             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                        NO. PD-1867-11

                                  THE STATE OF TEXAS

                                                 v.

                        STEWART LE RICHARDSON, Appellee

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SECOND COURT OF APPEALS
                            TARRANT COUNTY

       J OHNSON, J., delivered the opinion of a unanimous Court.

                                         OPINION

       Appellee was charged by indictment with multiple counts of intoxication assault stemming

from his involvement in a crash that injured the members of a family, one of them severely. The

indictment included enhancement paragraphs that incorporated appellee’s three convictions in Iowa

for the offense of “operating under the influence, unintentionally causing serious injury.” Under

Iowa law, this offense is an “aggravated misdemeanor.”

       The state appealed the trial court’s refusal to let it use the Iowa convictions to enhance the

punishment range of the charged offense. The court of appeals dismissed the state’s appeal for lack
                                                                                                                          2

of jurisdiction,1 and the state petitioned this Court for review.

             Article 44.01(a)(1) of the Texas Code of Criminal Procedure permits the state to appeal an

order that “dismisses any indictment, information, or complaint or any portion of an indictment,

information, or complaint.” The plain language of article 44.01(a)(1) compels us to hold that the

court of appeals had jurisdiction in this case. We reverse the court of appeals and remand this cause

to that court for consideration of the merits of the state’s claim.

                                                        I. Facts

         Pursuant to § 12.41(1) of the Penal Code,2 the state sought to use the Iowa offenses as felony

convictions so that it could enhance appellee’s sentence under § 12.42.3 Appellee moved to quash

the enhancement allegations in the indictment, arguing that the Iowa aggravated misdemeanors

should be classified as misdemeanors under § 12.41(2);4 if classified as misdemeanors, the offenses

would be ineligible to enhance appellee’s sentence.5

         At a pretrial hearing, the trial court granted appellee’s motion to quash the enhancement

allegations. On February 8, 2010, the court entered a written order that “the State may not use the

offense[s] alleged in the repeat offender notice of the indictment as enhancement paragraphs, and



         1
             State v. Richardson, 353 S.W .3d 918, 921 (Tex. App.—Fort W orth 2011).

         2
            Section 12.41(1) provides that “any conviction not obtained from a prosecution under this code shall be
classified as. . . [a] ‘felony of the third degree’ if imprisonment in the Texas Department of Criminal Justice or
another penitentiary is affixed to the offense as a possible punishment.”

         3
             Section 12.42 enhances penalties for “habitual felony offenders.”

         4
           Section 12.41(2) provides that “any conviction not obtained from a prosecution under this code shall be
classified as. . . [a] ‘Class B misdemeanor’ if the offense is not a felony and confinement in a jail is affixed to the
offense as a possible punishment.”

         5
             Section 12.42's enhancement paragraphs apply only when the defendant has prior felony convictions.
                                                                                                                     3

may further not refer to those offenses as felony convictions, in that they are misdemeanors.”

         After granting the motion to quash, the trial court asked the state whether it intended to

appeal the decision. The state replied that it had to speak with the complainant’s family. It

subsequently appealed the trial court’s ruling to the court of appeals. Concerned that it did not have

jurisdiction over the state’s appeal, the court of appeals requested briefing from the parties “on

whether the trial court’s February 8, 2010 order constitutes a dismissal of any portion of the

indictment so that a State’s appeal is authorized under article 44.01(a)(1) of the code of criminal

procedure.” Following briefing from the parties, the court of appeals held that it did not have

jurisdiction over the state’s appeal and dismissed the appeal.

         The state filed a petition for discretionary review by this Court that raised six grounds for

review.6 We granted review on all six grounds, all of which are based on the underlying legal

question: does Art. 44.01 authorize the state to appeal a trial-court order quashing the enhancement

portion of an indictment. Therefore, our analysis will focus on this question.

