                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-19-00014-CR
                                          No. 07-19-00015-CR


                              THE STATE OF TEXAS, APPELLANT

                                                    V.

                             ERIKA LOZANO-PELAYO, APPELLEE


                            On Appeal from the 381st District Court
                                     Starr County, Texas
          Trial Court Nos. 18-CR-57 & 18-CR-59; Honorable Jose Luis Garza, Presiding

                                           February 28, 2020

                                   CONCURRING OPINION
                        Before QUINN, C.J., and PIRTLE and PARKER, JJ.


        Appellant, the State of Texas, appeals the orders of the trial court, entered

December 5, 2018, granting the motion filed by Appellee, Erika Lozano-Pelayo, seeking

to quash the indictments in the above-reference cause numbers.1 The majority reverses



        1 The State is entitled to appeal an order of a court in a criminal case if the order dismisses any

portion of an indictment. TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1) (West 2018). At oral argument, the
State confirmed that proceedings before the trial court have been stayed pending our disposition of these
appeals. Id. at art. 44.01(e).
those orders and remands the matters for further proceedings. While I concur in the

opinion of the majority, I write separately to identify an area of the law where practitioners

and judges—especially legal writers—could better serve the jurisprudence of this State if

they would choose their words more carefully. This case provides a good example of

why a pellucid way of writing is so important. Here, I would carefully distinguish between

an allegation used to “elevate” an offense and an allegation used to “enhance” a range of

punishment. While both terms have been used interchangeably to describe allegations

intended to effect raising the applicable range of punishment, there are subtle differences

which impact the way we analyze the legal questions surrounding the inclusion of such

allegations.


       Unfortunately, many legal scholars, appellate justices, judges, practitioners, and

even legislators have loosely used the term “enhancement” to refer to allegations that

could more clearly be described as “offense elevating allegations.” Offense elevating

allegations are allegations which, when properly included in the charging instrument,

define a new offense which is clearly distinguishable from, but similar to, a lesser grade

offense. The offense elevating allegation serves to elevate the lesser grade offense to a

higher grade of offense. The most common of these offense elevating allegations is an

allegation that the defendant has previously been convicted of the offense of driving while

intoxicated in the prosecution of a new charge of driving while intoxicated. In such a case,

the offense elevating allegation elevates a first time Class B misdemeanor, driving while

intoxicated offense, to either a Class A misdemeanor, driving while intoxicated offense

(one prior conviction) or a third degree felony driving while intoxicated offense (two prior

convictions). In both cases, the elements of the primary offense are identical—operating



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a motor vehicle in a public place while intoxicated. It is the inclusion of the offense

elevating allegation—an element of the greater offense—that elevates the proscribed

conduct to a new, distinctly different, higher grade of offense. In such cases, the range

of punishment has not been enhanced at all. The difference is the new, higher grade

offense is now punishable within the range of punishment for the higher grade of offense

to which it has been elevated.


      Compare that to a punishment enhancement, pursuant to the provisions of the

Texas Penal Code, where, upon proper notice, the range of punishment is enhanced to

a higher grade of punishment due to the allegations in a punishment enhancement

allegation. See TEX. PENAL CODE ANN. §§ 12.42, 12.425, 12.43 (West 2019). In such

instances, an offense which is “punished as” a higher offense only raises the level of

punishment and not the degree of the offense. See Oliva v. State, 548 S.W.3d 518, 526-

27 (Tex. Crim. App. 2018). Because punishment enhancements do not elevate the

degree of the offense, judgments involving enhanced ranges of punishment often

incorrectly describe the “degree of the offense” according to the higher range of

punishment, which was never changed by the punishment enhancement allegation.


      Applicable to the facts of these appeals, by her motion to quash the indictments,

Appellee contended that election fraud was a misdemeanor and, therefore, the district

court lacked jurisdiction over the claims against her. While a single violation of the

election fraud statute is a Class A misdemeanor, two or more violations of that statute

within the same election is “increased to the next higher category of offense,” which would

be a state jail felony. See TEX. ELEC. CODE ANN. § 276.013(b), (c)(3) (West Supp. 2019).

As such, each allegation contained in the indictments that Appellee committed another


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offense under the same section of the Texas Election Code in the same election was an

offense elevating allegation, rather than a true punishment “enhancement.” Because

each allegation was also jurisdictional, the State was required to both plead it in the

indictments and prove it during the guilt-innocence phase of the trial.


       Similarly, while fraudulent use of application for ballot by mail is a state jail felony,

section 84.0041(d) provides that “[a]n offense under this section is increased to the next

higher category of offense if it is shown on the trial of an offense” that either “the defendant

was previously convicted of an offense under this code” or “the defendant committed

another offense under this section in the same election.” Id. at § 84.0041(b), (d) (West

Supp. 2019).     As such, each allegation contained in the indictments that Appellee

committed another offense under the same section of the Texas Election Code in the

same election was an offense elevating allegation, rather than a true punishment

“enhancement.”     The prosecution would be required to prove the offense elevating

allegation as an element of the offense itself in order to avoid an instructed verdict. When

a statutory element, such as a prior conviction or another offense, is used to elevate the

degree of the offense, such an offense elevating allegation must be alleged in the

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


       Consequently, I conclude and concur with the majority in finding that the State’s

indictments of Appellee for election fraud properly invoked the district court’s felony

jurisdiction and the offense elevating allegation contained in the indictments is an element

of the state jail felony offense of election fraud, which must be proven by the State during

the guilt-innocence phase of the trial because it is jurisdictional. Furthermore, I conclude

and concur with the majority in finding that the State’s indictments of Appellee for the

                                               4
offense of fraudulent use of application for ballot by mail properly included an offense

elevating allegation which may be proven by the State during the punishment phase of

the trial since that allegation is not jurisdictional. Additionally, I would distinguish and

make clear that none of the allegations at issue in these cases are punishment

“enhancement” allegations.




                                                        Patrick A. Pirtle
                                                             Justice


Publish.




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