Opinion
No. 05-03-01832-CR
Opinion Filed February 24, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-39953-HM. Reverse and Remand.
Before Justices O'NEILL, LANG, and LANG-MIERS.
MEMORANDUM OPINION
The State appeals an order quashing the indictment in a felony driving while intoxicated (DWI) case. The issue presented is whether two prior DWI offenses that both occurred more than ten years before the charged offense, but within ten years of one another, can be used to enhance a misdemeanor DWI to a felony. The trial court concluded they could not and quashed the indictment. For the following reasons, we reverse the trial court's order and remand for further proceedings consistent with this opinion. The indictment alleged appellant committed his most recent DWI on May 2, 2003. To enhance the DWI to a felony, the indictment alleged two prior DWI convictions, occurring on December 9, 1992 and January 5, 1993. Appellant was released from confinement for both prior convictions on February 3, 1993. Appellant filed a motion to quash the indictment asserting it did not allege a felony because both the prior DWI offenses occurred more than ten years before the most recent offense. The trial court agreed and quashed the indictment. The State appeals. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp. 2004-05). Under section 49.09(b)(2) of the penal code, the offense of DWI is a third degree felony if the defendant has two previous DWI convictions. See Tex. Pen. Code Ann. § 49.09(b)(2) (Vernon 2003). However, section 49.09(e) contains a limitation, known as the "ten year rule," on what prior convictions can be used for felony enhancement. Applying section 49.09(e), the trial court quashed the indictment because appellant was not convicted of a DWI offense within ten years from the date of the charged offense. The State asserts the trial court incorrectly interpreted section 49.09(e) and maintains both of appellant's convictions may be used for enhancement because both convictions occurred within ten years of one another. The court of criminal appeals has recently decided this precise issue in favor of the State. See Getts v. State, PD-0093-04, 2005 WL 156633 (Tex.Crim.App. Jan. 26, 2005). Specifically, the question of whether a prior DWI conviction can be used for enhancement depends upon whether the defendant was convicted of another DWI within ten years of the prior conviction, not the charged conviction. See Getts, slip op.at 3 app. at 6. Because appellant's prior convictions occurred within ten years of one another, both are available for enhancement. See Getts, app. at 6. Therefore, the trial court erred in granting appellees' motion to quash the indictment. We reverse the trial court's order and remand for further proceedings consistent with this opinion.