences. Also, the plea agreement correctly informed him that the punishment range for a third degree felony DWI is two to twenty years of confinement and a fine not to exceed $10,000. However, the plea agreement did not inform Cody of the punishment range if the trial court found the enhancement paragraphs true.
        Although the trial court did not inform Cody that by pleading true to the enhancement paragraphs contained in the indictment he could be sentenced to a longer term of imprisonment, we conclude there is a prima facie showing that his guilty plea was knowing and voluntary because the trial court's admonishment with respect to the range of punishment substantially complied with article 26.13. See Gomez, 921 S.W.2d at 336. As a result, the burden shifts to Cody to show he entered his plea without understanding the consequences of his action and was misled or harmed by the trial court's admonishment.
        Cody pleaded true to the enhancement paragraphs in the indictment. The parties do not dispute Cody was ineligible for community supervision because, by pleading true to the enhancement paragraphs in the indictment, the range of punishment was twenty-five years to life imprisonment. During the punishment hearing, defense counsel asked Cody if he understood the trial court could sentence him from twenty-five years to life imprisonment and Cody answered “Yes.” Also, when Cody asked the trial court for drug treatment, the trial court responded, “Well, you're asking me now that you're facing life in the penitentiary.” Finally, during argument, defense counsel stated, “Minimum sentence in terms of prison sentence, the Court can give 25. I understand that. Mr. Cody understand [sic] that, also.” Although Cody asked the trial court for drug treatment, there is nothing in the record indicating the trial court or counsel made any representations that Cody was eligible for community supervision with drug treatment as a condition. We conclude Cody has failed to show he entered his guilty plea without understanding the consequences of his action and that he suffered harm.
        Cody's first issue is decided against him.
III. PRIOR CONVICTION USED FOR ENHANCEMENT
 
        In his second issue, Cody argues the trial court erred when it allowed the State to use his prior 1985 felony DWI conviction to elevate the charged offense to a third degree felony and to enhance his punishment.
A. Preservation of Error
 
        The State argues Cody failed to preserve this issue for appeal because he did not object to the use of his 1999 DWI conviction to elevate the charged offense or the use of his 1985 felony DWI conviction to enhance his punishment. To preserve an issue for appellate review, a party is required to show: (1) a timely complaint to the trial court, bringing the issue to the trial court's attention; and (2) the trial court ruled on the party's complaint, or the trial court refused to rule and the party objected to that refusal. Tex. R. App. P. 33.1(a); Harris v. State, 204 S.W.3d 19, 27 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd). Cody pleaded guilty to the offense charged and true to the enhancements. He signed a judicial confession and stipulation of evidence, stipulating, in part, to his prior 1985 and 1999 DWI convictions. After Cody was admonished and pleaded guilty to the offense and true to the enhancements, the State asked the trial court to take judicial notice of Cody's judicial confession and stipulation of evidence, and defense counsel stated there was no objection. During the punishment hearing, the State offered Cody's stipulation of evidence and the 1985 and 1999 judgments of conviction and again, defense counsel stated there was no objection.
        We conclude Cody has not preserved this issue for appeal. See Harris, 204 S.W.3d at 27.
B. Improper Use of Prior Conviction
 
        Even if Cody preserved this issue for appellate review, we conclude the trial court did not err. Cody argues the State used his 1985 felony DWI conviction twice because: (1) his 1999 DWI conviction, which was used for jurisdictional purposes to elevate the charged offense to a third degree felony, was elevated to third degree felony by his 1985 felony DWI conviction; and (2) his 1985 felony DWI conviction was used for enhancement purposes to increase the range of punishment. The State responds that it was not required to plead or prove the 1985 felony DWI conviction in order to use the 1999 DWI conviction.
1. Applicable Law
 
        The offense of DWI is a misdemeanor. See Tex. Pen. Code Ann. § 49.04(b) (Vernon 2003). However, if it is shown on the trial of the offense the defendant has previously been convicted two times of any other offense relating to the operating of a motor vehicle while intoxicated, the offense is elevated to a third degree felony. See id. § 49.09(b)(2). Elevating a misdemeanor to a felony offense by using previous DWI convictions does not enhance punishment. See Harris, 204 S.W.3d at 27-28. Instead, it creates an entirely new offense and vests the district court with jurisdiction. See id. As a result, two prior DWI convictions are required elements of the offense of felony DWI under section 49.09(b). See Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003).         Also, a defendant's range of punishment can be enhanced under the habitual felony offender statute. See Tex. Pen. Code Ann. § 12.42 (Vernon Supp. 2006). A habitual felony offender is a person shown to have “previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final . . .” See id. § 12.42(d). However, section 49.09(g) provides that a conviction may be used to elevate an offense under section 49.09 or to enhance punishment under section 12.42(d), but not under both. See id. § 49.09(g).
2. Application of the Law to the Facts
 
        For the purpose of elevating the charged offense from a misdemeanor to a third degree felony, the indictment alleged as elements of the offense that Cody had been previously convicted of DWI on May 21, 1999 and May 23, 1997. Also, for the purpose of enhancing Cody's punishment, the indictment alleged he had been previously convicted of felony DWI on September 5, 1986 and June 28, 1985. The record shows that Cody's June 28, 1985 felony DWI conviction was used to elevate his May 21, 1999 DWI conviction to a third degree felony offense.
        The 1999 DWI conviction is a separate and distinct offense from the 1985 felony DWI conviction. See Harris, 204 S.W.3d at 27-28. The use of the 1999 DWI conviction to elevate the charged offense from a misdemeanor to a third degree felony did not enhance Cody's punishment. See id. Instead, it created an entirely new offense and vested the district court with jurisdiction. See id. The State was not required to plead or prove the 1985 felony DWI conviction to use the 1999 DWI conviction to elevate the charged offense to a felony. See id. Accordingly, we conclude the trial court did not err when it allowed the State to use his prior 1985 felony DWI conviction to enhance Cody's punishment because the State did not use his 1985 felony DWI conviction to elevate the charged offense to a third degree felony. See id.         Cody's second issue is decided against him.
IV. CONCLUSION
 
        The trial court did not abuse its discretion when it accepted Cody's plea of guilty. Also, Cody failed to preserve for appellate review his claim that the trial court allowed the State to use his prior 1985 felony DWI conviction to elevate the charged offense to a third degree felony and to enhance his punishment. However, even if Cody had preserved this issue for appellate review, the trial court did not err when it allowed the State to use his prior 1985 felony DWI conviction to enhance his punishment.
        The trial court's judgment is affirmed.
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061222f.u05