In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00185-CR
___________________________
JOHN MICHAEL STEPHENS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 43rd District Court
Parker County, Texas
Trial Court No. CR18-0562
Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant John Michael Stephens, convicted of felony driving while intoxicated
(DWI) in Parker County pursuant to a plea bargain, appeals the trial court’s pretrial
denial of his motion to quash the indictment. In his sole issue, Appellant contends that
one of the two prior misdemeanor DWI convictions alleged in the indictment as offense
enhancements—a 1997 Missouri conviction—was not, in fact, a final conviction and
that the trial court therefore erred by denying his motion. See Tex. Penal Code Ann.
§§ 49.04(a), .09(b)(2). We hold that the 1997 Missouri DWI is a conviction under Texas
Penal Code Section 49.09(b)(2) for offense-enhancement purposes and that the trial
court properly denied Appellant’s motion to quash. We therefore affirm the trial court’s
judgment.
I. Background
The Parker County DWI facts are not before us. This appeal concerns only the
propriety of treating the Missouri DWI as an offense-enhancing conviction to enhance
the Parker County misdemeanor DWI to a felony DWI. See id. § 49.09(b)(2).
A Parker County grand jury indicted Appellant for felony DWI based on the
allegations that he committed a DWI offense in Parker County on or about March 10,
2018 and that he had two prior out-of-state DWI convictions: the 1997 Missouri
conviction and a 2010 Iowa conviction. See id. Appellant filed a pretrial motion to quash
the indictment, contending that he was placed on the equivalent of deferred
adjudication community supervision in Missouri; that he successfully completed his
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community supervision; that he was therefore not convicted of the Missouri DWI; and
that consequently, his Parker County DWI could not be enhanced to a felony DWI.
The State proved the Missouri DWI through three exhibits: an information, a
docket sheet, and a probation order. The information shows that Appellant was charged
with committing a Class B misdemeanor DWI in 1997 in Missouri. The docket sheet
states, “Defendant enters plea of guilty and court accepts Defendant’s plea. Imposition
of Sentence Suspended and defendant placed on probation for a period of two years
and assessed $128.00 costs.” The probation order shows that the Missouri court
sentenced Appellant to “SIS” (Suspended Imposition of Sentence) and placed him on
probation for two years.
Appellant argued in his motion to quash the Parker County felony indictment
and in the hearing on that motion that his Missouri DWI was not a final conviction.
Appellant relied on Texas law governing sentence enhancements and deferred
adjudication community supervision and on Missouri law for treatment of SISs.
Appellant stated that the Missouri DWI had been disposed of by an SIS and that there
was no record of a conviction. Appellant therefore likened his Missouri SIS to an
unrevoked probation in Texas, which cannot be used to enhance sentences, Ex parte
Pue, 552 S.W.3d 226, 230 (Tex. Crim. App. 2018). Appellant alternatively equated the
Missouri SIS to deferred adjudication community supervision in Texas; at the time of
his 2018 Parker County DWI, a DWI disposed of by deferred adjudication community
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supervision could not serve as a DWI offense enhancement.1 Appellant explained that
with SISs, a Missouri defendant who successfully completes probation is never
sentenced. Appellant argued that “normally an SIS should not be considered a
‘conviction’” because when a defendant serves out his probation successfully, his
Missouri “conviction will not show on the permanent record.”
In response to Appellant’s arguments at the hearing on the motion to quash, the
State contended that the Missouri SIS was different from Texas’s deferred adjudication
community supervision because the SIS involved a guilty finding. The State based its
contention on information in the Missouri docket sheet—“Defendant enters plea of
guilty and court accepts Defendant’s plea”—and on the text of the Missouri statute
providing an SIS as a disposition option after a defendant is found guilty. Mo. Ann.
1
Penal Code Section 49.09(g) now provides,
A conviction may be used for purposes of enhancement under this section
or enhancement under Subchapter D, Chapter 12, but not under both this
section and Subchapter D. For purposes of this section, a person is considered to
have been convicted of an offense under Section 49.04 or 49.06 if the person was placed
on deferred adjudication community supervision for the offense under Article 42A.102,
Code of Criminal Procedure.
Tex. Pen. Code Ann. § 49.09(g) (emphasis added). However, the Texas Legislature did
not add the “deferred adjudication” provision until 2019, and it applies only to offenses
committed on or after its effective date of September 1, 2019. Act of May 25, 2019,
86th Leg., R.S. ch. 1298, H.B. 3582, §§ 7, 8(c), 9.
