                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                  §
 SELENE SERRANO,                                                  No. 08-08-00210-CR
                                                  §
                         Appellant,                                    Appeal from
                                                  §
 v.                                                                243rd District Court
                                                  §
 THE STATE OF TEXAS,                                            of El Paso County, Texas
                                                  §
                         Appellee.                                (TC # 20080D00036)
                                                  §

                                           OPINION

       Selene Serrano appeals the judgment placing her on deferred adjudication. Appellant waived

her right to a jury trial and entered a negotiated plea of guilty to theft of property under $1,500 and

pled true to the paragraphs alleging she had two prior misdemeanor theft convictions. The trial court

found that the evidence substantiated Appellant’s guilt, but the court deferred further proceedings

and placed Appellant on community supervision for two years. We affirm.

                                      FACTUAL SUMMARY

       A grand jury returned an indictment against Appellant alleging she committed theft of

cologne with a value less than $1,500. The indictment included two additional paragraphs alleging

Appellant had previously been convicted of theft:

       And it is further presented in and to said Court, that before the commission of the
       offense alleged above, the defendant had been convicted twice of a grade of theft, to-
       wit: on the 24th day of August, 2006, in the County Criminal Court Number One of
       El Paso County, Texas, in cause number 20060C07769, said defendant was convicted
       for the offense of Theft; and on the 24th day of April, 2007, in the County Criminal
       Court at Law Number One of El Paso County, Texas, in cause number
       20070C00303, said defendant was convicted for the offense of Theft.

Appellant filed a pretrial motion to quash the indictment alleging that the prior conviction in cause
number 20070C00303 was not valid for enhancement purposes because it was not a final conviction.

The motion asserted Appellant had been placed on probation in that case and it had not been

revoked. She attached a copy of the judgment and sentence showing she had received a probated

sentence. Appellant did not request that the allegedly invalid enhancement paragraph be quashed;

instead, she sought dismissal of the indictment. At the hearing on the motion to quash, the parties

presented argument on the motion but did not present any evidence. The trial court denied the

motion to quash, finding that Section 31.03(e)(4)(D) did not require that the State allege in the

indictment that the conviction used for elevation is final but it was instead an evidentiary matter to

be determined at trial. Appellant later entered a negotiated guilty plea and plea of true to the

enhancement paragraphs. In accordance with the plea bargain, the trial court placed Appellant on

deferred adjudication community supervision for two years. This appeal follows.

                                       MOTION TO QUASH

        In the sole issue presented on appeal, Appellant challenges the trial court’s denial of her

motion to quash. She argues that the court erred by concluding that the finality of the conviction is

an evidentiary matter to be determined at trial and is not a jurisdictional issue which can be

determined pretrial. The State responds, in part, that the allegations related to Appellant’s prior theft

convictions are not enhancement allegations but are elements of the offense which serve to elevate

it to a state jail felony, and therefore, Appellant is not permitted to attack the sufficiency of an

element of the offense by means of a pretrial motion to quash.

        The sufficiency of an indictment is a question of law which we review de novo. Lawrence

v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007); State v. Moff, 154 S.W.3d 599, 601

(Tex.Crim.App. 2004). A person commits theft if he unlawfully appropriates property with the

intent to deprive the owner of the property. TEX .PENAL CODE ANN . § 31.03(a) (Vernon Supp. 2009).
Theft of property is a Class A misdemeanor if the value of the property stolen is $500 or more but

less than $1,500. TEX .PENAL CODE ANN . § 31.03(e)(3). But under Section 31.03(e)(4)(D), the

offense is elevated to a state jail felony if the defendant has been previously convicted two or more

times of any grade of theft. TEX .PENAL CODE ANN . § 31.03(e)(4)(D). Elevating a misdemeanor

theft to a state jail felony theft by use of previous theft convictions does not enhance punishment,

but creates a new offense and vests the district court with jurisdiction. Diamond v. State, 530

S.W.2d 586, 587 (Tex.Crim.App. 1975); Moore v. State, 916 S.W.2d 537, 539 (Tex.App.--Dallas

1995, no pet.). Further, previous theft convictions that elevate a misdemeanor to a felony are

jurisdictional elements of the offense. Moore, 916 S.W.2d at 539.

        The presentment of an indictment vests a district court with jurisdiction. TEX .CONST . Art.

V, § 12(b). District courts and criminal district courts have original jurisdiction in criminal cases

of the grade of felony, of all misdemeanors involving official misconduct, and of misdemeanor cases

transferred to the district court under Article 4.17 of the Code of Criminal Procedure. TEX .CODE

CRIM .PROC.ANN . art. 4.05 (Vernon 2005). When the face of the indictment charges a felony, the

district court does not lose jurisdiction if the State is only able to prove a misdemeanor at trial. See

TEX .CODE CRIM .PROC.ANN . art. 4.06 (Vernon 2005); Jones v. State, 502 S.W.2d 771, 773-74

(Tex.Crim.App. 1973); State v. Meadows, 170 S.W.3d 617, 620 (Tex.App.--El Paso 2005, no pet.).

        A charging instrument that is valid on its face and returned by a legally constituted grand jury

is sufficient to mandate trial of the charge on its merits. Meadows, 170 S.W.3d at 620. The

sufficiency of an indictment cannot be supported or defeated by evidence at a pretrial hearing. State

v. Rosenbaum, 910 S.W.2d 934, 948 (Tex.Crim.App. 1994)(dissenting op. adopted on reh’g);

Meadows, 170 S.W.3d at 620. An indictment must be facially tested under the law as a pleading.

Rosenbaum, 910 S.W.2d at 948. In the pretrial setting, there is neither constitutional nor statutory
authority for a defendant to test, or for a trial court to determine, the sufficiency of evidence to

support or defeat an element alleged in the indictment. Woods v. State, 153 S.W.3d 413, 415

(Tex.Crim.App. 2005); Rosenbaum, 910 S.W.2d at 948; Meadows, 170 S.W.3d at 620.

       Appellant cites our decision in State v. Newsome, 64 S.W.3d 478, 479-81 (Tex.App.--El Paso

2001, no pet.) in support of her argument that a pretrial motion to quash can be used to challenge

whether a prior conviction can be used to elevate an offense to a felony. There, the defendant had

been charged with stalking and the indictment alleged a prior stalking conviction for purposes of

elevating the offense to a third degree felony. The trial court granted the defendant’s motion to

quash alleging that the prior conviction was not final. The State appealed and argued that because

the statute does not expressly require that the defendant be “finally convicted” or otherwise require

that the conviction be a final one, then we must assume that the Legislature did not intend to impose

such a requirement. Id. at 479. The State did not raise the argument presented in this case, namely,

that a motion to quash cannot be used to test the sufficiency of an element of the offense. Therefore,

Newsome does not stand for the proposition that a pretrial motion can be used in that manner.

       The trial court correctly determined that Appellant is not permitted to use a pretrial motion

to quash to test the sufficiency of the evidence supporting the allegations in the indictment which

elevate the offense to a state jail felony. A motion to quash, like any pretrial motion, cannot be used

to argue that the prosecution is unable to prove one of the elements of the crime. Lawrence v. State,

240 S.W.3d 912, 916 (Tex.Crim.App. 2007); Woods, 153 S.W.3d at 415. A pretrial proceeding

should not be a “mini-trial” on the sufficiency of the evidence to support an element of the offense.

Lawrence, 240 S.W.3d at 916. We overrule the sole issue presented on appeal and affirm the

judgment of the trial court.
May 28, 2010
                                              ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
