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State v. Morgan5/5/2004
The State charged Mark Hamilton Morgan with DWI and alleged a prior DWI conviction. Before trial, the State requested the judge to treat the information as alleging a Class A misdemeanor under Penal Code § 49.09. The judge instead ruled that he would treat it as charging a Class B misdemeanor with an enhancement allegation pursuant to Penal Code § 12.43. The State appealed this pretrial ruling. We find no jurisdiction for the State's appeal.
Facts and Procedural History
The State's information charged Morgan with driving while intoxicated on September 5, 2002. In a separate paragraph, the information alleged that Morgan had previously been convicted of driving while intoxicated in 1993. Because the judge had ruled in other cases that this type of information alleged a Class B offense, the State filed a motion for "a pre-trial determination of whether, if the defendant is found guilty, the jury will be instructed to consider a Class A range of punishment if the prior conviction is found true." The State explained that it was seeking a pretrial ruling rather than disrupt the proceedings with an appeal after a finding of guilt.
At the hearing, defense counsel argued that the State's request was premature because the State was seeking "a determination on a punishment issue" and that "any such determination should be made at the time of the punishment phase of the trial should that become necessary." The judge acknowledged that the defense "could be right," but nevertheless ruled. The judge said his opinion was that "it's impossible for the Court to instruct on a Class A range because same has not been pled because I feel like it has to be an element of the offense to come under 49.09 Class A offense. The separate paragraph is pleading for enhanced B under 12.43 of enhancement for punishment, and that's not what the State wants."
In a written order, the judge granted the State's motion in that he agreed to provide a pretrial ruling. He ruled that he would not instruct the jury on the Class A range of punishment if the defendant were found guilty and the enhancement paragraph were found true.
The State appealed this ruling. In its notice of appeal, it contended that it had the right to appeal pursuant to Art. 44.01(a)(1), which grants the State the right to appeal "an order of a court in a criminal case if the order dismisses . . . any portion of an . . . information."
The Court of Appeals, relying on State v. Moreno, concluded that it had jurisdiction over the appeal because "the trial court's ruling effectively terminated the prosecution for an 'enhanced' offense." Reaching the merits of the appeal, the appellate court found no error in the trial court's ruling and remanded the case for further proceedings. Justice Burgess dissented on this point but did not dispute the court's jurisdiction over the appeal.
We granted the State's petition for discretionary review, which asks whether the prior conviction of a DWI offense punishable as a Class A misdemeanor is an element of the offense that should be read and proved by the State at guilt-innocence. We also granted review, on our motion, of an additional ground: whether Art. 44.01, or any other law, authorizes the State's appeal in this case. Because of our resolution of this latter ground, we do not reach the State's ground for review.
Analysis
The State is entitled to appeal an order that "dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint." In Moreno, we examined this language in depth. There, the defendant filed a motion to quash the information. The trial judge granted the motion
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