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Click here for the full text of this decision FACTS:The State charged Mark Hamilton Morgan with DWI and alleged a prior DWI conviction. Before trial, the state requested the judge treat the information as alleging a Class A misdemeanor under Texas 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 Texas Penal Code �12.43. The state appealed this pretrial ruling. HOLDING:Reversed and remanded. Regardless of how the trial court were to rule on the state’s pretrial motion, this DWI prosecution would proceed. It may not proceed in the manner in which the state or Morgan desired. It may proceed with the evidence of the prior DWI conviction being admitted at guilt-innocence. It may proceed with Morgan being subjected to a punishment range that one party opposes. But the prosecution will proceed. Nothing in the trial court’s order purports to prevent the prosecution from moving forward on this information. The order does not force an alteration of the information before trial can proceed. Instead, it forces the state to alter the information before trial can proceed in the manner in which the state chooses. Since the prosecution would proceed regardless of the trial court’s ruling, this is an interlocutory appeal. As a general rule, interlocutory appeals are not permitted. Texas Code of Criminal Procedure Art. 44.01 provides several instances in which the state can appeal, but only one of those involves an interlocutory appeal. Subsection (a)(5) allows the state to file an interlocutory appeal from a trial court’s order granting a motion to suppress evidence. But the statute specifies conditions to such an appeal. The prosecutor must include a certification that the appeal is not taken for purposes of delay. There is no certification requirement under any of the other subsections, including subsection (a)(1). So an appeal under subsection (a)(1) is not to be utilized as an interlocutory appeal. It is supposed to be used only if the prosecution is terminated. Additionally, the court has have recognized the need for speed with interlocutory appeals. The state seeks such speed in this case. It filed a motion to expedite this appeal on July 1, 2003, which this court denied. The state’s recognition that speed is desirable is further evidence that this is an interlocutory appeal. And in the motion, the state concedes that “[i]f the court of appeals is correct, the state will happily read and prove the prior conviction at guilt-innocence.” The state acknowledges that this case will proceed, one way or another, after the trial court’s order. So the trial court’s order did not terminate the prosecution, and no jurisdiction exists for this appeal. The court disagrees with the state that the trial judge’s order “effectively terminated the prosecution.” The order in this case affected only Morgan’s possible punishment range. As a result, this is an interlocutory appeal for which appellate courts have no jurisdiction. OPINION:Keasler, J.; Meyers, Price, Womack, Johnson, Hervey, Holcomb and Cochran, JJ., join. Keller, P.J., concurs in the result.

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