      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00280-CR



                                    Dan Carter, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
         NO. 9030019, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted Dan Carter, Jr. of driving while intoxicated (“DWI”), enhanced to

a felony, see Tex. Penal Code Ann. §§ 49.04 (West 2003), .09 (West Supp. 2006), and the district

court sentenced him to six years in prison. Carter raises four points of error on appeal. We sustain

his first point of error and reverse the judgment of the district court.


                                            Background

               Due to our resolution of Carter’s first point of error, we need present only a brief

recitation of the facts. On September 15, 2001, Officer Jeffrey Lyde witnessed a vehicle driven by

Carter make a “sliding stop” in the middle of an intersection. After Lyde signaled for the car to pull

over, Carter ran three red lights, signaled incorrectly, and drove in the middle of two lanes before

coming to a stop on top of a curb. Carter was too intoxicated to get out of his car and fell down

when Lyde helped him out of the car. Carter smelled strongly of alcohol and was disheveled and

red-eyed, and Lyde testified that he had never seen a person so intoxicated still able to drive.
               Carter was indicted for DWI, enhanced to a third-degree felony under subsection

49.09(b)(1) of the penal code by an allegation that Carter had been convicted of involuntary

manslaughter in October 1984. See id. § 49.09(b)(1). Carter filed a motion to quash the indictment,

which the trial court denied. The jury convicted Carter of the felony charge, and the court sentenced

him to six years’ imprisonment.


                                            Discussion

               In his first point of error, Carter asserts that the trial court improperly denied his

motion to quash.1 The indictment alleged that Carter had been convicted in 1984 “of an offense

under Section 49.08 Texas Penal Code [intoxication manslaughter] and an offense with elements

similar to the elements of Section 49.09 Texas Penal Code as follows: Involuntary Manslaughter.”2

Carter asserts that the indictment impermissibly enhanced his offense to a felony because it relied

on a conviction that could not be used for enhancement under subsection 49.09(b)(1). We agree.

               In an opinion issued after the district court rendered its judgment of conviction and

the parties briefed their arguments on appeal, the court of criminal appeals held that a prior

conviction under former section 19.05 may not be used for enhancement under subsection




       1
          Before Moff, appellate courts applied an abuse of discretion standard when reviewing
decisions on motions to quash. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
However, the Moff court held that the “sufficiency of an indictment is a question of law” that should
be reviewed de novo. Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
       2
          Carter’s prior conviction was actually a conviction for involuntary manslaughter under
former section 19.05(a)(2) of the penal code, the predecessor to section 49.08. See Act of
May 28, 1973, 63d Leg., R.S., art. 2, § 1, 1973 Tex. Gen. Laws 1122, 1124 (setting out section 19.05
as it read when Carter was convicted in 1984; replaced by Tex. Penal Code Ann. § 49.08
(West 2003)).

                                                 2
49.09(b)(1).3 Ex parte Roemer, 215 S.W.3d 887, 889-90 (Tex. Crim. App. 2007). The court noted

that subsection 49.09(b)(1) does not include prior convictions under former subsection 19.05(a)(2)

and held that the explicit inclusion of former subsection 19.05(a)(2) convictions in subsection

49.09(c) as offenses “relating to the operating of a motor vehicle while intoxicated” showed that the

legislature could have included section 19.05 convictions in subsection (b)(1), had it so chosen. Id.4

Carter’s 1984 conviction was under former section 19.05, not section 49.08 or a similar law of

another state.5 The indictment improperly used Carter’s 1984 conviction to enhance this DWI charge

to a felony under subsection 49.09(b)(1), and the district court erred in denying his motion to quash.



        3
          A DWI is a Class B misdemeanor, see Tex. Penal Code Ann. § 49.04(b) (West 2003), that
may be enhanced to a third-degree felony if the defendant was earlier convicted “one time of an
offense under Section 49.08 or an offense under the laws of another state if the offense contains
elements that are substantially similar to the elements of an offense under Section 49.08.”
Id. § 49.09(b)(1) (West Supp. 2006); see also id. § 49.09(a) (DWI may be enhanced to Class A
misdemeanor with showing of one conviction for “offense relating to the operating of a motor
vehicle while intoxicated”), (b)(2) (two such convictions may enhance DWI to third-degree felony
offense), (c)(1)(E) (defining “[o]ffense relating to the operating of a motor vehicle while intoxicated”
to include former section 19.05).
        4
           Although the State argues that treating former section 19.05 convictions differently from
convictions under its successor or similar out-of-state statutes will lead to absurd results, the majority
in Roemer noted the disparate treatment and stated, “When the legislature specifically instructs us
how to deal with an offense, we should give effect to each word and follow their direction.”
Ex parte Roemer, 215 S.W.3d 887, 890 (Tex. Crim. App. 2007); see id. at 895-98 (Keasler, J.,
concurring) (noting “inconsistency” in treatment of section 19.05 convictions); see also id. at 900-01
(Cochran, J., dissenting) (arguing that majority’s interpretation “leads to absurd results”). The State
also argues that section 19.05 convictions must be included for subsection 49.09(b)(1) to harmonize
with former section 49.09(f), which allowed enhancement by section 19.05 convictions more than
ten years old. See Act of May 25, 2001, 77th Leg., R.S., ch. 648, § 2, 2001 Tex. Gen. Laws 1213,
1214 (subsection 49.09(f) was repealed effective Sept. 1, 2005, by Act of May 27, 2005, 79th Leg.,
R.S., ch. 996, § 3, 2005 Tex. Gen. Laws 3363, 3364). However, former subsection 49.09(f) did not
state that such convictions could be considered in every application of section 49.09. See id.
        5
        Carter’s single prior conviction could be used to enhance this offense to a Class A
misdemeanor under subsection 49.09(a). Tex. Penal Code Ann. § 49.09(a), (c)(1)(E).

                                                    3
                                            Conclusion

               The indictment improperly used an unavailable prior conviction to enhance this

charge to a felony and thus served only to allege a misdemeanor offense. The district court lacks

jurisdiction over misdemeanor offenses.       See Tex. Code Crim. Proc. Ann. arts. 4.05, .07

(West 2005). We therefore reverse Carter’s conviction and remand the cause to the district court

with instructions to transfer the case to a court having jurisdiction over misdemeanor offenses.6 See

Mitchell v. State, 821 S.W.2d 420, 423 (Tex. App.—Austin 1991, pet. ref’d). Due to our resolution

of Carter’s first issue, we need not address his remaining complaints about the effectiveness of his

trial counsel, all of which complain of counsel’s conduct related to the enhancement of his offense.




                                              ___________________________________________

                                              David Puryear, Justice

Before Justices Patterson, Puryear and Henson

Reversed and Remanded

Filed: May 15, 2007

Do Not Publish



       6
          Although Carter did not file a second motion to quash when the State amended the
indictment one week before trial, the amendment merely corrected the date of his 1984 conviction
and had no substantive effect on the allegations of the indictment. Carter’s motion to quash, which
had already been overruled when the indictment was amended, notified the trial court of Carter’s
complaints related to the enhancement paragraph, complaints that applied to the indictment with
equal force after the amendment, and served to preserve his complaint for appellate review; the State
does not argue otherwise.

                                                 4
