                              NO. 12-09-00127-CR

                      IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS
WALTER MALONE,
APPELLANT                                       '   APPEAL FROM THE 7TH

V.                                              '   JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                             '   SMITH COUNTY, TEXAS
APPELLEE
                                 MEMORANDUM OPINION
       Walter Malone appeals his conviction for evading arrest, for which he was
sentenced to imprisonment for twenty-five years. In one issue, Appellant argues that the
trial court erred by denying his motion to quash the indictment. We affirm.

                                      BACKGROUND
       Appellant was charged by indictment with evading arrest. The indictment further
alleged that Appellant was previously convicted of two felony offenses, one of which was
a prior felony driving while intoxicated (“DWI”) in cause number 1-88-640 in the 241st
Judicial District Court of Smith County, Texas. Appellant filed a motion to quash the
indictment contending that this prior DWI conviction was not valid.           Specifically,
Appellant argued that there were not adequate records to demonstrate that he made a
knowing waiver of counsel in cause number 47,564 in the County Court at Law of Smith
County, Texas, which pertained to one of the two misdemeanor DWI convictions upon
which cause number 1-88-640 rested.
       The trial court denied Appellant’s motion to quash. Thereafter, Appellant pleaded
“guilty” to the evading arrest charge and “true” to the enhancement allegations. The trial
court sentenced Appellant to imprisonment for twenty-five years, and this appeal
followed.


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                                         MOTION TO QUASH
        In his sole issue, Appellant argues that the trial court erred in denying his motion
to quash. We review a trial court’s ruling on a motion to quash for abuse of discretion.
Askari v. State, 129 S.W.3d 160, 165 (Tex. App.–Texarkana 2003, pet. ref’d) (citing
Thomas v. State, 621 S.W.2d 158, 164 (Tex. Crim. App. 1980)). A trial court abuses its
discretion when it acts in an arbitrary or unreasonable manner, without reference to any
guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990).
        A criminal defendant has the right to demand proper notice of the nature and
cause of action against him. TEX. CONST. art. I, § 10; DeVaughn v. State, 749 S.W.2d
62, 67 (Tex. Crim. App. 1988). A charging instrument must convey adequate notice to
allow the defendant to prepare his defense. State v. Carter, 810 S.W.2d 197, 199 (Tex.
Crim. App. 1991); DeVaughn, 749 S.W.2d at 67. On its face, a charging instrument
must allege facts necessary to (1) show the offense was committed, (2) bar a subsequent
prosecution for the same offense, and (3) give the defendant notice of the precise offense
for which he is charged. See DeVaughn, 749 S.W.2d at 67; Walker v. State, 828 S.W.2d
485, 489–90 (Tex. App.–Dallas 1992, pet. ref’d).
        A trial court, on motion by a defendant, may set aside, quash, or dismiss a
charging instrument for a defect in form or substance. See TEX. CODE CRIM. PROC. ANN.
arts. 27.08, 27.09, 28.01 (Vernon 2006); Miller v. State, 909 S.W.2d 586, 591 (Tex.
App.–Austin 1995, no pet.). Although the trial court may hold a hearing on a defendant’s
motion to quash, the trial court must judge the merits of an attack on a charging
instrument’s form or substance by the face of the instrument.1 See State v. Rosenbaum,
910 S.W.2d 934, 947–48 (Tex. Crim. App. 1994) (J. Clinton, dissenting) (adopted as
majority on reh’g); Barnhart v. State, 648 S.W.2d 696, 698 (Tex. Crim. App. 1983);
Reed v. State, 762 S.W.2d 640, 645 (Tex. App.–Texarkana 1988, pet. ref’d). The trial
court may not examine evidence. Bourland v. State, 133 Tex. Crim. 544, 112 S.W.2d


        1
           A trial court may conduct an evidentiary hearing on a motion to quash only if the motion alleges
a defect in the preindictment process. See, e.g., Ray v. State, 561 S.W.2d 480, 481 (Tex. Crim. App. 1977)
(defendant must prove existence of unauthorized persons in grand jury proceedings); Wheat v. State, 537
S.W.2d 20, 21 (Tex. Crim. App. 1976) (defendant has burden to show complaint serving as basis for
information was defective); Worton v. State, 492 S.W.2d 519, 520 (Tex. Crim. App. 1973) (defendant must
prove defect in prior conviction alleged for enhancement purposes); Guerra v. State, 478 S.W.2d 483, 484
(Tex. Crim. App. 1972) (defendant must show systematic exclusion of minorities from grand jury service).

