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Click here for the full text of this decision FACTS:Michael Cadett Mapes was charged with driving while intoxicated in 2003. The indictment alleged two prior DWI convictions to enhance the charge to a felony under Penal Code �49.09(b)(2). In 2000, Mapes pleaded guilty to DWI. That charge included a conviction in 1993 for DWI, which elevated the 2000 conviction from a Class B misdemeanor to a Class A misdemeanor. On the judgment form for the 2000 conviction, the judge circled the letter “A” for the class of misdemeanor. The judge sentenced Mapes to 24 days in prison, and circled “N/A” next to the spaces for plea to the enhancement paragraph and findings on enhancement. Claiming that the 2000 conviction included in the indictment was void, Mapes moved to quash the jurisdictional paragraph of the indictment. The trial court denied the motion. Then, denying Mapes’ motion for directed verdict, the trial court convicted Mapes and sentenced him to two years in prison. HOLDING:Affirmed. The court says it will consider Mapes’ challenges to both rulings together, because in evaluating the legal sufficiency of the evidence to support felony DWI, the fact of the earlier convictions must be addressed. Noting that punishment for offenses must be between the minimum and maximum allowed by law, the court explains that a standard DWI charge is considered to be a Class B misdemeanor, subject to a minimum punishment of 72 hours and a maximum punishment of 180 days. DWI enhanced by one prior conviction is considered a Class A misdemeanor, subject to a minimum of 30 days’ confinement, and a maximum of one year. The court observes that the 24-day sentence Mapes received for his 2000 conviction was below the minimum for a Class A misdemeanor, thus his conviction was void. The court rejects the state’s contention that the conviction was really for a Class B misdemeanor, finding that the judge’s notation of “N/A” in the enhancement sections of the 2000 conviction reflected the fact that enhancement pleas and finding were inapplicable and unnecessary in that case. Despite holding that Mapes’ 2000 conviction was void, the court rules that Mapes is estopped from complaining about it because he “enjoyed the benefit” of the 24-day, shorter sentence. The court relies on Ex parte Shoe, 137 S.W.3d 100 (Tex.App. – Fort Worth 2004, pet. granted), which stated in another situation where a defendant served a shorter sentence than what the minimum required: “Appellant should not now be permitted to challenge the lesser sentence � the benefit he received and for which he bargained � because events since the sentence was assessed now make that sentence less appealing to him.” The court then goes on to address the dissent, explaining why each of the cases cited by the dissent are distinguishable, and why Shoe applies. OPINION:Hedges, CJ; before Hedges, Fowler and Frost, JJ. DISSENT:Frost, J. “The majority errs in adopting the reasoning of Ex parte Shoe that, while appellant cannot waive his right to challenge this void judgment, he can be estopped from asserting that it is void because he enjoyed the benefits of the sentence. . . . Shoe contradicts existing law and should not be followed.”

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