Affirmed; Opinion Filed July 31, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00578-CR

                            MICHAEL ANTHONY PEREZ, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the 401st Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 401-82950-2016

                              MEMORANDUM OPINION
                        Before Justices Lang-Miers, Evans, and Schenck
                                    Opinion by Justice Evans
       Michael Anthony Perez appeals his conviction for the felony offense of driving while

intoxicated (DWI) with two prior DWI convictions. Appellant entered a plea of not guilty, waived

a jury, and was tried before the court. The trial court found appellant guilty and, pursuant to an

agreement between the parties, sentenced appellant to eight years’ imprisonment. Appellant brings

one issue on appeal contending he was deprived of his constitutional rights when he “was charged,

prosecuted, and convicted under an improper and incomplete indictment that omitted essential

elements” of the offense.

                                        BACKGROUND

       On April 27, 2016, a woman called 911 to report she had been pushed out of a car. She

told the dispatcher the model of the car and its license number and that the driver was intoxicated.

An officer soon spotted the car and stopped it. Appellant was driving the car and appeared to be
intoxicated. The officer arrested appellant. At the jail, appellant refused to provide a breath or

blood sample, and the officer obtained a search warrant to seize a sample of appellant’s blood.

Testing showed appellant had an alcohol concentration of 0.198. See TEX. PENAL CODE ANN. §

49.01(2)(B) (West 2011) (defining “intoxicated” as “having an alcohol concentration of 0.08 or

more”).

       The State charged appellant with third-degree felony DWI, which required the State to

prove appellant had two prior convictions for driving while intoxicated. PENAL § 49.09(b)(2)

(West Supp. 2017). After the trial began, appellant raised an objection concerning a potential

defect in the indictment: the second alleged prior conviction, which was from 1996, stated it was

for “an offense relating to the operating of a motor vehicle” but did not state it was for operating a

motor vehicle “while intoxicated.” When the State offered into evidence an exhibit containing the

docket sheet, charging instrument, and judgment for the 1996 conviction, appellant objected that

the exhibit was irrelevant under the indictment in this case. The trial court overruled appellant’s

objection and admitted the exhibit. Appellant then moved for dismissal of the indictment, arguing

that the indictment did not allege a felony offense necessary to vest the trial court with jurisdiction.

The trial court overruled the objection, stating appellant waived the defect in the indictment by not

asserting it before the trial. During the closing argument, appellant asserted that if the trial court

found appellant guilty, it should be for a Class A misdemeanor, which requires only one prior DWI

conviction, because of the failure to allege the second prior conviction involved driving while

intoxicated. The trial court, however, found appellant guilty of third-degree felony DWI.

                                           INDICTMENT

       Ordinarily, DWI is a Class B misdemeanor. See PENAL § 49.04(b) (West Supp. 2017). If

the defendant commits DWI and has one prior conviction for “an offense relating to the operating

of a motor vehicle while intoxicated,” then the offense is a Class A misdemeanor. Id. § 49.09(a).


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DWI “is a felony of the third degree if it is shown on the trial of the offense that the person has

previously been convicted: . . . (b) two times of any other offense relating to the operating of a

motor vehicle while intoxicated . . . .” Id. § 49.09(b)(2).

       The indictment in this case alleged appellant, on April 27, 2016:

       [1] did then and there operate a motor vehicle in a public place while the said
       defendant was intoxicated;

       [2] and it is further presented that prior to the commission of the charged offense
       of driving while intoxicated, on the 28th day of June 1987, in cause number
       CR-050119-A in the County Court at Law #1 of Hidalgo County, Texas, the
       defendant was convicted of an offense relating to the operating of a motor vehicle
       while intoxicated;

       [3] and on the 26the [sic] day of June, 1996, in cause number 0617658 in the County
       Criminal Court #10 of Tarrant County, Texas, the defendant was convicted of an
       offense relating to the operating of a motor vehicle;

       against the peace and dignity of the State.

