THE STATE OF TEXAS, Appellant v. JEFFORY KARL CHRISTENSEN, Appellee

REVERSE and REMAND and Opinion Filed June 6, 2011
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-00940-CR
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THE STATE OF TEXAS, Appellant
V.
JEFFORY KARL CHRISTENSEN, Appellee
.............................................................
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F10-51261
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OPINION
Before Justices Murphy, Fillmore, and Myers
Opinion By Justice Fillmore
        Jeffory Karl Christensen was indicted for felony driving while intoxicated (DWI). The Texas Penal Code provides that a DWI offense is a third-degree felony if the person has two prior convictions relating to the operating of a motor vehicle while intoxicated. See Tex. Penal Code Ann. § 49.09(b)(2) (West Supp. 2010). The indictment in this case alleged Christensen had been convicted of “an offense related to driving while intoxicated” in Denton County, Texas in 1989 and in Arapaho County, Colorado in 2002. The conviction in Colorado was for driving while ability impaired (DWAI). Christensen filed a motion to quash the enhancement paragraph relating to the DWAI conviction, asserting Colorado's DWAI law was not substantially similar to the Texas DWI statute. The trial court granted the motion, and the State brought this appeal. We reverse the trial court's order and remand this case to the trial court for further proceedings.
Jurisdiction
 
        Christensen initially challenges this Court's jurisdiction over this appeal. The State's right to appeal in a criminal case must be authorized by statute. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011) (orig. proceeding) (“[I]n Texas, appeals by either the State or the defendant in a criminal case are permitted only when they are specifically authorized by statute.”); see also Tex. Code Crim. Proc. Ann. art. 44.01 (West Supp. 2010). As relevant to this case, article 44.01(a)(1) of the code of criminal procedure gives the State authority to appeal an order of the trial court that dismisses an indictment or any portion of an indictment. Id. art. 44.01(a)(1). Pursuant to article 44.01(a)(1), the State has the right to appeal any order, short of an acquittal, that effectively terminates the prosecution in favor of the defendant. State v. Stanley, 201 S.W.3d 754, 758 (Tex. Crim. App. 2006); Moreno v. State, 807 S.W.3d 327, 332 (Tex. Crim. App. 1991). The trial court “effectively terminates” the prosecution in favor of the defendant when the effect of its order forces any alteration of the indictment before the trial on the merits and the State is not willing to comply with that order. Stanley, 201 S.W.3d at 758; Moreno, 807 S.W.3d at 334.
        Relying on State v. Morgan, 160 S.W.3d 1 (Tex. Crim. App. 2004), Christensen asserts we do not have jurisdiction over this appeal because the trial court's order did not terminate the prosecution or dismiss a portion of the indictment that alleged independent criminal conduct that would support a separate prosecution. In Morgan, the State charged the defendant with DWI by an information containing an enhancement paragraph alleging a prior DWI conviction. Before trial, the State requested the trial court rule the information charged a Class A misdemeanor under section 49.09 of the penal code. The trial court denied the State's request and ruled the information charged a Class B misdemeanor with an enhancement allegation for punishment under section 12.43 of the penal code.   See Footnote 1  The court of criminal appeals recognized the penal code includes “two separate statutes providing for potentially increased punishment in the case of a person's second offense of driving while intoxicated” and that the trial court determined, due to the manner in which the State crafted the information, that section 12.43(b) controlled. Id. at 4.
        The court of criminal appeals concluded the trial court's ruling affected only the possible punishment range. Id. at 4, 5. Although the prosecution might not proceed in the manner in which either the State or the defendant desired, it could proceed based on the information as written. Id. Further, the trial court's order did not force the State to alter the information before trial could proceed. Id. at 4. Because the trial court's order did not effectively terminate the prosecution, the State was attempting to appeal from an interlocutory order, and the appellate court did not have jurisdiction to consider the appeal. Id. at 4-5 (article 44.01(a) of the code of criminal procedure does not permit an interlocutory appeal).
        The issue in Morgan was whether the trial court properly construed the information to allege a Class B misdemeanor with enhanced punishment rather than a Class A misdemeanor. The trial court's order did not effectively terminate the prosecution. In this case, the trial court's order did not simply construe the indictment while allowing the prosecution to proceed. Rather, “[p]rior convictions are essential elements of a felony DWI under penal code section 49.09(b), and must be pleaded and proven at the guilt-innocence phase to support a felony conviction.” State v. Duke, 59 S.W.3d 789, 790 (Tex. App.-Fort Worth 2001, pet. ref'd) (op. on reh'g). In this case, as in Duke, the trial court's order quashing one of the enhancement paragraphs “effectively dismissed the felony portion of the indictment and reduced the State's case to a misdemeanor prosecution.” See id. Because the trial court effectively dismissed a portion of the indictment, the State is authorized to appeal the order under article 44.01(a)(1) of the code of criminal procedure. See Moreno, 807 S.W.2d at 332 (State has power to appeal from any trial court order that effectively terminates prosecution in favor of defendant); State v. McGuffey, 69 S.W.3d 654, 656 (Tex. App.-Tyler 2002, no pet.) (“Because the trial court ordered the State not to read the two prior DWI convictions during the reading of the indictment to the jury, effectively dismissing that portion of the indictment, the trial court's order became appealable by the State pursuant to article 44.01(a)(1).”); Duke, 59 S.W.3d at 790.   See Footnote 2  Accordingly, we conclude we have jurisdiction over this appeal. See Moreno, 807 S.W.2d at 332; McGuffy, 69 S.W.3d at 656; Duke, 59 S.W.3d at 790.
Quashing of Enhancement Paragraph
 
