              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                      NO. WR-89,477-01



                  EX PARTE RODNEY KEITH RODGERS, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 42593CR/A IN THE 443RD DISTRICT COURT
                            FROM ELLIS COUNTY

                W ALKER, J., filed a concurring opinion in which N EWELL, J., joined.

                                 CONCURRING OPINION

       I believe the majority reaches the correct conclusion today. However, I believe the indictment

was sufficient on its own to authorize the convicting court to sentence Applicant within the range

of punishment for a second-degree felony, and there is no need to rely on Ex parte Parrott to reach

said conclusion.1 Moreover, I disagree with the majority’s assertion that Parrott should apply to

jurisdictional enhancements. Accordingly, I respectfully concur.

       The majority has resolved that the harm analysis we applied in Parrott to a claim of illegal

sentence because of illegal punishment enhancements should also be used when an applicant alleges



       1
           Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013).
                                                                                                     2

that the convicting court did not have subject matter jurisdiction because of an illegal jurisdictional

enhancement. An illegal sentence because of an illegal punishment enhancement is not at all

analogous to an illegal sentence because the convicting court did not have subject matter jurisdiction.

If the convicting court did not have subject matter jurisdiction—because of a defective jurisdictional

enhancement or otherwise—the conviction is void.2 There is no need to perform an analysis to

determine if he was harmed. The conviction, regardless of harm, is void. As such, the only analysis

that needs to be done is to determine whether the indictment was sufficient to establish subject

matter jurisdiction in the convicting court.

       One of the purposes of an indictment is to provide an individual with notice of what he or

she is being charged with.3 An indictment is considered sufficient on its face when it “charges the

commission of the offense . . . in such a manner as to enable a person of common understanding to

know what is meant, and with that degree of certainty that will give the defendant notice of the

particular offense with which he is charged.”4 Moreover, an indictment shall not be held insufficient

“by reason of any defect of form which does not prejudice the substantial rights of the defendant.”5

       The indictment in this case charged Applicant with DWI under Penal Code § 49.04.

Applicant pled guilty, became punishable for a second-degree felony, and was sentenced to fifteen

years, which is in the punishment range of a second-degree felony. To expose an individual to the



       2
        Ex parte Moss, 446 S.W.3d 786, 789 (Tex. Crim. App. 2014); Ex parte McCain, 67 S.W.3d
204, 210 (Tex. Crim. App. 2002); Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001).
       3
           Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000).
       4
           TEX . CODE CRIM . PROC. art. 21.11.
       5
           Id. art. 21.19.
                                                                                                  3

punishment range of a second-degree felony for what would otherwise be a misdemeanor, the DWI

indictment must allege at least two prior DWI convictions and at least one additional prior felony

conviction.6 The two prior DWI convictions, whether they are felonies or misdemeanors, first elevate

the misdemeanor DWI to a third-degree felony. These prior convictions are jurisdictional elements

because they shift subject matter jurisdiction from a misdemeanor court to a felony court. The

additional prior felony conviction is a punishment enhancement, which elevates the third-degree

felony to a second-degree felony. Put otherwise, to authorize a sentence within the punishment range

of a second-degree felony for a DWI under § 49.04, the indictment must allege at least two prior

DWIs (the jurisdictional elements of felony DWI) and one prior felony (the punishment

enhancement).

       The indictment in this case alleged three distinct prior DWI felonies. Because they are all

DWIs and all felonies, in theory any two could have been used as the jurisdictional elements and the

last remaining felony could be used as the punishment enhancement. The “issue” in this case,

however, is that the indictment was split up into two sections, the second of which was titled

“**PUNISHMENT ENHANCEMENTS**.” The first part of the indictment lists two prior

convictions-F-9652378-IW and F-9652378-HW-which turned out to be the same conviction. The

second part of the indictment, under the “**PUNISHMENT ENHANCEMENTS**” heading, lists

two additional convictions-F-0717649-R and F-1261763-M.

