Acosta v. State , 1983 Tex. Crim. App. LEXIS 1069 ( 1983 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

Appeal is taken from a felony conviction for escape from custody. The indictment alleged appellant was under arrest for and charged with the offense of murder. See V.T.C.A. Penal Code, Sec. 38.07(c). Punishment, enhanced by two prior felonies, was assessed at life. The conviction was reversed by the Court of Appeals for the Thirteenth Supreme Judicial District. We granted the State’s petition for discretionary review in order to examine the Court of Appeals’ action in upholding the appellant’s contention that the two prior felony convictions from California alleged in the indictment were not subject to being used absent proof of waiver of indictments. The judgments in the two causes reflected that the trials were upon informations.

The Court of Appeals in its opinion cited our holding in Lackey v. State, 574 S.W.2d 97 (Tex.Cr.App.1978) for the proposition that the record must reflect a waiver of indictment in order for a felony conviction to withstand an appellate challenge. In Lackey, unlike the instant case, the conviction under attack was on direct appeal from the primary offense.

The law in other states is presumed to be the same as the law of Texas when not proved to be different.

Tex. Const., Art. 1, Sec. 10 provides “and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which punishment is by fine or imprisonment, otherwise than in the penitentiary.” Art. 1.141, V.A.C.C.P. (Acts 1971, 62nd Leg., Chapt. 260 — S.B. 116, effective May 19, 1971) provides that trial shall be by information where a person represented by legal counsel, “in open court or by written instrument,” voluntarily waives the right to be accused by indictment of any offense other than a capital felony.” In King v. State, 473 S.W.2d 43 (Tex.Cr.App.1971) this Court held that Art. 1.141, supra, was not viola-tive of Art. 1, Sec. 10 of the Texas Constitution. In King it was further held that waiver of the right to trial upon an indictment is not violative of any federal constitutional requirements.

Art. 42.01, V.A.C.C.P. (as amended by Acts 1981, 67th Leg.) sets forth what should be shown in a judgment. Among the things to be reflected are the names of the attorneys for the State and the defendant, and if defendant is not represented by any counsel, “that the defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel.” Also, waiver of jury is to be reflected in the judgment. While it may be a desirable practice, there is no suggestion in Art. 42.01, supra, that the judgment reflect waiver of indictment if trial is upon information.

If we presume that the law of California is the same as the law of Texas a defendant could waive the right to trial by indictment either in writing or in open court and it would not be necessary that the judgment reflect such waiver.

Any attack on the prior California convictions is obviously a collateral attack. In Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1983) appellant attacked the admission of two prior out-of-state convictions on the basis that he was fifteen at the time of the commission of the offenses. Hankins urged that since there was no evidence before the court regarding Virginia law, it is presumed to be the same as that of Texas, and in accordance with Texas law the record must contain a certification from Juvenile Court to Adult Felony Court. This Court found such argument to be without merit concluding “In this collateral attack, as with a habeas corpus proceeding, it is his [Han-kins’] burden to demonstrate that the convictions are void by showing that the procedure was improper in Virginia.” In Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.1977), a post-conviction habeas corpus proceeding, the rule set forth therein (and cited with approval in Hankins) states:

“The burden of proof in a habeas corpus proceeding is upon the petitioner here by a preponderance of the evidence to show that he was indigent, had no counsel and did not affirmatively waive the right to counsel.”

In the instant case, the burden was on appellant to demonstrate that the two prior California convictions were void. There being no evidence to support appellant’s contention, no error is shown.

The judgment of the Court of Appeals is reversed and the cause is remanded to the Court for consideration of appellant’s other grounds of error.