                             NUMBER 13-12-00066-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

OBED GONZALEZ,                                                                 Appellant,

                                                 v.

THE STATE OF TEXAS,                                                            Appellee.


                 On appeal from the County Court at Law No. 5
                       of Montgomery County, Texas.


                            MEMORANDUM OPINION1

                 Before Justices Garza, Benavides, and Perkes
                   Memorandum Opinion by Justice Perkes




       1
            Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case is
before this Court on transfer from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV’T. CODE
ANN. § 73.001 (West 2005).

                                                  1
        Pursuant to a plea-bargain agreement, appellant Obed Gonzalez was convicted of

driving while intoxicated (“DWI”), a Class A misdemeanor. See TEX. PENAL CODE ANN.

§ 49.09(a) (West 2003). The trial court sentenced appellant to thirty days confinement in

the Montgomery County Jail, but awarded appellant pre-sentence time credit for the

entire sentence.       Appellant was not further incarcerated on account of the present

conviction. By four issues, appellant argues (1) the two-year statute of limitations barred

his prosecution; (2) the trial court should have suppressed evidence of the traffic stop that

resulted in his DWI arrest; and (3) his speedy-trial right was violated. We affirm.

                      I. FACTUAL AND PROCEDURAL BACKGROUND2

        On June 5, 2005, the Montgomery County Sherriff’s Office received a concerned

citizen’s report that a Honda was driving slowly on Interstate 45 (“I-45”), traveling from

one side of the roadway to the other, weaving, and that the driver was possibly

intoxicated. A police officer heard the subsequent dispatch and attempted to locate the

Honda. Upon locating the Honda, which appellant was driving, Officer Brian Eyring

observed appellant weaving and traveling well below the posted speed limit on I-45.

Officer Eyring, believing that appellant might have been intoxicated, initiated a traffic stop.

        Appellant was subsequently arrested for DWI. A district court convicted appellant

of felony DWI, based on two prior misdemeanor DWI convictions, and placed appellant on




        2
            Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4. The facts set forth are undisputed and consistent with the trial court’s
findings of fact and conclusions of law, quoted below, which no party has contested on appeal. We note,
however, that our record does not contain evidence of appellant’s vacated felony and misdemeanor DWI
convictions discussed in this memorandum opinion.

                                                     2
probation for five years.3 However, before appellant completed the probation, one of his

prior misdemeanor convictions was vacated. 4                    As a result, appellant’s felony DWI

conviction for the present offense was vacated. The State then charged appellant by

information with misdemeanor DWI for the June 5, 2005 offense by filing an information in

county court, i.e., the trial court.          The State amended that information to include a

paragraph alleging the prior felony indictment tolled the two-year statute of limitations.5


        3
           By way of background, we note that the offense of driving while intoxicated (“DWI”) is a Class B
misdemeanor, see TEX. PENAL CODE ANN. § 49.04(b) (West 2003), unless it is shown that the offender has
a previous conviction for a similar offense. A showing of one previous DWI conviction enhances the
offense to a Class A misdemeanor, see id. § 49.09(a); two previous convictions enhance the offense to a
third-degree felony, see id. § 49.09(b)(2).
        4
             The discussion on the record between the trial court, defense counsel, and State reflects the
following facts concerning why the underlying misdemeanor conviction was vacated. Deetrice Wallace
maintained the breathalyzer used in one of appellant’s prior misdemeanor cases. Wallace was convicted
of “falsifying maintenance records” for the breathalyzer. Because the breathalyzer result in appellant’s
case could not be proven reliable, his misdemeanor conviction was vacated.

         We further note that our holding today—that the statute of limitations did not bar appellant’s
prosecution for the present Class A misdemeanor after his felony conviction was vacated—is consistent
with the Texas Court of Criminal Appeals’ handling of a similar case. In a post-conviction habeas case, the
Court of Criminal Appeals vacated a felony DWI conviction because Wallace’s misconduct invalidated one
of the respective underlying misdemeanor DWI offenses. See Ex parte Garcia, No. AP-76407, 2010 WL
3784146, at *1 (Tex. Crim. App. Sept. 29, 2010). The Court of Criminal Appeals set aside the felony
conviction but remanded the offender to the Harris County Sheriff’s custody to answer the DWI charge.
See id. Although the Ex parte Garcia opinion has no precedential value because it is unpublished, we
consider the analysis therein persuasive. See TEX. R. APP. P. 77.3.
        5
           In the trial court, appellant filed a pre-trial application for habeas corpus in which he argued that
the statute of limitations barred the misdemeanor prosecution in this case. See TEX. CODE CRIM. PROC.
ANN. art. 12.05(c) (West 2005). The trial court denied habeas relief and on interlocutory appeal, the Ninth
Court of Appeals affirmed the trial court’s order denying habeas relief. See Ex parte Gonzalez, No.
09–11–00199-CR, 2011 WL 3849467, at *2 (Tex. App.—Beaumont Aug. 31, 2011, no pet.).

