Opinion
No. 05-03-01739-CR
Opinion Filed November 3, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0350995-VS. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
OPINION
Morris Dickson, Jr., appeals the trial court's denial of his pretrial motion to strike the enhancement paragraph alleging one of his two prior driving while intoxicated (DWI) convictions. Appellant was indicted for DWI, which was enhanced to a felony by two prior DWI convictions. Appellant moved to strike one of the enhancement paragraphs claiming that the conviction was not final. The trial court denied his motion. After the trial court denied his motion, appellant pleaded guilty to the felony indictment. On appeal, appellant argues that the trial court's denial of his pretrial motion to strike was error. He claims that one of the prior convictions alleged in the enhancement paragraph of the indictment was not final because it was not rendered and it was dismissed. The State responds that for enhancement purposes the prior conviction was final. After reviewing appellant's claim, we conclude that appellant has not shown that the trial court abused its discretion by denying his pretrial motion to strike the enhancement paragraph. We affirm the trial court's judgment. Tex.R.App.P. 43.2(a).
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was arrested for DWI on April 28, 2003, and a grand jury indicted him for the offense on May 16, 2003. The indictment alleged that appellant had two prior misdemeanor DWI convictions: (1) in the County Court at Law in Ellis County, Texas, on March 3, 1994; and (2) in County Criminal Court No. 6 of Dallas County, Texas, on February 10, 1992 (1992 DWI conviction). These prior convictions were alleged to enhance appellant's new DWI charge to a third-degree felony offense. Appellant filed a pretrial motion to strike the enhancement paragraph alleging his 1992 DWI conviction. He claimed that it was not a final conviction for purposes of enhancement because the trial court set aside the findings of guilt, and dismissed the complaint and information. After a hearing on appellant's motion to strike, the trial court denied the motion. Before a trial on the merits was held, appellant pleaded guilty to the felony DWI charge. The State offered, without objection, and the trial court admitted into evidence, appellant's judicial confession. The confession contains his stipulation that the charge and the two enhancement paragraphs are true and constitute evidence in the case. However, appellant's judicial confession does not stipulate that his prior convictions were final. The trial court accepted appellant's plea of guilty to the indictment, found appellant guilty on his plea, sentenced him to confinement for five years, and fined him $1,000. The trial court suspended appellant's sentence and ordered that he be placed under community supervision for five years.II. USE OF DISMISSED PROBATED DWI CONVICTION TO ENHANCE
In his sole issue on appeal, appellant argues that the trial court erred by denying his pretrial motion to strike the enhancement paragraph alleging his prior 1992 DWI conviction. Appellant also argues that it is not a final conviction because the order suspending his sentence for the 1992 DWI conviction states that the verdict and finding of guilty are not final, and that no judgment is rendered. Appellant also argues that his 1992 DWI conviction was not a final conviction because it was dismissed, and, therefore, the charge against him could not be enhanced to a felony. The State responds that appellant's 1992 DWI conviction was a final conviction because, for enhancement purposes, a prior conviction is final even when the sentence is probated.A. Standard of Review
A trial court's ruling on a motion to quash or a motion to strike is reviewed under an abuse of discretion standard. Williamson v. State, 46 S.W.3d 463, 465 (Tex.App.-Dallas 2001, no pet.) (citing Smith v. State, 895 S.W.2d 449, 453 (Tex.App.-Dallas 1995, pet. ref'd)); State v. York, 31 S.W.3d 798, 801 (Tex.App.-Dallas 2000, pet. ref'd). A trial court abuses its discretion when its decision is so clearly wrong that it lies outside the zone of reasonable disagreement. State v. Gonzalez, 855 S.W.2d 692, 695 n. 4 (Tex.Crim.App. 1993) (citing Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992)).B. Applicable Law
A DWI can be enhanced to a third degree felony if it is shown at trial that the person has two prior DWI convictions. Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon Supp. 2004-05). A prior DWI conviction must be a final conviction before it can be used to elevate a subsequent DWI to a third-degree felony. See Tex. Pen. Code Ann. § 49.09(d); Ex Parte Serrato, 3 S.W.3d 41 (Tex.Crim.App. 1999); Williamson, 46 S.W.3d 463.1. Probated Sentence with No Judgment Rendered as an Enhancement Conviction