       Applicant argues that because there is “technically” only one prior DWI conviction alleged

as a jurisdictional element, the court did not have subject matter jurisdiction to hear his case. I

disagree. First, if an indictment is sufficient when it provides notice to an individual of common


       6
           TEX . PENAL CODE Ann. § 49.09(b)(2); TEX . PENAL CODE Ann. § 12.42(a).
                                                                                                       4

understanding of what they are being charged with, then the indictment in this case was sufficient

on its own to authorize a punishment within the range of a second-degree felony. There was no need

to stretch our holding in Parrott so that it would be applicable here. In Teal, the appellant argued that

the indictment was missing one of the elements that elevated the offense from a misdemeanor to a

felony.7 As Applicant argues in this case, Teal contended that the district court did not have subject

matter jurisdiction.8 We disagreed and stated that the complete test for the constitutional sufficiency

of a charging instrument regarding jurisdiction is: “Can the district court and the defendant

determine, from the face of the indictment, that the indictment intends to charge a felony or other

offense for which a district court has jurisdiction?”9 We held that the indictment:

        was nonetheless sufficient to vest jurisdiction—it charged “an offense” and one could
        fairly conclude from the face of the charging instrument that the State intended to
        charge a felony offense. If appellant was confused about whether the State did or
        intended to charge him with a felony, he could have and should have objected to the
        defective indictment before the date of trial.10

There is no question here whether one could fairly conclude from the face of this indictment that the

State intended to charge a felony offense. It listed two prior DWI convictions—though they turned

out to be for the same offense—clearly suggesting that the State was intending to charge Applicant

with a felony. Furthermore, the defense, per trial counsel’s affidavits, was fully aware that the State

was intending to charge a felony offense. The defense simply elected not to challenge the indictment

because it knew the State could come back with additional charges and it would still be a felony.


        7
             Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007).
        8
             Id. (contending that indictment was defective and that defect was jurisdictional).
        9
             Id. at 181.
        10
             Id. at 182.
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Applicant therefore cannot argue that the indictment failed to establish subject matter jurisdiction.

         Second, the only requirement from the DWI statute is that a prior conviction cannot be used

as both a jurisdictional element and a punishment enhancement, but “nothing in section 49.09(g)

requires the State to specify in the indictment which prior convictions it will ‘use’ to enhance the

underlying felony under the DWI statute or to enhance punishment.”11 Because there is no

specification requirement, opting to specify the type of enhancement with a paragraph heading is at

most an organizational and stylistic choice. In other words, simply because an offense is listed under

the punishment heading does not mean it can only be used as a punishment enhancement. The

headings can be used to help organize the indictment, but they have no absolute authority.

Essentially, the only requirement for subject-matter jurisdiction is that the prior DWI convictions are

alleged somewhere in the indictment.12 Because there were three distinct prior convictions that were

alleged-all of which were felonies and all of which were DWIs—any two of them could have been

used for the jurisdictional element and the remaining one could have been used to elevate the

punishment to that of a second-degree felony. Therefore, again, the argument that Applicant's felony

punishment was illegal because the indictment did not allege two jurisdictional elements is without

merit.

         In sum, I agree with the majority that Applicant was not illegally sentenced for a

second-degree felony DWI offense. I, however, disagree with Parrott’s applicability to jurisdictional


         11
         Medina v. State, No. 05-03-01193-CR, 2004 WL 1832888 at *3, 2004 Tex. App. LEXIS
7355 at *8 (Tex. App.—Dallas Aug. 17, 2004, pet. ref’d) (not designated for publication); TEX .
PENAL CODE Ann. § 49.09(g).
         12
          See Jenkins v. State, 592 S.W.3d 894, 904 (Tex. Crim. App. 2018) (Yeary, J., concurring)
(opining that so long as “it is possible to identify” a required element somewhere in “the indictment
as a whole,” then “for constitutional purposes—the indictment does” contain said element).
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elements. Nevertheless, the indictment was both sufficient on its face to give notice to Applicant that

the State was intending to charge him with a felony, and it included the required type and amount

of prior convictions to elevate a misdemeanor DWI offense to a third-degree felony offense

punishable as a second-degree felony. Consequently, because he pled guilty and was sentenced to

fifteen years, which is in the range of punishment for a second-degree felony, the indictment

supported his conviction and punishment. Therefore, I respectfully concur in the Court’s judgment.

Filed: April 8, 2020
PUBLISH
