Arturo Medina Moreno v. State ( 2005 )

                              NUMBER 13-03-504-CR

13-03-505-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

ARTURO MEDINA MORENO,                                                         Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

          On appeal from the 197th District Court of Cameron County, Texas.

                                MEMORANDUM OPINION

         Before Chief Justice Valdez and Justices Hinojosa and Yañez

                            Memorandum Opinion by Justice Yañez

On June 25, 2003, appellant, Arturo Medina Moreno, entered an Aopen@ plea of nolo contendere to the third-degree felony offense of driving while intoxicated with two or more prior convictions.^[1]  On August 8, 2003, the trial court found appellant guilty, sentenced him to ten years= imprisonment, and probated the sentence for ten years.  In three issues,^[2] appellant contends his conviction in one of the misdemeanor convictions^[3] used to enhance the present offenses is void because the evidence does not establish that he knowingly waived his right to counsel in that cause.  We affirm.

In each case, the record contains the trial court=s certification that this Ais a plea-bargain case, but matters were raised by written motion filed and ruled on before trial@ and Athe defendant has the right of appeal.@^[4]

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court=s decision and the basic reasons for it.^[5]

                                                                  Background

In 1990, appellant was convicted of misdemeanor offenses of driving while intoxicated in cause numbers 90-CCR-282-B and 90-CCR-5213-A and was placed on probation. In 1999, he was again convicted of driving while intoxicated and was placed on probation.^[6]  On February 6, 2003, a motion to revoke appellant=s probation (in cause number 1999-CR-582-C) was filed.  His probation was modified and ordered to run concurrently with his sentences in the present causes. Appellant=s misdemeanor convictions in cause numbers 90-CCR-282-B and  90-CCR-5213-A were used to enhance the present offenses to third-degree felonies.

Appellant collaterally challenged his two prior uncounseled misdemeanor convictions (in cause numbers 90-CCR-282-B and  90-CCR-5213-A), contending  the convictions were void because the evidence did not establish that he knowingly waived his right to counsel before pleading guilty to the offenses. Appellant filed a AShelton@ motion challenging the validity of the prior uncounseled convictions.^[7]  After the trial court denied appellant=s motion, he entered an Aopen@ plea of nolo contendere in both of the causes before us (2003-CR-490-C and 2002-CR-1594-C). On appeal, he challenges only his conviction in 90-CCR-282-B.

                                        Standard of Review and Applicable Law

A knowing and voluntary plea of guilty or nolo contendere entered without the benefit of a plea bargain waives all nonjurisdictional defects occurring before the plea only if the judgment is independent of and not supported by the alleged error on appeal.^[8]  Here, the judgment of appellant=s guilt is dependent upon the alleged error.^[9]  Accordingly, we address appellant=s complaint.

We review the trial court's ruling on a motion to quash under an abuse of discretion standard.^[10]  The test is whether the trial court acted without reference to any guiding rules and principles by acting arbitrarily or unreasonably.^[11] 

A prior conviction used for enhancement purposes may be collaterally attacked only if it is void or tainted by a constitutional defect.^[12]  A challenge to such a prior conviction is properly made through a motion to quash.^[13]

The Sixth Amendment provides that Ain all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.@^[14]  Likewise, article 1.051 of the Texas Code of Criminal Procedure provides that an accused in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding.^[15]           However, the right to counsel may be waived if such waiver is made voluntarily and with knowledge of the consequences thereof.^[16]  To collaterally attack the validity of prior convictions on the basis of a denial of the right to counsel, the accused must prove that Ahe did not voluntarily, knowingly, and intelligently waive his right to counsel.@^[17]  When prior convictions are collaterally attacked, the judgments reflecting those convictions are presumed to be regular, and the accused bears the burden of defeating that presumption.^[18]  A defendant=s testimony alone is insufficient to defeat this presumption of regularity.^[19]  Bald assertions by a defendant that he did not knowingly waive his right to counsel are insufficient since to hold otherwise would allow mere allegations to invalidate convictions obtained nearly twenty years ago.^[20]

An uncounseled misdemeanor conviction, where, as in this case, imprisonment is not imposed, may be used to enhance punishment at a subsequent conviction.^[21]

                                                                      Analysis

The record before us contains appellant=s AWritten Waiver of Counsel, Waiver of Jury and Plea of Guilty@ in cause number 90-CCR-282-B.  The written waiver recites that appellant A[has] no Attorney, that [he] do[es] not intend to employ Counsel herein, and that [he] waive[s] any right [he] may have, on application therefore, to have the Court appoint an Attorney to defend [him] in this cause.@  The record also includes the reporter=s record of appellant=s April 30, 1990 guilty plea in cause number 90-CCR-282-B.  At the plea hearing, the following exchange occurred:

[Court]: Do you understand what you=re accused of?

[Appellant]: Yes, sir.

[Court]: How do you plead to this accusation?  Guilty or not guilty?

[Appellant]: Guilty.