        In its sole issue on appeal, the State contends the trial court erred by granting Christensen's motion to quash the enhancement paragraph because the DWAI conviction was for an offense under the laws of another state relating to operating a motor vehicle while intoxicated.
Standard of Review
 
         The trial court's decision to grant the motion to quash was based on the indictment, Colorado and Texas law, and records from the Colorado court showing Christensen was convicted of DWAI. The sufficiency of an indictment is a question of law. Smith v. State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, the trial court is in no better position than the appellate court to make the determination, and the appellate court conducts a de novo review of the trial court's decision. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (applying standard of review set out in Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997) to motion to quash an indictment); see also Smith, 309 S.W.3d at 13-14. We must affirm the trial court's ruling if it is correct under any theory of law applicable to the case. See Ross v. State, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000) (applying Guzman standard of review to motion to suppress); State v. Jones, 168 S.W.3d 339, 345 (Tex. App.-Dallas 2005, pet. ref'd) (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999) and applying Guzman standard of review to motion to dismiss indictment); State v. Draper, 940 S.W.2d 824, 826 (Tex. App.-Austin 1997, no pet.).
Applicable Law
 
        In the trial court, Christensen argued the DWAI conviction could not be used to enhance the current DWI charge because a person could be convicted under the DWAI statute who (1) would not be intoxicated under Texas law, or (2) would not be operating a vehicle under Texas law. In Texas, a person commits DWI if the person is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (West 2003). Unless statutorily enhanced, DWI is a Class B misdemeanor. Id. § 49.04(b). As relevant here, DWI is enhanced to a third-degree felony if a person has previously been convicted two times of any other offense “relating to the operating of a motor vehicle while intoxicated.” Tex. Penal Code Ann. § 49.09(b)(2); see also Ex parte Roemer, 215 S.W.3d 887, 889 (Tex. Crim. App. 2007). An “offense relating to the operating of a motor vehicle while intoxicated” includes “an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.” Tex. Penal Code Ann. § 49.09(c)(1)(F). For purposes of Texas DWI law, “intoxicated” means (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more. Id. § 49.01(2) (West 2003).
        Colorado does not use the term “intoxicated” in its statute governing the offense of driving under the effects of alcohol or a drug. Rather, in Colorado it is a misdemeanor to drive a motor vehicle or vehicle (1) under the influence of alcohol, one or more drugs, or a combination of both alcohol and one or more drugs (DUI), (2) while impaired by alcohol, one or more drugs, or a combination of alcohol and one or more drugs (DWAI), or (3) when the person's blood or breath alcohol content (BAC) is 0.08 or more at the time of driving or within two hours after driving (DUI per se). Colo. Rev. Stat. Ann., § 42-4-1301 (1)(a)-(b), (2)(a) (West 2010).   See Footnote 3  DUI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
 