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720, 720 (1937) (holding the trial court may examine only the accusatory pleading in
judging a charging instrument’s sufficiency).2 The trial court should grant a motion to
quash only if the language concerning the defendant’s conduct is so vague or indefinite
that it denies him effective notice of the acts he allegedly committed. See DeVaughn,
749 S.W.2d at 67.
        In the instant case, Appellant contends that the felony DWI enhancement
allegation set forth in the indictment in the case at hand is invalid.                     Specifically,
Appellant argues that because there are inadequate records to support that he made a
knowing waiver of counsel when he pleaded “guilty” in cause number 47,564, and
because this cause was used to enhance cause number 1-88-640, cause number 1-88-640
cannot be used as an enhancement in the case at hand. The Houston court of appeals
considered a similar issue in State v. Vasquez, 140 S.W.3d 758 (Tex. App.–Houston
[14th Dist.] 2004, no pet.). In Vasquez, the State argued that the appellee waived his
right to complain about a conviction underlying the conviction alleged as an enhancement
because he failed to object to the use of the flawed underlying conviction when it was
included as an element of an indictment. See id. at 759. The court of appeals agreed.
See id. at 760.
        In reaching its conclusion that Vasquez waived the error, if any, the court of
appeals relied on State v. Duke, 59 S.W.3d 789 (Tex. App.–Fort Worth 2001, pet. ref’d).
In Duke, the defendant was charged by indictment with felony DWI. See id. at 790. The
indictment alleged two prior DWI convictions and one enhancement paragraph alleging a
felony conviction for possession of a controlled substance. See id. In attacking the
indictment for DWI, the defendant argued that the three prior convictions listed in the
indictment had been improperly enhanced by two prior DWI convictions not mentioned
in the indictment. See id. The court of appeals reversed the trial court’s order setting
aside a felony indictment and noted that the cases giving rise to the complaint were not
being directly attacked. See id. at 793. Moreover, the court noted that the two prior DWI


        2
            The facts underlying more recent cases suggest that a motion to quash is a permissible
mechanism by which to challenge jurisdiction based on the validity of a prior conviction by which a DWI
charge is enhanced. See, e.g., State v. Vasquez, 140 S.W.3d 758, 758 (Tex. App.–Houston [14th Dist.]
2004, no pet.); Egger v. State, 62 S.W.3d 221, 222 (Tex. App.–San Antonio 2001, no pet.); State v. Coop,
No. 04-95-00821-CR, 1996 WL 425987, at *1 (Tex. App.–San Antonio 1996, no pet.). The State has not
challenged on appeal Appellant’s employment of a motion to quash for this purpose. Assuming, without
deciding, that a motion to quash is an appropriate mechanism for this purpose, we will address Appellant’s
sole issue.
                                                    3
convictions were not alleged in the indictment. See id. Consequently, the court held that
the appropriate time to attack those convictions was when they were actually alleged in
the indictment. See id.
       We are persuaded by the analysis in Vasquez and Duke. The misdemeanor DWI
conviction in cause number 47,564 is not alleged in the indictment or directly used to
enhance Appellant’s punishment. As such, we hold that Appellant waived the error, if
any, by his failure to assert any objections to his conviction in cause number 47,564 when
it was an element of the indictment in cause number 1-88-640. Appellant’s sole issue is
overruled.
                                       DISPOSITION
       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



                                                                JAMES T. WORTHEN
                                                                    Chief Justice


Opinion delivered February 26, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                   (DO NOT PUBLISH)




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