                                    NO. 07-03-0505-CR

                                 IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                    OCTOBER 28, 2005

                           ______________________________

                             RAMON MORENO, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2002-400878; HONORABLE JIM BOB DARNELL, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                         OPINION


       Appellant Ramon Moreno brings this appeal from his conviction for the felony

offense of driving while intoxicated and punishment of nine years confinement, probated

for six years. We will affirm.


       Appellant’s conviction was the result of his open plea of guilty after the trial court

overruled his motion to quash the indictment. In that motion he claimed the trial court

lacked jurisdiction because the prior convictions alleged in the indictment were too remote
to be used to make the offense a felony. He now presents three issues on appeal, each

related to the use of his prior convictions. His first issue assigns error to the denial of his

motion to quash. His second and third issues challenge the legal and factual sufficiency

of the evidence to support his plea of guilty.


        The indictment alleged appellant operated a motor vehicle while intoxicated on

September 8, 2002. It further alleged a prior DWI conviction on July 12, 2001,1 and

another on December 11, 1987. Appellant’s motion to quash was based on the time

limitation on the use of prior convictions contained in former section 49.09(e) of the Penal

Code. Tex. Penal Code Ann. § 49.09(e) (repealed effective September 1, 2005). 2 Section

49.09(b) makes the offense of driving while intoxicated a felony of the third degree if it is

shown at trial the defendant has previously been convicted two times of listed alcohol

related offenses. Tex. Penal Code Ann. § 49.09(b) (Vernon Supp. 2005). Although

section 49.09(e) referred to prior convictions in terms of “enhancement,” our courts have

consistently held the prior convictions are elements of the offense of felony driving while

intoxicated and do not merely enhance punishment. Gibson v. State, 995 S.W.2d 693, 696

(Tex.Crim.App. 1999). As elements of the offense, the State must allege and prove the

prior convictions. Weaver v. State, 87 S.W.3d 557, 560 (Tex.Crim.App. 2002).




        1
        At a hearing on his motion to quash appellant conceded his second conviction
occurred on September 3, 1999 rather than in July 2001. Both of the prior judgments were
introduced into evidence.
        2
            See Act of June 18, 2005, 79th Leg. R.S., ch. 996, § 3, 1989 Tex. Gen. Laws
3365.

                                              2
       At the time of appellant’s prosecution, section 49.09(e) prohibited use of a prior

conviction if (1) it was a final conviction;3 (2) the current offense was committed more than

ten years after the latest of, (A) entry of the prior judgment, (B) the discharge of probation,

(C) completion of parole, or (D) completion of any term of imprisonment; and (3) the person

had not been convicted of DWI or another listed intoxication-related offense within ten

years of the latest date under subsection (e)(2).


       In his first issue appellant argues the trial court erred in denying his motion to quash

the indictment because the State’s use of his first conviction was barred by section

49.09(e). From that premise he reasons the indictment at most alleged a misdemeanor

offense and the district court lacked jurisdiction. See Tex. Const. Art. V, § 8; Tex. Code

Crim. Proc. Ann. arts. 4.05, 4.07, 27.08(4) (Vernon 2005). We review a trial court’s ruling

on a motion to quash for abuse of discretion. Thomas v. State, 621 S.W.2d 158, 163

(Tex.Crim.App. 1980).


       In Weaver the court explained that the limitation on use of prior convictions created

by former section 49.09(e) is neither an element of the offense nor an exception to the

offense.4 87 S.W.3d at 561. It held subsection (e) is “more akin to a rule of admissibility,

rather than an element of the offense.” Id. As a result, the State need only allege two prior



       3
         Suspension of a sentence does not prevent a conviction from being final under
current section 49.09(d) or the former Revised Civil Statutes Article 6701l-1(h), applicable
to convictions after January 1, 1984. Ex parte Serrato, 3 S.W.3d 41 (Tex.Crim.App. 1999).
       4
        Weaver dealt with section 49.09(e) before its 2001 amendments. 87 S.W.3d at
560. We see no reason, though, why Weaver’s rationale would not continue to apply to
section 49.09(e) after its amendment.

