Disheroon v. State , 1985 Tex. Crim. App. LEXIS 1256 ( 1985 )

OPINION

McCORMICK, Judge.

This is a direct appeal from a conviction for the aggravated robbery of a pharmacy clerk in Lubbock County. The jury assessed punishment at ninety-nine years’ confinement in the Texas Department of Corrections. The sufficiency of the evidence is not challenged.

Joe Allen Disheroon was initially indicted for aggravated robbery with two enhancement paragraphs alleging previous felony convictions for burglary and swindling by worthless check. See V.T.C.A., Penal Code, Section 12.42. Although the State later “dropped” the enhancement paragraphs of the indictment, the district attorney introduced proof of the prior convictions into evidence at the punishment stage of trial as part of appellant’s “prior criminal record.” Article 37.07, Section 3(a), V.A.C.C.P. Appellant contends the trial court erred in admitting his 1965 felony worthless check conviction, Cause No. 3284-B, from Taylor County. Specifically, Disheroon argues that the felony worthless check conviction is void because he was not represented by counsel in 1964-65 when he pled guilty to two misdemeanor worthless check charges that were used to enhance Cause No. 3284-B to a felony.

The progeny of the United States Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), designed to enforce the Sixth Amendment right to counsel, form the basis for appellant’s argument. In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Court held:

"... absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Id. 407 U.S. 37, 92 S.Ct. 2012, 32 L.Ed.2d 538.

The rule of Argersinger is retroactive, Berry v. Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (1973), but limited in misdemeanors to those cases where the defendant is actually sentenced to jail. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). However, an uncoun-seled misdemeanor conviction without jail sentence cannot be used to enhance a penalty so as to convert a subsequent misdemeanor to a felony with a prison term. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). See also, Ex parte Olvera, 489 S.W.2d 586, 589 (Tex.Cr.App.1973) (where accused is indigent, without counsel, and does not waive same, conviction is void and cannot be used for enhancement of punishment for another offense).

Prior to 1972, a defendant’s right to counsel in a misdemeanor proceeding was not generally recognized in all jurisdictions. See, Argersinger v. Hamlin, supra. Therefore, appellant’s counsel in Cause No. 3284-B in 1965 could not be expected to object to the enhancing misdemeanors on that basis, and appellant is not precluded by our decision in Hill v. State, 633 S.W.2d 520 (Tex.Cr.App.1982) from raising the issue now. However, appellant has the burden to prove that with respect to the enhancing misdemeanors (1) he was indigent, (2) he was without counsel, and (3) he did not voluntarily waive the right to counsel. See, Chancy v. State, 614 S.W.2d 446, 447 (Tex.Cr.App.1981); Maddox v. State, 591 S.W.2d 898, 902 (Tex.Cr.App.1979) cert. denied 447 U.S. 909, 100 S.Ct. 2994, 64 L.Ed.2d 859 (1980); Bray v. State, 531 S.W.2d 633, 634 (Tex.Cr.App.1976).

Before the State “dropped” the enhancement paragraphs from appellant’s indictment, the trial court held a hearing on the appellant’s motion to quash. At the hearing the parties delved into the question of admitting the allegedly void felony conviction. Appellant testified that the value of the check on which the felony was prosecuted was $10.00 and that the two underlying prior worthless check convictions were misdemeanors. According to Disheroon, he was not represented by counsel when he entered guilty pleas prior to the felony plea in January, 1965 (Cause No. 3284-B). He was not aware he had a right to an attorney when he entered the pleas and did not affirmatively waive his right to an attorney. He was indigent and received jail time on one of the earlier misdemeanors, but did not remember the length of the jail sentence or the specific misdemeanor for which jail time had been assessed. The prosecution on cross-examination established that in 1965 appellant was 18 or 19 years old, married with two children, employed as a carpenter’s helper at $2.75 an hour, rented a furnished house and owned a car. Thus, according to the district attorney, he was not indigent. The trial judge ruled the conviction admissible, noting that the copy of judgment in Cause No. 3284-B was regular on its face and recited that appellant appeared with counsel. No records of the enhancing misdemeanors were made available to the court.

Appellant’s testimony alone fails to meet the burden of showing indigency, lack of counsel and lack of waiver. As in Maddox, we find

“appellant’s testimony alone was not sufficient to disprove the recitations in court papers profferred by the State. In the absence of further proof, which appellant did not offer, we adhere to our consistent holdings that bald assertions by an accused that he was without counsel at his prior convictions are insufficient to overcome the presumption of regularity of the records that were before the trial court in this case.” Maddox v. State, supra, and cases cited therein.

In sum, appellant must show that he was without counsel by some evidentiary vehicle other than simply his own testimony. To hold otherwise would allow the mere assertions of a defendant to invalidate convictions obtained nearly twenty years ago. Ground of error number one is overruled.

Disheroon also contends the State was barred by the doctrine of collateral estoppel from relitigating the issue of the validity of Cause No. 3284-B because a court had previously ruled the conviction void and inadmissible at an earlier trial of another offense. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). A bill of exception appears as part of the papers in the transcript of this cause, No. 20,015, and the text is as follows:

“Be it remembered that prior to the trial of the above entitled cause, the Defendant, Joe Allen Disheroon, was tried for the offense of aggravated robbery in Cause No. 20016, Hon. Robert C. Wright presiding under an exchange of bench, the trial being conducted on August 22 and August 23, 1979, the State of Texas appearing by the Criminal District Attorney, Lubbock County, Texas.

“Be it further remembered that at the trial of said cause, Defendant Joe Allen Disheroon moved the order of the court to rule, outside the presence of the jury, whether or not a prior conviction for swindling by worthless check in Taylor County, Texas was valid. Upon motion by the defendant, after the presentation of testimony outside the presence of the jury, the court found and held that the conviction was void and not admissible either for impeachment purposes or for purposes of enhancement. The State of Texas was present and fully represented at this hearing.

“Be it further remembered that the same conviction found and held to be void at the prior trial was subsequently offered by the State of Texas and admitted into evidence over defendant’s objection at the trial of the above styled and numbered cause.

“Defendant now tenders this bill of exception on the issue of whether or not the State of Texas was barred by the doctrine of collateral estoppel from again litigating the issue as to the validity of the aforesaid prior conviction having once been found and held void, and asks that it be approved and ordered filed as part of the appellate record herein.”

The bill of exception was filed with the clerk within the time prescribed in Article 40.09, V.A.C.C.P., and was unqualifiedly approved by operation of law by the trial court’s failure to act upon it.

Unfortunately, the bill of exception is ineffective to present any question for review. No objection to the introduction of the prior conviction based on the doctrine of collateral estoppel was made in the instant case. Nothing is presented for review. Ground of error number two is overruled.

The judgment is affirmed.