




02-12-182-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-12-00182-CR
 
 



Ex parte Randy Serrato


 


 




 
 




 


 


 



 
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FROM THE 432nd
District Court OF Tarrant COUNTY
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OPINION
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          Appellant
Randy Serrato was charged with the offense of felony driving while intoxicated
(DWI).  See Tex. Penal Code Ann. § 49.09(b)(2) (West Supp. 2011).  The
indictment included a jurisdictional enhancement paragraph, entitled “DWI –
FELONY REPETITION,” alleging that Serrato had been previously convicted of
misdemeanor DWI in 1993 (Tarrant County cause number 0474829) and misdemeanor
DWI in 1994 (Tarrant County cause number 0525186).  See id.  The
indictment also included a punishment enhancement paragraph entitled, “HABITUAL
OFFENDER NOTICE,” which alleged that Serrato had been previously convicted of
the offense of felony DWI in 2002 (Tarrant County cause number 0783266D) and
the felony offense of possession of a controlled substance in 1994 (Tarrant County
cause number 0525261A).  See Tex. Penal Code Ann. § 12.42(d) (West Supp.
2011) (providing enhanced punishments for habitual felony offenders).  The two
prior DWIs alleged as jurisdictional elements for the 2002 felony DWI
conviction were the 1993 and 1994 misdemeanor DWI convictions that were used as
jurisdictional elements for the instant felony DWI.
          Serrato
filed a “Motion to Quash And/Or Dismiss Indictment,” arguing that the
indictment violated Texas Penal Code section 49.09(g), which prohibits a
conviction from being used for enhancement purposes under section 49.09
(jurisdictional element) and also for punishment enhancement purposes.  See
id. § 49.09(g).  Serrato argued that by using the 1993 and 1994 misdemeanor
DWI convictions for jurisdictional enhancement and then using the 2002 felony
DWI—which had been enhanced to a felony with the 1993 and 1994 misdemeanor DWI
convictions—for punishment enhancement, the State improperly used the same
offenses as elements of the felony DWI offense and to enhance punishment in
violation of penal code section 49.09(g).  See id.  After a hearing, the
trial court denied the motion and entered a written order with findings of fact
and conclusions of law.  Serrato then filed a pretrial application for writ of
habeas corpus,[1] which the trial court
denied “on the same grounds as the . . . denial of [Serrato’s] Motion to Quash.” 
Serrato perfected this appeal.  
          Section
49.09 raises a DWI offense to felony grade if it is shown that the defendant
has been twice previously convicted of DWI.  Id. § 49.09(b)(2).  Section
49.09(g) contemplates the use of a prior conviction for either jurisdictional
enhancement (under section 49.09) or for punishment enhancement (under
subchapter D, Chapter 12).  Id. § 49.09(g); Carroll v. State, 51
S.W.3d 797, 799 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (analyzing
former section 49.09(g)).  Section 49.09(g) provides, “A conviction may be used
for purposes of enhancement under this section or enhancement under Subchapter
D, Chapter 12, but not under both this section and Subchapter D.”  Tex. Penal
Code Ann. § 49.09(g).  Subchapter D, entitled “EXCEPTIONAL SENTENCES,” provides
for enhanced penalties for repeat and habitual felony and misdemeanor
offenders.  Id. §§ 12.41–.50 (West 2011 & Supp. 2011).  Section
12.42(d) provides for enhanced punishment for felony offenses if it is shown
that the defendant has previously been convicted of two felonies.  Tex. Penal
Code Ann. § 12.42(d).  
In Perez
v. State, this court was faced with the same situation that we have here.  124
S.W.3d 214, 215–16 (Tex. App.—Fort Worth 2002, no pet.).  There, the indictment
alleged 1994 and 1996 misdemeanor DWI convictions as the two prior DWIs for
elements of the charged felony DWI and also alleged for punishment enhancement
purposes a 1996 felony DWI conviction.  Id. at 215.  The 1996
felony DWI conviction had been enhanced with one of the misdemeanor convictions
used to enhance the charged felony DWI.  Id.  Rejecting Appellant’s
contention that his 1994 misdemeanor DWI was improperly used to enhance the charged
offense and to enhance punishment, we reasoned in part, 
 [T]he September 3,
1996 DWI conviction was a separate and distinct offense from the 1994 DWI
conviction.  See Gibson v. State, 995 S.W.2d 693, 695–96 (Tex. Crim. App.
1999) (noting that misdemeanor and felony DWI are different grades of driving
while intoxicated and are tried in different courts).  Therefore, the State was
not required to plead or prove the 1994 DWI conviction to use the September 3,
1996 felony DWI conviction to enhance appellant’s punishment.  For these
reasons, we hold that the State did not “use” the 1994 DWI conviction when it
alleged the September 3, 1996 DWI conviction in the indictment to enhance
appellant’s punishment.  See Carroll v. State, 51 S.W.3d 797, 801 (Tex. App.—Houston
[1st Dist.] 2001, pet. ref’d) (holding same under virtually identical
circumstances).
 
