COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00058-CR

THE STATE OF TEXAS STATE

V.

STEWART LE RICHARDSON APPELLEE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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I. Introduction 

Appellee Stewart Le Richardson was charged by indictment with multiple 

counts of intoxication-related crimes arising out of the same episode. The 

indictment also alleged prior convictions as repeat-offender notices to enhance 

the punishment range. At a pretrial hearing, the trial court granted Appellee‘s 

motion to quash the enhancement allegations, and the State appealed. After the 

case was submitted and argued, this court requested briefing from the parties on 
2

whether the trial court‘s order constituted a dismissal of any portion of the 

indictment so that a State‘s appeal was authorized under article 44.01(a)(1) of 

the code of criminal procedure.1 See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) 

(West Supp. 2011). We hold that the trial court‘s order did not dismiss ―a portion 

of the indictment‖ and that, therefore, the State‘s appeal is not permitted under 

article 44.01(a)(1). 

II. Background

The indictment in this case arose out of an alcohol-related car accident 

that caused serious bodily injury to four family members, and it charged Appellee 

in relevant part with eight counts of second-degree aggravated assault. See Tex. 

Penal Code Ann. § 22.02(a)(1), (2) (West 2011). For enhancement purposes, 

the indictment also alleged three prior out-of-state alcohol-related ―aggravated 

misdemeanor‖ convictions (designated as repeat offender notices), all arising out 

of the same criminal episode. The State intended to rely on the enhancement 

paragraphs to elevate the potential punishment for the second-degree 

aggravated assault charges to the first-degree range. Throughout pretrial 

preparations, the State maintained that Appellee‘s Iowa ―aggravated 

 

1A court may sua sponte review its jurisdiction over the merits of an 

appeal. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), 

overruled on other grounds by State v. Medrano, 67 S.W.3d 892, 903 (Tex. Crim. 

App. 2002); see also State v. Morgan, 160 S.W.3d 1, 3 (Tex. Crim. App. 2004) 

(granting review, on its own motion, regarding whether article 44.01 authorized 

the State‘s appeal and holding that the State‘s appeal was interlocutory for which 

appellate courts have no jurisdiction).
3

misdemeanors‖ should be classified as felonies under article 12.41(1) of the 

penal code.2 In response, Appellee filed a motion to quash the enhancement 

allegations in the indictment and, alternatively, to prohibit the State from reading 

or alleging that he is subject to an enhanced penalty at any phase of the trial. He 

argued that the Iowa convictions constituted misdemeanors under section 

12.41(2).3

At a pretrial hearing, the trial court granted Appellee‘s motion. Afterward, 

the trial court asked the State if it planned to appeal, and the State responded, 

―[W]e‘re going to call the injured party‘s family and talk to them and then we‘re 

going to make a decision. That is one of the options we are considering is taking 

this up on appeal, yes. . . . There may be some other adjustments to which 

counts we‘re going forward on, if we make a decision to go forward, but I think 

we‘ll have that answer for you [today or over the weekend].‖ Subsequently, the 

State informed the trial court that it planned to pursue an appeal. The State also 

requested that the trial court enter findings of fact and conclusions of law and a 

written order. At a hearing, the trial court orally stated that section ―F‖ of the 

 

2Section 12.41(1) provides in part that ―any conviction not obtained from a 

prosecution under this code shall be classified as [a] . . .  ̳felony of the third 

degree‘ if imprisonment in [TDCJ] or another penitentiary is affixed to the offense 

as a possible punishment.‖ Tex. Penal Code Ann. ' 12.41(1) (West 2011).

3Section 12.41(2) permits an out-of-state conviction to be classified as a 

Class B misdemeanor ―if the offense is not a felony and confinement in a jail is 

affixed to the offense as a possible punishment.‖ Id. ' 12.41(2). 
4

State‘s proposed findings and conclusions summarized the trial court‘s ruling. 

Section ―F‖ stated, 

Since [Appellee‘s] Iowa convictions were categorized as aggravated 

misdemeanors in that state, they are not available for enhancement 

purposes pursuant to Tex. Penal Code ' 12.42 because they 

constitute Class B misdemeanors under Tex. Penal Code ' 12.41(2).

The trial court also entered the following February 8, 2010 written order:

[T]he State may not use the offense[s] alleged in the repeat offender 

notice of the indictment as enhancement paragraphs, and may 

further not refer to those offenses as felony convictions, in that they 

are misdemeanors.

