                            NUMBER 13-08-00668-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                            Appellant,

                                             v.

DEBRA SALINAS,                                                                 Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                 Memorandum Opinion by Justice Rodriguez

       A grand jury indicted appellee Debra Salinas for the state-jail felony of prostitution.

The trial court granted Salinas’s motion to quash the indictment. By one issue, appellant,

the State of Texas, argues that the trial court did not have the authority to hear evidence

in a pre-trial hearing in order to quash a facially valid indictment. We reverse and remand.
                                    I. BACKGROUND

       The indictment, dated July 10, 2008, alleged that Salinas offered to engage in

prostitution on or about April 23, 2008, and had previously been convicted three or more

times of the same offense in the following Nueces county court cause numbers: CR-97-

43636-3 on July 11, 1997; CR-97-5781-3 on September 11, 1997; CR-98-4662-2 on

November 30, 1999. A pre-trial hearing on a motion to quash the indictment was held on

November 5, 2008.

       As grounds for the motion to quash, Salinas attacked the prior convictions used to

enhance the prostitution charge from a misdemeanor to a state-jail felony. Although

Salinas conceded that the indictment alleged three prior convictions, she contended that

two of the prior convictions, trial court cause numbers CR-97-43636-3 and CR-97-5781-3,

pertained to the same offense because the judgment and sentencing documents listed the

same offense date of June 14, 2007. As support for her contentions, Salinas tendered two

exhibits, the judgment and sentencing documents for trial court cause numbers CR-97-

43636-3 and CR-97-5781-3, which the trial court admitted and considered. On the basis

of Salinas’s exhibits, the trial court found the indictment defective and granted the motion

to quash. This appeal ensued.

                               II. STANDARD OF REVIEW

       In reviewing a motion to quash, “the sufficiency of an indictment is a question of

law.” State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); State v. Meadows, 170

S.W.3d 617, 619 (Tex. App.–El Paso 2005, no pet.); see also Crenshaw v. State, No. 13-

05-00314-CR, 2006 Tex. App. LEXIS 7596, at *2 (Tex. App.–Corpus Christi Aug. 28, 2006,

pet. ref’d) (mem. op., not designated for publication). Because the credibility of a witness

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is not required when resolving a question of law, the trial court is in no better position than

the appellate court to make a decision. Moff, 154 S.W.3d at 601. Thus, the standard of

review for a determination of the sufficiency of an indictment is de novo. Id.

                                     III. DISCUSSION

       In its sole issue, the State alleges that the trial court did not have authority to hear

evidence in the pre-trial hearing. It is well established that an indictment returned by a

legally constituted grand jury is valid on its face and is enough to warrant a trial on its

merits. State v. Rosenbaum, 910 S.W.2d 934, 947 (Tex. Crim. App. 1994) (dissenting op.

adopted on reh’g); Meadows, 170 S.W.3d at 620. Indictments “must be facially tested” as

pleadings. Id. at 620 (citing Rosenbaum, 910 S.W.2d at 948).

       The indictment in this case alleges that Salinas had three prior prostitution

convictions. A prostitution offense may be elevated from a class A misdemeanor to a

state-jail felony offense if “the actor has previously been convicted three or more times of

[the same] offense.” TEX . PEN . CODE. ANN . § 43.02 (c) (Vernon 2003). When a statute

changes an offense from a misdemeanor to a felony because of prior convictions, the prior

convictions do not function merely to enhance the punishment; they become an element

of the new offense. See Calton v. State, 176 S.W.3d 231, 232 (Tex. Crim. App. 2005)

(stating that, in a similar evading arrest statute, prior convictions were an element of the

felony offense); Moore v. State, 916 S.W.2d 537, 539 (Tex. App.–Dallas 1995, no writ)

(stating that, in a similar theft statute, the use of the defendant’s prior convictions created

a new felony offense instead of simply enhancing the misdemeanor punishment).

       The sufficiency of the elements of an offense alleged in an indictment “cannot be

supported or defeated by evidence at a pre-trial hearing.” Meadows, 170 S.w.3d at 620

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(citing Rosenbaum, 910 S.W.2d at 948). Rather, the trial court’s review in a pre-trial

motion is limited to issues that can be resolved before trial. See State v. Iduarte, 268

S.W.3d 544, 551-552 (Tex. Crim. App. 2008) (citing Woods v. State, 153 S.W.3d 413, 415

(Tex. Crim. App. 2005)). The court cannot address the merits of a case in a pre-trial

hearing. Id. When a defendant asks the trial court in a pre-trial setting to determine the

propriety of his or her prior convictions when those convictions are actually elements of the

indicted offense, the defendant is asking the trial court to reach the merits of the case. See

Woods, 153 S.W.3d at 415 n.7.