Id. § 42-4-1301(1)(f). DWAI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
 
Id. § 42-4-1301(g). The statute provides that if, at the time of the alleged offense or within a reasonable time thereafter, (1) the defendant's BAC was 0.05 or less, it is presumed the defendant was not under the influence of alcohol and the defendant's ability to operate a motor vehicle was not impaired by the consumption of alcohol; (2) the defendant's BAC was in excess of 0.05 but less than 0.08, there is a permissible inference that the defendant's ability to operate a motor vehicle was impaired by the consumption of alcohol and such fact may also be considered along with other competent evidence in determining whether the defendant was under the influence of alcohol; and (3) the defendant's BAC was 0.08 or more, there is permissible inference that the defendant was under the influence of alcohol. Id. § 42-4-1301(6)(a). DWAI is a lesser-included offense of DUI. People v. Swain, 959 P.2d 426, 428 (Colo. 1998).
Operation of Motor Vehicle
 
        We first consider whether a person could be convicted of DWAI in Colorado for conduct that would not involve “operating” a motor vehicle under Texas law. Relying on Swain, Christensen contends it is sufficient to support criminal liability under the DWAI statute if the defendant is in “actual physical control” of the vehicle. Christensen argues the Colorado supreme court has concluded a defendant can be found guilty of violating the DWAI statute by simply sleeping in a vehicle while impaired.
        In Swain, the defendant, after drinking at least two beers, drove out of Durango towards Farmington, New Mexico. The defendant became lost and ultimately parked on the side of the road and fell asleep in his pick-up truck. Two sheriff's deputies saw the pick-up truck and decided to investigate whether it was an abandoned vehicle. The deputies found the defendant asleep or passed out in the front seat with his head resting towards the passenger-side door. The keys were in the ignition, and the radio was playing. The engine was not running, and there was no evidence of whether the truck's headlights were on. The deputies smelled an odor of alcohol on the defendant's breath and noticed his speech was slow and slurred, his eyes were bloodshot, and his clothes were dirty and in disorder. The deputies also observed a twelve-pack of beer on the floor of the truck with two cans opened. The defendant told the deputies that he was on his way to Farmington and had been in Durango earlier.
        The defendant was charged with DUI. The trial court instructed the jury that a person “drove” a vehicle if he was in actual physical control of the vehicle and provided the jury with factors it could consider in deciding whether the defendant was in actual physical control of the pick- up truck. The jury found the defendant guilty of the lesser-included offense of DWAI.
        The defendant appealed, arguing the trial court erroneously instructed the jury that “drove” meant “actual physical control.” The appellate court agreed, concluding that “some movement of the vehicle is generally required,” and reversed the conviction. Id. at 429. The Colorado supreme court, however, concluded “drive” requires only “actual physical control” of the vehicle. Id. at 431
        We agree with Christensen that Swain stands for the proposition that a person “drives,” for purposes of the Colorado DWAI statute, by exerting actual physical control over a vehicle. However, we disagree with Christensen that Swain stands for the proposition that a person can be found guilty of violating the DWAI statute solely for sleeping in a vehicle while impaired. Rather, the Colorado supreme court specifically stated it had not been asked to review the sufficiency of the evidence and, therefore, did “not express an opinion as to whether [the defendant] exercised 'actual physical control' of a vehicle for purposes of the DUI statute.” Id. at 431 n.14.
        In People v. VanMatre, 190 P.3d 770, 772 (Colo. App. 2008), the defendant was convicted of DUI and aggravated driving after revocation prohibited (DARP).   See Footnote 4  There was evidence, however, that the vehicle was out of gas and had a dead battery at the time the defendant was arrested. On appeal, the defendant argued the trial court erred by not instructing the jury that it was required to find the vehicle was reasonably capable of being rendered operable in order to convict him of DUI or DARP.
        The Colorado appellate court concluded:
The term “drive” in the DUI statute means to exercise actual physical control over a motor vehicle. The term “operate” in the DARP statute is somewhat broader, connoting the action of causing something to occur or to cause to function, usually by direct personal effort. Neither term requires actual physical movement of a vehicle, nor need a vehicle travel any particular distance.
 
