Henry Grady Coleman v. State

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Henry Grady Coleman

Appellant

Vs.             No. 11-02-00089-CR   B Appeal from Taylor County

State of Texas

Appellee

 The trial court approved the terms of Henry Grady Coleman=s plea agreement, convicted him of the third degree felony of driving while intoxicated under TEX. PENAL CODE ANN. ' 49.04 (Vernon Supp. 2003), and sentenced him to two years confinement in the Institutional Division of the Texas Department of Criminal Justice.  The State relied on two prior misdemeanor driving while intoxicated convictions to enhance the offense charged to a third degree felony. See TEX. PENAL CODE ANN. ' 49.09(b) (Vernon Supp. 2003). In an amended motion to quash the indictment, appellant asserted that, because the State failed to obtain proper waivers from him of the right to jury trial in the prior misdemeanor proceedings, the misdemeanor convictions were not admissible against him for the purposes of enhancing the offense.  The trial court denied appellant=s amended motion to quash.  We affirm.

                                                                  Issue Presented

Appellant complains that the trial court erred in denying his amended motion to quash.  TEX. CODE CRIM. PRO. ANN. art. 1.13(a) (Vernon Supp. 2003) provides that a defendant may waive his right to a jury trial only if he does so in person, in writing, and in open court.  Appellant=s prior convictions were the result of plea agreements.  The convictions were in Cause No. 87,113 in the County Court at Law No. 1 of Taylor County, Texas, on May 21, 1993, and in Cause No. 83,167 in the County Court at Law No. 1 of Taylor County, Texas, on March 29, 1991.  Appellant signed documents entitled AWaiver of Jury Trial, Witnesses and Ten Days for Preparation@ in both of the prior causes, and appellant=s counsel approved the waivers.  However, appellant contends that the waivers did not comply with the requirements for jury waivers in Article 1.13(a).^[1]  Appellant did not raise the jury waiver issues in direct appeals from the judgments in the prior proceedings.  Rather, he raises the issue in this collateral attack on the prior convictions.

Appellant=s Collateral Attack of the Prior Convictions

Appellant=s burden in the trial court was to demonstrate that the prior convictions were void.  Acosta v. State, 650 S.W.2d 827, 829 (Tex.Cr.App.1983); Ex parte Brown, 165 S.W2d 718, 720 (Tex.Cr.App.1942); Egger v. State, 62 S.W.3d 221, 224 (Tex.App. - San Antonio 2001, no pet=n); Battle v. State, 989 S.W.2d 840, 841 (Tex.App. - Texarkana 1999, no pet=n). To meet this burden, appellant had to show that a jurisdictional defect or denial of a fundamental or constitutional right occurred in the prior misdemeanor causes.  Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Cr.App.1993). A defendant=s failure to execute a proper waiver of a jury trial under Article 1.13(a) is an irregularity in the trial court proceeding, but such an irregularity does not render the proceeding void.  Egger v. State, supra at 224 (citing Ex parte Sadberry, supra at 543; State v. Garcia, 905 S.W.2d 7, 9 (Tex.App. - San Antonio), pet=n ref=d, 910 S.W.2d 499 (Tex.Cr.App.1995)). Therefore, appellant could not meet his burden of demonstrating that the convictions were void Aby simply proving a violation of Article 1.13.@ State v. Garcia, supra at 9 (citing Ex parte Sadberry, supra at 543; Townsend v. State, 865 S.W.2d 469, 470 (Tex.Cr.App.1993)(Maloney, J., concurring)).  If, however, appellant established that he did not waive jury trials in the prior proceedings, then the error Awould go far beyond mere irregularity in the proceedings below.@  State v. Garcia, supra at 9 (citing Ex parte Lyles, 891 S.W.2d 960 (Tex.Cr.App.1995)). The error would be of a constitutional dimension and could render the prior convictions void.  State v. Garcia, supra at 9.    

In our review of the record, we are required to presume the regularity of trial court proceedings.  Kelley v. State, 676 S.W.2d 104, 108 (Tex.Cr.App.1984); Egger v. State, supra at 224; Battle v. State, supra at 841.  This presumption requires reviewing courts, absent evidence of impropriety, Ato indulge every presumption in favor of the regularity of the proceedings and documents in the lower court.@ Light v. State, 15 S.W.3d 104, 107 (Tex.Cr.App.2000).  We are bound by recitations in the trial court records in the absence of direct proof of their falsity.  Egger v. State, supra at 224 (citing Breazeale v. State, 683 S.W.2d  446, 450 (Tex.Cr.App.1984)(op. on reh=g)).  The defendant has the burden to overcome the presumption of regularity.  Breazeale v. State, supra at 451.  Thus, in this case, the regularity of appellant=s prior convictions was presumed, and appellant had the burden to affirmatively show that he did not waive the right to jury trial in the proceedings to overcome the presumption.  See Battle v. State, supra at 841 (citing Johnson v. State, 725 S.W.2d 245, 247 (Tex.Cr.App.1987); Blake v. State, 468 S.W.2d 400, 402-03 (Tex.Cr.App.1971); Morton v. State, 870 S.W.2d 177, 179 (Tex.App. - Amarillo 1994, pet=n ref=d)).              We review the record to determine whether appellant presented sufficient evidence to overcome the presumption of regularity of the convictions.  Light v. State, supra at 107. Appellant=s counsel introduced certified copies of the files in Cause Nos. 83,167 and 87,113 at the hearing on the motion to quash.  Appellant did not testify or present any witnesses at the hearing.

