THE STATE OF TEXAS v. RAUL GONZALES--Appeal from 117th District Court of Nueces County

   NUMBER 13-04-00635-CR

   COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

THE STATE OF TEXAS, Appellant,

v.

RAUL GONZALES, Appellee.

   On appeal from the 117th District Court of Nueces County, Texas.

   MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

The State appeals from an order of the trial court granting a motion to quash the indictment charging appellee, Raul Gonzales, with the offense of driving while intoxicated (ADWI@), enhanced to a third-degree felony.[1] By five points of error, the State contends the trial court erred in quashing the indictment.[2] Gonzales did not file a brief in response to the State=s appeal. We reverse and remand.

A grand jury indicted Gonzales for DWI. The indictment alleged that Gonzales had two or more prior convictions for DWI. Gonzales filed a motion to quash the indictment asserting that because he had not been represented by counsel in the two prior cases he had not been warned of the possibility that those convictions could later be used for enhancement purposes. Thus, he argued, the prior convictions were unconstitutional.

At the hearing on the motion to quash, the State entered records of the two prior convictions into evidence. Each includes a AWaiver of Rights and Plea of Guilty/Nolo Contendere@ signed by Gonzales and states as follows:

I HAVE NO LAWYER TO REPRESENT ME. I know I have the right to have a lawyer represent me and that one will be appointed for me by the Judge if I am too poor to hire my own.

I do not intend to hire a lawyer and I do not want the Judge to appoint one for me. I will represent myself, even though my punishment may include jail time.

Further, I understand that if I represent myself, I may be waiving possible defects in the State=s pleadings, losing any defense I may have, giving up any right I may have to complain of any errors the Court may make in the proceedings, and that I may be convicted even though I may not be guilty. I understand that I may not be heard at a later time to complain because I gave up my right to a lawyer.

An AOrder Accepting Plea,@ signed by the trial judge, appears at the bottom of each document. The order provides:

It appears to the Court the Defendant is mentally competent and that the foregoing plea of Guilty/Nolo Contendere is made freely and voluntarily. The Plea is accepted.

We apply a bifurcated standard when we review a trial court=s decision to quash an indictment, affording almost total deference to the trial court=s determination of historical facts, but reviewing de novo legal questions and mixed questions of law and fact which do not turn on an evaluation of the credibility and demeanor of a witness. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

By its third point of error, the State contends the trial court erred in granting the motion to quash because failure to admonish of the possible use of convictions for enhancement is not a legally sufficient reason to invalidate prior convictions. We agree.

A trial court is not required to admonish a defendant that any resulting conviction could be used for enhancement of punishment in the event of a later conviction. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-05); see also Worton v. State, 492 S.W.2d 519, 520 (Tex. Crim. App. 1973); Green v. State, 491 S.W.2d 882, 883 (Tex. Crim. App. 1973); Ex Parte Villalpando, 85 S.W.3d 832, 835-36 (Tex. App.BWaco 2002 no pet.). Such an admonishment is not an essential admonishment in advising the accused of the consequences of his plea. Worton, 492 S.W.2d at 520. Accordingly, we hold the trial court erred in granting appellee=s motion to quash the indictment.

The State=s third point of error is sustained. In light of our disposition, it is unnecessary to address the State=s remaining points of error. See Tex. R. App. P. 47.1.

We reverse the trial court=s order granting appellee=s motion to quash the indictment and remand the case to the trial court for further proceedings.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 7th day of July, 2005.

[1] See Tex. Pen. Code Ann. ''49.04 & 49.09(b) (Vernon 2003).

[2] In its first issue, the State argues that the trial court erred in granting the motion to quash because the judge disqualified himself from taking any further action by calling the defendant as a witness and questioning him. However, the State failed to preserve this complaint because it did not make a timely request, objection or motion to the trial court. See Tex. R. App. P. 33.1. Consequently, this issue is waived.