Id. at 772 (citations omitted); see also People v. Gregor, 26 P.3d 530, 532 (Colo. App. 2000) (agreeing with State that term “operate” is broader than term “drove” and “is not limited to actual movement of the vehicle”). “The threat that impaired driving statutes seek to avoid is that a vehicle will be put into motion by an intoxicated occupant and thus pose a risk to the safety of the occupant and others.” VanMatre, 190 P.3d at 773. The determination of whether the defendant drove or operated the vehicle is based on the totality of the circumstances. Id.
        In Texas, the penal code does not define “operating” for the purposes of the DWI statute. Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995). However, the court of criminal appeals has concluded a person operates a vehicle when the totality of the circumstances demonstrates “that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use.” Id. at 390; see also Barton v. State, 882 S.W.2d 456, 459 (Tex. App.-Dallas 1994, no pet.); Dornbusch v. State, 262 S.W.3d 432, 436 (Tex. App.-Fort Worth 2008, no pet.). Under this standard, “operating” a motor vehicle is interpreted very broadly. Strong v. State, 87 S.W.3d 206, 215 (Tex. App.-Dallas 2002, pet. ref'd); Dornbusch, 262 S.W.3d at 436. “[W]hile driving does involve operation, operation does not necessarily involve driving.” Denton, 911 S.W.2d at 389. “Because 'operating a motor vehicle' is defined so broadly, any action that is more than mere preparation toward operating the vehicle would necessarily be an 'action to affect the functioning of [a] vehicle in a manner that would enable the vehicle's use.'” Strong, 87 S.W.3d at 216 (quoting Barton, 882 S.W.2d at 459); see also Dornbusch, 262 S.W.3d at 436. The action need not be successful in causing the vehicle to function for the person to be operating it. Strong, 87 S.W.3d at 215.   See Footnote 5 
        The “actual physical control” test employed by the Colorado courts when interpreting and applying that state's statutes relating to “operating” or “driving” a motor vehicle while impaired by or under the influence of alcohol is virtually identical to the one used by Texas courts in interpreting and applying the term “operating” in the penal code. Accordingly, we conclude Colorado's DWAI statute, which proscribes driving a motor vehicle while impaired, satisfies section 49.09(c)(1)(F)'s requirement that the laws of another state prohibit the “operation” of a motor vehicle while intoxicated.
Intoxication
 
        We next turn to Christensen's argument in the trial court that the DWAI conviction may not be used for enhancement purposes because being “impaired” under the DWAI statute is something less than being “intoxicated” under the Texas Penal Code. In Texas, the State can prove intoxication through the “per se” theory by establishing the defendant had an alcohol concentration of at least 0.08 or through the “impairment” theory by proving the defendant did not have the normal use of mental or physical faculties by reason of the introduction of alcohol or another substance. Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010) (State can prove intoxication through per se theory or impairment theory); see also Tex. Penal Code Ann. § 49.01(2)(A), (B). Whether a person is intoxicated under the impairment theory is evaluated based on the manner in which a normal non- intoxicated person would be able to use his faculties. Massie v. State, 744 S.W.2d 314, 316 (Tex. App.-Dallas 1988, pet. ref'd).
        The Colorado DWAI statute prohibits driving a motor vehicle when a person has consumed alcohol that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control or due care in the safe operation of a vehicle. Colo. Rev. Stat. Ann. § 42-4-1301(1)(g). The statute creates a permissive inference that a person with a BAC in excess of 0.05 is impaired by alcohol and that a person with a BAC in excess of 0.08 is under the influence of alcohol. However, a person with a BAC in excess of 0.05 and less than 0.08 could be either impaired or under the influence of alcohol, depending on other competent evidence. See id. § 42-4-1301(6)(a). Regardless of whether a person is impaired by or under the influence of alcohol, that person is prohibited from driving a motor vehicle. See id. § 42-4-1301(1), (2).
        Further, in Colorado, a person can be found to be impaired based on evidence other than a BAC. See Snyder v. City & Cnty. of Denver, 227 P.2d 341, 343 (Colo. 1951) (concluding evidence other than BAC sufficient to show defendant was impaired under municipal ordinance containing definition of “impaired” similar to definition in DWAI statute); see also Thompson v. People, 510 P.2d 311, 314 (Colo. 1973) (concluding “slightest degree” definition in Snyder applicable to DWAI). This evidence includes (1) the odor of alcohol on the defendant's breath, (2) the defendant's face being flushed, (3) the defendant having watery and bloodshot eyes, (4) the defendant swaying and being “wobbly” when walking, and (5) the defendant's speech being slurred. Snyder, 227 P.2d at 342; see also Thompson, 510 P.2d at 314 . In Texas, evidence of intoxication under the impairment theory may include: (1) slurred speech, (2) bloodshot eyes, (3) the odor of alcohol on the person or on the breath, (4) an unsteady balance, and (5) a staggered gait. See Cotton v. State, 686 S.W.2d 140, 142 & n.3 (Tex. Crim. App. 1985); Tex. Dept. of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 880 (Tex. App.-Fort Worth 2009, no pet.) (en banc) (op. on reh'g); see also Kirsch, 306 S.W.3d at 745 (evidence that logically raises inference of intoxication includes, among other things, stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, and any admissions concerning what, when, and how much defendant had been drinking).   See Footnote 6 
        The fact that Colorado recognizes different degrees of impairment through its DUI and DWAI laws does not mean a person “impaired” for purposes of the DWAI statute is not “intoxicated” for the purposes of the Texas Penal Code. See Dougherty v. Brackett, 51 B.R. 987, 989 (Bankr. D. Colo. 1985) (concluding that “various degrees of intoxication” defined by Colorado's DUI and DWAI statute are “all legal intoxication” within meaning of bankruptcy code).   See Footnote 7  Further, absent a BAC, the evidence sufficient to prove in Colorado that a person is impaired under the DWAI statute is almost identical to that sufficient to prove intoxication due to the loss of the normal use of physical and mental faculties in Texas. Accordingly, circumstances resulting in a conviction for DWAI in Colorado are encompassed within the statutory definition of “intoxication” in the Texas Penal Code.   See Footnote 8 
Conclusion
 
