State v. Stewart Le Richardson

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
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

1
A 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).

2
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

2
Section 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).
3
Section 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).

3
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

4
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).‖

5
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

6
 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‖).

7
 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

8
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,‖6 and 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

6
As 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).

9
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.‖

10
 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

11
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 death-

penalty 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

12
 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

13
 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

14
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

15
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 third-

degree 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)).

7
Appellee 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.
8
We 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.

16
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.

17
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

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*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

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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

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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

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 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

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