The State‘s notice of appeal stated that it was ―made pursuant to Texas Code of 

Criminal Procedure article 44.01(a)(1) authorizing the State to appeal a trial court 

order which dismisses any portion of an indictment.‖ On July 6, 2011, this court 

sent a letter to the parties stating that

the court is concerned that it may lack jurisdiction over this appeal; 

therefore, briefing is requested on whether the trial court‘s February 

8, 2010 order constitutes a dismissal of any portion of the indictment 

so that a State‘s appeal is authorized under article 44.01(a)(1) of the 

code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 

44.01(a)(1) (West Supp. 2010). 

III. Analysis

A. The Plain Meaning of Article 44.01(a)(1)

The State‘s right to appeal is set out in article 44.01. See Tex. Code Crim. 

Proc. Ann. art. 44.01; State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. 

Crim. App. 2011) (orig. proceeding). Pertinent to this analysis, article 44.01(a)(1) 

provides that the State is entitled to appeal a trial court‘s order that ―dismisses an 
5

indictment . . . or any portion of an indictment . . . .‖ Tex. Code Crim. Proc. Ann. 

art. 44.01(a)(1). Citing Boykin v. State, the State asserts that the plain meaning 

of this unambiguous language invokes its right to appeal because (1) the State 

alleged out-of-state prior convictions (for enhancement purposes) in the 

indictment,4(2) these enhancement paragraphs were a ―portion of the indictment‖ 

relied upon by the State, and (3) the trial judge rejected the State‘s enhancement 

provisions. See 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

In line with Boykin, however, the court of criminal appeals has held that ―a 

word should be construed according to any technical or particular meaning that it 

has acquired by legislative definition or otherwise.‖ Lopez v. State, 253 S.W.3d 

680, 685 (Tex. Crim. App. 2008); see Tex. Code Crim. Proc. Ann. art. 3.01 (West 

2008) (―All words, phrases and terms used in this Code are to be taken and 

understood in their usual acceptation in common language, except where 

specially defined.‖). As demonstrated below, the words ―indictment‖ and 

―enhancement paragraphs‖ have particular meanings that do not support the 

State‘s position. 

In Brooks v. State, the court of criminal appeals held that ―prior convictions 

used as enhancements must be pled in some form, but they need not be pled in 

 

4

The State notes, ―One typical way of providing notice of enhancement 

allegations is including that language in the indictment. See Brooks v. State, 957 

S.W.2d 30, 33 (Tex. Crim. App. 1997).‖
6

the indictment—although it is permissible and perhaps preferable to do so.‖ 957 

S.W.2d at 33; see Williams v. State, 172 S.W.3d 730, 734 (Tex. App.—Fort 

Worth 2005, pet. ref‘d). In so holding, the Brooks court explained,

Article 27.01 provides that an indictment is the State‘s ―primary 

pleading in a criminal action‖ (emphasis added). By inference, the 

statute indicates that other, ancillary pleadings by the State are 

possible, and in fact, we have recognized that certain matters, such 

as the intent to seek a deadly weapon finding, may be pled apart 

from the indictment. Article 21.03 provides that ―[e]verything should 

be stated in an indictment which is necessary to be proved.‖ We 

have interpreted that provision to mean that an indictment must 

include ―everything necessary to be proven to sustain a conviction in 

the guilt/innocence phase‖ of a trial.

957 S.W.2d at 32 (citations omitted); see Pelache v. State, 324 S.W.3d 568, 576 

(Tex. Crim. App. 2010) (holding that ―due process does not require pretrial notice 

 ̳that the trial on the substantive offense will be followed by an habitual criminal 

proceeding‘‖) (quoting Oyler v. Boles, 368 U.S. 448, 452, 82 S. Ct. 501, 504 

(1962))..

In Calton v. State, the court of criminal appeals explained the difference 

between a prior conviction alleged as an enhancement provision and a prior 

conviction alleged as an element of an offense. 176 S.W.3d 231, 233–34 (Tex. 

Crim. App. 2005). The Calton court explained, 

Our Legislature has defined the elements of an offense as the 

forbidden conduct, the required culpability, any required result, and 

the negation of any exception to the offense. . . . 