Pursuant to § 49.04 of the Texas Penal Code, a person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003 Supp. 2004-05). An offense relating to the operation of a motor vehicle is defined to include "an offense under [former] Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994." Tex. Penal Code Ann. § 49.09(c)(1)(C); see also Serrato, 3 S.W.3d at 42-43. Article 6701l-1 was the DWI statute before the enactment of § 49.04 which became effective on September 1, 1994. See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1574-77, repealed by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704. Article 6701l-1 provided that "[a] conviction for an offense that occurs on or after January 1, 1984, is a final conviction, whether or not the sentence for the conviction is probated." See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1574-77, repealed by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704 (current version at Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003 Supp. 2004-05)); see also Serrato, 3 S.W.3d at 43. By incorporating the prior DWI statute, Article 6701l-1 of the Texas Revised Civil Statutes, into the new statute, § 49.04(a) of the Texas Penal Code, the Legislature declared its intent to continue the status quo, which included permitting a DWI conviction to be used for enhancement if the offense occurred after January 1, 1984. Serrato, 3 S.W.3d at 43. Accordingly, a suspended DWI conviction that occurred after January 1, 1984, but before September 1, 1994, may be used to enhance a DWI to a felony. Serrato, 3 S.W.3d at 43. Further, a judgment stating that it "shall not be considered final" or that "no judgment is rendered," is a final conviction under § 49.09 for purposes of enhancing a DWI. See Williamson, 46 S.W.3d at 465-67.2. Set Aside and Dismissed Judgment as an Enhancement Conviction
Article 42.12 of the Texas Code of Criminal Procedure establishes when a trial court may set aside or dismiss a complaint, information, or indictment after a defendant's term of community supervision has been reduced or has terminated. See Tex. Code Crim. Proc. Ann. art. 42.12 § 20 (Vernon Supp. 2004-05). Before September 1, 1994, Article 42.12 § 23 provided, in part, as follows:In case [sic] the defendant has been convicted or has entered a plea of nolo contendre to an offense other than an offense under . . . Article 6701l-1, Revised Statutes, and the court has discharged the defendant hereunder, such court may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or which he has pleaded guilty . . .Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3516. In 1993, the legislature made, in part, the following amendments to Article 42.12: (1) § 23 was changed to § 20; (2) the language referring to Article 6701l-1 was deleted; and (3) the exceptions pertaining to alcohol related offenses were moved to a newly created subsection (b). See Act of June 19, 1993, 73rd Leg., R.S., ch. 900 § 4.01, 1993 Tex. Gen. Laws 3716, 3739. If a trial court was unauthorized under Article 42.12 to set aside findings of guilt and dismiss an indictment for DWI when a defendant completes or receives a reduction in his probation or community supervision, then that portion of the judgment is null and void. See, e.g., Anderson v. State, 110 S.W.3d 98, 99 (Tex.App.-Dallas 2003, no pet.); Mahaffey v. State, 937 S.W.2d 51, 54-55 (Tex.App.-Houston [1st Dist.] 1996, no pet.).
C. Application of the Law to the Facts
Appellant pleaded guilty to the 1992 DWI, and the trial court suspended his sentence and placed him on probation. The Order Granting Probation stated, in part, the following:IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED, that the verdict and finding of guilty herein shall not be final, that no judgment be rendered thereon, and that the Defendant be, and he is hereby placed on probation in this cause . . .However, the recitation in a judgment or order that it shall not be considered final and that no judgment is rendered, is considered to be a final conviction for purposes of enhancing a DWI to a felony offense. See Williamson, 46 S.W.3d at 465-67. Appellant successfully completed probation for his 1992 DWI conviction, and on June 30, 1994, he was discharged from probation and his conviction was set aside under former article 42.12 § 23 of the Texas Code of Criminal Procedure in a judgment nunc pro tunc, which states, in part, the following:
IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED, That [sic] the findings of guilty heretofore entered in each of the following causes be, and the same is hereby set aside, that the complaint and information in each of said causes be, and the same are hereby dismissed and each said cause is stricken from the docket of this Court, and that each Defendant therein be, and he is hereby discharged from probation . . .However, at the time in question, former Article 42.12 § 23 explicitly prohibited a trial court from dismissing the information and setting aside the verdict when discharging a DWI probation. Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3516; Mahaffey, 937 S.W.2d at 54. We conclude that the trial court's probation order was final for DWI enhancement purposes. See Williamson, 46 S.W.3d at 465-67. We also conclude that the trial court lacked authority to the extent that it purported to set aside appellant's 1992 DWI conviction, dismiss the information, and release appellant from all penalties and disabilities resulting from that conviction because that portion of the judgment nunc pro tunc is null and void. See Anderson, 110 S.W.3d at 99; Mahaffey, 937 S.W.2d at 54-55. Appellant's sole issue on appeal is decided against him.