Opinion issued June 6, 2013.




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas


                               NO. 01-12-00967-CR


            EX PARTE RICHARD DENNIS HARRIS, Appellant

                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1289692


                          MEMORANDUM OPINION

      Richard Dennis Harris appeals the trial court’s denial of his application for a

writ of habeas corpus. Harris was charged with the felony offense of driving while

intoxicated. See TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2012). Harris

negotiated a plea bargain and pleaded guilty to a Class A misdemeanor charge of

DWI. The trial court placed Harris on community supervision. Harris sought
habeas relief asserting that the trial court lacked jurisdiction because the

“dismissal” of one of two prior DWI convictions reduced the charge from a felony

to a Class A misdemeanor. The trial court denied the application, and Harris

appealed. We conclude the trial court had jurisdiction, and we affirm the trial

court’s order denying Harris’s application.

                                     Background

      A Harris County grand jury indicted Harris for the felony offense of driving

while intoxicated, with two prior DWI convictions. The indictment alleged two

prior DWI convictions, one in 2003 in Travis County and one in 2006 in Brazoria

County.    Harris filed a motion to dismiss, contending the trial court lacked

jurisdiction. Specifically, Harris asserted that the 2006 Brazoria County conviction

was not a valid final conviction and the indictment, therefore, alleged a

misdemeanor, not a felony, depriving the trial court of jurisdiction. 1



1
      According to the allegations in the indictment, the Brazoria County conviction
      became final in 2006. The document from Brazoria County attached to the
      appellant’s writ application is labeled “Motion to Dismiss.” The State asked for
      dismissal due to “evidentiary issues.” The trial court’s order at the bottom of the
      motion states that the cause “is hereby dismissed.” It has the same cause number
      as the 2006 conviction alleged in the indictment in this case, but is dated February
      24, 2011. In his motion to reconsider his writ application, the appellant refers to
      the 2006 Brazoria County conviction as “an invalid ‘Dee Wallace’ conviction,”
      but nothing in the record indicates what that means. Harris’s motion implies that
      the Brazoria County conviction had something to do with “falsified records.”

                                           2
      While Harris’s motion to dismiss was pending, he and the State negotiated a

plea bargain. In exchange for the State abandoning the enhancement allegation on

the Brazoria County conviction, moving for the trial court to reduce the charge to a

Class A misdemeanor, and recommending community supervision, Harris agreed

to plead guilty to a Class A Misdemeanor DWI. The trial court accepted the guilty

plea and sentenced Harris to one year confinement in the Harris County jail,

probated for eighteen months.

      Six months later, Harris sought habeas relief in the trial court, arguing that it

lacked jurisdiction because the indictment pleaded a misdemeanor not a felony.

The trial court denied the application. Harris appeals.

                                       Analysis

      In his sole issue, 2 Harris contends that the trial court—a district court—

lacked jurisdiction over this case because Harris in fact did not have two prior

DWI convictions to elevate his DWI to a felony.




2
      The State initially asserted that this court lacked jurisdiction because there was no
      certification of defendant’s right to appeal in the record and because there was no
      timely filed notice of appeal. The clerk supplemented the record with a proper
      certification. The State filed a letter acknowledging the notice of appeal contained
      in the supplemental record was timely and stating, “The State therefore abandons
      that portion of its brief that asked this Court to dismiss the appeal for want of
      jurisdiction.”
                                            3
      Whether a court has subject matter jurisdiction is a question of law.

Coleman v. State, No. 07-10-00423-CR, 2011 WL 3925767, at *2 (Tex. App.—

Amarillo Sept. 7, 2011, no pet.) (mem. op., not designated for publication) (citing

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). In

Texas, district courts have jurisdiction over felony offenses. TEX. CODE CRIM.