                                                   II. Analysis

         6
            1. Does jurisdiction lie pursuant to article 44.01(a)(1) to authorize a State appeal where the trial court
quashes indictment paragraphs which allege punishment enhancement? Tex. Code Crim. Proc. Ann. art. 44.01(a)(1).
          2. Does the plain language of article 44.01 mean what it says, that is, that a trial court’s dismissal of “a
portion of an indictment” entitles the State to appeal? Tex. Code Crim. Proc. Ann. art. 44.01(a)(1).
          3. Did the Second Court of Appeals’ decision contravene statutory construction rules by failing to give
effect to the plain meaning of article 44.01(a)(1)? Tex. Code Crim. Proc. Ann. art. 44.01(a)(1).
          4. Did this Court’s State v. Moreno decision mean what it said, that is, that article 44.01(a)(1)’s provision
authorizing an appeal from an order “dismissing any portion of an indictment” is fulfilled whenever the trial court
“effectively terminates the prosecution in favor of the defendant” by forcing any alteration in the indictment before
trial and the State is not willing to comply with that order? State v. Moreno, 807 S.W .2d 327 (Tex. Crim. App.
1991); Tex. Code Crim. Proc. Ann. art. 44.01(a)(1).
          5. Did the Second Court of Appeals also run afoul of State v. Moreno by failing to heed its admonition not
to impede the State’s right to appeal by focusing on technical pleadings’ distinctions? Moreno, 807 S.W .2d at 334-
33.
          6. Did the Second Court of Appeals also run afoul of State v. Moreno by ruling contrary to the article
44.01(a)(1)’s legislative history, detailed in Moreno, which indicates that provision’s enactment sought to grant
Texas prosecutors the broad authority to appeal akin to the broad right of appeal enjoyed by federal prosecutors?
State v[.] Moreno, 807 S.W .2d 327 (Tex. Crim. App. 1991); Tex. Code Crim. Proc. Ann. art. 44.01(a)(1).
                                                                                                   4

                                            A. Plain Language

       Courts must give effect to the plain meaning of a statute’s literal text unless such a reading

either would lead to absurd, unintended consequences or the plain language is ambiguous. Boykin

v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). Article 44.01(a)(1) allows the state to appeal

a decision “dismiss[ing]. . . any portion of an indictment.” The legislature’s choosing to use “any”

as a modifier requires a broad interpretation of “portion of an indictment.” Furthermore, Art.

44.01(a)(1) should be “liberally construed [so as] to achieve [its] purpose.” State v. Moreno, 807

S.W.2d 327, 333 (quoting V.T.C.A. Gov’t. Code, Sec. 312.006). Because the quashed enhancement

paragraphs were alleged in the indictment, and thus are quite literally a “portion of an indictment,”

Art. 44.01(a)(1) may be invoked to permit the state’s appeal.

       This reading does not lead to absurd or unintended consequences. As we discussed in

Moreno, the Legislature “intended to extend to the State appellate powers akin to those that the

United States Congress had extended to the federal government in a criminal case.” Moreno, 807

S.W.2d at 329; see discussion infra Part II.C. The Supreme Court has held that Congress intended

the federal statute “to allow appeals [by the federal government] whenever the Constitution would

permit.” Id. at 331 (quoting United States v. Wilson, 420 U.S. 332 (1975)). Appellee has not alleged

any constitutional violation. We cannot, therefore, say that allowing this appeal would be an absurd

or unintended consequence of Art. 44.01(a)(1).

                                             B. Brooks v. State7

       The court of appeals rejected the state’s plain-language argument and instead found that “the

words ‘indictment’ and ‘enhancement paragraphs’ have particular meanings that do not support the


       7
           957 S.W .2d 30 (Tex. Crim. App. 1997).
                                                                                                     5

State’s [plain language] position.” Richardson, 353 S.W.3d at 921. According to the court of

appeals, “indictment” refers to the “primary pleading in a criminal action,” which must include

“everything necessary to be proven to sustain a conviction in the guilt/innocence phase” of a trial.

Id. (quoting Brooks, emphasis added by court of appeals). The court of appeals relied on Calton v.

