
   NO. 12-03-00047-CR


IN THE COURT OF APPEALS


TWELFTH COURT OF APPEALS DISTRICT


TYLER, TEXAS

BOBBY DOYLE GETTS,§
		APPEAL FROM THE 173RD
APPELLANT

V.§
		JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE§
		HENDERSON COUNTY, TEXAS
 
MEMORANDUM OPINION

	Bobby Doyle Getts ("Appellant") pleaded guilty to felony driving while intoxicated ("DWI")
and was sentenced to three years of confinement.  Appellant's counsel filed a brief in compliance
with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v.
State, 436 S.W.2d 137 (Tex. Crim. App. 1969).  Appellant also filed a brief pro se, contending that
the trial court erred in overruling his motion to dismiss the indictment and his motion to quash
because one of the convictions the State used to enhance the DWI charge from a misdemeanor to a
felony was stale.  We reverse, order the entry of a reformed judgment, and remand for further
proceedings.

Background
	On May 23, 2002, Appellant was indicted for felony DWI.  Included in the indictment were
allegations that Appellant had two prior convictions for DWI.  The first conviction was dated April
26, 1984, and the second conviction was dated September 11, 1997. 
	Prior to pleading guilty, Appellant filed a motion to dismiss and a motion to quash the
indictment, arguing that the 1984 conviction for DWI could not confer felony jurisdiction on the trial
court because it occurred more than ten years prior to the commission of the 2002 DWI offense. (1) 
The trial court overruled both motions.
	On January 10, 2003, Appellant pleaded guilty to third-degree felony DWI and was sentenced
to three years of imprisonment.  On appeal, Appellant contends in his pro se brief that the indictment
was defective in that it alleges an offense that cannot be considered for felony enhancement purposes
because it occurred more than ten years prior to the date he committed the offense of DWI in 2002. (2) 
We agree.

Remoteness of the 1984 DWI Conviction
	The trial court's ruling on a motion to dismiss a charging instrument is subject to an abuse
of discretion standard of review.  Williams v. State, 464 S.W.2d 842, 844-45 (Tex. Crim. App.
1971); State v. Hernandez, 830 S.W.2d 631, 635 (Tex. App.-San Antonio 1992, no pet.).  To
establish an abuse of discretion, the appealing party must show that the trial court's ruling lies
outside the "zone of reasonable disagreement."  Dubose v. State, 915 S.W.2d 493, 496-97 (Tex.
Crim. App. 1996).
	The offense of DWI is a misdemeanor unless it is shown on the trial of the offense that the
person has previously been convicted two times of any other offense relating to the operating of a
motor vehicle while intoxicated.  Tex. Pen. Code Ann. § 49.09(b) (Vernon 2003).  A conviction
may not be used for purposes of enhancing the offense of DWI from a misdemeanor to a felony if:

 1)	the conviction was a final conviction under Subsection (d);

	2) 	the offense for which the person is being tried was committed more than 10 years after the
latest of:

		(A)	the date on which the judgment was entered for the previous conviction;
		(B)	the date on which the person was discharged from any period of community
supervision on which the person was placed for the previous conviction;
		(C)	the date on which the person successfully completed any period of parole on which
the person was released after serving a portion of the term to which the person was
sentenced for the previous conviction; or
		(D)	the date on which the person completed serving any term for which the person was
confined or imprisoned for the previous conviction; and

	3)	the person has not been convicted of an offense under Section 49.04, 49.05, 39.06, 49.065,
49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated within
10 years of the latest date under Subdivision (2).

Tex. Pen. Code Ann. § 49.09(e).	
	Appellant's 1984 conviction for DWI meets each of the requirements for remoteness because
1) the conviction was a final conviction, 2) the 2002 DWI offense was committed more than ten
years after the 1984 date of conviction for DWI, and 3) the 1997 DWI conviction did not occur
within ten years of the 1984 DWI conviction.  The trial court did not properly apply section 49.09(e)
to the facts of Appellant's case; therefore, his decisions to overrule Appellant's motion to dismiss
and motion to quash the indictment lie outside the zone of reasonable disagreement. (3)
	If Appellant had committed the 2002 DWI offense before September 1, 2001, we would
reach a different result.  Prior to September 1, 2001, section 49.09(e) read as follows:

 (e)	a conviction may not be used for purposes of enhancement under this section if:
 
		(1)	the conviction was a final conviction under Subsection (d) and was for an offense
committed more than 10 years before the offense for which the person is being tried
was committed; and

		(2)	the person has not been convicted of an offense under Section 49.04, 49.05, 49.06,
49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while
intoxicated committed within 10 years before the date on which the offense for
which the person is being tried was committed.


