COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

SEL ENE SERRANO, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-08-00209- CR

Appea l from 243rd District Court of El Paso County , Texas (TC # 20070D03216)

O P I N I O N Selene Serra

no appea ls the judgme n

t p la cing her on defe rre d adjudication. Appellant waived her rig ht to a jury trial and enter ed a neg otiated plea of g uilty to theft of proper ty under $1,500 and pled true to the para g raphs alleg ing she had two prior misdemeanor theft convictions. The trial court found t hat t he evidence substantiated Appellant’s g uilt, but t he cour t defe rre d further proce eding s and plac ed Appe llant on community supervision for two y ear s. We affirm. F ACTUAL SUMMA RY A g rand jury returne d an indictment ag ainst Appellant alleg ing s h e co m m i tted theft of clothing with a value less than $1,500. The indictment included two additional para g raphs alleg ing Appellant had pr eviously been c onvicted of the ft: And it is further prese nted in and to said Court, that b efor e the commission of the offe nse alleg ed above, the defe ndant had been convicted twice of a g rade of theft, towit: on the 24th day of Aug ust, 2006 in the County Criminal Court Number One of El Paso County , Texas, in cau s e n u mb e r 2 0 0 6 0 C0 7 769, said defe ndant was convicted fo r t he offense of Theft- Class B; and on the 24t h day of April, 2007 in t h e C o u n t y Criminal Court at L aw Number One of El Paso County , Texas, in cause number 20070C00303, said defe ndant was c onvicted for the offe nse of The ft-Class B. Appellant filed a pretria l motion to quash the indictment alleg ing that the prior conviction in causenumber 20070C00303 was not valid f o r e nhance ment purposes beca use it was not a final conviction. The motion asser

ted Appellant had been place d on probation in that case and i t had not been revoke d. She attache d a copy of t he judgment and sentenc e showing she had re ce i v ed a probate d
sentenc e. Appellant did not reque st tha t the alleg edly invalid e nhance ment para g raph be quashed; instead, she soug ht dismissal of the indictment. A t the hear ing on the motion to quash, the parties prese nted arg ument on the motio n b u t did not prese nt any evidenc e. The trial court denied the

m o t i o n to quash, finding that Section 31.03(e) (4)( D) did not require that the State alleg e i n t h e indictment that the conviction used for eleva tion is final but it was instead an evidentiar y matter to be deter mined at trial. Appellant later enter ed a neg otiated g uilty plea and p l ea of true to the enhanc ement par ag raphs. I n acc ordanc e with the plea ba rg ain, the trial c ourt place d Appellant on defe rre d adjudication community supervision for two y ear s. This appea l follows. MOTION TO Q UASH I n the sole issue prese nted on ap p ea l , Appellant challeng es the trial court’s denial of her motion to quash. She arg ues that the court err ed by concluding that the finality of the conviction is

an evidentiar

y matter to be deter

mined at trial and is not a jurisdictional issue which ca n b e deter mined pretria l. The State responds, in part, that the alleg ations rela ted to Appellant’s prior theft convictions are not enhanc ement alleg ations but are elements of the offe nse which serve to eleva te it to a state jail felony , and there fore , Appellant is not permitted to attack the sufficie ncy of an element of

the offe nse by

means of a

pretria l motion t o quash. The sufficie ncy

of an indictment is a question of law which we revie w de novo . Lawrence

v. State , 240 S.W .3d 912, 915 (Tex.Crim.App.2007); State v. Moff , 1 5 4 S.W .3d 599, 601 (Tex.Crim.App. 2004). A person commits theft if he unlawfully appropr iates proper ty with the intent to deprive the owner of the proper ty

. T E X .P E N A L C O D E AN N . § 31.03(a) (Ve rnon Supp. 2009).Theft of

proper ty is a Class A misdemeanor if the value of the prope rty

stolen is $500 or more but less than $1,500. T E X .P E N A L C O D E AN N . § 31.03(e) (3). But under Section 31.03(e) (4)( D), the offe nse is eleva ted to a state jail felony if the defe ndant has been previously convicted two or more times of any g rade of theft. T E X .P E N A L C O D E AN N . § 31.03(e) (4)( D). El ev ating a misdemeanor theft t o a st ate jail felony theft by u s e of previous theft convictions does not enhanc e punis hment, but cre ates a new offe nse and vests the district court with jurisdiction. Di a mo n d v. State , 530 S.W .2d 586, 587 (Tex.Crim.App. 1975); Moore v . State , 916 S.W .2d 537, 539 (Tex.App.--Da llas 1995, no pet.). Fur

ther, previous theft convictions that eleva te a misdemeanor to a felony are jurisdictional elements of the of fense