PROC. ANN. art. 4.05 (West 2005); see also TEX. CONST. art. V, § 8 (“District Court

jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions,

proceedings, and remedies, except in cases where exclusive, appellate, or original

jurisdiction may be conferred by this Constitution or other law on some other

court, tribunal, or administrative body.”); TEX. GOV’T CODE ANN. § 24.007(a)

(West Supp. 2012) (“The district court has the jurisdiction provided by Article V,

Section 8, of the Texas Constitution.”); Puente v. State, 71 S.W.3d 340, 343 (Tex.

Crim. App. 2002) (“A district court has jurisdiction over felony offenses. It does

not have original jurisdiction over misdemeanor charges, except those involving

official misconduct.”).

      If an indictment alleges a felony, it vests jurisdiction in district court. Ex

parte Sparks, 206 S.W.3d 680, 682 (Tex. Crim. App. 2006); Tellez v. State, No.

01-09-00381-CR, 2010 WL 1840242, at *1 (Tex. App.—Houston [1st Dist.] May

6, 2010, pet. ref’d) (mem. op., not designated for publication). When the State

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relies on prior convictions to elevate what would otherwise be a misdemeanor

offense to the level of a felony, “jurisdiction vests when the pleadings are

submitted to the trial court and contain the requisite number of previous

convictions.”   Tamez v. State, 11 S.W.3d 198, 201 (Tex. Crim. App. 2000).

Jurisdiction vests even if the State is later unable to prove all allegations of the

felony offense and only establishes a lesser included misdemeanor offense.

Sparks, 206 S.W.3d at 682; Tellez, 2010 WL 1840242, at *1; see TEX. CODE CRIM.

PROC. ANN. art. 4.06 (West 2005) (“Upon the trial of a felony case, the court shall

hear and determine the case as to any grade of offense included in the indictment,

whether the proof shows a felony or a misdemeanor.”). The district court retains

jurisdiction even if the State moves to reduce the charge to a lesser-included

misdemeanor pursuant to a plea bargain with the defendant. Golden v. State, 833

S.W.2d 291, 292 (Tex. Crim. App. 1992).

      A person is guilty of felony DWI if he commits the offense of DWI and he

has been previously convicted two times for DWI.          TEX. PENAL CODE ANN.

§ 49.09(b)(2); see also See Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App.

2003) (two prior convictions for DWI are elements of offense of felony DWI).

Misdemeanor DWI is a lesser-included offense of felony DWI. See TEX. CODE




                                         5
CRIM. PROC. ANN. art. 37.09 (West 2012); TEX. PENAL CODE ANN. § 49.04 (West

2012); Reyes v. State, 394 S.W.3d 809, 812 (Tex. App.—Amarillo 2013, no pet.).

      The indictment in this case properly vested jurisdiction in the trial court by

alleging all the elements of a felony DWI. The indictment alleged that Harris

committed DWI and previously had been twice convicted for DWI.                   This is

sufficient to vest the trial court with jurisdiction. See Sparks, 206 S.W.3d at 682

(“This pleading invoked the jurisdiction of the district court for the felony that was

alleged, and that jurisdiction extended to the misdemeanor offenses that were

included in the indictment.”); see also Tamez, 11 S.W.3d at 201. Whether the

State could prove all of the allegations is not a jurisdictional prerequisite, but,

rather, an evidentiary matter. See Sparks, 206 S.W.3d at 682; see also Tellez, 2010

WL 1840242, at *1 (“The State was not, as appellant asserts, required to prove that

appellant had a prior conviction . . . to maintain jurisdiction in the district court.”).

Accordingly, we hold that the trial court had jurisdiction over this case, because an

indictment that properly alleged a felony offense had been submitted to the trial

court. See Tamez, 11 S.W.3d at 201; Tellez, 2010 WL 1840242, at *1.

      We overrule Harris’s sole issue.




                                           6
                                   Conclusion

      We affirm the trial court’s order denying Harris’s application for a writ of

habeas corpus.




                                               _____________________________
                                               Rebeca Huddle
                                               Justice

Panel consists of Justices Jennings, Brown, and Huddle.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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