        In connection with appellant’s pre-trial habeas application, the trial court entered the following
unchallenged findings of fact concerning the procedural history of the case:

    1. The defendant was indicted in Cause No. 05-06-05595-CR for the felony offense of driving
       while intoxicated, alleged to have occurred on or about June 5, 2005, and the indictment
       further alleged two previous convictions for driving while intoxicated.

    2. Pursuant to a plea agreement, the defendant entered a plea of guilty in the 410th District
       Court of Montgomery County on December 16, 2005, and received a sentence of probation
       for five years.
                                                       3
       After the trial court denied appellant’s motion to suppress evidence regarding the

traffic stop, appellant waived a jury trial and entered a guilty plea. Although appellant

was sentenced to 30 days’ confinement in the Montgomery County Jail, a pre-sentence

time credit in the judgment obviated the need for appellant to serve his sentence

post-judgment. This appeal ensued.

                                       II. ISSUES PRESENTED

       Appellant presents the following four issues for review:

   1. Whether appellant’s prosecution for misdemeanor DWI is barred by the two-year
      statute of limitations.

   2. Whether the statute of limitations was tolled pursuant to Texas Rule of Criminal
      Procedure article 12.05.


   3. On March 3rd, 2009, the 410th District Court vacated the defendant’s felony DWI
      conviction because of a deficiency in one of the underlying misdemeanor convictions used
      for enhancement.

   4. The defendant was originally charged with the June 5, 2005 offense made subject of this
      motion by Information and Indictment on June 21, 2005, and that indictment was pending
      until March 3, 2009.

   5. On August 12th, 2010 the State filed a Complaint and Information charging the defendant
      with the misdemeanor offense of driving while intoxicated arising from the same June 5,
      2005 episode.

   6. The original Complaint and Information failed to include a paragraph regarding the tolling of
      the statute of limitations.

   7. On November 3, 2010, the defendant filed a Motion to Quash and Exception to Substance
      of Information alleging that the prosecution was barred by the statute of limitations.

   8. On November 15, 2010, the State filed a Motion for Leave to Amend the Complaint and
      Information and an Amended Complaint and Information, adding a paragraph tolling the
      statute of limitations.

   9. On April 1, 2011, the defendant filed an Application for Writ of Habeas Corpus, requesting
      that the charge be set aside and dismissed.

   10. The Court denied defendant’s Motion to Quash and Exception to Substance of Information
       and denied defendant’s Application for Writ of Habeas Corpus.


                                                    4
    3. Whether there was reasonable suspicion to conduct the traffic stop of appellant.

    4. Whether appellant’s right to a speedy trial was violated.

                                               III. ANALYSIS

A. The Statute of Limitations Did Not Bar the Present DWI Conviction.

        By his first and second issues, appellant argues that his prosecution for the

present DWI offense was barred by the two-year statute of limitations and that the statute

of limitations was not tolled while the felony indictment for this offense was pending. 6

Appellant reasons the felony indictment could not toll the statute of limitations because it

was rendered “void ab initio” once one of his prior DWI offenses was vacated, rendering

the present offense a misdemeanor. We disagree.

        The statute of limitations for a misdemeanor offense is two years from the date of

the commission of the offense. See TEX. CODE CRIM. PROC. ANN. art. 12.02(a) (West

2005). The statute of limitations is tolled during the pendency of an indictment. Id. art.

12.05(b) (West 2005). The pendency of the indictment is defined as “the period of time

beginning with the day the indictment, information, or complaint is filed in a court of

competent jurisdiction, and ending the day such accusation is, by an order of the trial

        6
            We note that in his briefing of issues one and two, appellant includes complaints that (1) his
felony conviction for this offense was based on an involuntary guilty plea; and (2) the district court “lacked
jurisdiction to issue the capias” that resulted in his arrest in Mississippi. Appellant’s original felony
conviction was vacated and we express no opinion regarding the prior felony conviction because it is
outside the scope of this appeal. Appellant cites no legal authority for any argument that he was illegally
arrested in Mississippi and provides no record citations in support of this argument. Thus, this argument is
waived. See TEX. R. APP. P. 38.1(i) (providing the brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record); Castillo v. State, 186 S.W.3d
21, 24 (Tex. App.—Corpus Christi 2005, pet. ref’d); see also Cook v. State, 611 S.W.2d 83, 87 (Tex. Crim.
App. [Panel Op.] 1981) (“This court with its tremendous caseload should not be expected to leaf through a
voluminous record hoping to find the matter raised by appellant and then speculate whether it is that part of
the record to which appellant had reference.”). Notwithstanding, we have reviewed the entire record in this
case and it contains no evidence bearing on whether appellant was illegally arrested in Mississippi.