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Stat. § 557.011.2(3).2 In contrast, when a Texas trial court places a defendant on
deferred adjudication community supervision, the trial court defers any finding of guilt.
Tex. Code Crim. Proc. Ann. art. 42A.101(a).
The State also argued that sentence-enhancement law is inapplicable to the
discussion of offense enhancements, relying on McGuire v. State, 493 S.W.3d 177 (Tex.
App.—Houston [1st Dist.] 2016, pets. ref’d), and State v. Dintelman, No. 13-15-00564-
CR, 2017 WL 127870 (Tex. App.—Corpus Christi–Edinburg Jan. 12, 2017, no pet.)
(mem. op., not designated for publication). McGuire is a “fatality DWI case” in which
the defendant’s prior out-of-state DWI served to enhance the underlying DWI to a
felony even though the judgment in the out-of-state DWI was deferred. 493 S.W.3d at
184, 191–92. Dintelman is a felony DWI case addressing the identical issue as that before
the Parker County trial court and us. 2017 WL 127870, at *1.
After hearing both parties’ arguments, the Parker County trial court denied
Appellant’s motion to quash without specifying the basis. Then, pursuant to a plea
bargain, Appellant pled guilty to felony DWI, and the trial court convicted him and
sentenced him to serve ten years in prison, probated for five years, and to pay a
$2,500 fine. Appellant retained his right to appeal the denial of his motion to quash,
and that is the sole focus of his appeal. See Tex. R. App. P. 25.2(a)(2)(A).
2
All citations to Missouri statutes are to the versions in effect at the time of
Appellant’s Missouri DWI.
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II. Discussion
In his only issue, Appellant contends that the trial court erred by denying his
motion to quash because the Missouri DWI was not a final conviction for purposes of
Penal Code Section 49.09(b)(2).
A. Standard of Review
The sufficiency of an indictment is a legal issue. Hughitt v. State, 583 S.W.3d 623,
626 (Tex. Crim. App. 2019); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
When our review of a trial court’s denial of a motion to quash turns only on the
indictment’s sufficiency, we review the trial court’s decision de novo. Hughitt,
583 S.W.3d at 626; Moff, 154 S.W.3d at 601.
B. Substantive Law
1. Statutes
a. Texas Statutes
Operating a motor vehicle in a public place while intoxicated is a Class B
misdemeanor when it is a defendant’s first DWI, absent exceptions not relevant here.
Tex. Penal Code Ann. § 49.04(a)–(b). However, a misdemeanor DWI is enhanced to a
third-degree felony DWI if the State proves in the trial of that DWI that the defendant
“has previously been convicted . . . two times of any other offense relating to the
operating of a motor vehicle while intoxicated.” Id. § 49.09(b)(2). DWIs committed
previously in other states are included in the definition of “offense[s] relating to the
operating of a motor vehicle while intoxicated.” Id. § 49.09(c)(1)(F). Thus, under Texas
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law, a DWI is enhanced from a misdemeanor to a third-degree felony if the evidence
shows that the defendant “has previously been convicted . . . two times” of DWI,
whether those DWIs occurred in Texas or other states. Id. § 49.09(b)(2).
b. Missouri Statutes
When Appellant committed his Missouri DWI, Missouri’s DWI statute provided
that a person committed DWI when “he operate[d] a motor vehicle while in an
intoxicated or drugged condition.” Mo. Ann. Stat. § 577.010.1. After finding a person
guilty of an offense, a Missouri court could suspend the imposition of the sentence. Id.
§ 557.011.2(3). However, “[n]o person convicted of or pleading guilty to” a DWI could
be granted an SIS without a probation term of at least two years. Id. § 577.010.2.
2. State v. Dintelman
Whether a Missouri DWI disposed of by an SIS qualifies as a conviction under
Texas Penal Code Section 49.09(b)(2) is an issue new to this court. The Thirteenth
Court of Appeals, however, addressed it in Dintelman, 2017 WL 127870, at *3–5. A
grand jury indicted Dintelman for felony DWI in Nueces County. The indictment
alleged that he had two previous DWI convictions (in May and November 2007) in
Missouri. Dintelman filed a motion to quash the indictment. At the hearing on his
motion, he alleged that the May 2007 DWI, which was disposed of with an SIS, did not
qualify as a conviction. The trial court concluded that Missouri law would treat the SIS
as a conviction, but Texas law would not, and it therefore quashed the indictment. Id.
at *1. The State appealed.
