When someone is charged with a crime in Texas, one of the first questions should be, “What evidence does the State have?” After considering the evidence, a careful defense will review the charging instrument to see if it satisfies the law and the facts in a particular case.
The charging instrument is a document that formally accuses someone of a crime. In felony cases it is usually an “indictment”. In misdemeanor cases, including most first-offense DWIs, it is usually an “information” filed out by a prosecutor. A criminal charging instrument must state facts which, if proved, show a violation of the law. The charging instrument must be dismissed if such facts would not constitute a criminal offense. In a criminal proceeding the indictment serves two distinct purposes: it confers jurisdiction on the trial court and it apprises an accused of the nature of the charges against them. The accused has a right to know against what charges he or she is being called upon to defend. Failure to allege an element of an offense is fundamental error which deprives the trial court of jurisdiction and renders a charging instrument legally void. A defect in the charging instrument can be a problem for the prosecution. A motion to quash is one tool for raising it.
Timing Matters
Motions to Quash must be in writing. A defendant must object to an indictment or information before the date trial on the merits begins; otherwise the objection is waived. If it is waived, it generally cannot be raised on appeal. So the charging instrument should be reviewed early in the case, not after trial has started.
What Happens If the Motion Is Granted?
Winning a motion to quash does not usually end the case. If the court grants the Motion, the State can sometimes cure the defect by amending the charging instrument. The State may also re-file or obtain a new indictment. However, sometimes winning a motion to quash leads to a dismissal of the charges.
Even if the Motion does not lead to a dismissal, it may still be valuable. It can force the State to commit to a specific manner in which the incident arose, the means by which it occurred, expose a real problem such as one involving limitations or jurisdiction, and shape the case going forward. Based on experience, a defense lawyer should weigh when raising a curable defect helps the client and when it only prompts the State to fix a problem with their case.
Prior Convictions and Enhancement
Prior convictions sometimes play a large role in DWI cases, and they can be challenged in different ways depending on how the State uses them.
- When a prior is an element of the offense. In some cases, such as felony DWI, prior convictions are part of what the State must allege and prove. If the indictment does not properly allege a qualifying prior, that is the kind of defect that may be raised by exception before trial.
- When a prior is used only to increase punishment. Challenges to the validity or use of a prior usually happen through objections and proof at trial, not by a motion to quash, because they depend on facts outside the charging instrument.
Two examples of prior-conviction issues:
Out-of-state convictions. Many states define the offense of Driving While Intoxicated differently than Texas. You may sometimes hear people refer to a “DUI” or “Driving Under the Influence”. A DUI is not the same as a Texas DWI. Out-of-state convictions may be used to enhance a DWI if the offense was substantially similar to Texas DWI statute. It is important to examine the actual statute under which the prior conviction was obtained. Defense counsel should know what the out-of-state law required at the time of the conviction and compare it with Texas’s definition of “intoxication” and with the current definition of qualifying priors in Penal Code § 49.09. For example, California Vehicle Code § 23152 addresses Driving Under the Influence of alcohol, drugs, or a combination, and other states have different alcohol-concentration thresholds. Texas appellate and trial courts have found that some out-of-state convictions do not qualify for enhancement.
Uncounseled convictions. A prior conviction obtained without counsel, and without a valid waiver of the right to counsel, generally cannot be used to prove guilt or enhance punishment.
In Walker v. State, 486 S.W.2d 330 (Tex. Crim. App. 1972), the defendant testified that he had pleaded guilty to two prior DWIs; however, he had not been advised of his right to counsel, could not afford an attorney, and would have retained counsel had he been able to afford one. The evidence did not establish a knowing and intelligent waiver of counsel, and the prior misdemeanor conviction was improperly used at both the guilt stage and for increased punishment.
Always Check the Charging Instrument
A careful early review of the charging instrument asks questions like these:
- Does the instrument allege an offense under Texas law?
- Does it give adequate notice of what the defendant is accused of doing?
- Does it appear on its face that the statute of limitations has run, or that the court lacks jurisdiction?
- Was it presented in the proper court and returned by a proper grand jury (where one is required)?
- Where the State relies on prior convictions as elements, are they properly alleged?
Separately, the defense should evaluate, through other motions and objections, whether the offense was committed in the county where it was filed and whether prior convictions are valid and qualify for enhancement.
The State must properly charge a person before it asks a court to convict and punish that person, and a careful defense begins by attacking any defects in the indictment or information.
If you or someone you know has been charged with a crime, contact our office to discuss whether the charging instrument in your case may be challenged.
David B. Frank is a criminal defense attorney in Austin, Texas, practicing in state and federal court. This post is for general informational purposes and does not constitute legal advice. Every case is different; consult an attorney about your specific situation.
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