A prior conviction alleged for enhancement ―is not really a 

component element of the primary offense.‖ Instead, it is ―an 

historical fact to show the persistence of the accused, and the futility 

of ordinary measures of punishment as related to him.‖ An 
7

enhancement ―increase[s] the punishment range to a certain range 

above that ordinarily prescribed for the indicted crime.‖ It does not 

change the offense, or the degree of the offense, of conviction. 

There can be no enhancement until a person is first convicted of an 

offense of a certain degree. 

Id. (citations omitted); see Reyes v. State, 314 S.W.3d 74, 80 (Tex. App.—San 

Antonio 2010, no pet.) (holding that if the prior conviction is an enhancement 

allegation, it is not an element of the offense, and it need not be pled in the 

indictment or included in a hypothetically correct jury charge regarding the 

primary offense).5

Here, the State does not argue that the prior convictions set out in the 

indictment are elements of the primary offenses. Instead, the State asserts that 

the prior convictions are alleged for enhancement purposes. Indeed, the State‘s 

merits brief provides that ―[t]he State seeks reinstatement of repeat-offender 

paragraphs erroneously quashed by the trial judge so that this DWI recidivist will 

face the highest possible range of punishment when ultimately tried for his Texas 

crimes.‖

 

5

Intermediate appellate courts have made similar holdings in the context of 

article 28.10. See Tex. Code Crim. Proc. Ann. art. 28.10 (West 2006) (setting 

forth requirements for amending an indictment or information); see also Thomas 

v. State, 286 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.], order) (―An 

enhancement allegation that is not part of the State‘s case-in-chief is not part of 

the  ̳substance‘ of the indictment.‖), disp. on merits, 304 S.W.3d 849 (Tex. App.—

Houston [14th Dist.] 2009, pet. ref‘d); Johnson v. State, 214 S.W.3d 157, 158–59 

(Tex. App.—Amarillo 2007, no pet.) (noting that ―[s]ince enhancement 

paragraphs need not be pled in the indictment, it logically follows that they are 

unessential to the validity of the indictment‖).
8

Notably, in discussing the State‘s right under article 44.01(b) to appeal an 

illegal sentence, the court of criminal appeals explained that 

Chapter 12 of the Penal Code provides the punishment ranges for 

offenses, and includes the ranges for habitual and repeat offenders. 

The duration of punishments prescribed for habitual and repeat 

offenders is part of the sentence just as is the duration of 

punishments prescribed for the other types of offenses addressed in 

Chapter 12. . . . The legislature‘s decision to prescribe the 

punishments for exceptional sentences and those for ordinary 

sentences in the same explicit manner supports the conclusion that 

both are included in the meaning of ―sentence‖ under article 42.02.

State v. Kersh, 127 S.W.3d 775, 777–78 (Tex. Crim. App. 2004) (citation 

omitted); see generally Wooldridge v. State, 158 S.W.3d 484 (Tex. Crim. App. 

2005) (discussing Kersh and article 44.01(b)). In light of the accepted meanings 

of ―indictment‖ and ―enhancement paragraphs,‖ the trial court did not dismiss ―a 

portion of the indictment.‖

B. State v. Moreno

The State also asserts that the principles set out in State v. Moreno—in 

which the court of criminal appeals reviewed the legislative history of the State‘s 

right to appeal—control and support its right to appeal. See 807 S.W.2d 327 

(Tex. Crim. App. 1991). An analysis of Moreno and its progeny, however, 

supports our conclusion that the trial court did not dismiss a portion of the 

indictment.

The State charged Moreno with knowingly agreeing to engage in sexual 

conduct. Id. at 328. Moreno filed a motion to quash the information, alleging that 

the term ―agree‖ should be defined in greater detail. Id. The trial court quashed 
9

the information, and the State appealed. The court of appeals held that article 

44.01 did not allow the State to appeal because the trial court did not order the 

information dismissed and the State could cure the alleged defect by amendment 

and continue its prosecution. Id. at 328–29. In reversing the court of appeals, 

the court of criminal appeals held that the issue was the meaning of ―dismiss‖ in 

the context of article 44.01(a)(1), allowing the State to appeal a trial court order 

that dismisses any portion of an indictment. Id. at 329. The court of criminal 

appeals observed that, in enacting article 44.01, the Texas Legislature ―borrowed 

liberally from its federal counterpart, 18 U.S.C. § 3731,‖6and that 

―[c]onsequently, we will look to the federal government‘s powers to appeal from 

an order  ̳dismissing an indictment‘ in a criminal case to understand the 

parameters of the State‘s appellate powers under Article 44.01.‖ Id. at 329–30 & 

n.2. The Moreno court considered the United States Supreme Court‘s previous 

 

6As set out in Moreno, 18 U.S.C. section 3731 provided: 

In a criminal case an appeal by the United States shall lie to a 

court of appeals from a decision, judgment, or order of a district 

court dismissing an indictment or information or granting a new trial 

after verdict or judgment as to any one or more counts, except that 

no appeal shall lie where the double jeopardy clause of the United 

States Constitution prohibits further prosecution.