                                                      5
court having jurisdiction thereof, determined to be invalid for any reason.” Id. art. 12.05

(c).

       A defective indictment filed in a court of competent jurisdiction tolls the statute of

limitations as long as the subsequent indictment alleges the same conduct, act, or

transaction as the prior indictment. Hernandez v. State, 127 S.W.3d 768, 774 (Tex.

Crim. App. 2004) (holding article 12.05(b) permits an earlier indictment for a violation of

one law to toll the statute of limitations in the prosecution of a later indictment of the same

defendant for violating a different law if both indictments allege the same conduct);

Ahmad v. State, 295 S.W.3d 731, 741 (Tex. App.—Fort Worth 2009, pet. ref’d) (“If the

prior and subsequent indictments charge different offenses but the offenses arise from

the same conduct, the prior indictment tolls the statute of limitations”).            A court of

competent jurisdiction is any “court that has jurisdiction of the offense.” Cf. Ex parte

Ward, 560 S.W.2d 660, 661 (Tex. Crim. App. 1978) (en banc) (holding a complaint filed in

justice court does not toll the statute of limitations in a felony case). An indictment filed in

district court vests jurisdiction in the district court if it alleges a felony offense, even though

it subsequently becomes apparent that the State can only prove a misdemeanor. See

TEX. CODE CRIM. PROC. ANN. arts. 4.05, 4.06 (West 2005); Ex parte Sparks, 206 S.W.3d

680, 682 (Tex. Crim. App. 2006); Ex parte Arnold, 574 S.W.2d 141, 142 (Tex. Crim. App.

[Panel Op.] 1978).

       In Ex parte Arnold, the defendant was convicted of a DWI enhanced to a felony by

a prior DWI conviction that, in fact, never became final. 574 S.W.2d at 142. In his

habeas case, the defendant claimed the district court that convicted him of the felony


                                                6
lacked jurisdiction. Id. The Court of Criminal Appeals rejected this argument because

the district court had authority to convict the defendant of the lesser DWI offense if the

evidence did not prove the felony. Id. More recently, in Ex parte Sparks, the Court of

Criminal Appeals summarized this principle as follows:

      The indictment in this case alleged misdemeanor DWI, enhanced to a
      felony by two prior DWI convictions. 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.

Ex parte Sparks, 206 S.W.3d at 682 (emphasis in original).

      In the present case, the offense occurred on June 5, 2005.           Appellant was

indicted for felony DWI on June 21, 2005 and that indictment, filed in district court, was

pending until March 3, 2009, the date the district court vacated appellant’s felony DWI

conviction because of a deficiency in one of the underlying misdemeanor convictions

used for enhancement. The district court was a court of competent jurisdiction for the

felony offense alleged, even if the evidence subsequently showed the offense was only a

misdemeanor. See TEX. CODE CRIM. PROC. ANN. arts. 4.05, 4.06; Ex parte Sparks, 206

S.W.3d at 682; Ex parte Arnold, 574 S.W.2d at 142. Thus, the statute of limitations was

tolled between June 21, 2005 and March 3, 2009. See TEX. CODE CRIM. PROC. ANN. art.

12.05; Ahmad, 295 S.W.3d 731. Accordingly, on August 12, 2010 when the State

charged appellant with the present misdemeanor DWI offense, the two-year statute of

limitations had not yet expired. See TEX. CODE CRIM. PROC. ANN. art. 12.02 (a).

      Appellant argues that to so apply the tolling statute produces an absurd result in

that he can be punished for the misdemeanor offense after having already been punished



                                            7
for the vacated felony. 7        Again, we disagree.          Appellant did not incur additional

punishment. The judgment gave appellant credit for time served. The judgment also

stated no further driver’s license suspension would be imposed because appellant’s

driver’s license was previously suspended when the same offense was considered a

felony. We overrule appellant’s first and second issues.

B. Reasonable Suspicion Justified the Traffic Stop.

        By his third issue, appellant argues the June 5, 2005, traffic stop should have been

suppressed because it was not based on reasonable suspicion that he was driving while

intoxicated. Appellant emphasizes that the patrol-car video of his driving just before the

traffic stop does not show a DWI offense. We disagree with appellant that the trial court

erred in denying his pre-trial motion to suppress the traffic stop.

1. Standard of Review

        If supported by the record, a trial court's ruling on a motion to suppress will not be

overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.—Houston [14th Dist.] 2002,

no pet.). At the suppression hearing, the trial court is the sole finder of fact and is free to

believe or disbelieve any or all of the evidence presented. Id. We give almost total

deference to the trial court's determination of historical facts that depend on credibility and

demeanor, but review de novo the trial court's application of the law to the facts if

resolution of those ultimate questions does not turn on the evaluation of credibility and

demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.1997).