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The Thirteenth Court held that the case turned on the meaning of “convicted”
in Penal Code Section 49.09(b)(2). Id. at *3. What did it mean to have “previously been
convicted”? Tex. Penal Code Ann. § 49.09(b)(2) (emphasis added). Examining dictionary
and case law definitions of “conviction,” the Dintelman court explained that while
“conviction” can encompass the assessment of punishment, the term always involves a
finding or adjudication of guilt. Id. at *3 (citing Ex parte Evans, 964 S.W.2d 643,
647 (Tex. Crim. App. 1998), and McNew v. State, 608 S.W.2d 166, 172 (Tex. Crim. App.
[Panel Op.] 1978)). Further, “the word ‘convicted’ is more likely to refer solely to guilt
than the word ‘conviction’ is.” Ex parte White, 506 S.W.3d 39, 42–43 (Tex. Crim. App.
2016); Dintelman, 2017 WL 127870, at *3 (quoting same). The Dintelman court therefore
conclude[d] that the Legislature intended the term “convicted” [in Penal
Code Section 49.09(b)(2)] to refer narrowly to a finding of guilt and did
not intend to include the assessment of punishment. Taken as a whole,
the statute is concerned with how many times a person has been found
guilty of a relevant type of offense rather than the punishment that person
subsequently received. . . . The plain text of these provisions demonstrates
that the Legislature was concerned with whether there has been a finding
of guilt of a particular type of offense, not whether punishment was
assessed. Furthermore, when the Legislature does refer to punishment in
section 49.09, it does so expressly. In section 49.09(d) the Legislature
provided that certain convictions for DWI–related offenses which occur
under Texas law are final “whether the sentence for the conviction is
imposed or probated.” Id. § 49.09(d). Based on the above, we conclude
that the meaning of the term “convicted” as it is used in section
49.09(b)(2) refers to a finding of guilt.
2017 WL 127870, at *3.
The Dintelman court then held that the SIS qualified as a conviction under Section
49.09(b)(2) because it necessarily involved a guilty finding. Id. at *4, *5. As the court
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pointed out, the relevant Missouri statute, Section 557.011.2, provides, “Whenever any
person has been found guilty of a felony or a misdemeanor the court shall make one or
more of the following dispositions of the offender in any appropriate combination. The
court may . . . [s]uspend the imposition of sentence, with or without placing the person
on probation . . . .” Mo. Ann. Stat. § 557.011.2(3) (emphasis added); Dintelman,
2017 WL 127870, at *4 (citing same). Thus, the court held that the plain language of
the Missouri statute requires that a guilty finding be made before an SIS can occur and
that the record—reflecting Dintelman’s guilty plea and the resulting SIS—perforce
implied that the trial court had found him guilty. 2017 WL 127870, at *4.
The Dintelman court dispelled any notion that either Missouri’s treatment of SISs
or Texas sentence-enhancement law impacts whether an SIS is a conviction under
Texas Penal Code Section 49.09(b)(2). The court noted that whether an SIS is a final
conviction in Missouri is not controlling and does not mean “that the adjudication of
guilt involved in the SIS is not final” for purposes of enhancing a Texas misdemeanor
DWI to a felony DWI. Id. The court also dismissed Dintelman’s reliance on sentence-
enhancement law:
The Texas Court of Criminal Appeals has explained that section
49.09 allows prior offenses to enhance the charged offense, while section
12.42 enhances the punishment for the offense. Gibson v. State, 995 S.W.2d
693, 696 (Tex. Crim. App. 1999). The two statutes are therefore
“distinguishable” from each other, and the limitations in section 12.42 do
not apply to enhancement of an offense under section 49.09. See id.; see
also McGuire . . . , 493 S.W.3d [at] 192 . . . .
Id. As the Dintelman court emphasized,
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The controlling issue here is therefore not whether an SIS is a final
conviction under Missouri law but whether Dintelman was “convicted”
as that term is used in section 49.09(b)(2). See Tex. Penal Code Ann.
§ 49.09(b)(2). And, as we explained above, the disposition of his case
meets the definition of a conviction because it involved a finding of guilt.
See . . . White, [506] S.W.3d at 42–43 . . . .
Id.
The Thirteenth Court of Appeals ultimately held that Dintelman’s Missouri SIS
qualified as a conviction under Section 49.09(b)(2). Id. at *5.
C. Analysis
The dispute before us centers on this question: Can a defendant’s prior successful
Missouri SIS (along with a second prior DWI conviction that is undisputed) enhance a
misdemeanor DWI to a felony DWI? Adopting the holdings and reasoning of the
Thirteenth Court of Appeals in Dintelman, we hold that the answer is yes.
