Opinion issued June 6 , 2013 .

In The 

## Court of Appeals For The 

## First District of Texas

NO. 01
- 12
- 00967
- CR

EX PARTE RICHARD DENNIS HARRI S , Appellant On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 1289692

MEMORANDUM OPINION Richard Dennis Harris appeals the trial court ’ s denial of his application for a writ of habeas corpus. Harris was charged with the felony offense of driving while intoxicated. See T EX
. P ENAL C ODE A NN . § 49.09(b)(2) (West Supp. 20 12 ). Harris negotiated a plea bargain and pleaded guilty to a C lass A misdemeanor charge of
DWI. The trial court placed Harris on community supervision. Harris sought2 habeas relief asserting that the trial court lacked jurisdiction because the “dismissal” of one of two prior DWI convictions reduced the charge from a felony to a Class A misdemeanor. T he trial court denied the application, and Harris appealed. W e conclude the trial court had jurisdiction, and we affirm the trial court’s order denying Harris’s application. Background A Harris County grand jury indicted Har ris for the felony offense of driving while intoxicated, with two prior DWI convictions. T he indictment alleged two prior DWI convictions, one in 2003 in Travis County and one in 2006 in Brazoria County. Harris filed a motion to dismiss, contending the trial court lacked jurisdiction. Specifically, Harris asserted that the 2006 Brazoria County conviction was not a valid final conviction and the indictment, therefore, alleged a misdemeanor, not a felony, deprivin g the trial court of jurisdiction. 1

1 According to the allegations in the indictment, the Brazoria County conviction became final in 2006. The document from Brazoria County attached to the appellant’s writ application is labeled “ Motion to Dismiss.” The State asked for dismissal due to “ e videntiary issues.” T he trial court’s order at the bottom of the motion states that the cause “ is her e by dismissed. ” It has the same cause number as the 2006 conviction alleged in the indictment in this case, but is dated February 24, 2011. In his motion to reconsider his writ application, the appellant refers to the 2006 Brazoria County conviction as “ an invalid ‘ Dee Wal lace ’ conviction, ” but nothing in the record indicates what that means . Harris’s motion implies that the Brazoria County conviction had something to do with “falsified records.”3 While Harris’s motion to dismiss was pending, he and the State negotiated a plea bargain. I n exchange for the State abandoning the enhancement allegation on the Brazoria County conviction, moving for the trial court to reduce the charge to a Class A misdemeanor, and recommending community supervision , Harris agreed to plead guilty to a Class A Misdemeanor DWI. The trial court accepted the guilty plea and sentenced Harris to one year confinement in the Harris County jai l, probated for eighteen months. Six months later, Harris sought habeas relief in the trial court, arguing that it lacked jurisdiction because the indictment pleaded a misdemeanor not a felony. The trial court denied the application. Harris appeals. Analysis In his sole issue , 2 Harris contends that the trial court

— a district court

— lacked jurisdiction over this case because Harris in fact did not have two prior
DWI conviction s to elevate his DWI to a felony.

2 The State initially asserted that this court lacked jurisdiction because there was no certification of defendant’s right to appeal in the record and because there was no timely filed notice of appeal. The clerk supplemented the record with a proper certification . The State filed a letter acknowledging the notice of appeal con tained in the supplemental record was timely and stating, “ The State therefore abandons that portion of its brief that asked this Court to dismiss the appeal for want of jurisdiction. ”4 Whether a court has subject matter jurisdi ction is a question of law. Coleman v. State , No. 07

- 10

- 00423

- CR, 2011 WL 3925767 , at *2 (Tex. App.