        We conclude Christensen's DWAI conviction in Colorado was an “offense relating to the operating of a motor vehicle while intoxicated” under section 49.09(b)(2) of the penal code. Accordingly, Christensen's DWAI conviction can be used to enhance the DWI charge in Texas, and the trial court erred by granting Christensen's motion to quash the enhancement paragraph based on the DWAI conviction in Colorado. We sustain the State's sole issue, reverse the trial court's order, and remand this case to the trial court for further proceedings.
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
100940F.U05
 
Footnote 1 Whether the information charged a Class A misdemeanor or a Class B misdemeanor with enhanced punishment impacted any potential sentence imposed on the defendant. See Tex. Penal Code Ann. § 49.09(a) (West Supp. 2010) (conviction of DWI with one prior conviction relating to operating of motor vehicle while intoxicated is Class A misdemeanor with a minimum term of confinement of thirty days); § 12.21 (West 2003) (punishment for Class A misdemeanor is fine not to exceed $4,000, confinement for term not to exceed one year, or both fine and confinement); § 12.43 (West 2003) (defendant convicted of Class B misdemeanor who has previously been convicted of Class A or Class B misdemeanor to be punished by fine not to exceed $2,000, confinement in jail for not more than 180 days or less than 30 days, or both fine and confinement).
Footnote 2 See also State v. Whitehead, No. 05-94-01914-CR, 1996 WL 317117, at *1 (Tex. App.-Dallas May 30, 1996, no pet.) (not designated for publication) (concluding appellate court had jurisdiction over State's appeal of trial court's dismissal of two enhancement paragraphs in indictment charging defendant with possession of cocaine because the “order the State complains of dismisses the two enhancement paragraphs of the indictment”); State v. Arredondo, No. 03-04-00638-CR, 2005 WL 2313605, at *1 (Tex. App.-Austin Sept. 22, 2005, no pet.) (mem. op., not designated for publication) (concluding appellate court had jurisdiction over State's appeal because “order at issue effectively terminated [defendant's] felony prosecution in district court”).
Footnote 3 Section 42-4-1301 has been amended numerous times by the Colorado legislature since the date of Christensen's DWAI conviction. Because the amendments did not substantively change the provisions relevant to this case, we cite to the current statute for convenience. However, we note that in 2004, the Colorado legislature changed the BAC for DUI per se from 0.1 to 0.08. In 2008, the Colorado legislature moved the definitions of BAC, DUI, DWAI, and DUI per se from section 42-4-1300.3 to section 42-1-102.
Footnote 4 A person commits aggravated DARP if he is found to be a habitual offender, operates a motor vehicle while the revocation is in effect, and, as part of the same criminal episode, commits one of a list of offenses, including DUI per se, DUI, and DWAI. Colo. Rev. Stat. Ann. § 42-2- 206(1)(b)(I)(A),(B) (West 2010).
Footnote 5 Christensen relies on Haskins v. State, 960 S.W.2d 207, 209 n.3 (Tex. App.-Corpus Christi 1997, no pet.) and Ollila v. State, No. 03-00- 00417-CR, 2001 WL 987158 (Tex. App.-Austin Aug. 30, 2001, no pet.) (not designated for publication) for the proposition that “[a]t least two Texas appellate courts have recognized the incongruence of allowing a foreign conviction to be used as an enhancement under the felony DWI statute where the foreign conviction does not require actual operation of a vehicle while intoxicated.” However, in Haskins, the State did not attempt to use the defendant's prior conviction in Wyoming to enhance the DWI charge in Texas, and the appellate court's statement that the Wyoming statute could not be used for enhancement purposes is dicta. See