Id. at
216.  As we pointed out in Perez, the Houston First Court of Appeals in Carroll
also addressed this issue; there, the court explained, 
[O]nly felonies may
be used to enhance punishment under section 12.42(d), the habitual offender
statute. The disjunctive language of section 49.09(b), “a conviction . . . may
be used for purposes of enhancement under this section or . . . under
[the habitual offender statute] but not under both,” assumes a section
12.42(d) conviction must be for a felony offense.  Misdemeanor convictions may
not be alleged to enhance punishment under section 12.42(d), the habitual
offender statute.  It follows that the disjunctive language of section 49.09(b)
applies only to a felony DWI and does not apply to the use of a misdemeanor DWI
under section 12.42(d) insofar as section 49.09(f) [now section 49.09(g)] is
limited by section 12.42(d).
 
Thus, appellant would
have this Court hold that the use of a felony conviction that was predicated on
a prior misdemeanor conviction, where the same prior misdemeanor conviction is
used for jurisdictional purposes in the instant case, is the equivalent of
using the misdemeanor conviction twice.  We decline appellant’s suggested
interpretation and hold, on the facts before us, the State used offense 1 [a
misdemeanor DWI conviction] for jurisdictional enhancement as alleged in the
State's pleading.  However, we further hold the State did not use offense 1 for
punishment enhancement purposes because no independent proof of its existence
is required in the State’s burden of proof under section 12.42(d). 
 
51
S.W.3d at 800–01 (citations omitted).
          Serrato
argues that Perez and Carroll misread the statutes and too
narrowly construed the term “use” in section 49.09(g).  We cannot agree. The plain
language of section 49.09(g) prohibits the double use of a “conviction” for
both jurisdictional and punishment enhancement.  Tex. Penal Code Ann. § 49.09(g). 
 A misdemeanor DWI conviction is a separate and distinct conviction from a
felony DWI conviction, even if that felony DWI conviction included the separate
misdemeanor conviction as a jurisdictional element.  See Gibson v. State,
995 S.W.2d 693, 695–96 (Tex. Crim. App. 1999); Perez, 124 S.W.3d at 216;
Carroll, 51 S.W.3d at 799–800 (explaining that elevating a DWI from a
misdemeanor to a felony creates an entirely new offense that vests the district
court with jurisdiction); see also Harris v. State, 204 S.W.3d 19, 27–28
(Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (following Carroll and
Perez); Ewing v. State, No. 02-05-00039-CR, 2006 WL 1791597, at
*6 (Tex. App.—Fort Worth June 29, 2006, no pet.) (mem. op., not designated for
publication) (same); McKinney v. State, No. 06-05-00079-CR, 2006 WL
1116064, at *2–3 (Tex. App.—Texarkana Apr. 28, 2006, pet. ref’d) (mem. op., not
designated for publication) (same).  In other words, here, the State did not
use the two misdemeanor DWI convictions for both jurisdictional and punishment
enhancements in violation of section 49.09(g) by alleging the 2002 felony DWI
conviction for punishment enhancement purposes because the 2002 felony DWI
conviction was a separate conviction from the two misdemeanor DWI convictions,
and the State is not required to plead or prove any underlying DWI offenses in
order to use the felony DWI conviction to enhance Serrato’s punishment.[2] 

          We
overrule Serrato’s two points and affirm the trial court’s judgment.   
 
SUE WALKER
JUSTICE
 
PANEL: 
WALKER, MCCOY, and MEIER, JJ.
 
PUBLISH
 
DELIVERED:  July 12, 2012




[1]Serrato also argued in his
application for writ of habeas corpus that the use of the same offenses as
elements of the felony DWI offense and to enhance punishment violated double
jeopardy and due process under the United States and Texas constitutions.


[2]To the extent that Serrato
complains that the double “use” of the two misdemeanor convictions constituted
a double jeopardy violation, this argument also fails; as set forth above, the
State did not use Serrato’s misdemeanor DWI convictions to enhance both the
charged offense and his punishment.  See U.S. Const. amend. V.; Tex.
Const. art. I, § 14.


