Opinion
No. 05-02-00332-CR.
Opinion Issued April 2, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-80929-00. Affirmed.
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
MEMORANDUM OPINION
Joe Boyd Groves, Jr. appeals his conviction for driving while intoxicated. In a single issue, appellant contends the trial judge erred in denying his motion to quash the indictment. We disagree and affirm the trial court's judgment. We review a trial judge's denial of a defendant's motion to quash an indictment for abuse of discretion. County v. State, 812 S.W.2d 303, 312 (Tex.Crim.App. 1989); Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App. [Panel Op.] 1980); Williamson v. State, 46 S.W.3d 463, 465 (Tex.App.-Dallas 2001, no pet.). As long as the trial judge's ruling "was at least within the zone of reasonable disagreement," we will not intercede. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim. App. 1991) (op. on reh'g). Section 49.09 of the penal code provides that the Class B misdemeanor offense of DWI may be enhanced to a felony of the third degree if the person has previously been convicted two times for DWI. See Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon 2003). Subsection (e) provides that a conviction may not be used for enhancement purposes if "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 within 10 years of the latest date under Subdivision (2)." See Tex. Pen. Code Ann. § 49.09(e)(2) (Vernon 2003). Thus, "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), cert. denied, 71 U.S.L.W. 3577 (U.S. Mar. 10, 2003) (No. 02-8350). Although appellant claims the trial judge abused his discretion in denying his motion to quash the indictment, we cannot agree. Appellant was charged with driving while intoxicated (DWI) on July 4, 1999. The indictment also alleged two prior convictions for DWI: one occurring on June 25, 1996 and the other on March 17, 1986. In his motion and on appeal, appellant claimed the State was prohibited from using his 1986 conviction for enhancement purposes because it occurred fourteen years prior to the instant case. Although we agree the 1986 conviction occurred more than ten years before the charged offense, the 1996 conviction was an intervening intoxication-related conviction. See Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon 2003); Weaver, 87 S.W.3d at 561. Therefore, appellant's 1996 conviction made the use of his 1986 conviction proper for enhancement purposes. The trial judge did not abuse his discretion in denying appellant's motion to quash the indictment. We overrule his sole issue. We affirm the trial court's judgment.