                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00182-CR


EX PARTE RANDY SERRATO




                                   ----------

        FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

                                   ----------

                                  OPINION

                                   ----------

      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




                                        2
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,

      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.


                                        3
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


                                         4
      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


                                        5
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



      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.


                                           6
