Guadalupe Aragon v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

Appeal from the

346th Judicial District Court

of El Paso County, Texas

(TC# 20050D02304)

O P I N I O N

Guadalupe Aragon appeals his conviction for felony driving while intoxicated. In his sole issue, Appellant contends that the trial court erred in denying his motion to quash the enhancement portions of the indictment because his two prior DWI convictions are constitutionally void. We affirm.

On May 26, 2005, Appellant was charged by indictment with felony driving while intoxicated (DWI). See Tex.Pen.Code Ann. 49.04 (Vernon 2003); Tex.Pen.Code Ann. 49.09(b)(Vernon Supp. 2007). The indictment alleged two prior DWI convictions, both occurring in 1987, which enhanced the primary offense from a misdemeanor to a third degree felony. (1) See Tex.Pen.Code Ann. 49.09(b)(2).

Defense counsel filed a motion to quash the enhancement portion of the indictment as to the two 1987 convictions. (2) At the hearing on the motion, he argued that the records from the 1987 cases failed to adequately reflect that Appellant was represented by counsel, that he had waived his right to counsel, or that he had waived his right to a trial by jury. Defense counsel argued that these defects made the prior judgments constitutionally void.

Scott Segall, a former El Paso County Jail Magistrate who heard Appellant's 1987 guilty pleas, testified at the hearing. Mr. Segall testified that in 1987, Appellant would not have been given any written notice of his constitutional rights and would not have signed a written waiver of such rights. Mr. Segall stated that he would have informed Appellant of his rights orally, although he had no particular memory of the Appellant.

The two prior judgments contain a form recitation that reads, "the Defendant appeared in person and by attorney," and "the Defendant in open court waived a jury in this cause." The sentence in each case contains a similar recitation that reads, "the Defendant Guadalupe Aragon appeared in person and by attorney . . . ." The docket sheets contain a stamped block of text that allows one to select whether a defendant waived his right to an attorney or whether a defendant was represented by a particular attorney, but this selection is left blank on both docket sheets. The stamped text further reads, "Def. ready, admonished, Jury waived." Appellant testified that he did not remember having an attorney when he pled guilty to the two DWI offenses in 1987.

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). A prior conviction used for enhancement purposes may be collaterally attacked only if it is void (as it would be if it were based on a fundamentally defective indictment), or if it is tainted by a constitutional defect (as it would be if an indigent defendant was denied counsel in a felony trial). 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.).

As a matter of Federal constitutional law, the State must establish through the trial record an express, intelligent waiver of a jury by the defendant. Samudio v. State, 648 S.W.2d 312, 314 (Tex.Crim.App. 1983). This fundamental requirement applies to misdemeanors where imprisonment for more than six months is authorized. Samudio, 648 S.W.2d at 313. We will not presume waiver of a jury from a silent record on direct appeal. Samudio, 648 S.W.2d at 314. This rule, however, has not been extended to collateral attacks. See West v. State, 720 S.W.2d 511, 518-19 (Tex.Crim.App. 1986). A party that collaterally attacks the validity of a prior judgment has the burden to bring forward the entire record to show that it is silent regarding jury waiver. West, 720 S.W.2d at 519.

In his sole issue, Appellant contends that the trial court erred by denying his motion to quash the enhancement portions of the indictment because both judgments used to enhance Appellant's DWI to a felony were void. Appellant argues that his 1987 convictions are constitutionally defective and cannot be used to enhance his current DWI to a felony because it cannot be determined whether he was represented by counsel during his pleas, and there is no proof that he waived his right to counsel or his right to a jury trial.

Right to a Trial by Jury

Appellant asserts that it cannot be determined from the judgments whether he waived his right to a jury trial in those cases. He points to Samudio for the proposition that the waiver of the right to a trial by jury can never be presumed from a silent record. Id. at 313. In Samudio, the defendant had been convicted of assault with intent to cause bodily injury, but the trial record contained no evidence that he had expressly waived his right to a jury trial. Id. The only reference to the defendant's right to a jury trial was a form recitation in the judgment that read, "'No jury having been demanded . . .'" Id. The Court of Criminal Appeals held that the State had failed to meet its constitutional burden and affirmed the reversal of the defendant's conviction. Id. at 315.

Appellant's argument ignores the fact that the record in Samudio was actually silent as to whether the defendant had affirmatively "waived" his right to a jury trial, unlike the case at hand. In Breazeale v. State, the Court of Criminal Appeals distinguished between the absence in the record of a demand for a jury trial as in Samudio and an affirmative waiver of the right to a jury trial. Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1984). In Breazeale, the defendants were convicted of possession of a controlled substance, but the only record that they had waived their right to trial by jury was a form recitation in the judgment, which stated that each defendant "'in person and in writing, in open court, having waived his right of trial by jury . . . .'" Id. at 449. The Court of Criminal Appeals held that "[t]he presumption of regularity created by recitals in the judgment can be overcome only when the record otherwise affirmatively reflects that error occurred." Id. at 450. Having found no affirmative showing that the defendants did not waive their right to a trial by jury, the Court affirmed their convictions. Id. at 449-50. The Court distinguished its holding from that in Samudio, noting that there is an important distinction "between the absence in the record of a demand for a jury trial and an affirmative waiver thereof . . . ." Breazeale, 683 S.W.2d at 450. [Emphasis in original].