In Cause No. 83,167, appellant signed the AWaiver of Jury Trial, Witnesses and Ten Days for Preparation.@  It provided, in part, that:

Comes now the Defendant in this cause, and in open court makes known that he/she will enter a plea of GUILTY/NOLO CONTENDERE to the charge herein, and requests the consent and approval of the Court and the Attorney for the State to waive the right to trial by jury herein. 

The same jury waiver language was used in Winchester v. State, 880 S.W.2d 514, 515 (Tex.App. - Fort Worth 1994, pet=n ref=d). The language meets the requirements for a valid waiver under Article 1.13.  Winchester v. State, supra.  Appellant=s counsel and the assistant district attorney approved  the waiver by signing it, and the trial court signed it.  The trial court=s disposition sheet indicates that a jury trial was waived.  In its judgment, the trial court recited that:

Defendant entered his/her plea of Guilty/Nolo Contendere thereto, and having in person and through and by his/her said attorney waived the intervention of a jury, and counsel representing the state having agreed to said waiver of a jury, and the Court having agreed to same.

We are bound by the recitations in the trial court=s judgment and records that appellant waived a jury, absent proof of their falsity.  See Egger v. State, supra at 224.  Appellant did not offer any evidence that he did not waive a jury. He did not meet his burden to overcome the presumption of regularity of the conviction in Cause No. 83,167.         

In Cause No. 87,113, appellant signed the AWaiver of Jury Trial, Witnesses and Ten Days for Preparation.@  It provided that:

Comes now the Defendant in this cause, and in open court makes known that he/she will enter a plea of GUILTY/NOLO CONTENDERE to the charge for the State to waive the right to trial by jury herein.

While the waiver may not clearly state that appellant was waiving his right to a jury trial, the waiver does not provide any evidence that appellant did not waive the right to a jury trial. Appellant=s counsel and the assistant district attorney approved the waiver by signing it, and the trial court signed it.  The trial court=s disposition sheet indicates that a jury trial was waived.  The trial court=s judgment did not state that appellant waived a jury trial, but the lack of a reference to a waiver in the judgment is not any evidence that appellant did not waive a jury trial.

Battle involved similar facts.  Battle based his appeal on the State=s alleged failure to prove that he waived a jury trial in two prior misdemeanor cases. The State introduced copies of the judgments and Battle=s waivers of jury trial from the prior proceedings.  The language in Battle=s waivers was identical to the language in appellant=s waiver in Cause No. 87,113.  The trial court=s judgments were silent as to whether Battle had waived a jury trial.  Battle did not offer any affirmative evidence that he did not waive a jury trial.  The court held that he Afailed to discharge his burden to show that he did not waive a jury trial.@  Battle v. State, supra at 842.        

Likewise, in this case, appellant did not offer any evidence that he did not waive a jury trial.  He did not meet his burden to overcome the presumption of regularity of the conviction in Cause No. 87,113.

The trial court did not err in denying appellant=s amended motion to quash the indictment.  We overrule appellant=s issue.

                                                                This Court=s Ruling

We affirm the judgment of the trial court.                  

TERRY McCALL

JUSTICE

January 16, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]Appellant was convicted in Cause No. 83,167 on March 29, 1991.  Article 1.13 did not apply to misdemeanor cases at that time, and there was no requirement that the waiver of the right to a jury trial in a misdemeanor case be in writing.  See Chaouachi v. State, 870 S.W.2d 88, 91-93 (Tex.App. - San Antonio 1993, no pet=n).  In misdemeanor cases, the waiver of a jury trial Anormally required only a showing in the record of an intentional relinquishment or abandonment of a known right or privilege with no requirement that the court and the prosecutor consent to the waiver of a jury trial.@  Chaouachi v. State, supra (citing Samudio v. State, 648 S.W.2d 312, 314 (Tex.Cr.App.), cert. den=d, 462 U.S. 1132 (1983)).