The State of Texas v. Armando Nieto--Appeal from 171st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS, )

) No. 08-02-00326-CR

Appellant, )

) Appeal from the

v. )

) 171st District Court

ARMANDO NIETO, )

) of El Paso County, Texas

Appellee. )

) (TC# 20000D05437)

)

O P I N I O N

The State appeals from the trial court=s order granting Appellee Armando Nieto=s motion to quash the enhancement paragraph of an indictment for the felony offense of driving while intoxicated. In its sole issue on appeal, the State argues that the trial court erred and abused its discretion by granting the motion to quash because a violation of Article 1.13(c) of the Texas Code of Criminal Procedure in the prior conviction did not render that conviction void for enhancement purposes nor was it an error of constitutional magnitude. We reverse and remand the cause to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Armando Nieto was charged by indictment with felony driving while intoxicated (ADWI@). See Tex.Pen.Code Ann. '' 49.04, 49.09(b)(Vernon 2003). The indictment alleged two prior DWI convictions occurring in 1993 and 1997, which enhanced the primary offense from a misdemeanor to a third degree felony.[1] See Tex.Pen.Code Ann. ' 49.09(b).

Defense counsel informed the trial court of Appellee=s intention to file a motion to quash the enhancement portion of the indictment as to the 1993 prior conviction. There is no written motion to quash in the record before this Court, however, at the motion hearing the trial judge indicated that Appellee had filed a written motion to quash. At the hearing on the motion, defense counsel argued that the trial court in the prior conviction failed to appoint Appellee an attorney before he waived his right to a jury trial and pled guilty to the misdemeanor DWI charge, therefore the 1993 conviction was void for violation of Article 1.13(c) of the Texas Code of Criminal Procedure. At the time of the 1993 conviction, Article 1.13(c) required that counsel be appointed to a defendant for any offense (felony or misdemeanor) prior to a defendant=s waiver of his right to a jury trial.[2]

At the initial motion hearing on April 16, 2002, the State conceded that Article 1.13(c) applied to the prior misdemeanor DWI conviction at issue, and that the trial court had failed to comply with the statute. The State argued, however, that Appellee=s complaint should have been raised on direct appeal of his conviction, not by collateral attack. At the subsequent motion to reopen hearing held on June 18, 2002, the State argued that the 1993 judgment was valid on its face and that Appellee knowingly and voluntarily waived his rights. The State asserted that collateral attack of the 1993 conviction was not proper. The State relied on a recent Criminal Court of Appeals decision, Ex parte McCain, 67 S.W.3d 204 (Tex.Crim.App. 2002), arguing that a violation of Article 1.13(c) cannot be the basis of a writ of habeas corpus, therefore it could not be the basis for a collateral attack on a prior conviction.

After the motion to reopen hearing, the trial court signed a written order granting the motion to quash one of the enhancement paragraphs of the indictment. The State now appeals that order. See Tex.Code Crim.Proc.Ann. art. 44.01(a)(1)(Vernon Supp. 2003).

DISCUSSION

Standard of Review

The general rule is that the trial court=s ruling on a motion to quash is reviewed under an abuse of discretion standard. State v. Rivera, 42 S.W.3d 323, 328 (Tex.App.--El Paso 2001, pet. ref=d); Williamson v. State, 46 S.W.3d 463, 465 (Tex.App.- Dallas 2001, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules and principles, or acts in an arbitrary or unreasonable manner. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). In its brief, the State notes that several sister courts have reviewed de novo a trial court=s ruling on an indictment where the issue in dispute is a question of law, rather than of fact. See Hankins v. State, 85 S.W.3d 433, 436 n.3 (Tex.App.--Corpus Christi 2002, no pet.); State v. McCoy, 64 S.W.3d 90, 92 (Tex.App.--Austin 2001, no pet.); State v. Salinas, 982 S.W.2d 9, 10 n.1 (Tex.App.--Houston [1st Dist.] 1997, pet. ref=d)(Opin. on reh=g). The State argues that there is no factual dispute in this case. Appellee in his brief, however, argues that the 1993 judgment and signed written waiver form on their face are defective and show that he did not knowingly and voluntarily agree to waive his right to a jury trial. Without deciding whether de novo review is an appropriate standard for review on a motion to quash, we believe abuse of discretion is the appropriate standard for appellate review in this case.

Collateral Attack of Prior Conviction

In its sole issue, the State argues that the trial court erred and abused its discretion in granting Appellee=s motion to quash the enhancement paragraph of the indictment because Appellee=s claim that the 1993 conviction violated Article 1.13(c) of the Texas Code of Criminal Procedure does not render that conviction void for enhancement purposes. The State concedes that the 1993 conviction was obtained in violation of Article 1.13(c) because Appellee was not appointed counsel prior to waiving his right to a jury trial. Relying on a recent Court of Criminal Appeals decision, Ex Parte McCain, the State argues that a violation of Article 1.13(c) is not of constitutional or fundamental magnitude and as such, a claim that a prior conviction violated Article 1.13(c) is not cognizable in a collateral attack.

