      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00357-CR



                              Willie Hampton Bell, Sr., Appellant

                                                 v.

                                  The State of Texas, Appellee




   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
            NO. 7472, HONORABLE JOE CARROLL, JUDGE PRESIDING



                                          OPINION


               After his motion to quash the indictment was overruled, appellant Willie Hampton

Bell, Sr., pleaded guilty to felony driving while intoxicated. See Tex. Pen. Code Ann. § 49.04(a)

(West 2003), § 49.09(b)(2) (West Supp. 2004-05). As called for in a plea bargain, the court assessed

a six-year prison sentence and placed appellant on community supervision. Appellant’s sole issue

on appeal is whether the court erred by overruling the motion to quash. See Tex. R. App. P.

25.2(a)(2)(A). We will affirm.

               Driving while intoxicated is a third degree felony if the defendant has previously been

convicted two times for an “offense relating to the operating of a motor vehicle while intoxicated.”

Tex. Pen. Code Ann. § 49.09(b)(2). An “offense relating to the operating of a motor vehicle while

intoxicated” includes an offense under section 49.04 and “an offense under the laws of another state

that prohibit the operation of a motor vehicle while intoxicated.” Id. § 49.09(c)(1)(A), (F). In this
cause, the indictment alleged that appellant had twice been convicted in the United States District

Court, Western District of Texas, Waco Division for driving while intoxicated. Appellant argues

that the enhancement allegations should have been quashed because the United States is not “another

state,” and therefore the two federal court convictions could not be used for enhancement under

section 49.09(c)(1)(F). The State replies, and we agree, that section 49.09(c)(1)(F) is not applicable

here.

               Appellant was prosecuted in federal district court pursuant to the Assimilative Crimes

Act. 18 U.S.C.A. § 13 (West 2000). Under this statute, a person who commits an act in a place

subject to exclusive federal jurisdiction that is not a crime under federal law, but that would be a

crime if committed within the jurisdiction of the state in which the place is located, “shall be guilty

of a like offense and subject to a like punishment.” Id. § 13(a). “The purpose of the Assimilated

[sic] Crimes Act . . . is to provide a set of criminal laws for federal enclaves by using the criminal

law of the local state to fill gaps in federal criminal law.” United States v. Teran, 98 F.3d 831, 834

(5th Cir. 1996). The state offense is “imported into federal law through the ACA.” Id.

               Although appellant’s previous convictions were in federal court, the convictions were

for offenses under Texas Penal Code section 49.04.1 They were properly used for enhancement

under section 49.09(c)(1)(A). Section 49.09(c)(1)(F) is not implicated in this cause, and we express

no opinion as to whether the United States should be considered “another state” within the meaning

of that subsection.


   1
     The earlier judgment states that the prosecution was under “18 USC 13 & Texas Penal Code
§ 49.04.” The more recent judgment states that the prosecution was under “18 USC 13 & Texas
Penal Code § 49.09(a).”

                                                  2
              The judgment of conviction is affirmed.




                                           __________________________________________

                                           W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: July 20, 2005

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