Randy Scott Moore v. The State of Texas--Appeal from 266th District Court of Erath County

11th Court of Appeals

Eastland, Texas

Opinion

Randy Scott Moore

Appellant

Vs. No. 11-01-00313-CR B Appeal from Erath County

State of Texas

Appellee

Following a bench trial, the trial court convicted appellant of the offense of felony driving while intoxicated (DWI) and, finding two enhancement paragraphs to be true, assessed his punishment at confinement for 30 years. We affirm.

There is no challenge to the sufficiency of the evidence. After a law enforcement officer stopped appellant for speeding, appellant failed the field sobriety tests which the officer administered. The officer arrested appellant and took him to jail where he failed more tests. Appellant also took breathalyzer tests, the results of which were 0.195 and 0.199.

The indictment alleged that appellant had been convicted of two prior misdemeanor offenses of driving while intoxicated. One of these occurred in Hood County and the other in Brown County. The State also alleged in two enhancement paragraphs that appellant had been convicted of two additional felony offenses, aggravated assault of a police officer and bribery. The trial court found appellant guilty, found that the enhancement paragraphs were true, and assessed his punishment at confinement for 30 years.

In his first issue on appeal, appellant argues that the trial court erred when it considered a prior misdemeanor DWI conviction from Hood County because appellant was not appointed counsel before entering his plea. In this collateral attack on that conviction, appellant maintains that TEX. CODE CRIM. PRO. art. 1.13(c) (1991), as it existed at the time of the prior conviction, required the appointment of counsel before a jury could be waived. Although Article 1.13(c) has now been amended to apply specifically to felonies only, appellant claims that, at the time of the prior conviction, Article 1.13(c) also applied to misdemeanors.

Even if we were to agree with appellant that, at the time of the prior offense, Article 1.13(c) required the appointment of counsel in a misdemeanor case, counsel can be waived. See generally Ex parte McCain, 67 S.W.3d 204, 206-07 (Tex.Cr.App.2002). The record before us contains appellant=s written waiver of counsel and right to trial by jury as well as other waivers. The record also shows that the trial court implicitly found the waivers to be legally sufficient when it approved those waivers. The case of Goffney v. State, 843 S.W.2d 583 (Tex.Cr.App.1992), is distinguishable because the record in the case before us contains the admonishments given to appellant as well as the trial court=s findings in connection with the admonishments. The record contains nothing to contradict those statements and findings. Further, appellant does not show how he would have acted differently had counsel been appointed. See Ex parte McCain, supra at 209. We hold that appellant waived his right to counsel in connection with the Hood County DWI, and his first issue on appeal is overruled.

In his second issue on appeal, appellant argues that the trial court violated his rights under the Sixth Amendment to the United States Constitution. Appellant claims that his right to counsel was violated when the trial court considered a prior Brown County DWI as part of the proof required to elevate the current DWI to the grade of felony. Again, appellant collaterally attacks the prior DWI and complains that the trial court could not consider that prior case because the trial court there did not appoint counsel for him. Appellant cites several cases for the proposition that the Sixth Amendment gives an accused the right to have the assistance of counsel for his defense. There can be little argument of the truth of that proposition. One of those cases is Argersinger v. Hamlin, 407 U.S. 25 (1972). In Argersinger, the Supreme Court said:

[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. (Emphasis added)

Argersinger v. Hamlin, supra at 37.

While the cases cited by appellant in support of his position discuss the right to counsel, those cases do not involve the issue of a waiver of that right. A case which does touch upon waiver is Walker v. State, 486 S.W.2d 330 (Tex.Cr.App.1972). In that case, the defendant, like appellant here, complained that a prior DWI could not be used to increase the grade of offense Abecause [he] was not represented by counsel, was indigent, and did not waive right to counsel in that proceeding.@ Walker v. State, supra at 330. In Walker, the defendant testified in the trial court, out of the presence of the jury, that he was convicted in the prior DWI; that he was not advised of his right to counsel; that he was indigent; and that, had he had the money, he would have hired a lawyer. Walker v. State, supra at 331. The records from the prior DWI were introduced into evidence, but they did not show that appellant was represented by counsel. Walker v. State, supra at 331. In reversing the conviction, the court said: AThe evidence in this case does not comply with the holding of Argersinger v. Hamlin, supra, in that it does not show that appellant made a knowing and intelligent waiver of counsel.@ Walker v. State, supra at 331.

In this case, the evidence shows that the trial court duly admonished appellant that he had, among other things, the right to counsel. Appellant acknowledged and waived those rights. The trial court found that the plea was freely and voluntarily entered. Walker would require that there be a showing that appellant made a knowing and intelligent waiver of counsel. We hold that, under this record, such a showing has been made. Appellant=s second issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

May 16, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

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

Wright, J., and McCall, J.