. . . . 

The provisions of this section shall be liberally construed to 

effectuate its purposes. 

Id. at 331 (quoting Title III of the Omnibus Crime Control Act of 1970, Section 

3731 of Title 18 of the United States Code). 
10

holding that 18 U.S.C. section 3731 ― ̳remove[s] all statutory barriers to 

Government appeals . . . [so as to allow] appeals whenever the Constitution 

would permit.‘‖ Id. at 332 (quoting United States v. Wilson, 420 U.S. 332, 337, 

92 S. Ct. 1013, 1018 (1975)). With this legislative history in mind, the Moreno

court held that, under article 44.01(a)(1),

the State has the power to appeal from any trial court order 

concerning an indictment or information . . . whenever the order 

effectively terminates the prosecution in favor of the defendant. 

. . . .

The trial court ―effectively terminates‖ the prosecution against the 

accused whenever the effect of its order forces any alteration of the 

indictment or information before the trial on the merits and the State 

is not willing to comply with that order. . . .

[In Moreno], [t]he trial court granted [the defendant‘s] motion [to 

quash] and effectively foreclosed the State from proceeding with the 

information under which it wished to proceed and thus foreclosed 

the State from proceeding under its theory of prosecution. . . . [F]or 

all intents and purposes, the trial court‘s actions forced the State to 

alter its pleadings—either by re-indicting or amending the original—

before it would be allowed to try Moreno. The State‘s refusal to 

amend effectively terminated the criminal proceedings. 

Id. at 332–33 & n.7 (emphasis added). 

In the instant case, the State contends that ―[a]pplying the State‘s right to 

appeal liberally, as Moreno authorizes,‖ its appeal is valid. The State maintains 

that because ―it has always been the State‘s expressed goal (hence, its 

prosecution theory) to obtain a life sentence on this repeat drunk driver,‖ ―[t]he 

trial judge‘s decision to grant Appellee‘s motion to quash the enhancement 

provisions completely undermined the State‘s theory of prosecution.‖
11

Notably, however, the court of criminal appeals has addressed the 

language in Moreno regarding the federal government‘s broad right to appeal:

[I]n United States v. Wilson, the United States Supreme Court held 

that, in enacting 18 U.S.C. ' 3731, Congress intended to remove all 

barriers to a government appeal in a criminal case other than those 

imposed by the Constitution. We have never said the same of the 

Texas statute governing appeals by the State. Instead, in Texas, 

appeals by either the State or the defendant in a criminal case are 

permitted only when they are specifically authorized by statute. In 

Texas, ―[t]he standard for determining jurisdiction [of an appellate 

court] is not whether the appeal is precluded by law, but whether the 

appeal is authorized by law.‖ 

Lykos, 330 S.W.3d at 915 (citations omitted). In a footnote, the Lykos court 

further explained, ―We have stated that we construe art. 44.01 liberally, but that is 

in the context of construing the explicit provision of the statute.‖ Id. at 915 n.48. 

Thus, the only issue is whether the State‘s appeal is authorized by article 

44.01(a)(1). See id. at 915.

The court of criminal appeals has reaffirmed the Moreno language that, 

under article 44.01(a)(1), the State has the right to appeal any order, short of an 

acquittal, that effectively terminates the prosecution in favor of the defendant. 

State v. Stanley, 201 S.W.3d 754, 758 (Tex. Crim. App. 2006); Morgan, 160 

S.W.3d at 4. In the instant case, the trial court‘s action did not force the State to 

alter its pleadings before it would be allowed to try Appellee. In fact, after the trial 

court ruled that Appellee‘s prior out-of-state convictions were ―not available for 

enhancement purposes,‖ the State announced that it was considering appealing 

the trial court‘s ruling and, if it did not, ―[t]here may be some other adjustments to 
12

which counts we‘re going forward on.‖ Subsequently, the State informed the trial 

court that it planned to pursue an appeal and stated:

Any representation by the State that we intend to try these 

cases all together will be withdrawn if we lose this appeal and the 

maximum punishment is only 20 years in prison. . . . 

