                                   NO. 12-09-00128-CR

                           IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS
WALTER MALONE,                                           '    APPEAL FROM THE 7TH
APPELLANT
                                                         '    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                                      '    SMITH COUNTY, TEXAS
APPELLEE

                                        MEMORANDUM OPINION
        Walter Malone appeals his conviction for felony driving while intoxicated, 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 and felony driving while
intoxicated (“DWI”). With regard to the felony DWI charge, the indictment alleged that
Appellant was previously convicted of misdemeanor DWI in cause number 51378 in the
County Court at Law of Smith County, Texas. Appellant filed a motion to quash the
indictment contending that the jurisdictional allegation concerning this prior DWI
conviction was not valid because the judgment in that cause was never signed. 1 The trial
court denied Appellant’s motion.            Thereafter, Appellant pleaded “guilty” to the DWI
charge and “true” to the enhancement allegations. The trial court sentenced Appellant to
imprisonment for twenty-five years, and this appeal followed.

        VALIDITY OF UNSIGNED JUDGMENT AS A JURISDICTIONAL ENHANCEMENT
        In his sole issue, Appellant argues that the trial court committed error when it
denied his motion to quash. We review a trial court’s ruling on a motion to quash for abuse
        1
          The trial court took judicial notice of the file in the misdemeanor DWI case and of the fact that
the county court at law signed the separately filed sentence, but not the judgment.
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.2 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 720, 720 (1937) (holding
the trial court may examine only the accusatory pleading in judging a charging instrument’s




        2
           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).
sufficiency).3     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.
        Texas Code of Criminal Procedure, article 42.01, provides that “[a] judgment is the
written declaration of the court signed by the trial judge and entered of record showing the
conviction or acquittal of the defendant.” TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1
(Vernon Supp. 2009). Appellant argues that because the judgment in cause number 51,378
was not signed by the trial court, it is legally void and should be unavailable for
enhancement purposes. However, as Appellant concedes in his brief, “the validity of a
conviction is not affected by the failure of the trial judge to sign the judgment.” Mulder v.
State, 707 S.W.2d 908, 913 (Tex. Crim. App. 1986) (prior conviction based on unsigned
judgment valid for enhancement purposes) (citing Harrell v. State, 643 S.W.2d 686, 690
(Tex. Crim. App. [Panel Op.] 1982)); see also Gutierrez v. State, 456 S.W.2d 84, 86 (Tex.
Crim. App. 1970); Flores v. State, 139 S.W.3d 61, 65 (Tex. App.–Texarkana 2004, pet.
ref’d). Accordingly, we hold that the trial court did not err in overruling Appellant’s
motion to quash. 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)


        3
            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.
