NO. 07-03-0505-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B OCTOBER 28, 2005

______________________________ RAMON MORENO, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 140 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2002-400878; H ONORABLE JIM BOB DARNELL, JUDGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION Appel la ntRamon Moreno br ings thisappeal from his conviction for the felony offense of driving while intoxicated and punishment of ni ne years co nfinement, probated for si x y ears. We will a ffirm. Appellant’s convicti on was the r esult of his open pl ea of gu ilty a fter the trial court overrule d his motion to quash the indictme nt. In that motio n he clai med the trial court lacked jurisdiction because the prior convictions alleged i n the indictment were too r emote1 At a hearing on his motion toquash appell ant conceded his second convi ction

occurred on September 3, 1999 r ather than in July

2001. Both of the prior judgments were introduced into evidence.

2 See Act of J une 18, 2005, 79th Leg . R.S., ch. 996 , § 3, 19 89 T ex. Ge n. La ws 3365. 2 to be used to make the offense a felon y. He now presents thr

ee issues on appeal, each related to the use of his prior convicti ons. His fir st issue assigns error to the denial of his motion to quash. His second and third iss ues challeng e the legal and factual suf ficiency of the evidence to support his plea of guilty

. The indictment alleged appellant operated a motor vehicle while in toxicate d on September

8, 2002. It further

alleged a pr ior DWI conviction on July 12, 2001, 1 and another on December 11, 1 987. Appellant’ s motion to qua sh was bas ed on the ti me limitation on the use of prior convictions containe d in former section 4 9.09(e) of the Penal Code. Tex. Penal C ode Ann. § 49.09(e) (repealed eff ective September 1, 2005). 2 Section 49.09(b) makes the of fense of driving while intoxicated a felony of the third degree if it is shown at t rial t he defendant has prev iously bee n convicte d two timesof listed alcoh ol related offenses. Tex. Penal Code Ann. § 49.09( b) (Verno n Supp. 2005). Although section 49.09(e) referr

ed to prior convictions

in terms of “enh ance men t,” o ur co urts have consistently

held the prior

convicti ons are elements of the offense of felony driving while intoxicated and do not merely enhance punishment. Gibsonv. State , 995 S.W.2d 693, 696 (Tex.Cri m.App. 1999). As el ements of the of fense, the State must all ege and prove the prior conv ictions. Weaver v. State , 87 S.W.3d 557, 560 (Tex.Cri m.App. 2002).3 S uspension of a sentence does not prevent a convic tion from being final unde r current section 49.09(d) or the form er Revised Civil Statutes Article 6701l-1(h), applicable to convicti ons after January 1, 1984. Ex

parte Serrat

o , 3 S.W .3d 41 (Tex.Crim.App. 1999 ).
4 Weaver

dealt wi th section 49.09( e) before i ts 2001 ame ndments. 87 S.W.3d at 560. W e see no re ason , tho ugh, why Wea ver’ s rationale w

ould not continue to apply to section 49.09(e ) after its amendment

. 3 Atthe time of appellan t’s prosecution, section 49.09 (e) prohib ited us e of a prior convicti on if (1) it was a final convi ction; 3 (2) the current o ffense was committed more than ten years after

the latest of, (

A) entry of the prior judg ment, (B) the di scharge of pro bation, (C) completion of

parole, or (D) completion of any term of imprisonment; and (3) the per son had not been convi cted of DWI or anoth er listed intoxication-relate d offense within ten years of the l atest date under s ubsection (e) (2).
In his first issue appellant argues the trial court erred in deny ing his moti on to quash the indic tme nt be caus e the Stat e’s u se of his f irst c onvic tion was ba rred by s ectio n 49.09(e). From that pr emise he reasonsthe indictment a t mos t alleged a misdemeanor offense and the dist ric t court lacked jurisdic tion. See Tex. Const. Art. V, § 8; Tex . Code Crim. Proc. Ann. arts. 4.05, 4. 07, 27.08(4) (Vernon 2005). We review a trial cour t’s rulin g on a motion to quash for abu se of discr etion. Tho mas v. St ate , 621 S.W.2d 158, 163 (Tex.Cri m.App. 1980).
In Weaver

the court ex plained that thelimitation o n use of prior convictions created by former section 4 9.09(e) is n either an element of the offense nor an exception to the offense. 4 87 S. W .3d a t 561 . It he ld su bsec tion (e) is “ more akin to a ru le of adm issib ility, rather than an element

of the off ense.” Id. As a result, th e State need only allege tw

o prior5 The same is true if the failure of proof is discl osed on appeal. See Getts v. Sta te, 155 S

