James Arthur Baxley v. State ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00189-CR
JAMES ARTHUR BAXLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court
Hopkins County, Texas
Trial Court No. 1725860
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Burgess
OPINION
James Arthur Baxley appeals his conviction for driving while intoxicated (DWI), third
offense.1 Baxley argues that, because the judgment of conviction for one of the predicate DWI
convictions in this case fails to identify defense counsel and fails to allocate an attorney’s fee for
appointed counsel, it establishes that he was not represented by counsel. Baxley reasons that,
because he was convicted of the predicate DWI offense without the assistance of counsel, the
predicate DWI is void, citing Gideon v. Wainwright, 372 U.S. 335 (1963). Baxley concludes that,
because the predicate DWI conviction is void, the evidence is insufficient to support his conviction
for DWI, third offense, in this case, citing Burgett v. Texas, 389 U.S. 109 (1967). We overrule
this point of error and affirm the trial court’s judgment.2
I. Is the Hunt County Judgment Void?
In Gideon, the United States Supreme Court held that the Sixth Amendment’s right to
counsel is a fundamental right guaranteed to defendants in state court via the Due Process Clause
of the Fourteenth Amendment. Gideon, 372 U.S. at 342. Therefore, a criminal defendant who is
unable to afford counsel in a felony case is entitled to appointment of counsel at the State’s
expense. Id.3 The Supreme Court expanded that right to include appointment of counsel in “any
1
See TEX. PENAL CODE ANN. § 49.09(b) (West Supp. 2017).
2
Baxley pled true to one enhancement allegation and was sentenced to twelve years’ confinement.
3
See also Burgett v. Texas, 389 U.S. at 114 (“Gideon v. Wainwright established the rule that the right to counsel
guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it
unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one.”).
2
misdemeanor case ‘that actually leads to imprisonment.’” Alabama v. Shelton, 535 U.S. 654, 661
(2002) (quoting Argesinger v. Hamlin, 407 U.S. 25, 33 (1972)).
In Burgett v. Texas, “[t]he State offered into evidence a certified copy of [a] Tennessee
conviction[]. The conviction read[,] in part, ‘Came the Assistant Attorney-General for the State
and the Defendant in proper person and without Counsel.’” Burgett v. Texas, 389 U.S. at 112.
The Supreme Court held, “[T]he certified records of the Tennessee conviction on their face raise
a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and
therefore that his conviction was void. Presuming waiver of counsel from a silent record is
impermissible.” Id. at 114–15. The Supreme Court then ruled, “To permit a conviction obtained
in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance
punishment for another offense is to erode the principle of that case.” Id. at 115 (citing Greer v.
Beto, 384 U.S. 269 (1966)). Consequently, under the principle established in Burgett, a prior
conviction obtained in violation of the defendant’s right to counsel is void and cannot be used for
purposes of either guilt or enhancement of punishment in a subsequent case. Id.
In the present case, the judgment of conviction for the predicate DWI offense from Hunt
County, Texas (the Hunt County judgment), states:
ATTORNEY FOR THE STATE: JOEL LITTLEFIELD/JEFFREY E. DAILEY
JESSSICA EDWARDS/CYNTHIA BRADDY
ATTORNEY FOR THE DEFENDANT:
In the section entitled “COURT COSTS,” the judgment states, “$383.00 & $ _______
APPOINTED ATTORNEY FEE – TS.” The body of the judgment states, “On the date stated
above, the above numbered and entitled cause was regularly reached and called for trial, and the
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State appeared by the attorney stated above, and the Defendant and the Defendant’s attorney, as
stated above, were also present.” On the last page of the judgment, the signature line for the
Defendant’s attorney is blank. Based on the Hunt County judgment, Baxley asks us to find that
the conviction “on [its] face raise[s] a presumption [he] was denied his right to counsel in the [Hunt
County offense] proceeding, and therefore that his conviction was void.” Accordingly, we must
decide whether the wording of the Hunt County judgment is equivalent to the Tennessee judgment
at issue in Burgett.4
To begin with, the Hunt County judgment at issue in this case recites that “the Defendant
and Defendant’s attorney, as stated above, were also present.” Although it does not name defense
counsel, it does not contain the specific statement found in the Tennessee conviction at issue in
Burgett: “Came the Assistant Attorney-General for the State and the Defendant in proper person
and without Counsel.” Id. (emphasis supplied). Accordingly, the Hunt County judgment does not
establish “on its face . . . that [Baxley] was not represented by counsel in violation of the Fourteenth
Amendment.”