. . . [I]f the State does not succeed in this appeal and we are limited 

by 20 years, we have no intent of trying these cases any way other 

than one or two at a time, and we will be doing that so we have an 

option of asking this court to stack sentences after multiple trials. . . . 

Thus, the record indicates that the trial court‘s order did not ―effectively terminate 

the State‘s prosecution‖ and that, therefore, the trial court‘s order did not dismiss 

any portion of the indictment. Recent case law supports this conclusion. 

C. Recent Case Law

The recent Lykos case is instructive. Lykos sought a pretrial ruling on a 

possible punishment issue, asking the trial court to declare the Texas deathpenalty sentencing statute facially unconstitutional. 330 S.W.3d at 906. In 

response, the State filed a mandamus petition in the court of criminal appeals 

asking the court to prohibit a pretrial evidentiary hearing on the defendant‘s 

motion and to prohibit the trial court from granting such a motion before the State 

had an opportunity to prove its charged indictment before a jury. Id. The Lykos

court conditionally granted the State mandamus relief in part because it 

established that the State had no other adequate legal remedy. Id. at 907. The 

Lykos court explained that

[t]he only statutory provision that arguably could apply to the present 

situation is an order that dismisses any portion of an indictment. But 
13

a capital-murder indictment when the State seeks the death penalty 

reads exactly the same as a capital-murder indictment when the 

State does not seek the death penalty. That is, the present 

indictment, like all capital-murder indictments, simply sets out the 

elements of capital murder under Section 19.03 of the Texas Penal 

Code. 

. . . .

. . . [T]he face of the indictment would not be affected by any pretrial

ruling. . . . [T]he State could not appeal any such pretrial advisory 

ruling under Article 44.01. 

Id. at 913–14. Noting that State v. Morgan ―dealt with a very similar situation,‖ 

the Lykos court explained: 

[In State v. Morgan, 160 S.W.3d 1 (Tex. Crim. App. 2004)], the State 

filed a pretrial motion asking the trial judge to rule that its DWI 

information, which contained an enhancement paragraph alleging a 

prior DWI conviction, charged a Class A misdemeanor. The defense 

aptly noted that the State‘s motion was premature; it was not entitled 

to any such pretrial ruling because it dealt only with ―a determination 

on a punishment issue.‖ Nonetheless, the trial judge made an 

advisory ruling that, if the defendant were convicted, the punishment 

range would be for a Class B, not a Class A, misdemeanor. The 

State attempted to appeal, and the court of appeals accepted 

jurisdiction, but we concluded that the State was seeking an 

impermissible interlocutory appeal. The trial judge‘s ruling did not 

affect the face of the indictment, it merely advised how he intended 

to proceed at punishment if the State obtained a conviction. We 

noted that ―the prosecution would proceed regardless of the trial 

court‘s ruling.‖ Thus, the State was attempting an interlocutory 

appeal, and, except for the appeal of a motion to suppress evidence 

under certain circumstances, such interlocutory appeals are not 

statutorily permitted under article 44.01.

Id. In Morgan, the court of criminal appeals held,

Since the prosecution would proceed regardless of the trial court‘s 

ruling, this is an interlocutory appeal. As a general rule, interlocutory 

appeals are not permitted. Art. 44.01 provides several instances in 

which the State can appeal, but only one of those involves an 
14

interlocutory appeal. Subsection (a)(5) allows the State to file an 

interlocutory appeal from a trial court‘s order granting a motion to 

suppress evidence. But the statute specifies conditions to such an 

appeal. The prosecutor must include a certification that the appeal 

is not taken for purposes of delay. There is no certification 

requirement under any of the other subsections, including 

subsection (a)(1). So an appeal under subsection (a)(1) is not to be 

utilized as an interlocutory appeal. It is supposed to be used only if 

the prosecution is terminated. 

. . . . 

We disagree with the State that the trial judge‘s order 

―effectively terminated the prosecution.‖ The order in this case 

affected only Morgan‘s possible punishment range. As a result, this 

is an interlocutory appeal for which appellate courts have no 

jurisdiction.

