La Duke v. State

DAVIDSON, Judge

(dissenting).

. The majority of this court overrule appellant’s motion for rehearing without written opinion.

I cannot agree to the affirmance of this case for the following reasons:

This is a conviction for the felony offense of driving while intoxicated, with punishment assessed at a fine of $100 and thirty days in jail.

The - prior ,-misdemeanor - conviction for drunken driving relied upon was alleged to have occurred in the County Court of Haskell County.

■ In proving up that conviction the state introduced a judgment of conviction. The judgment, however, did not show upon its face that the conviction was for the offense of drunken driving.

It became necessary, then, for the state to supply that proof from other sources. Shelton v. State, 162 Tex.Cr.R. 266, 284 S.W.2d 732. This the state attempted to do by introducing the complaint, and information ⅛. the case, the charging portion o-f the information reading as follows:

*245“Curtis F. Pogue, County Attorney of the County of Haskell, State of Texas, at this, the November term, A. D., 1947, of said court, comes in behalf of the state of Texas and in connection with the complaint of D. P. Fuller, herein filed, presents, in and to said County and State, on or about the 12 day of November, A.D. 1947, J. W. Laduke [sic] did then and there unlawfully, while intoxicated and while under the influence of intoxicating liquor, drive a motor vehicle, to-wit: 1939 model Ford Automobile, upon a public highway within said County,
“Texas State Highway No. 283.”

It will be noted that the information nowhere shows that it was presented in any court by the county attorney.

Art. 414, Vernon’s Ann.C.C.P., requires that the information must state that it was presented in a court having jurisdiction of the offense set forth therein.

It is a county court which has jurisdiction of the misdemeanor offense of drunken driving. In order to invoke the jurisdiction of a court having jurisdiction of said offense it is necessary that the information show that it was presented in a county court.

Unless and until the County Court of Haskell County acquired jurisdiction by a valid information or indictment, it was without jurisdiction to enter any judgment in the case.

A void judgment may be attacked anywhere at any time.

The judgment relied upon to show that appellant had been convicted of the misdemeanor offense of driving while intoxicated was void for the want of jurisdiction of the court entering the judgment.

It is apparent, therefore, that the state wholly failed to prove the allegation of the information in this case that the appellant had been convicted of the misdemeanor offense of drunk driving.

I respectfully dissent.