Adelaida E. Tijerina v. State

Opinion

NO. 07-07-0396-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

APRIL 18, 2008 ______________________________

ADELAIDA E. TIJERINA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-416,214; HONORABLE CECIL G. PURYEAR, JUDGE _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Adelaida E. Tijerina seeks a reversal of her sentence and remand of her

cause for a new punishment hearing. The State joins appellant in her request. We reverse

the judgment in part and remand to the trial court for a new punishment hearing.

Background

Appellant was convicted of the offense of driving while intoxicated, with two prior

convictions for driving while intoxicated, making the offense a third degree felony. Additionally, the State sought to enhance the charged offense with a prior felony offense,

thus making the offense punishable as a second degree felony.

At the inception of the guilt-innocence phase of the trial, the State read the

indictment along with the two prior convictions necessary for the jurisdictional

requirements. Appellant pled true to the jurisdictional prior convictions. At the conclusion

of the guilt-innocence phase of the jury trial, the jury found appellant guility of the offense.

The trial then proceeded to the punishment phase. At the punishment phase, the State

read the felony enhancement and introduced a pen packet demonstrating a prior felony

conviction for driving while intoxicated. The jury found the enhancement true, making the

offense punishable as a second degree felony, and returned a verdict of fifteen years

confinement in the Institutional Division of the Texas Department of Criminal Justice.

Appellant now appeals raising five issues relating to the use and admission of the

prior felony offense for enhancement purposes and has requested that the matter be

remanded for a new hearing on punishment. The State, conceding that the prior felony

offense involved an unrevoked probated sentence and should not have been used for

enhancement purposes, has also filed a brief requesting that the case be remanded for a

rehearing on punishment. See Diremiggio v. State, 637 S.W.2d 926, 928 (Tex. Crim. App.

1982).

Without reviewing the issues presented, we hereby grant appellant and the State

the prayer requested and reverse the trial court’s judgment as to punishment and remand

this cause to the trial court for a rehearing on punishment. TEX . R. APP. P. 43.2(d).

2 Conclusion

We affirm the trial court's judgment of conviction, vacate the sentence imposed, and

remand to the trial court for a new sentencing hearing. TEX . CODE CRIM . PROC . ANN . art.

44.29(b) (Vernon Supp. 2006).

Mackey K. Hancock Justice

Do not publish.