Both parties raise the same arguments they raised in the trial court. Appellant
contends that the Missouri DWI, which was disposed of with an SIS, cannot serve as
an offense enhancement because:
• An SIS is equivalent to a Texas deferred adjudication. Offenses disposed
of with deferred adjudication community supervision could not serve to
enhance misdemeanor DWIs to felony DWIs when Appellant committed
his Parker County DWI.
• The Missouri DWI is not a “final conviction” under Section 49.09, nor is
it a “final conviction” as that term is used in sentence-enhancement law.
• Offenses disposed of by an SIS in Missouri are not treated as convictions
in Missouri or in some federal caselaw.
As it did in the trial court, the State relies on Dintelman. The State argues:
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• The Missouri paperwork in conjunction with the relevant Missouri statute
shows that Appellant was necessarily found guilty of DWI; thus the SIS is
not like deferred adjudication community supervision.
• Sentence-enhancement law is distinguishable from offense-enhancement
law, so whether the Missouri DWI could enhance a sentence in Texas is
irrelevant.
• How Missouri treats an SIS is irrelevant.
First, applying Dintelman, we hold that “convicted” in Penal Code Section
49.09(b)(2) means “found guilty.” Tex. Penal Code Ann. § 49.09(b)(2); Dintelman,
2017 WL 127870, at *3, *4, *5. The Missouri trial court necessarily found Appellant
guilty before disposing of his 1997 DWI with an SIS, and the Missouri docket sheet and
probation order implicitly support this conclusion. See Mo. Ann. Stat. § 557.011.2(3);
Dintelman, 2017 WL 127870, at *4 (citing same).
Second, that guilty finding is what distinguishes Appellant’s SIS from deferred
adjudication community supervision. When a defendant is placed on deferred
adjudication community supervision, the trial court defers finding or adjudicating guilt.
Tex. Code Crim. Proc. Ann. art. 42A.101(a); Donovan v. State, 68 S.W.3d 633, 636 (Tex.
Crim. App. 2002). Thus, Texas law on deferred adjudication community supervision
does not impact the use of Appellant’s Missouri DWI as an offense enhancement.
Third, we agree with Appellant that his Missouri DWI is not a conviction under
the express language of Section 49.09(d). Tex. Penal Code Ann. § 49.09(d). However,
that subsection—expressly pertaining only to prior Texas convictions—is not at play in
this analysis. See id.; Dintelman, 2017 WL 127870, at *3.
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Fourth, Penal Code Section 49.09(b) is not a sentence-enhancement statute.
Unlike sentence-enhancement statutes, Section 49.09(b) functions to enhance an
offense from a misdemeanor to a felony; their disparate purposes distinguish the two
statutory schemes. Gibson, 995 S.W.2d at 696, 697; Dintelman, 2017 WL 127870, at *4;
McGuire, 493 S.W.3d at 192. “[T]he plain language of Section 49.09(b) also indicates it
should not be viewed as a punishment-enhancement statute similar to Section
12.42(d).” Gibson, 995 S.W.2d at 696. Thus, the treatment of community supervision
and finality of judgments in Texas sentence-enhancement law does not impact the use
of Appellant’s Missouri DWI under Section 49.09(b)(2) to enhance his Parker County
misdemeanor DWI to a felony DWI.
Finally, how Missouri treats defendants who have a prior SIS (or how federal
courts treat such defendants when applying Missouri law) has no bearing on the impact
the guilty finding preceding that SIS has in enhancing a Texas misdemeanor DWI to a
felony DWI under Section 49.09(b)(2). See Dintelman, 2017 WL 127870, at *4. How
Missouri would treat Appellant’s prior SIS therefore does not prevent the State’s relying
on the guilty finding preceding his SIS in seeking to enhance Appellant’s Parker County
misdemeanor DWI to a felony DWI. See id.
We hold that under Section 49.09(b)(2), the Parker County indictment
sufficiently alleged two previous valid DWI convictions against Appellant. The trial
court therefore did not err by denying his motion to quash. We overrule Appellant’s
sole issue.
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III. Conclusion
Because we hold that under Penal Code Section 49.09(b)(2), the 2007 Missouri
DWI was a prior conviction properly alleged to enhance Appellant’s Parker County
misdemeanor DWI to a felony DWI, we affirm the trial court’s judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: December 17, 2020
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