. Moore , 916 S.W .2d at 539. The prese ntment of an indictment ve sts a district court with jurisdiction. T E X .C O N S T . Art. V, § 12(b). District courts and criminal di strict courts have original j urisdiction i n criminal cases of the g rade of felony , of all misdemeanors involving officia l misconduct, and of misdemeanor case s transfe rre d to the district court under Article 4.17 o f the Code of Criminal Procedur e. T E X .C O D E C R I M .P R O C .AN N . art. 4.05 (Ve rnon 2005). When the fac e of the indictment char g es a felony , the district court does not lose jurisdiction if the State is only able to prove a misdemeanor at trial. See T E X .C O D E C R I M .P R O C .AN N . art. 4.06 (Ve rnon 2005); Jones v. State , 502 S.W .2d 771, 773-74 (Tex.Crim.App. 1973); State v. Meadows , 170 S.W .3d 617, 620 (Tex.App.--El Paso 2005, no pet.). A char g ing instrument that is valid on its fac e and returne d by a leg ally constituted g rand jury is sufficie nt to mandate trial of the char g e on its merit s . Me a d o w s , 170 S.W .3d at 620. The sufficie ncy of an indictment cannot be supported or defe ated by evidenc e at a pretria l hear ing. State

v. Rosenbaum , 910 S.W .2d 934, 948 (Tex.Crim.App. 199 4 )( d i s s enting op. adopted on reh’ g ); Meadows , 170 S.W .3d at 620. An i ndictment must be fac ially tested under the l aw as a pleading. Rosenbaum , 910 S.W .2d at 948. I n the pretria l se tting, there is ne ither constitutional nor statutoryau t h o ri t y for a defe ndant to test, or for a trial court to deter mine, the sufficie ncy of evidenc e t o support or defe at an element alleg ed in the indictment. W o o d s v. State , 153 S.W .3d 413, 415 (Tex.Crim.App. 2005); Rosenbaum , 910 S.W .2d at 948; Meadows , 170 S.W .3d at 620. Appellant cites our dec is io n in State v. Newsome , 64 S.W .3d 478, 479-81 (Tex.App.--El Paso 2001, no pet.) in support of her arg ument that a pretrial m otion to quash can be us ed t o ch al l eng e whether a prior c onviction can be used to eleva te an offe nse to a felony

. There , the def endant ha d been char g ed with stalking and the indictment alleg ed a prior stalking conviction for purposes of eleva ti n g the offe nse to a third deg ree felony

. The trial court g rante d the defe ndant’s motion to quash alleg ing that the prior conviction was not f inal. The State appea led and arg ued that beca use the statute does not expressly require that the defe ndant be “fina lly convicted” or otherwise require that the conviction be a final one, then we must assume that the L eg islature did not intend to impose such a require ment. Id. at 479. The State did not raise the arg ument prese nted in this case , namely , that a motion to quash cannot be used to test the sufficie ncy of an element of the offe nse. There fore , Newsome does not stand for the proposition that a pretria l motion can be used in that manne r. The trial court corr ectly deter mined that Appellant is not permitted to use a pretria l motion
to quash t o test the s ufficie ncy of t he evidence supporting the alleg ations in the i n d i ct m ent which eleva te the offe nse to a state jail felony

. A motion to quash, like any pretria l motion, cannot be used
to arg ue that the prosec ution is unable to prove one of the elements of the crime. Lawrence v. State , 240 S.W .3d 912, 916 (Tex.Crim.App. 2007); W oods , 153 S

. W

. 3 d at 415. A pretria l proce eding should not be a “mini-trial” on the sufficie ncy of the evidenc e to support an element of the offe nse. Lawrence , 2 4 0 S

. W

. 3 d at 916. We overr ule the sole issue prese nted on appea l and aff irm the judgme nt of the trial cour t.May

28, 2010 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)