No. 10-00-00316-CR
Opinion delivered and filed September 7, 2005. DO NOT PUBLISH.
Appeal fromthe 258th District Court, Polk County, Texas, Trial Court No. 15511. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
BILL VANCE, Justice.
This case comes to us on remand from the Texas Court of Criminal Appeals. Rodney Smith was indicted for and convicted by a jury of the offense of felony driving while intoxicated. TEX. PEN. CODE ANN. § 49.04(a) (Vernon 2003), § 49.09(b)(2) (Vernon Supp. 2004-05). Smith brought five issues on appeal: (1) whether the evidence of intoxication is legally sufficient; (2) whether the evidence is legally sufficient to establish the two prior offenses; (3) whether the stipulation of the prior offenses is legally sufficient to establish that each occurred within ten years of the primary offense; (4) whether it was proper to use one of the prior felonies as an habitual offender enhancement when that offense had been raised to felony grade by an offense also alleged to raise the primary offense to a felony; and (5) whether one of the prior felonies alleged as an habitual offender enhancement was void. We overruled Smith's first issue, sustained his second issue, and reversed the judgment and rendered an acquittal. Smith v. State, 135 S.W.3d 198 (Tex.App.-Waco 2004), rev'd, 158 S.W.3d 463 (Tex.Crim.App. 2005). The Court of Criminal Appeals reversed our judgment on the second issue and remanded the case to us for consideration of the remaining issues. Smith, 158 S.W.3d at 465. We will overrule the remaining issues and affirm.
Remaining Issues
Issues three, four, and five remain. Smith argues in issue three that his stipulation of the prior offenses is legally insufficient to establish that each occurred within ten years of the primary offense. The Court of Criminal Appeals found that the prior convictions element was confessed to by stipulation and Smith has lost the ability to complain about the remoteness of the prior convictions. Id. Because we must abide by that decision, we overrule this issue. Smith's fourth issue argues that it was improper to use his 1996 felony conviction as a punishment enhancement in the present case, because his 1983 conviction, which had been used for punishment enhancement in the 1996 case, was also used to raise the offense in the present case to a felony. We have previously held that the State is not prohibited from reusing prior DWI convictions to elevate DWI offenses to felonies. Williams v. State, 846 S.W.2d 886, 899 (Tex.App.-Waco 1997, no pet.). Thus the State was not prohibited from using the 1983 conviction to elevate both the 1996 offense and the offense in this case. We overrule this issue. Smith argues in issue five that his 1996 conviction is "void" because of the State's failure to prove (in 1996) that the prior convictions used as enhancements in that case were committed within ten years of the date of the primary offense in that case. Smith may not collaterally attack the enhancement conviction with a claim of insufficient evidence. Galloway v. State, 578 S.W.2d 142, 143 (Tex.Crim.App. 1979); see also Daniels v. United States, 532 U.S. 374, 378, 121 S.Ct. 1578, 1581, 149 L.Ed.2d 590 (2001); State v. Duke, 59 S.W.3d 789, 792 (Tex.App.-Fort Worth 2001, pet. ref'd). We overrule this issue. CONCLUSION
Smith's issues are overruled, and the judgment of the trial court is affirmed.