160 S.W.3d at 4–5 (internal citations omitted). 

The State asserts that both Lykos and Morgan are distinguishable because 

the trial court in each case did not actually delete a portion of the indictment. The 

State finds it significant that Lykos involved a capital murder indictment that set 

out only the elements of capital murder regardless of whether the State is 

seeking a death sentence and that, therefore, no language was deleted. The 

State finds it significant in Morgan that the trial court did not delete the 

enhancement provision but instead decided that, based on the enhancement 

provision, the punishment range would be for a Class B rather than a Class A 

misdemeanor if the defendant were to be convicted. Such a distinction, however, 

is not dispositive. 

The Lykos court held that article 44.01 ―either does or does not specifically 

authorize a State‘s appeal‖ and that it ―does not authorize the State to appeal 
15

from a pretrial ruling on a possible punishment issue that fails to dismiss any part 

of the actual indictment.‖ 330 S.W.3d at 914 (citing Morgan, 160 S.W.3d at 5). 

The referenced page of the Morgan opinion holds that an appeal under 

subsection (a)(1) is ―supposed to be used only if the prosecution is terminated.‖ 

160 S.W.3d at 5. The Morgan court explained that because the case before it 

would ―proceed, one way or another, after the trial court‘s order . . . the trial 

court‘s order did not terminate the prosecution, and no jurisdiction exists for this 

appeal.‖ Id. 

In the instant case, the State asserted that ―one of the options‖ it was 

considering was appealing the ruling but that if it decided ―to go forward,‖ it might

adjust the counts. Thus, by all accounts, the prosecution in this case will 

proceed at one point or another regardless of the trial court‘s ruling, and 

therefore, this is an impermissible interlocutory appeal. See id. at 4. The 

following language from the Morgan opinion is apropos: 

[n]othing in the trial court‘s order purports to prevent the prosecution 

from moving forward on this information. The order does not force 

an alteration of the information before trial can proceed. Instead, it 

forces the State to alter the information before trial can proceed in 

the manner in which the State chooses. 

Id. Thus, as the court of criminal appeals advises in Morgan, because the 

prosecution (against Appellee) will proceed, the State presents an interlocutory 

appeal. See id. ―An appeal under subsection (a)(1) is not to be utilized as an 

interlocutory appeal. It is supposed to be used only if the prosecution is 

terminated.‖ Id. at 5. Notably, in the State‘s memorandum and motion asking 
16

the trial court to reconsider its ruling on Appellee‘s motion to quash, the State 

noted that ―[t]he trial court graciously afforded the State time to consult with the 

aggrieved family and to allow the prosecution to consider its options, including an 

interlocutory appeal.‖

The State cites several intermediate appellate court opinions in support of 

its position.

7 As demonstrated below, however, all but one 1996 unpublished 

case out of the Dallas court of appeals support a holding that the State‘s appeal

is not permitted under article 44.01(a)(1).

8

In State v. Christensen, the defendant was indicted for felony DWI. See 

No. 05-10-00940-CR, 2011 WL 2176656, at *1 (Tex. App.—Dallas June 6, 2011, 

pet. ref‘d) (not designated for publication). In Texas, a DWI offense is a thirddegree felony if the person has two prior convictions relating to the operating of a 

motor vehicle while intoxicated. Id. (citing Tex. Penal Code Ann. ' 49.09(b)(2)). 

 

7Appellee responds,

[T]he case law essentially holds that when the trial court makes a 

ruling which reduces the charge from a felony to a misdemeanor, 

that action gives rise to an appeal under Art. 44.01, C.C.P. by the 

State, as such action terminates a prosecution. However, when a 

trial court‘s order only affected the possible punishment range, but 

did not terminate prosecution, no appeal is available to the State. 

Morgan, supra, is the most recent Court of Criminal Appeals 

decision on this matter and is controlling.

8We note that opinions not designated for publication by the courts of 

appeals have no precedential value in criminal cases. See Tex. R. App. P. 