In Johnson v. State, 72 S.W.3d 346, 347 (Tex.Crim.App. 2002), the only record that the defendant had waived his right to a jury trial was a recitation in the judgment stating that the defendant had "'waived trial by jury.'" The Court of Criminal Appeals analyzed that phrase carefully:

If Johnson 'waived' a jury trial, then he must have known about his right to a jury trial, otherwise he could not have waived it. The very use of the term 'waive' presumes knowledge, because 'to waive a right one must do it knowingly-with knowledge of the relevant facts.' In addition, 'waiver' is defined as 'the act of waiving or intentionally relinquishing or abandoning a known right, claim, or privilege.'

Johnson, 72 S.W.3d at 349, citing Breazeale, 683 S.W.2d at 450; Black's Law Dictionary, pg. 1276 (7th Ed. Abridged 2000). Because the defendant did not allege that he did not know about his right to a jury trial, and having found no evidence that the judgment's recitation was false, the Court affirmed his conviction. Johnson, 72 S.W.3d at 349.

In this instance, we find no affirmative evidence that Appellant did not waive his right to a jury trial when he pled guilty in 1987. To the contrary, the two judgments and the two docket sheets, all signed by the magistrate judge, state that Appellant "waived" his right to a trial by jury. Nor does Appellant allege that the recitations in the judgments and docket sheets are false. Therefore, we find no error in regards to Appellant's waiver of a jury that would subject his 1987 convictions to collateral attack.

Right to Counsel

Appellant also asserts that it cannot be determined from the judgments whether he was represented by counsel or waived his right to counsel when he pled guilty in 1987. Once again, Appellant describes the record inaccurately. Both judgments and sentences indicate that Appellant "appeared in person and by attorney." The unmarked stamp on the docket sheets, however, does create some ambiguity as to whether this was truly the case.

At the hearing on Appellant's motion to quash, defense counsel argued that our holding in State v. Nieto, No. 08-02-00326-CR, 2003 WL 21198360 (Tex.App.--El Paso May 22, 2003, no pet.)(mem. op., not designated for publication), was inapplicable because Nieto turned entirely on whether a violation of Article 1.13(c) of the Texas Code of Criminal Procedure could be a basis for collaterally attacking a judgment. In Nieto, we stated that "[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." Nieto, 2003 WL 21198360 at *5, citing Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000). "The defendant has the burden to provide evidence sufficient to overcome the presumption of the formal judgment's regularity." Id. at *5, citing Breazeale, 683 S.W.2d at 451.

The judgments for both DWI convictions clearly state that the defendant appeared in person and by attorney. While the space for counsel identification was left blank along with the space for waiver of counsel, this does not overcome the presumption of regularity when the judgments state that he was represented by counsel. See Chancy v. State, 614 S.W.2d 446, 447 n.2 (Tex.Crim.App. 1981), citing Ex parte Swinney, 499 S.W.2d 101, 103 (Tex.Crim.App. 1973) (holding a judgment and sentence silent as to named counsel alone is insufficient to support an allegation that defendant was without counsel at the proper times). Here again, Appellant does not allege that the recitations in the record are false, but merely that he could not remember having an attorney in 1987 when he pled guilty to the two DWI cases. This testimony does not overcome the presumption of regularity either. Robinson v. State, 739 S.W.2d 795, 799 (Tex.Crim.App. 1987)(holding that appellant's testimony that he did not "recall or "recollect" having executed written waivers, or that he did not "remember anything" about the court proceedings does not discharge the appellant's burden).

We conclude that an unmarked stamp and Appellant's imperfect memory eighteen years after the fact are not enough to overcome the presumption of regularity in these two judgments. Appellant failed to make any affirmative showing to disprove the recitations in his previous DWI convictions. The trial court did not abuse its discretion by denying Appellant's motion to quash the enhancement portion of the indictment. Issue One is overruled.

Having overruled Appellant's sole issue, we affirm the trial court's judgment.

February 21, 2008

DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)

1. State v. Aragon, No. 87-85993 (County Court at Law No. 3, El Paso County, Texas Nov. 19, 1987); State v. Aragon, No. 870C14139 (County Court at Law No. 3, El Paso County, Texas Nov. 19, 1987). The original indictment charged that the latter conviction occurred in 1997, but it was later amended to reflect the correct year: 1987.

2. This motion was characterized as a "Motion to Dismiss Enhancement Paragraphs."