Gustavo Villalpando v. The State of Texas--Appeal from County Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-00-262-CR

EX PARTE GUSTAVO VILLALPANDO

From the County Court

Robertson County, Texas

Trial Court # 8443-A

MEMORANDUM OPINION

Gustavo Villalpando filed a post-conviction application for a writ of habeas corpus seeking to set aside a 1990 misdemeanor conviction for driving while intoxicated ( DWI ) which the State is presently using to elevate a subsequent DWI to the level of a third degree felony. See Tex. Pen. Code Ann. 49.09(b) (Vernon Supp. 2001). Villalpando expressly filed the habeas application under article 11.09 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 1977). After the court denied the application on its merits, Villalpando appealed.

Villalpando is not presently confined under the 1990 conviction. Because he is not presently confined on the misdemeanor charge which he seeks to set aside, he cannot show himself entitled to an article 11.09 writ of habeas corpus. // See Ex parte Bone, 25 S.W.3d 728, 729-30 (Tex. App. Waco 2000, no pet.); see also Ex part Oyedo, 939 S.W.2d 785, 786 (Tex. App. Houston [14th Dist.] 1997, pet. ref d). Therefore, the trial court properly denied his application.

We affirm the judgment. See Bone, 25 S.W.3d at 730.

PER CURIAM

Before Chief Justice Davis

Justice Vance and

Justice Gray

Affirmed

Opinion delivered and filed December 13, 2000

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