                                      NO. 07-05-0084-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL E

                                      DECEMBER 7, 2005

                             ______________________________


                                  JESUS ANTU, APPELLANT

                                               V.

                             THE STATE OF TEXAS, APPELLEE


                           _________________________________

                  FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

            NO. A15708-0409; HONORABLE ROBERT W. KINKAID, JR., JUDGE

                            _______________________________

Before REAVIS and CAMPBELL, JJ. and BOYD, S.J.1


                                  MEMORANDUM OPINION


       Following an open plea of guilty, appellant Jesus Antu was convicted of driving while

intoxicated.     The offense was enhanced to a third degree felony due to two prior

convictions, and he was sentenced to five years confinement and a $2,000 fine. By two

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           John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
points of error, he contends (1) the indictment failed to establish a range of punishment for

a third degree felony because it failed to properly allege two prior offenses relating to the

operating of a motor vehicle while intoxicated, and (2) there was insufficient evidence to

conclude that he had twice been previously convicted of an offense relating to the operating

of a motor vehicle while intoxicated. We affirm.


       The State’s indictment charges appellant with the offense of driving while intoxicated

on or about August 8, 2004. The enhancement portion of the indictment reads as follows:


              And it is further presented in and to said Court that, prior to the
       commission of the aforesaid offense, on the 28th day of April, 2003, in the
       64TH DISTRICT COURT of Hale County, Texas, in cause number A14669-
       0210, the defendant was convicted of an offense relating to the driving or
       operating of a vehicle while intoxicated; and on the 24th day of June, 1997,
       in the 64TH DISTRICT COURT of Hale County, Texas, in cause number
       A11901-9411, the defendant was convicted of an offense relating to the
       driving or operating of a motor vehicle while intoxicated . . . .


       After the indictment was read, the court asked appellant’s counsel, “Do you have any

motion to set aside the indictment or other special plea or pleas to the form or substance

of the indictment?” Appellant’s counsel replied that he did not. Appellant then admitted

that each and every allegation in the indictment was true and correct. Appellant now

contends the language “relating to the driving or operating of a vehicle while intoxicated”

fails to allege an offense which allows his conviction to be enhanced to a third degree

felony under section 49.09(b)(2) of the Penal Code because it does not include the term

“motor” as provided in the statute. We disagree.


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       It is well established that an indictment must charge a person with the commission

of an offense and must allege all essential elements of the offense sought to be charged.

Cook v. State, 902 S.W.2d 471, 476-77 (Tex.Cr.App. 1995). In order to complain on

appeal of a defect, error, or irregularity of form or substance in an indictment, a defendant

must object to the defect at trial. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005 ).

See also Tex. R. App. P. 33.1(a). However, a defendant’s failure to object will not result

in the waiver of a complaint that an indictment fails to charge him with the commission of

an offense. See, e.g., Ex parte Patterson, 969 S.W.2d 16 (Tex.Cr.App. 1998). Here, the

indictment contains all of the essential elements required to convict appellant of felony DWI

under section 49.09(b)(2). Furthermore, appellant failed to object or otherwise inform the

court of the discrepancy in the wording of the enhancement allegations. Therefore, he

failed to preserve his complaint for appellate review, and his first point is overruled.


       By his second point, appellant claims the absence of the word “motor” in one the

enhancement allegations results in there being only one prior conviction for enhancement

purposes, thereby making the indictment insufficient to prove a third degree felony under

§ 49.09(b)(2). Again, based on our analysis above, appellant failed to preserve this

complaint for appellate review. He also argues that even though he testified that all of the

allegations in the indictment were true, the State did not prove them to be true. However,

apart from making that declaration in his brief, appellant wholly fails to present any

argument or authority to support this position. Thus, it presents nothing for our review.

See Tex. R. App. P. 38.1(h) (requiring appellant's brief to contain a clear and concise

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argument for the contentions made with appropriate citations to authorities and to the

record). Appellant’s second point is overruled.


      Accordingly, the trial court’s judgment is affirmed.


                                         Don H. Reavis
                                           Justice


Do not publish.




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