Opinion
No. 05-04-00834-CR
Opinion filed June 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-04-39. Vacated and Remanded.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Norman Hubert Schulz appeals his felony conviction for driving while intoxicated (DWI). In a single issue, Schulz contends the trial court erred in denying his motion to quash the indictment because one of the prior DWI convictions was too remote to be used to enhance the current offense to a felony. The background of the case is well known to the parties; thus, we do not recite it here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We conclude one of the prior DWI convictions may not be used to elevate the current offense to a felony. Accordingly, we vacate the trial court's judgment and remand with instructions to transfer the case to a court having jurisdiction of the misdemeanor offense. The indictment alleged Schulz committed his most recent DWI on December 19, 2003. The indictment also alleged Schulz had two prior DWI convictions, one on June 27, 2003 and another on June 24, 1986. According to Schulz's brief, his probation for the 1986 conviction was revoked and he was sentenced to two years' imprisonment on September 27, 1987. The State does not dispute this statement. Schulz filed a pretrial motion to quash the indictment because the 1986 DWI conviction was too remote to be used to enhance the current offense to a felony and requested dismissal of the indictment. After the trial court denied the motion to quash and certified his right to appeal, Schulz entered a plea-bargain agreement, pled guilty, and was sentenced to three years' imprisonment and a $500 fine. Under section 49.09(b)(2) of the penal code, the offense of DWI is a third degree felony if the defendant has two prior DWI convictions. Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon Supp. 2004-05). Section 49.09(e), however, limits the convictions that may be used for enhancement under the "ten year rule." Id. § 49.09(e). The court of criminal appeals recently interpreted and applied the ten year rule in Getts v. State, 155 S.W.3d 153, 155-56 (Tex.Crim.App. 2005). In order to exclude a prior conviction from use for enhancement, the three conditions of section 49.09(e) must be met: (1) the prior conviction must be final; (2) the current offense must have been committed more than ten years after the latest date determined under subdivision 49.09(e)(2); and (3) the defendant must not have been convicted of any other intoxication-related offense within ten years of the latest date under subdivision (2). Getts, 155 S.W.3d at 156-57. The latest date under subdivision (2) is the later of the date of judgment of the prior conviction, the date of discharge from community supervision, the date of completion of parole, or the date the defendant completed serving a term of confinement or imprisonment for the prior conviction. Id. at 156. The latest possible date under subdivision 49.09(e)(2) would be September 27, 1989, the date Schulz would have been released after serving his sentence for the 1986 conviction. The record indicates the 1986 conviction was final, and that the current offense was committed more than ten years after September 27, 1989, and, based on this record, Schulz has not been convicted of another intoxication related offense within ten years of September 27, 1989. Following Getts, we conclude the 1986 conviction meets all three conditions of section 49.09(e) and thus is unavailable for enhancing the current offense. Getts, 155 S.W.3d at 157. Therefore, the trial court abused its discretion in denying the motion to quash the indictment. See Williamson v. State, 46 S.W.3d 463, 465 (Tex.App.-Dallas 2001, no pet.) (applying abuse of discretion standard of review to denial of motion to quash). Because the indictment alleged only two prior DWI convictions and one of those was not available for enhancement, the indictment alleged only misdemeanor DWI. See Mitchell v. State, 821 S.W.2d 420, 423 (Tex.App.-Austin 1991, pet. ref'd). The trial court did not acquire felony jurisdiction of this offense and was required to transfer the indictment to a court having misdemeanor jurisdiction. See Tex. Code Crim. Proc. Ann. art. 21.26 (Vernon 1989); Mitchell, 821 S.W.2d at 423. Because the trial court should have granted the motion to quash and transferred to a court with misdemeanor jurisdiction, we resolve Schulz's sole issue in his favor, vacate the trial court's judgment, and remand with instructions to transfer the case to a court having misdemeanor jurisdiction. Ex parte Jones, 682 S.W.2d 311 (Tex.Crim.App. 1984); Harris v. State, 565 S.W.2d 66 (Tex.Crim.App. 1978). The judgment of the trial court is vacated and this cause remanded with instructions to transfer the cause to a court having misdemeanor jurisdiction.
Schulz's motion to quash states that he was previously convicted of DWI in 1982, 1984, 1986, and 2003. The 1982 and 1984 convictions were not alleged in the indictment and there is no evidence of these convictions in this record.