NO. 07-03-0533-CV

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL C

	MAY 27, 2004

	______________________________

	IN THE MATTER OF THE MARRIAGE OF

	KAREN SUE BEDFORD 	AND STEVEN EDWARD BEDFORD

	_________________________________

	FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

	NO. 67,701-D; HONORABLE DON EMERSON, JUDGE

	_______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

	MEMORANDUM OPINION

	Appellant Steven Edward Bedford filed a “request for an appeal” challenging an agreed final decree of divorce.1  The clerk’s record was filed on January 21, 2004; however, no reporter’s record was filed.  Appellant’s brief was due to be filed on February 20, 2004, but has yet to be filed and no motion for extension of time was filed.  By letter dated April 28, 2004, this Court notified attorney Bryan Adamson of the missed deadline and also directed him to reasonably explain the failure to file a brief with a showing that appellee has not been significantly injured by the delay on or before May 10, 2004.  Counsel did not respond and the brief remains outstanding.

	Accordingly, we dismiss this appeal for want of prosecution and failure to comply with an order of this Court.  See Tex. R. App. P. 42.3(b) & (c).

						Don H. Reavis

						    Justice

   ñ,ÉêåßÑà621 S.W.2d 158, 163 (Tex.Crim.App. 1980). 

	In Weaver the court explained that the limitation on use of prior convictions created by former section 49.09(e) is neither an element of the offense nor an exception to the offense.4  87 S.W.3d at 561.  It  held subsection (e) is “more akin to a rule of admissibility, rather than an element of the offense.”  Id.  As a result, the State need only allege two prior convictions for listed intoxication-related offenses, without regard to the age of those convictions.  Id.  The State’s burden to prove the prior offenses arises only “on the trial of the offense.” §  49.09(b).  If evidence of a prior conviction is barred by section 49.09(e), the State will be unable to establish an element of the felony offense.  Id.  Such failure to establish the greater offense would not deprive the district court of jurisdiction.5  See Tex. Code Crim. Proc. Ann. art. 4.06 (Vernon 2005).  Under the holding in Weaver, the face of the indictment did not show a lack of jurisdiction and the trial court did not abuse its discretion in overruling appellant’s motion to quash.  We likewise overrule appellant’s first issue.  

	Appellant’s second and third issues challenge the sufficiency of the evidence supporting his plea of guilty.   Under Article 1.15 of the Code of Criminal Procedure, a guilty plea alone is insufficient to establish a defendant’s guilt.  The State must also introduce evidence which embraces every essential element of the offense.  Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996).   As explained in Weaver, the proof of two prior offenses are elements of the offense.  Weaver, 87 S.W.3d at 561.  Negating the limitation of former 49.09(e) is not. Id.  

	Appellant argues the State failed to prove the two prior driving while intoxicated convictions.  He does not challenge the sufficiency of the evidence supporting the other elements of driving while intoxicated.  Appellant separately pled guilty to the two prior convictions.  Cf. Barfield v. State, 63 S.W.3d 446, 448 (Tex.Crim.App. 2001) (review of sufficiency when defendant plead not true to prior convictions).  Viewed against the Court of Criminal Appeals’ holding in Weaver that sections 49.04 and 49.09(b) encompass all the elements of felony DWI, introduction of the two prior judgments established the elements appellant now challenges.  This evidence was sufficient to support appellant’s plea of guilty to each essential element of the offense. See Weaver, 87 S.W.3d at 561;  Ramirez v. State, 139 S.W.3d 731 (Tex.App.–Fort Worth 2004, pet. ref’d).  

	Addressing the merits of appellant’s challenge to the use of his first conviction leads to the same result.  In Getts, the Court of Criminal Appeals set out the proper method for applying section 49.09(e).  155 S.W.3d at 155-56.  Following the plain language of section 49.09(e), analysis must begin with the first conviction sought to be used.  A court looks forward from the later of the date of that conviction or discharge of the resulting sentence.  A second conviction for a listed offense within ten years makes the first conviction available for use under section 49.09(b).  155 S.W.3d at 156.

	Appellant argues use of his first conviction was barred by section 49.09(e) because more than ten years elapsed between the date of his first conviction, December 11, 1987, and his second conviction on September 3, 1999.  As explained in Getts, the proper period is from the discharge of appellant’s first sentence until his second conviction.  155 S.W.2d at 155.  The December 11, 1987 judgment suspended appellant’s sentence for a period of two years and placed him on probation.  Discharge from probation at the end of that period in December 1989 would be within ten years of his second conviction on September 3, 1999.  The record does not conclusively establish the date on which appellant was discharged.  Because the limitation of 49.09(e) is not an element of the offense, Weaver, 87 S.W.3d at 561, the State was not obligated to establish the date of discharge beyond a reasonable doubt.  The trial court reasonably could infer that the sentence was discharged at the end of the period of probation stated in the judgment.  In addition to the judgment, the trial court had before it the representation in appellant’s motion to quash that he discharged his first sentence on December 11, 1989.  This date was reiterated in appellant’s argument at the motion to quash hearing.  Taken together, these support a determination by the trial court that the second conviction was within ten years of the discharge of appellant’s first sentence and evidence of that conviction was admissible.  The record contains evidence supporting each essential element of the offense.  We overrule appellant’s second and third issues. 

	Finding no reversible error in the trial court’s judgment we affirm that judgment.

						James T. Campbell

						         Justice

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