Tex. Pen. Code Ann. § 49.09(e) (applies to intoxication-related offenses committed before
September 1, 2001).   Under the prior version of section 49.09(e), the trial court's overruling of the
motion to dismiss and motion to quash the indictment would have been correct because 1) the 1984
conviction was committed more than ten years before the 2002 DWI offense, and 2) Appellant had
been convicted of a DWI in 1997, which was within ten years before Appellant committed the 2002
DWI.  The difference between the two versions lies in the final paragraphs.  Under the earlier version
of section 49.09(e), the ten-year period for an intervening conviction is counted back from the date
on which the offense for which the person being tried was committed.  Under the current version of
section 49.09(e), the ten-year period for an intervening conviction is counted forward from one of
three dates related to the conviction alleged to be too remote for enhancement purposes.  
	To further illustrate this distinction, the court of criminal appeals has stated that the earlier
version of section 49.09(e) meant that a prior intoxication-related conviction may not be used as an
element of the offense of felony DWI if that prior offense was committed more than ten years before
the instant offense, unless there is an intervening intoxication-related conviction.  Weaver v. State,
87 S.W.3d 557, 561 (Tex. Crim. App. 2002) (emphasis added). 
	Because the indictment alleged a conviction that could not be used for purposes of
enhancement to a felony, it only alleged misdemeanor DWI.  See Mitchell v. State, 821 S.W.2d 420,
423 (Tex. App.- Austin 1991, pet. ref'd).  Therefore, the district court did not acquire jurisdiction
of this offense, and was required by law to transfer the cause to a court having misdemeanor
jurisdiction.  See Tex. Code Crim. Proc. Ann. arts. 4.05, 21.26 (Vernon 2003).  Therefore,
Appellant's sole issue is sustained. 

Conclusion
	The conviction used to enhance Appellant's 2002 DWI offense from a misdemeanor to a
felony was improper because the conviction satisfied the statutory requirements applicable to remote
convictions.  Accordingly, we reverse the judgment of the trial court and order that a reformed
judgment of conviction be entered for a misdemeanor class B offense.  See Renshaw v. State, 981
S.W.2d 464 (Tex. App.-Texarkana 1998, pet. ref'd).  We also remand this case to the trial court for
the appropriate assessment of punishment and sentencing.  Id.
	The trial court's jurisdiction was not addressed in the Anders brief; therefore, Appellant's
counsel's motion to withdraw in this case is granted and the trial court should appoint new counsel
for Appellant.  See Guerrero v. State, 64 S.W.3d 436, 441 (Tex. App.-Waco 2001, no pet.) ("The
Court of Appeals' determination that arguable issues were presented by the record . . . created a
constitutional imperative that [new] counsel be appointed.").



   DIANE DEVASTO  
									     Justice


Opinion delivered October 29, 2003.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.



























(PUBLISH)
1.  The issue concerning the remoteness of the 1984 conviction was raised in both the motion to dismiss and
the motion to quash the indictment.  The trial court also granted Appellant the right to appeal.  Appellant's notice of
appeal stated that the issue being appealed was raised by written motion and ruled on by the trial court; therefore, the
notice complies with rule 25.2(b) of the Texas Rules of Appellate Procedure.  Tex. R. App. P. 25.2(b).
2.  The State filed a document entitled, "State's Waiver of Opportunity to Respond to Appellant's Anders
Brief" and did not address any of Appellant's arguments set forth in his pro se brief.
3.  Appellant's presentation of the argument that the 1984 DWI conviction was too remote because that
conviction occurred ten years prior to the 2002 offense is incomplete.  The correct statement of the issue is that the
1984 conviction was too remote because the 2002 DWI offense occurred more than ten years after the 1984
conviction and there was no intervening intoxication-related conviction.  Nevertheless, the remoteness argument was
raised in the trial court and was subsequently overruled.  See Tex. R. App. P. 25.2(b).