        7
           Appellant does not cite any legal authority for this argument. See TEX. R. APP. P. 38.1. He
does not argue the punishment assessed in the present judgment violates any law.
                                                   8
2. Applicable Law and Analysis of Traffic Stop

       The Fourth Amendment to the United States Constitution guarantees the right of

the people to be secure against unreasonable searches and seizures of their persons,

houses, papers, and effects.     U.S. CONST. amend. IV.       A warrantless seizure of a

person must be justified by reasonable suspicion. Derichsweiler v. State, 348 S.W.3d

906, 914 (Tex. Crim. App. 2011). An investigative stop is by definition a warrantless

seizure. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010).

       A police officer has reasonable suspicion to conduct an investigative stop if, under

the totality of the circumstances, he has specific, articulable facts that, combined with

rational inferences from those facts, would lead him reasonably to conclude that the

person detained is, has been, or soon will be engaged in criminal activity. Derichsweiler,

348 S.W.3d at 914; Crain, 315 S.W.3d at 52. These facts must amount to more than a

mere hunch or suspicion. Crain, 315 S.W.3d at 52; Davis v. State, 947 S.W.2d 240, 244

(Tex. Crim. App. 1997). The detaining officer does not need to be personally aware of

every fact that objectively supports a reasonable suspicion in order to conduct an

investigative stop. Derichsweiler, 348 S.W.3d at 914. Nor does the detaining officer

have to personally witness the facts giving rise to the reasonable suspicion. Brother v.

State, 166 S.W.3d 255, 258–59 (Tex. Crim. App. 2005). It is enough that a police

dispatcher is aware of such facts, and the facts are corroborated by the detaining officer.

Derichsweiler, 348 S.W.3d at 914; Brother, 166 S.W.3d at 258–59 (“[A] stop based on

facts supplied by a citizen-eyewitness, which are adequately corroborated by the

arresting officer, do[es] not run afoul of the Fourth Amendment.”).       The information


                                            9
known to the 911 dispatcher is imputed to the detaining officer. Derichsweiler, 348

S.W.3d at 915.

       What is at issue is whether the totality of the circumstances, including the

information given on dispatch, provided specific, articulable facts that, combined with

reasonable inferences derived from those facts, would lead to a reasonable suspicion

that appellant committed DWI. See id.; Crain, 315 S.W.3d at 52. The Montgomery

County Sherriff’s Office received a concerned citizen’s report that a Honda was driving

slowly on I-45, traveling from one side of the roadway to the other, weaving, and that the

driver was possibly intoxicated.     Upon locating the Honda that matched the one

described in the dispatch, Officer Eyring observed appellant weaving within his lane and

traveling well below the posted speed limit on I-45. Officer Eyring testified and stated on

the video of the traffic stop that before activating his video camera, he observed appellant

driving approximately forty miles per hour on I-45, having a difficult time maintaining a

single lane of traffic. Officer Eyring testified that based on his experience, appellant’s

difficulty maintaining a single lane even at low speed was evidence of intoxication or

driver impairment. The video footage is just under one-and-a-half minutes in duration.

The video shows appellant swerving multiple times within his lane. Just before the

patrol-car siren wailed, appellant crossed onto or over the white dashed line that

separated his lane from the next traffic lane. The trial court estimated that the video

showed appellant driving at approximately fifty miles per hour on I-45.

       We conclude that, under the totality of the circumstances, Officer Eyring’s

investigative stop of appellant was justified. See Mitchell v. State, 187 S.W.3d 113, 118


                                            10
(Tex. App.—Waco 2006, pet. ref’d) (holding unidentified informant’s report and officer’s

corroborating observations were sufficient to justify traffic stop in DWI case); McQuarters

v. State, 58 S.W.3d 250, 253 (Tex. App.—Fort Worth 2001, pet. ref'd) (holding police

officer had reasonable suspicion to detain defendant driving at a rate considerably below

the speed limit even if defendant had not committed any traffic violations). The trial court

did not err in denying the motion to suppress. We overrule appellant’s third issue.

C. Appellant’s Speedy Trial Claim Was Not Preserved.

       By his fourth issue, appellant argues his prosecution in this case violated his right

to a speedy trial under the Sixth Amendment to the United States Constitution. See U.S.

CONST. amends. VI, XIV. In this case, appellant moved to dismiss the indictment on

limitations grounds and moved for a continuance of his trial date. Appellant, however,

did not assert his right to a speedy trial in the trial court and the issue has not been

preserved for our review. See Henson v. State, No. PD–1249–12, 2013 WL 4820220, at

*3 (Tex. Crim. App. Sept. 11, 2013) (holding preservation of error requirements apply to

Sixth Amendment speedy-trial claims); see also TEX. R. APP. P. 33.1. We overrule

appellant’s fourth issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.

                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
24th day of October, 2013.

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