State8 to distinguish between pleading a prior conviction as an element of an offense and pleading

a prior conviction as a sentence enhancement. Id. at 921-22. The court of appeals found that a prior

conviction that is plead as part of an offense is a “portion of the indictment” under Art. 44.01(a)(1),

whereas a prior conviction that is plead as part of an enhancement paragraph is not a “portion of the

indictment” since the prosecution is not required to prove that allegation in the guilt phase of the

trial. Id. at 922. The court of appeals concluded that, “[i]n light of the accepted meanings of

‘indictment’ and ‘enhancement paragraphs,’ the trial court did not dismiss ‘a portion of the

indictment.’” Id.

       The language of Art. 44.01(a)(1) and our prior decisions do not support the court of appeals’s

distinction between primary and ancillary pleadings in an indictment for purposes of the state’s

appeal under Art. 44.01(a)(1). This distinction was relevant in Brooks only because the indictment

did not include the enhancement allegations; there would be possible constitutional notice

implications if the state were required to plead enhancement allegations in the indictment. See

Brooks v. State, 957 S.W.2d at 31. We held that the trial court did not err in instructing the jury on

enhancement because the enhancement could have been plead by the state in another form and the

defendant admittedly had notice of the enhancement. Id. at 34. It does not follow that enhancement

allegations are not a “portion of the indictment” under Art. 44.01(a)(1) simply because the state was


       8
           176 S.W .3d 231, 231-34 (Tex. Crim. App. 2005).
                                                                                                     6

not required to plead enhancement allegations in the indictment.

                                            C. State v. Moreno9

       Our decision in Moreno supports jurisdiction for the state’s appeal. The trial court granted

the defendant’s motion to quash the indictment because of vagueness in the state’s allegations. 807

S.W.2d at 328. In the order drawn up by the defense and signed by the trial court, the judge crossed

out the language “and this cause is dismissed.” Id. At issue was whether the court nevertheless

“dismissed” the indictment for purposes of the state’s appeal under Art. 44.01(a)(1). Id. at 329.

       We traced the history of Art. 44.01 to determine the meaning of “dismiss.” Id. at 329-33.

When the Legislature enacted Art. 44.01, it “borrowed liberally” from the federal statute permitting

the state to appeal, which resulted in some ill-fitting language being incorporated into the Texas

statute. Id. at 329. Article 44.01(a)(1) provides that the state may appeal an order that “dismisses”

an indictment, information, or complaint, or any portion thereof, but Texas criminal procedure does

not use “dismiss” as the term for a challenge to the validity of a charging instrument. Id.

       To discern the extent of the state’s right to appeal, we traced the extent of the federal

government’s right to appeal under the federal statute. We found that 18 U.S.C. § 3731 “remove[s]

all statutory barriers to Government appeals. . . [so as to allow] appeals whenever the Constitution

would permit.” Id. at 332 (quoting United States v. Wilson, 420 U.S. 332, 337 (1975)). Keeping our

statute in line with its federal counterpart, we held that Art. 44.01(a)(1) permits the state to appeal

an order concerning an indictment or information “whenever the order effectively terminates the

prosecution in favor of the defendant.” Id. at 332. A trial court dismisses an information or

indictment, or portion thereof, when it “effectively foreclose[s] the State from proceeding with the


       9
           807 S.W .2d 327 (Tex. Crim. App. 1991).
                                                                                                       7

information [or indictment] under which it wished to proceed.” Id. at 333, n.7.

        Here, the state contends that the enhancement allegations were central to its prosecution

because “it wished to proceed” with an indictment that potentially subjected appellee to a life

sentence. By quashing the enhancement paragraphs and thereby prohibiting the state from referring

to the Iowa offenses as felonies, the trial court’s ruling foreclosed the state from proceeding on the

indictment “under which it wished to proceed.” In fact, the state informed the trial court that, if it

lost on appeal, it had “no intent of trying these cases any way other than one or two at a time . . . so

we have an option of asking this court to stack sentences after multiple trials . . . .” The state argues

that, under Moreno, the prosecution was effectively terminated because the state would not proceed

on the contested indictment without the enhancement paragraphs.