47.7(a). We address three unpublished opinions, however, because the State 

relies on them in its briefing. 
17

Christensen‘s indictment alleged two such convictions, one in Denton County in 

1989 and one in Colorado in 2002. Id. The Colorado conviction was for driving 

while impaired (DWAI). Id. Christensen filed a motion to quash the 

enhancement paragraph relating to the DWAI, asserting that Colorado‘s law was 

not substantially similar to the Texas DWI statute. Id. The trial court granted the

motion, and the State appealed. Id. In reversing the trial court‘s ruling, the Fifth 

Court of Appeals addressed article 44.01(a)(1) and held that

[t]he issue in Morgan was whether the trial court properly construed 

the information to allege a Class B misdemeanor with enhanced 

punishment rather than a Class A misdemeanor. The trial court‘s 

order did not effectively terminate the prosecution. In this case, the 

trial court‘s order did not simply construe the indictment while 

allowing the prosecution to proceed. Rather, ―[p]rior convictions are 

essential elements of a felony DWI under penal code section 

49.09(b), and must be pleaded and proven at the guilt-innocence 

phase to support a felony conviction.‖ State v. Duke, 59 S.W.3d 

789, 790 (Tex. App.—Fort Worth 2001, pet. ref‘d) (op. on reh‘g). In 

this case, as in Duke, the trial court‘s order quashing one of the 

enhancement paragraphs ―effectively dismissed the felony portion of 

the indictment and reduced the State‘s case to a misdemeanor 

prosecution.‖ See id. Because the trial court effectively dismissed a 

portion of the indictment, the State is authorized to appeal the order 

under article 44.01(a)(1) of the code of criminal procedure.

Id., 2011 WL 2176656, at *2. The State asserts, 

Of most interest in Christensen is its recognition that the Morgan 

appellate issue turned on facts where the possible punishment 

range was affected, but the State’s information had not been altered 

by the trial court’s ruling since the enhancement paragraph 

remained viable. Christensen, 2011 WL 2176656, at *2 (citation

omitted). Again, Morgan involved the trial court‘s choice between 

two enhancement provisions, not a decision against enhancement, 

quashing a portion of the State‘s pleadings. See id.; see also 

Morgan, 160 S.W.3d at 2–4.
18

The State‘s interpretation of Christensen appears to incorporate its ―plain 

meaning‖ Boykin argument. The Christensen opinion, however, distinguishes 

between prior convictions alleged as elements of the offense and prior 

convictions alleged as punishment enhancements and holds that a trial court 

dismisses part of the indictment when it quashes a prior conviction alleged as an 

element of the offense. Id., 2011 WL 2176656, at *2. Thus, because the State in 

the instant case does not assert that Appellee‘s prior convictions are elements of 

the offense, under Christensen, the State is not authorized to appeal the trial 

court‘s order under article 44.01(a)(1).

The State further asserts that Christensen is notable for its citations to 

State v. Arredondo, No. 03-04-00638-CR, 2005 WL 2313605, at *1 (Tex. App.—

Austin Sept. 22, 2005, no pet.) (mem. op., not designated for publication), and 

State v. Whitehead, No. 05-94-01914-CR, 1996 WL 317117, at *1 (Tex. App.—

Dallas May 30, 1996, no pet.) (not designated for publication). The State argues 

that ―these referenced cases show appellate jurisdiction existed for prosecutors 

where a portion of the indictment/information alleging enhancement provisions 

was rejected pretrial by a trial court.‖

Contrary to the State‘s position, the Arredondo case is consistent with the 

conclusion that the State is not authorized to appeal the trial court‘s order. The 

State charged Arredondo with felony DWI under section 49.09(b)—i.e., the State 

accused him of DWI in 2003 under section 49.04, alleging two previous DWI 

convictions to elevate the offense to a felony. Arredondo, 2005 WL 2313605, at 
19

*1. The trial court granted Arredondo‘s motion to transfer the case to a court 

having misdemeanor jurisdiction (based on Arredondo‘s argument that one of his 

prior convictions could not be used to enhance the 2003 DWI). Id. The State 

appealed pursuant to article 44.01(a)(1), and Arredondo asserted that the court 

of appeals did not have jurisdiction. Id. The court held that it had jurisdiction 

because the order at issue ―effectively terminate[d] Arredondo‘s felony 

prosecution in district court and because the order did not ―merely construe the 

indictment while permitting the district court prosecution to proceed.‖ Id. The 

court of appeals affirmed the trial court‘s transfer order. Id.

The Whitehead opinion appears to support the State‘s position. In addition 

to its lack of precedential value (because it is a 1996 unpublished opinion that 

has no petition history and has never been cited until recently in Christensen), 

the opinion does not contain a great deal of analysis. Whitehead was charged 

with the state jail felony offense of possession of cocaine with the punishment 

enhanced by two prior felony convictions. Whitehead, 1996 WL 317117, at *1. 