                                              3
convictions for listed intoxication-related offenses, without regard to the age of those

convictions. Id. The State’s burden to prove the prior offenses arises only “on the trial of

the offense.” § 49.09(b). If evidence of a prior conviction is barred by section 49.09(e), the

State will be unable to establish an element of the felony offense. Id. Such failure to

establish the greater offense would not deprive the district court of jurisdiction.5 See Tex.

Code Crim. Proc. Ann. art. 4.06 (Vernon 2005). Under the holding in Weaver, the face of

the indictment did not show a lack of jurisdiction and the trial court did not abuse its

discretion in overruling appellant’s motion to quash. We likewise overrule appellant’s first

issue.


         Appellant’s second and third issues challenge the sufficiency of the evidence

supporting his plea of guilty. Under Article 1.15 of the Code of Criminal Procedure, a guilty

plea alone is insufficient to establish a defendant’s guilt. The State must also introduce

evidence which embraces every essential element of the offense. Stone v. State, 919

S.W.2d 424, 427 (Tex.Crim.App. 1996). As explained in Weaver, the proof of two prior

offenses are elements of the offense. Weaver, 87 S.W.3d at 561. Negating the limitation

of former 49.09(e) is not. Id.


         Appellant argues the State failed to prove the two prior driving while intoxicated

convictions. He does not challenge the sufficiency of the evidence supporting the other

elements of driving while intoxicated. Appellant separately pled guilty to the two prior



         5
      The same is true if the failure of proof is disclosed on appeal. See Getts v. State,
155 S.W.3d 153, 155 (Tex.Crim.App. 2005) (affirming reformation of judgment to
misdemeanor by court of appeals).

                                              4
convictions. Cf. Barfield v. State, 63 S.W.3d 446, 448 (Tex.Crim.App. 2001) (review of

sufficiency when defendant plead not true to prior convictions). Viewed against the Court

of Criminal Appeals’ holding in Weaver that sections 49.04 and 49.09(b) encompass all the

elements of felony DWI, introduction of the two prior judgments established the elements

appellant now challenges. This evidence was sufficient to support appellant’s plea of guilty

to each essential element of the offense. See Weaver, 87 S.W.3d at 561; Ramirez v.

State, 139 S.W.3d 731 (Tex.App.–Fort Worth 2004, pet. ref’d).


       Addressing the merits of appellant’s challenge to the use of his first conviction leads

to the same result. In Getts, the Court of Criminal Appeals set out the proper method for

applying section 49.09(e). 155 S.W.3d at 155-56. Following the plain language of section

49.09(e), analysis must begin with the first conviction sought to be used. A court looks

forward from the later of the date of that conviction or discharge of the resulting sentence.

A second conviction for a listed offense within ten years makes the first conviction available

for use under section 49.09(b). 155 S.W.3d at 156.


       Appellant argues use of his first conviction was barred by section 49.09(e) because

more than ten years elapsed between the date of his first conviction, December 11, 1987,

and his second conviction on September 3, 1999. As explained in Getts, the proper period

is from the discharge of appellant’s first sentence until his second conviction. 155 S.W.2d

at 155. The December 11, 1987 judgment suspended appellant’s sentence for a period

of two years and placed him on probation. Discharge from probation at the end of that

period in December 1989 would be within ten years of his second conviction on September



                                              5
3, 1999. The record does not conclusively establish the date on which appellant was

discharged. Because the limitation of 49.09(e) is not an element of the offense, Weaver,

87 S.W.3d at 561, the State was not obligated to establish the date of discharge beyond

a reasonable doubt.      The trial court reasonably could infer that the sentence was

discharged at the end of the period of probation stated in the judgment. In addition to the

judgment, the trial court had before it the representation in appellant’s motion to quash that

he discharged his first sentence on December 11, 1989. This date was reiterated in

appellant’s argument at the motion to quash hearing. Taken together, these support a

determination by the trial court that the second conviction was within ten years of the

discharge of appellant’s first sentence and evidence of that conviction was admissible.

The record contains evidence supporting each essential element of the offense. We

overrule appellant’s second and third issues.


       Finding no reversible error in the trial court’s judgment we affirm that judgment.




                                           James T. Campbell
                                               Justice




Do not publish.




                                              6