                          D. State ex rel Lykos v. Fine10 and State v. Morgan11

        Our decisions in Lykos and Morgan do not support dismissal of the state’s appeal. In these

cases, we found Art. 44.01(a)(1) inapplicable because the trial-court rulings at issue did not fall

within the plain language of the statute, which requires the dismissal of the charging instrument or

a portion of the charging instrument. In each of these cases, a party sought a pretrial ruling on an

issue that would not alter the face of the indictment or information.

        In Lykos, a capital-murder defendant challenged the constitutionality of Texas’s death-penalty

sentencing statute through a pretrial motion. 330 S.W.3d at 906. The state filed petitions of

mandamus and prohibition to stop the trial court from holding an evidentiary hearing on the motion

and from granting the defendant’s motion before the state had the opportunity to prove the


        10
             330 S.W .3d 904 (Tex. Crim. App. 2011).

        11
             160 S.W .3d 1 (Tex. Crim. App. 2004).
                                                                                                        8

allegations in the indictment to the jury. Id. We conditionally granted the mandamus and

prohibition relief, in part because the state would have no adequate remedy at law if the trial court

granted defendant’s motion. Id. at 907. We rejected the defendant’s argument that, although the

words of the statute would not allow a state’s appeal of a pretrial ruling on that issue, the “spirit” of

Art. 44.01(a)(1) would have permitted such an appeal; we found that Art. 44.01 “either does or does

not authorize a State’s appeal [and that it] does not authorize the State to appeal from a pretrial ruling

on a possible punishment issue that fails to dismiss any part of the actual indictment.” Id. at 914.

Lykos therefore stands for the proposition that a pretrial ruling that does not affect the face of the

charging instrument may not be appealed by the state under Art. 44.01(a)(1).

        As in Lykos, Morgan also dealt with an impermissible appeal of a pretrial ruling. In Morgan,

the state charged the defendant, by information, with the misdemeanor offense of driving while

intoxicated. 160 S.W.3d at 2. In the information, the state alleged a prior DWI conviction in order

to raise the offense to a Class A misdemeanor pursuant to § 49.09 of the Penal Code. Id. Because

the judge had previously ruled that similar informations alleged only Class B offenses with an

enhancement allegation, the state filed a pretrial motion for a “determination of whether, if the

defendant is found guilty, the jury will be instructed to consider a Class A range of punishment if

the prior conviction is found true.” Id. The court ruled that if the defendant was found guilty, the

court would not instruct the jury on a Class A range of punishment. Id. The state appealed the

ruling, and the court of appeals held that it had jurisdiction to hear the appeal under Art. 44.01(a)(1),

but that there was no error on the merits. Id. at 3. We granted the state’s petition for discretionary

review on the merits and, on our own motion, on the jurisdictional question of whether Art.

44.01(a)(1) authorizes the state’s appeal. Id.
                                                                                                      9

        We held that Art. 44.01(a)(1) did not authorize the state’s appeal. We found that the trial

court’s order “[did] not force an alteration of the information before the trial can proceed,” and the

state was therefore pursuing an impermissible interlocutory appeal. Id. at 4-5. Because the trial

court’s order did not affect the face of the charging instrument, Art. 44.01(a)(1) did not apply. This

is consistent with our decisions in Moreno and Lykos.

        The court of appeals embraced some broad language in Morgan that seemed to limit the

scope of the state’s right to appeal pretrial rulings relating to punishment. Richardson, 353 S.W.3d

at 925. But we have already shown that the distinction between primary and ancillary pleadings in

an indictment is not relevant to an appeal under Art. 44.01(a)(1).12 The distinction in Morgan was

not necessary to the holding because the pre-trial ruling at issue did not affect the face of the

information. Morgan thus stands for the proposition that a pretrial ruling that does not affect the face

of the charging instrument may not be appealed by the state under Art. 44.01(a)(1).

        In the present case, the trial court quashed the enhancement paragraphs. By deleting those

paragraphs, the trial court’s order affected the face of the charging instrument, and this case is

therefore distinguishable from Lykos and Morgan.

                                             Conclusion

        The judgment of the court of appeals is reversed. We remand this cause to that court so that

it may rule on the merits of the state’s appeal.



Delivered: November 21, 2012
Publish



        12
             See supra Part II.B.