— Amarillo Sept. 7, 2011, no pet.) (mem. op., not designated for publication) (citing Tex. Dep ’ t of Park s & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) )

. In Texas, district courts have jurisdiction over felony offenses. T EX
. C ODE C RIM
. P ROC
. A NN . art. 4.05 (West 2005); see also T EX
. C ONST
. art. V, § 8 (“District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.”); T EX
. G OV ’ T C ODE A NN . § 24.007 ( a) (West Sup p. 20 12 ) (“ The district court has the jurisdiction provided by Article V, Section 8, of the Texas Constitution .”) ; Puente v. State , 71 S.W.3d 340, 343 (Tex. Crim. App. 2002) (“A district court has jurisdiction over felony offenses. It does not have original jurisdiction over misdemeanor charges, except those involving official misconduct.”). If an indictment alleges a felony, it vests jurisdiction in district court. Ex parte Sparks , 206 S.W.3d 680, 682 (Tex. Crim. App. 2006); Tellez v. State , No. 0 1

- 09

- 00381

- CR, 2010 WL 1840242, at *1 (Tex. App.

— Houston [1st Dist.] May 6, 2010, pet. ref’d) (mem. op., not designated for publication)

. When the State5 relies on p rior convictions to elevate what would otherwise be a misdemeanor offense to the level of a felony, “ jurisdiction vests when the pleadings are submitted to the trial court and contain the requisite number of previous convictions.” Tamez v. State , 11 S.W.3d 198, 201 (Tex. Crim. App. 2000)

. Jurisdiction ve sts even if the State is later unable to prove all allegations of the felony offense and only establishes a lesser included misdemeanor offense. Sparks , 206 S.W.3d at 682; Tellez , 2010 WL 1840242, at *1 ; see T EX
. C ODE C RIM
. P ROC
. A NN . art. 4.06 ( West 2005) (“ Upon the trial of a felony case, the court shall hear and determine the case as to any grade of offense included in the indictment, whether the proof shows a felony or a misdemeanor. ”) . The district court retains jurisdiction even if the State moves to reduce the charge to a lesser

- included misdemeanor pursuant to a plea bargain with the defendant. Golden v. State , 833 S.W.2d 2 91, 2 92 (Tex. Crim. App. 1992)

. A person is guilty of f elony DWI if he commits the offense of DWI and he has been previously convicted two times for DWI. T EX
. P ENAL C ODE A NN
. § 49.09(b)(2) ; see also See Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003) (two prior convictions for DWI are elements of offense of felony DWI). Misdemeanor DWI is a lesser

- included offense of felony DWI. See T EX
. C ODE6 C RIM
. P RO C
. A NN . art. 37.09 (West 2012); T EX
. P ENAL C ODE A NN . § 49.04 (West 2012); Reyes v. State , 394 S.W.3d 809, 812 (Tex. App.

— Amarillo 2013, no pet.)

. T he indictment in this case properly vested jurisdiction in the trial court by allegin g all the elements of a felony DWI. T he indictment alleged that Harris committed DWI and previously had been twice convicted for DWI. This is sufficient to vest t he trial court with jurisdiction. See Sparks , 206 S.W.3d at 682 (“ This pleading invoked the jurisdiction of the d istrict court for the felony that was alleged, and that jurisdiction extended to the misdemeanor offenses that were included in the indictment .”); s ee also Tamez , 11 S.W.3d at 201

. Whether the State could prove all of the allegations is not a jurisdiction al prerequisite , but, rather , an evidentiary matter. See Sparks , 206 S.W.3d at 682; see also Tellez , 2010 WL 1840242, at *1 (“ The State was not, as appellant asserts, required to prove that appellant had a prior conviction

. . . to maintain jurisdiction in the district court. ”). Accordingly, we hold that the trial court had jurisdiction over this case, because an indictment that properly alleged a felony offense had been submitted to the tria l
court. S ee Tamez , 11 S.W.3d at 201 ; Tellez , 2010 WL 1840242, at *1

. We overrule Harris’s sole issue.7 Conclusion We affirm the trial court ’s order denying Harris ’s application for a writ of habeas corpus

.

_____________________________ Rebeca Huddle Justice Panel consists of Justices Jennings, Brown, and Huddle. Do Not Publish

. T EX
. R. A PP
. P. 47.2( b).