Haskins, 960 S.W.2d at 209 & n.3. In Ollila, the State sought to enhance the defendant's current DWI charge in Texas with a prior DWI conviction in Texas (the 1996 conviction). The1996 conviction had been enhanced based on convictions in Oregon and South Dakota. In the case on appeal, the defendant asserted the 1996 conviction was void because South Dakota DWI law was broader than Texas law. Olilla, 2001 WL 987158, at *1. The appellate court assumed, without deciding, that the defendant was correct in his assertion that the prior conviction for DWI in South Dakota could not be used for enhancement purposes and concluded that, because the defendant pleaded true in the 1996 conviction to the enhancement allegation based on the South Dakota conviction, he could not now collaterally attack the 1996 conviction. Id. at *2. Neither case contains a substantive analysis of whether the Colorado courts' interpretation of the term “drive” in the DWAI statute satisfies the penal code's requirement that the prior conviction be for an offense relating to the operation of a motor vehicle while intoxicated.
Footnote 6 In the trial court, Christensen relied on State v. McNally, 50 P.3d 1080 (Mont. 2002), to support his argument the Colorado DWAI conviction could not be used to enhance the Texas DWI charge. In McNally, the Montana Supreme Court determined four prior convictions in Colorado for DWAI could not be used to enhance a conviction for DUI in Montana because “Colorado's DWAI provision allows a person to be convicted under a lower standard than that required under Montana's DUI statute.” Id. at 1085. However, the Montana statute allowed a conviction in another state to be used for enhancement purposes only when the out-of-state conviction was for a “violation of a similar statute or regulation in another state.” Id. at 1083. In contrast, the Texas Penal Code requires only that the out-of-state conviction be “an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.” Tex. Penal Code Ann. § 49.09(c)(1)(F). Accordingly, we conclude McNally is distinguishable.
Footnote 7 When Doughtery issued in 1985, section 523(a)(9) of the bankruptcy code declared nondischargeable any debt which:
 
arises from a judgment or consent decree entered in a court of record against the debtor wherein liability was incurred by such debtor as a result of the debtor's operation of a motor vehicle while legally intoxicated under the laws or regulations of any jurisdiction within the United States or its territories wherein such motor vehicle was operated and within which such liability was incurred.
 
Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, Title III, § 371, 98 Stat. 333, 364 (1984). Accordingly, the Dougherty Court applied the law of Colorado in determining whether the debtor was intoxicated. See Doughtery, 51 B.R. at 988-89. Although section 523(a)(9) has been amended since Dougherty, federal courts still look to the law of the relevant state to determine whether a debtor was intoxicated for purposes of section 523(a)(9). See In re Henney, No. 1:07-CV-14, 2011 WL 1642853, at *12 (W.D. Mich. Apr. 25, 2011) (joining other federal courts “which have logically held that a federal court applying section 523(a)(9) should adopt the definition of 'intoxication' or 'intoxicated' which is supplied by the relevant State's law”).
Footnote 8 We note that a pre-trial motion to quash cannot be used to “argue that the prosecution could not prove one of the elements of the crime.” Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007) (quoting Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005)); State v. Seibert, 156 S.W.3d 32, 37-38 (Tex. App.-Dallas 2004, no pet.) (in ruling on motion to quash, trial court must “test indictment on its face, as a pleading, not by what evidence may support it”).