The third paragraph fails to mention that the prior conviction was one relating to the operating of

a motor vehicle “while intoxicated.” At trial, the State proved the prior conviction alleged in the

third paragraph was for DWI.

                                            ANALYSIS

       Appellant contends he was “deprived of his constitutional rights” because he was “charged,

prosecuted, and convicted under an improper and incomplete indictment that omitted essential

elements of the crime for which the trial court found Appellant guilty.” Article V, § 12(b) of the

Texas Constitution concerns indictments:

       An indictment is a written instrument presented to a court by a grand jury charging
       a person with the commission of an offense. . . . The practice and procedures
       relating to the use of indictments . . . , including their contents, amendment,
       sufficiency, and requisites, are as provided by law. The presentment of an
       indictment or information to a court invests the court with jurisdiction of the cause.

TEX. CONST. art. V, § 12(b). Part of the “practice and procedures relating to the use of indictments

. . . as provided by law” is article 1.14(b) of the Code of Criminal Procedure:

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       If the defendant does not object to a defect, error, or irregularity of form or
       substance in an indictment or information before the date on which the trial on the
       merits commences, he waives and forfeits the right to object to the defect, error, or
       irregularity and he may not raise the objection on appeal or in any other
       postconviction proceeding.

TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2015).

       Appellant argues on appeal that the indictment was “fatally flawed” and

“unconstitutionally flawed.”     Appellant does not explain what he means by “fatally” and

“unconstitutionally” flawed, but we presume he means what he argued in the trial court: that the

indictment alleged only a misdemeanor and not a felony and therefore did not vest the trial court

with jurisdiction over the case. The court of criminal appeals considered a similar situation in

Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009). In that case, the indictment alleged

the defendant committed tampering with a governmental record. The indictment omitted the

language necessary to raise the offense from a misdemeanor to a felony. Id. at 328. Appellant did

not object before trial. Id. at 325. Appellant argued on appeal that the indictment’s allegation of

only a misdemeanor failed to vest the trial court with jurisdiction. Id. at 326. The court of criminal

appeals disagreed:

       Here, although the indictment properly charged a misdemeanor and lacked an
       element necessary to charge a felony, the felony offense exists, and the indictment’s
       return in a felony court put appellant on notice that the charging of the felony
       offense was intended. Further, the face of each indictment contains a heading:
       “Indictment–Tampering with a Governmental Record 3rd Degree Felony,—TPC §
       37.10(a)-Code 73990275.” The Penal Code section was easily ascertainable, and
       the notation that the offense was a third-degree felony clearly indicated that the
       [S]tate intended to charge a felony offense and that the district court had
       subject-matter jurisdiction. Appellant had adequate notice that she was charged
       with a felony. If she had confusion about whether the State did, or intended to,
       charge her with a felony, she could have, and should have, objected to the defective
       indictment before the date of trial.

Id. at 329. In this case, felony DWI exists. See PENAL § 49.09(b)(2). As in Kirkpatrick, “the

indictment’s return in a felony court put appellant on notice that the charging of the felony offense



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was intended.” Kirkpatrick, 279 S.W.3d at 329. Also, the page containing the indictment includes

this statement:

                  CHARGE                DRIVING WHILE
                                        INTOXICATED 3RD OR
                                        MORE Third Degree Felony
                                        49.09(b)

As in Kirkpatrick, “The Penal Code section was easily ascertainable, and the notation that the

offense was a third-degree felony clearly indicated that the [S]tate intended to charge a felony

offense and that the district court had subject-matter jurisdiction.” Id. Also, the allegation of the

1996 prior conviction included the county, court, and cause number for the conviction. Appellant

could have easily ascertained from this information that the 1996 conviction was for an offense

relating to the operating of a motor vehicle while intoxicated. Like the defendant in Kirkpatrick,

appellant had adequate notice that he was charged with a felony. If appellant was confused, he

“could have and should have, objected to the defective indictment before the date of trial.” Id. We

conclude the indictment was neither “fatally” nor “unconstitutionally” flawed and that it vested

the trial court with jurisdiction.

