Opinion
No. 05-04-00809-CR
Opinion issued April 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-35638-PR. Affirmed.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MEMORANDUM OPINION
Francisco Avalos appeals his conviction for driving while intoxicated (DWI). After he pleaded guilty, the trial judge found appellant guilty and assessed punishment, elevated by two prior convictions, at five years' confinement, probated for seven years, and a $2,000 fine. In a single point of error, appellant claims the trial judge abused his discretion in denying appellant's pretrial motion to quash the indictment. We affirm the trial court's judgment. In his sole point, appellant claims the trial judge abused his discretion in denying his motion to quash because the indictment used 1993 DWI charges to elevate the new DWI offense to a felony and, according to appellant, the 1993 charges did not result in final convictions. In support of this argument, appellant cites the 1993 orders granting probation which state he was "adjudged guilty" but then "ordered and adjudged that the verdict and finding of guilty herein shall not be final [and] that no judgment be rendered thereon." We review a trial judge's ruling on a motion to quash an indictment under the bifurcated standard set forth in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). Under Guzman, the amount of deference we afford a trial judge's rulings "depends upon which 'judicial actor' is better positioned to decide the issue." Moff, 154 S.W.3d at 601 (citing Guzman, 955 S.W.2d at 89). The sufficiency of an indictment is a question of law. Moff, 154 S.W.3d at 601. When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial judge is in no better position to make the determination, so we conduct a de novo review of the issue. Moff, 154 S.W.3d at 601. In this case, the trial judge's decision was based only on the indictment and the motion to quash, so the trial judge was not in a better position than an appellate court to decide this issue. Moff, 154 S.W.3d at 601. A person commits the offense of DWI if he is intoxicated while operating a vehicle in a public place. Tex. Pen. Code Ann. § 49.04 (Vernon Supp. 2003). Although this offense is a class B misdemeanor, if the defendant has previously been convicted "two times of any other offense relating to the operating of a motor vehicle while intoxicated," the offense is elevated to a third-degree felony. Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon Supp. 2004-05). For convictions occurring on or after January 1, 1984 but before September 1, 1994, former article 6701 l-1 provided that a conviction "is a final conviction, whether or not the sentence for the conviction is probated." Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1574, 1576 (subsequently repealed) (now found at Tex. Pen. Code Ann. § 49.09(d) (Vernon Supp. 2004-05)); Williamson v. State, 46 S.W.3d 463, 466 (Tex.App.-Dallas 2001, no pet.). In this case, the indictment alleged appellant committed the offense of DWI on or about August 29, 2003, and that on or about January 19, 1993, he was "duly and legally convicted of" two DWI offenses. The record contains copies of each of the 1993 orders convicting appellant. Each order recites that the judge received appellant's nolo contendere plea and, after hearing the evidence, "adjudged the Defendant guilty as charged in the information." According to each order, the trial judge, after assessing punishment, placed appellant on probation. These orders "sufficiently showed" the finality of appellant's prior misdemeanor convictions. See Williamson, 46 S.W.3d at 467. We overrule appellant's sole point of error.
We affirm the trial court's judgment.
A conviction under section 49.04 "that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated." Tex. Pen. Code Ann. § 49.09(d) (Vernon Supp. 2004-05); Williamson, 46 S.W.3d at 466.
In reaching this conclusion, we decline appellant's invitation to revisit our decision in Williamson. We have reviewed appellant's argument that the analysis in Williamson is incorrect and find it unconvincing.