Whitehead moved to quash the enhancement paragraphs, arguing that the State 

could not enhance the punishment of a state jail felony pursuant to the habitual 

offender provision in section 12.42(d) of the penal code. Id. He contended that 

article 42.12, section 15 of the code of criminal procedure applied exclusively and 

required the trial court to suspend a state jail felon‘s sentence and place the 

defendant on community supervision. Id. The trial court granted Whitehead‘s 

motion, and the State appealed under article 44.01(a)(1). The court of appeals 
20

held that it had jurisdiction because the trial court‘s order ―dismiss[ed] the two 

enhancement paragraphs of the indictment charging Whitehead with an offense.‖ 

Id. Thus, Whitehead appears to be an anomaly that is not sufficiently persuasive 

to alter the above analysis. Christensen cites Whitehead favorably, but the 

reasoning in Christensen supports the conclusion that article 44.01(a)(1) does 

not permit the State‘s appeal in this instance.

The State also asserts that two cases from this court support its position. 

See Duke, 59 S.W.3d at 790–91; State v. Cordell, 34 S.W.3d 719, 720–21 (Tex. 

App.—Fort Worth 2000, pet. ref‘d). For the reasons discussed in Christensen, 

Duke supports a determination that the trial court‘s order is not appealable. 

Christensen, 2011 WL 2176656, at *2. The Cordell case is also distinguishable.

In Cordell, the State charged the defendant with misdemeanor DWI. In 

two paragraphs, the State alleged two alternative means of intoxication—by 

reason of alcohol consumption and by reason of ingestion of ―alcohol, a 

controlled substance, a drug, a dangerous drug, or combination of two or more of 

these substances.‖ Cordell, 34 S.W.3d at 720. Cordell moved to quash the 

second paragraph because it failed to provide her adequate notice of what 

specific drug or combination of drugs the State alleged she ingested. Id. The 

trial court agreed and quashed the paragraph. Id. When the State appealed, 

Cordell argued that this court did not have jurisdiction because the order 

quashing the second paragraph did not effectively terminate the prosecution. Id. 

This court disagreed, holding that ―[b]ecause the State appealed instead of 
21

proceeding to trial on paragraph one, the trial court‘s decision to dismiss 

paragraph two effectively terminated the prosecution against appellee.‖ Id. at 

721. Cordell is distinguishable from the instant case because the paragraph that 

was dismissed was part of guilt-phase primary pleading as defined by Brooks 

and article 27.01 (as discussed above) and not a punishment enhancement 

paragraph as described in Calton. See Tex. Code Crim. Proc. Ann. art. 27.01;

Calton, 176 S.W.3d at 233–34; Brooks, 957 S.W.2d at 932.

The State also cites State v. Mewbourn, 993 S.W.2d 771 (Tex. App.—

Tyler 1999, no pet.), and State v. McGuffey, 69 S.W.3d 654 (Tex. App.—Tyler 

2002, no pet.). These two cases have similar fact patterns and holdings, and 

McGuffey relies on Mewbourn; thus, we focus on McGuffey. The State charged

McGuffey with felony DWI pursuant to section 49.09(b), which provides that a 

DWI offense is a third-degree felony if the person has two prior DWI convictions. 

McGuffey, 69 S.W.3d at 655. The trial court would not, however, allow the State 

to introduce evidence of McGuffey‘s two previous DWI convictions to the jury. 

Following a mistrial granted on McGuffey‘s motion, the State appealed under 

article 44.01(a)(1), and the court of appeals held,

We have previously determined that when the trial court does not 

allow the State to read an entire felony DWI indictment to the jury, 

the trial court has effectively dismissed a portion of the indictment. 

See State v. Mewbourn, 993 S.W.2d 771, 773 (Tex. App.—Tyler 

1999, no pet.). In a felony DWI trial, the State should be allowed to 

read the full indictment to the jury, including the two prior DWI 

convictions. See Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim. 

App. 2000). Because the trial court ordered the State not to read the 

two prior DWI convictions during the reading of the indictment to the 
22

jury, effectively dismissing that portion of the indictment, the trial 

court‘s order became appealable by the State pursuant to article 

44.01(a)(1).

Id. at 656. Contrary to the State‘s position, McGuffey and Mewbourn are

consistent with our holding that article 44.01(a)(1) does not authorize the State‘s 

appeal in this instance.

IV. Conclusion

Based on the above analysis, we dismiss the appeal.

ANNE GARDNER

JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

PUBLISH

DELIVERED: November 10, 2011