[Court]: Did you sign this affidavit where you tell me you don=t want a jury and you want to enter a plea of guilty?

[Court]: Yes, sir.

It is undisputed that appellant was not represented by counsel in cause number 90-CCR-282-B. It is also undisputed that he did not receive a sentence of imprisonment; he was sentenced to thirty days in jail, but his sentence was suspended and he was placed on six months= probation. 

We conclude that appellant failed to establish that he did not voluntarily, knowingly, and intelligently waive his right to counsel.  Therefore, appellant did  not meet his burden.^[22]

Moreover, as we have previously noted, Aan uncounseled misdemeanor conviction, where imprisonment is not imposed, may be used to enhance punishment at a subsequent conviction.@^[23]  We therefore conclude that the trial court did not err in using appellant=s prior uncounseled misdemeanor conviction in cause number 90-CCR-282-B to enhance the present offenses.   

We overrule appellant=s issues and AFFIRM the trial court=s judgment.                                                                                           

_______________________

LINDA REYNA YAÑEZ,

Justice

Do not publish.                                             

Tex. R. App. P.  47.2(b)

Memorandum Opinion delivered and

filed this the 25th day of August, 2005.

---

^[1] See Tex. Pen. Code Ann. ' 49.09(b)(2) (Vernon Supp. 2004-05).  This appeal involves appellant=s conviction for driving while intoxicated with two or more prior convictions in trial court cause numbers 2003-CR-490-C (appellate cause number 13-03-504-CR) and 2002-CR-1594-C (appellate cause number 13-03-505-CR). 

^[2] In his brief, appellant characterized his issues as (1) his conviction in cause number 90-CCR-282-B is void because he was not advised of his right to counsel in violation of both the United States and Texas Constitutions; (2) a constitutional challenge to a conviction used for enhancement may be raised at any time; and (3) once he shows his conviction is invalid by a preponderance of the evidence, the burden shifts to the State to show that the convictions [sic] were valid. 

^[3] Appellant challenges only the validity of his conviction in trial court cause number 90-CCR-282-B.

^[4] See Tex. R. App. P. 25.2(a)(2).

^[5] See Tex. R. App. P. 47.4.

^[6] On September 17, 1999, appellant was convicted of driving while intoxicated with two or more prior convictions in cause number 1999-CR-582-C and was placed on probation.

^[7] See Alabama v. Shelton, 535 U.S. 654, 658 (2002).  In Shelton, the United States Supreme Court held that a defendant sentenced to a suspended sentence of imprisonment has a Sixth Amendment right to counsel.  See id.     

^[8] See Young v. State, 8 S.W.3d 656, 666‑67 (Tex. Crim. App. 2000); Martinez v. State, 109 S.W.3d 800, 801 (Tex. App.BCorpus Christi 2003, pet. ref=d).

^[9] See Egger v. State, 62 S.W.3d 221, 223 (Tex. App.BSan Antonio 2001, no pet.) (holding denial of motion to quash based on alleged defect in prior conviction used for enhancement is related to judgment); Jones v. State, 24 S.W.3d 540, 542 (Tex. App.BFort Worth 2000, no pet.) (holding denial of pre-trial motion to dismiss enhancement paragraph is related to judgment).

^[10] See Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1980). At the hearing on appellant=s Shelton motion, the motion was described as Atantamount to a motion to quash because it challenges the jurisdiction of the court saying the prior convictions should not be considered as part of the jurisdiction.@

^[11] Montgomery v. State, 810 S.W.2d 372, 382 (Tex. Crim. App. 1990).

^[12] Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. 1979); see Egger, 62 S.W.3d at 224.

^[13] See Egger, 62 S.W.3d at 223-24.

^[14] U.S. Const. amend. VI; see Green v. State, 872 S.W.2d 717, 719 (Tex. Crim. App. 1994).

^[15] Tex. Code Crim. Proc. Ann. art. 1.051(a) (Vernon 2005); Williams v. State, 946 S.W.2d 886, 900 (Tex. App.BWaco 1997, no pet.).

^[16] Jordan v. State, 571 S.W.2d 883, 884 (Tex. Crim. App. 1978) (citing Faretta v. California, 422 U.S. 806, 835 (1975)).

^[17] Garcia v. State, 909 S.W.2d 563, 566 (Tex. App.BCorpus Christi 1995, pet. ref'd) (citing Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985); Robledo v. State, 717 S.W.2d 647, 649 (Tex. App.BAmarillo 1986, no pet.)).

^[18] Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1985); Williams, 946 S.W.2d at 900.

^[19] Disheroon, 687 S.W.2d at 334; Egger, 62 S.W.3d at 224-25.

^[20] Disheroon, 687 S.W.2d at 334.

^[21] Garcia, 909 S.W.2d at 567 (citing Nichols v. United States, 511 U.S. 738, 748-49 (1994)).

^[22] See Garcia, 909 S.W.3d at 566. 

^[23] Id. at 567 (emphasis in original) (citing Nichols, 511 U.S. at 748-49).