A prior conviction used for enhancement purposes may be collaterally attacked only if it is void or tainted by a constitutional defect. Galloway v. State, 578 S.W.2d 142, 143 (Tex.Crim.App. 1979); Egger v. State, 62 S.W.3d 221, 224 (Tex.App.--San Antonio 2001, no pet.). Lesser infirmities, such as insufficient evidence or irregularities in the judgment or sentence, may not be raised by a collateral attack, even if such infirmities might have resulted in a reversal had they been raised on direct appeal. Galloway, 578 S.W.2d at 143. 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. Williams v. State, 946 S.W.2d 886, 900 (Tex.App.--Waco 1997, no pet.).

At the motion to reopen hearing and now on appeal, the State relies on Ex parte McCain for its argument that the trial court erred in granting the motion to quash on the basis of a violation of Article 1.13(c)of the Texas Code of Criminal Procedure in the 1993 prior conviction. In Ex parte McCain, a felony defendant sought habeas corpus relief based on a violation of Article 1.13(c) of the Code. Ex parte McCain, 67 S.W.3d at 205. The appellant argued that his voluntary guilty plea was void because he was not appointed an attorney before he made his oral and written agreement to waive a jury trial. Id. at 205-06. The Court of Criminal Appeals held that Article 1.13(c) is a statutory provision which does not embody a constitutional or fundamental right and as such, appellant=s claim was not cognizable on a writ of habeas corpus since habeas relief under Article 11.07 of the Code is available only for jurisdictional defects and violations of certain fundamental or constitutional rights. Id. at 206. In the Court=s analysis, it noted that A[p]rocedural errors or statutory violations may be reversible error on direct appeal, but they are not >fundamental= or >constitutional= errors which require relief on a writ of habeas corpus.@ Id. at 209-10. Further, the Court stated that it would continue to follow its reasoning under Ex parte Sadberry, in which the Court held:

While we do not sanction noncompliance with procedural rules designed to safeguard constitutional rights, the writ was not intended to provide for relief for such noncompliance where the record is otherwise clear on the rights to which the procedural formalities pertain. Accordingly, we hold that where the applicant does not claim he desired and was deprived of his constitutional right to a trial by jury, that he did not intend to waive a jury trial or that he was otherwise harmed, and the record reflects that the applicant agreed to the waiver, we will not set aside a conviction by habeas corpus or collateral attack due to the applicant=s failure to sign a written jury form pursuant to article 1.13. [Emphasis added].

Id. at 210-11, citing Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Crim.App. 1993). In light of Ex parte McCain, we must agree with the State that a trial court=s failure to observe the mandatory provisions of Article 1.13 is not constitutional or fundamental error that will set aside a conviction by collateral attack. Ex parte McCain, 67 S.W.3d at 209-10 (violation of Article 1.13(c) is not jurisdictional, constitutional, or fundamental error as to invoke habeas corpus relief); Ex parte Sadberry, 864 S.W.2d at 543 (violation of Article 1.13(a) is a statutory error involving an irregularity in the trial court proceedings). See also Johnson v. State, 72 S.W.3d 346, 348 (Tex.Crim.App. 2002)(violation of Article 1.13(a) was a statutory error, requiring harm analysis under Appellate Rule 44.2(b) in a direct appeal);Lopez v. State, 71 S.W.3d 511, 514 (Tex.App.--Fort Worth 2002, no pet.).

Here, Appellee brought a motion to quash an enhancement paragraph in the indictment for the instant DWI offense, collaterally attacking his prior conviction for the same offense in 1993. At the motion hearing, Appellee had the burden of showing that the prior conviction was either void or tainted by constitutional defect. See Battle v. State, 989 S.W.2d 840, 841 (Tex.App.--Texarkana 1999, no pet.); State v. Garcia, 905 S.W.2d 7, 9 (Tex.App.--San Antonio 1995, pet. ref=d). The alleged violation of Article 1.13(c) of the Code constituted statutory error, not constitutional error, which does not render the 1993 conviction void when collaterally attacked. See Ex parte McCain, 67 S.W.3d at 210-11. Thus, we will examine whether Appellee met his burden by showing that the prior conviction was tainted by constitutional defect.

In his reply brief, Appellee argues that the prior conviction alleged for enhancement may be collaterally attacked because evidence in the record clearly shows that the conviction is void and that the resulting errors reach constitutional magnitude.[3] Appellee contends that the 1993 violation of Article 1.13 was more than just a violation of a procedural statute because constitutional rights were also violated. Appellee argues that the record shows that Appellee was not informed that he had the right to have a free attorney appointed to represent him if he was indigent and was not informed of the dangers and disadvantages of self-representation. Moreover, the waiver signed by Appellee states that Acounsel can be appointed to represent [him],@ rather than Acounsel must be appointed to represent him@ prior to waiving the right to a jury trial in accordance with the waiver form guidelines contained in Article 1.051 of the Code of Criminal Procedure. Further, Appellee argues that the record fails to show that Appellee knew the value of an attorney, that he knew the dangers and disadvantages of self-representation or that he intentionally, knowingly, and voluntarily waived an attorney in the prior conviction.