       In this case, the issue addressed in the pre-trial hearing was whether or not the

convictions alleged in the indictment were sufficient to enhance Salinas’s crime from a

misdemeanor to a state-jail felony. As previously explained, previous convictions are

elements of an enhanced offense when the enhancement increases the offense from a

misdemeanor to a felony. See Calton, 176 S.W.3d at 232. In Meadows the indictment

against the defendant alleged facially valid enhancement allegations. Meadows, 170

S.W.3d at 620. The assault statute specified what prior convictions were needed to

enhance the offense from a class A misdemeanor to a third-degree felony. Id. During the

pre-trial hearing on a motion to dismiss, the defendant offered into evidence a judgment

and sentencing document from a previous conviction to prove that the conviction could not

be used for enhancement because the document did not contain the language needed to

affirm a “family violence” finding. Id. The trial court did not facially test the indictment as

a pleading. Id. Instead, the trial court entertained the judgment and sentencing document,

found that one of the convictions was not sufficient for enhancement, and granted the

motion to dismiss. Id. The appellate court reversed the trial court stating the trial court



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lacked authority “to conduct a hearing to determine whether the offense used for

enhancement purposes was valid.” Id.; see State v. Boado, 8 S.W.3d 15, 17 (Tex.

App.–Houston [1st Dist.] 1999), pet. dism’d) (holding that the trial court had no authority

to test a duty alleged in the indictment during a pre-trial hearing on the defendant’s motion

to quash); State v. Habren, 945 S.W.2d 225, 227 (Tex. App.–Houston [1st Dist.] 1997, no

writ) (holding that the trial court did not have authority to test the sufficiency of a facially

valid indictment).

       The trial court similarly erred in this case. Here, the convictions alleged in the

indictment are also facially valid and are elements of the state-jail felony of prostitution.

The trial court cannot compel the State to offer proof of the elements of the offense to

prevent the indictment from being quashed. See Meadows, 170 S.W.3d at 620; see

Iduarte, 268 S.W.3d at 552 (stating that when the issue is an element of the offense itself,

the issue cannot be decided by the trial court during a pre-trial hearing); Woods, 153

S.W.3d at 415 (explaining that pre-trial motions address preliminary matters, not merits of

a case such as the elements of the offense). Just as the court in Meadows exceeded its

authority in a pre-trial hearing when it considered a judgment and sentencing document,

this trial court did the same when it considered the judgment and sentencing documents

for trial court cause numbers CR-97-43636-3 and CR-97-5781-3 in deciding whether to

quash the indictment. Because the trial court failed to confine its inquiry to the convictions

on the face of Salinas’s indictment, it made “a factual determination regarding the

sufficiency of the evidence to prove the enhancement allegation.” See Meadows, 170

S.W.3d at 620. Thus, the trial court’s decision reached the merits of the case, which




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should not have been addressed in a pre-trial hearing.1 See id. Thus, we conclude that

the trial court erred in granting the motion to quash the facially valid indictment. The

State’s first issue is sustained.

                                              IV. Conclusion

        Accordingly, we reverse and remand for proceedings consistent with this opinion.



                                                                     NELDA V. RODRIGUEZ
                                                                     Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 9th day of July, 2009.




        1
            The State also argues that the exception to test enhancem ent convictions in a pre-trial hearing is
not applicable here because the enhancem ent is not based on a conviction that has been determ ined void.
W e agree. The Texas Court of Crim inal Appeals gives defendants a narrow window to challenge facially valid
indictm ents when enhancem ent is based on a voided conviction. Ex parte Patterson, 969 S.W .2d 16, 19-20
(Tex. Crim . App. 1998). In Patterson, a burglary conviction used to enhance the defendant’s capital m urder
conviction was subsequently declared void by the Texas Crim inal Court of Appeals. Id. Thus, the State could
not use the voided conviction to enhance Patterson’s offense. Id. However, this exception does not apply
in this case because the State is not relying on a voided judgm ent to enhance Salinas’s offense. During the
pre-trial hearing, the trial court did not quash the indictm ent because one of the two convictions was void. The
trial court sim ply pointed out that both convictions had the sam e offense date.




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