. W. 3d 153, 155 (Tex. Crim.App. 2005) (affirming re formation of judgment to misdemeanor by court of a ppeals). 4 convicti ons for listed i ntoxicati on-related offenses, w ithout regard to the age of those convictions. Id. The State’s bur den to prove the prior

offenses arises onl y “on the t rial of the offense.” § 49.0 9(b). If evidence of a pr ior convi ction is bar red by sec tion 49.09(e), the State will be unable to establ ish an element of the fel ony offense. Id. Such failure to establish the greater

offense would not

deprive t he district

court of juri sdiction. 5 See Tex. Code Crim

. Proc. Ann. ar t. 4.06 (Vernon 2005). Under the holding in Weaver

, the face of the indictment did not show a lack of jur isdicti on and the trial court did not abuse its discretion in overruling appellant’s mot ion to quash. W e likewise overrule appellant’s first issue. Appellant’s second an d th ird issues challenge the sufficien cy of the evidence supporting his plea of gui lty. U nder Article 1. 15 of

the Code of Cri minal Procedur e, a guilty plea alone is insufficient to est abli sh a defendan t’s guilt. The State must also introduce evidence which embr

aces every

essential el ement of the offen se. St one v. State , 919 S.W.2d 424, 427 (Tex.C rim.App. 1996). As explai ned in Weaver , the proof

of two pri or offenses are elements of the o ffense. Weaver , 87 S.W.3d at 561. Negating the limitatio n of former 49.09(e) i s not. Id. Appellant

argues the State failed to prove the two pri or driving while i ntoxicated convictions. He does not ch allenge the s ufficiency of the ev idence supporti ng the other elements of d riving wh ile in toxic ated . App ella nt se para tely p led gu ilty to t he two pri or5

convictions. Cf. Barfield v. State , 63 S.W.3d 446, 448 (Tex.Cri m.App. 2001 ) (rev iew of sufficiency when defendant plea d nottrue to prior convictions). Viewed against the Court of Criminal Appeals’ holdi ng in Weaver that sections49.04 and 49.09(b) encompass all the elements of

felo ny DW I, in trod ucti on of the t wo prior judg ments establish ed the elements appellant

now chall enges. This ev idence wassufficient to support appel lant’s plea of guilty to each essential element of the offense

. See We aver , 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 appellan t’s challenge to the use of his f irstconvicti on 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. Follow ing the plai n language of section 49.09(e), analysis

must begin w ith the first conviction sought to be u sed . A court looks forward from the later of the date of that conv iction or di scharge of the r esulting s entence. Asecond conviction for a listed off ense within ten years makes the first conviction available for use under sect ion 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 fir st convic tion, December 11, 1987, and his second co nviction on September 3, 1999. As explained i n Getts , the proper per iod is from the discharg e of appellant’s fir st sentence unti l his second convicti on. 155 S.W.2d at155. The December 11, 1987 judgment suspended appellant’s s entence for a peri od of two year

s and pl aced hi m on pro bation . Dis charg e from pro bation at the end of that period in December 1989 would be withi n ten yearsof his second conv iction on September6

3, 1999. The record does not con clusivel y establi sh the date on w hich 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 thedate of discharg e beyond
a reasonable doubt. The trial co urt reas o nably coul d infer that the se ntence was discharged at the end of the period of probati on stated in the j udgment. In addition to the judgment, the trial court had before it the representation in appellant’s mot ion to quash that he discharged his f irst sen tence on December 11, 1 989. This date was reiterated in appellant’s arg ument at the motion to qua sh hearing. Taken together , these support a det ermination b y the tri al court that the second conv iction was withi n ten yearsof the dischar ge of appellant’s fir st sentence and ev idence of that conv iction was admissible

. The record contai ns evidence supporting each essential element of the offens e . We overruleappellant’s s econd and third i ssues. Finding no reversi ble error i n the trial court’s judg ment we affirm that j udgment.

James T. Campbell Justice

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