The record before this Court shows that in the 1993 conviction, Appellee signed a written jury waiver and pled guilty to the DWI charge. In the signed jury waiver form, Appellee affirmatively asserted that he fully understood his right to counsel and that if indigent, counsel could be appointed to represent him. Appellee asserted that he understood that he had a right to a jury trial and that he was freely and voluntarily waiving that right in open court. Appellee also asserted that he understood his right to counsel and knowingly, voluntarily, and intelligently, waived that right. The trial judge=s order in the 1993 conviction recites that the foregoing waiver was made in open court by the defendant in writing and that it appeared to the court that defendant was mentally competent and was freely and voluntarily waiving his right to a jury trial. In accepting Appellee=s guilty plea, the trial court=s judgment recites that the defendant in person intelligently, knowingly, and voluntarily waived the right to an attorney and that the defendant waiving arraignment, pleaded guilty to the information therein, and waived trial by jury. The trial court=s docket sheet, which the State entered into evidence, notes that the defendant was admonished by the presiding trial judge.

A reviewing court, absent evidence to the contrary, is required to indulge every presumption in favor of the regularity of the documents in the lower court. Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000). A trial court=s judgment is binding in absence of proof of its falsity. Breazealev. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1985)(Opin. on reh=g). The defendant has the burden to provide evidence sufficient to overcome the presumption of the formal judgment=s regularity. Id. at 451.

The judgment of the 1993 conviction is regular on its face and expressly states that Appellee appeared in person before the court and intelligently, knowingly, and voluntarily waived the right to an attorney, waived arraignment, pleaded guilty, and waived trial by jury. At the motion hearings, Appellee offered no evidence to contradict the regularity of the trial documents. On appeal, Appellee contends that the written waiver form did not comply with Article 1.051(g) of the Code of Criminal Procedure. Appellee did not raise this specific argument in the motions hearing. Assuming arguendo that Appellee=s argument at the pretrial hearings incorporates this complaint, we observe that the specific language of Article 1.051(g) is not mandatory. See Burgess v. State, 816 S.W.2d 424, 429-30 (Tex.Crim.App. 1991). Rather, Article 1.051(g) only requires substantial compliance. See Goffney v. State, 812 S.W.2d 351, 352 (Tex.App.--Waco 1991), aff=d, 843 S.W.2d 583 (Tex.Crim.App. 1992). The waiver form in the 1993 conviction clearly states that Appellee fully understood his right to counsel and that if he was indigent, counsel could be appointed to represent him. The form also reflects that Appellee understood that he had a right to a jury trial and that he was freely and voluntarily was waiving that right in open court. The written waiver form, the judge=s admonishment, and the recitals in the judgment, clearly indicate that Appellee was sufficiently apprised of his right to counsel and right to a jury trial and that he knowing, voluntarily, and intelligently waived those rights.

It is undisputed that the trial court in the 1993 conviction violated Article 1.13(c) of the Code by not appointing an attorney for Appellee before he agreed to waive a jury trial. However, in this case a per se violation of Article 1.13(c) does not render the 1993 conviction void for enhancement purposes in a collateral attack. The evidence in the record does not show that Appellee desired or was deprived of his right to a trial by jury, that he did not intend to waive a jury trial, or that he was otherwise harmed. See Ex parte McCain, 67 S.W.3d at 210-11; Egger, 62 S.W.3d at 224. Therefore, we conclude that the trial court erred and abused its discretion in granting the motion to quash the enhancement paragraph of the indictment for felony DWI. Issue One is sustained.

For the reasons stated above, we reverse the trial court=s order and remand the cause for further proceedings consistent with this opinion.

May 22, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] State v. Nieto, No. 930C08131 (County Court at Law No.3, El Paso County, Tex. Sept. 3, 1993); State v. Nieto, No. 970C22430 (County Court at Law No. 6, El Paso County, Tex. Dec. 30, 1997).

[2] At the time of Appellee=s prior DWI offense in 1993, Article 1.13(c) of the Texas Code of Criminal Procedure was applicable to a defendant facing criminal prosecution for any offense. Subsection (c) of Article 1.13 was amended in 1997 to limit its application to felony offenses. Act of Sept. 1, 1997, 75th Leg., R.S., ch. 285, ' 1, 1997 Tex.Gen.Laws 1300-01.

[3] We note that Appellee=s argument at the motion to quash hearing was primarily focused at collaterally attacking the prior conviction for violation of Article 1.13(c) of the Code per se. On appeal, Appellee=s argument suggests that there was other evidence before the trial court in the instant case to support its order. As the trial court=s order does not state on which grounds its judgment was based, we will consider Appellee=s arguments with respect to evidence in the record.