4
The State argues that Baxley has waived his complaint because he did not preserve it in the trial court. Preservation
of error is systemic and a first-level appellate court should ordinarily review the issue on its own motion; this review,
though, must not be overly technical in its examination of whether error was preserved. Archie v. State, 221 S.W.3d
695, 698 (Tex. Crim. App. 2007). Generally, one must present the trial court with a timely, proper objection in order
to preserve potential errors for appellate review. TEX. R. APP. P. 33.1. However,
[t]he rules that require a timely and specific objection, motion, or complaint do not apply to two
relatively small categories of errors: violations of “rights which are waivable only” and denials of
“absolute systemic requirements.” Such errors may be raised for the first time on appeal. . . .
Examples of rights that are waivable-only include the rights to the assistance of counsel, the right
to trial by jury, and a right of appointed counsel to have ten days of trial preparation which a statute
specifically made waivable-only.
Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003) (footnotes omitted). Because Baxley argues that the
Hunt County judgment is void due to the denial of assistance of counsel during that proceeding, he asserts a complaint
that cannot be waived by merely failing to object at trial. Accordingly, we will proceed to the merits of Baxley’s
argument.
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In instances where the judgment does not show on its face that it was obtained without
assistance of counsel, a different rule applies. In that instance, the attack on the prior judgment is
collateral, and “the record must leave no question about the existence of the fundamental defect.”
Nix v. State, 65 S.W.3d 664, 668–69 (Tex. Crim. App. 2001). Also, the “[a]ppellant has the burden
to show that he was indigent and did not voluntarily waive his right to counsel.” Chancy v. State,
614 S.W.2d 446, 447 (Tex. Crim. App. [Panel Op.] 1981). Moreover, “[i]f the record is
incomplete, and the missing portion could conceivably show that the defect does not in fact exist,
then the judgment is not void, even though the available portions of the record tend to support the
existence of the defect.” Nix, 68 S.W.3d at 668–69. The appellate record in this case does not
establish on its face that Baxley was indigent or that he was not represented by counsel at the time
of the 2008 Hunt County conviction, and he did not establish those facts by other testimony or
evidence. Accordingly, Baxley has failed to conclusively establish that the Hunt County judgment
was void, and “[t]he presumption of regularity prevails.” Id.
II. Sufficiency of the Evidence
We turn now to Baxley’s challenge to the sufficiency of the evidence. In evaluating legal
sufficiency, we review all the evidence in the light most favorable to the trial court’s judgment to
determine whether any rational jury could have found the essential elements of the offense beyond
a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863
(Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency review focuses on the
quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring). We
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examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the
responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by
a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The hypothetically correct jury charge is “one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Id. at 240. We defer to the jury “to fairly resolve conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper,
214 S.W.3d at 13 (citing Jackson, 443 U.S. at 318–19).
The offense of DWI is enhanced to the level of a third degree felony when it is proved that
the defendant has twice before been convicted “of any other offense relating to the operating of a
motor vehicle while intoxicated . . . .”5 TEX. PENAL CODE ANN. § 49.09(b)(2). The prior
intoxication-related offenses are elements of the offense of DWI. Gibson v. State, 995 S.W.2d
693, 696 (Tex. Crim. App. 1999). The “prior intoxication-related convictions . . . enhanc[e] the
offense,” not the punishment. Id. As elements of the offense, the prosecution must plead the prior
5
A predicate offense of operating an aircraft, watercraft, or amusement ride may also be used to enhance the offense
level. TEX. PENAL CODE ANN. § 49.09(b)(2).
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convictions to vest the trial court with jurisdiction. Hernandez v. State, 18 S.W.3d 699, 701 (Tex.
App.—San Antonio 2000), aff’d, 109 S.W.3d 491 (Tex. Crim. App. 2003). The prior convictions
must be proved at the guilt/innocence phase of trial to secure a conviction. Id.
The State offered judgments of conviction for two prior DWI cases. Both alleged that
Baxley was convicted of DWI. State’s Exhibit 24 was a conviction for DWI from Delta County
in cause number 2003-34, entered on July 23, 2003. State’s Exhibit 25 was a conviction for DWI
from Hunt County in cause number CR0801170 entered August 1, 2008. Baxley lodged no
objection to the admission of either exhibit. These exhibits were sufficient evidence of Baxley’s
prior convictions for DWI. See TEX. PENAL CODE ANN. § 49.09 (West Supp. 2017); Tutt v. State,
940 S.W.2d 114, 123 (Tex. App.—Tyler 1996, pet. ref’d).
III. Conclusion
For all of the foregoing reasons, we affirm the trial court’s judgment and sentence.
Ralph K. Burgess
Justice
Date Submitted: March 1, 2018
Date Decided: April 9, 2018
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