        Appellant also argues he could not be convicted of an offense greater than a Class A

misdemeanor because the indictment alleged only one prior conviction relating to the operating of

a motor vehicle while intoxicated. Appellant relies on Thomason v. State, 892 S.W.2d 8 (Tex.

Crim. App. 1994). In that case, the defendant stole ten checks totaling $518,787, and he was

charged with theft of property with the value of at least $20,000. Id. at 9. The indictment did not

allege aggregation of amounts under section 31.09 of the Penal Code. See PENAL § 31.09 (West

2016). During the trial, the State tried to aggregate the amounts, but the court of criminal appeals

observed the indictment did not permit that. The court stated,

        where an indictment facially charges a complete offense, it is reasonable to presume
        the State intended to charge the offense alleged, and none other. Consequently,
        where an indictment facially charges a complete offense, the State is held to the
                                                –5–
       offense charged in the indictment, regardless of whether the State intended to
       charge that offense.

Id. at 11. Appellant argues the State should be held to the offense it actually charged, Class A

misdemeanor DWI, because, as the court in Thomason stated, “it is reasonable to presume the State

intended to charge the offense alleged, and none other.” Id. We disagree. The court of criminal

appeals rejected a similar argument in Kirkpatrick. See Kirkpatrick, 279 S.W.3d at 327–28. In

this case, it is not reasonable to assume the State intended to charge appellant with Class A

misdemeanor DWI because (1) the indictment was filed in a district court and (2) the indictment

alleged two prior convictions, both of which were actually prior convictions for DWI even though

one of the allegations omitted the phrase “while intoxicated.” We conclude Thomason is not

applicable. The indictment did not prohibit the trial court from convicting appellant of an offense

greater than a Class A misdemeanor.

       Appellant also generally argues he was deprived of the constitutional protection of being

charged, prosecuted, and convicted under an indictment that alleged all the elements of an offense.

Constitutional protections can be waived. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim.

App. 1993) (“When we say ‘that even constitutional guarantees can be waived by failure to object

properly at trial,’ we mean that some, not all, constitutional rights may be forfeited.” (quoting

Gibson v. State, 516 S.W.2d 406, 409 (Tex. Crim. App. 1974)) (overruled on other grounds by

Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)). Article 1.14(b) specifically provides

that a defect “of form or substance” is waived and forfeited by the defendant’s failure to object to

the defect “before the date on which the trial on the merits commences.” CRIM. PROC. art. 1.14(b).

The statute also provides that a defendant, like appellant, who does not timely object to the defect

“may not raise the objection on appeal.” Id. In this case, appellant did not object to the defect in

the indictment until after the trial on the merits had commenced. On appeal, appellant raises this

objection to the indictment and asserts the omission of the element deprived him of his
                                                –6–
constitutional right to have the indictment allege all the elements of the offense. Article 1.14(b),

however, prohibits appellant from raising the objection to the indictment on appeal.

       We overrule appellant’s issue on appeal.

                                         CONCLUSION

       We affirm the trial court’s judgment.




                                                  /David Evans/
                                                  DAVID EVANS
                                                  JUSTICE


Do Not Publish
TEX. R. APP. P. 47.1
170578F.U05




                                                –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 MICHAEL ANTHONY PEREZ, Appellant                     On Appeal from the 401st Judicial District
                                                      Court, Collin County, Texas
 No. 05-17-00578-CR         V.                        Trial Court Cause No. 401-82950-2016.
                                                      Opinion delivered by Justice Evans.
 THE STATE OF TEXAS, Appellee                         Justices Lang-Miers and Schenck
                                                      participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 31st day of July, 2018.




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