KEVIN CHARLES WATSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued March 5, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00590-CR
............................
KEVIN CHARLES WATSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F05-50088-H
.............................................................
OPINION
Before Chief Justice Thomas and Justices Moseley and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant appeals a judgment of conviction against him for intoxication assault. Appellant presents two points of error: whether the trial court erred by finding one of two enhancement paragraphs in the indictment true, and whether the evidence is factually insufficient to find appellant caused the accident in question. Concluding no reversible error is shown, we affirm.
Background
 
        Kevin Charles Watson was indicted for intoxication assault in connection with an automobile accident. See Tex. Penal Code Ann. § 49.07. The indictment contained two enhancement paragraphs alleging previous felony convictions for unauthorized use of a motor vehicle (UUMV).   See Footnote 2  See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2006). Appellant waived a jury and, without a plea bargain, pleaded guilty before the trial court to the primary offense. The State introduced as State's Exhibit Number 1 appellant's signed, voluntary, written, judicial confession which the trial court admitted into evidence, without objection. Finding the evidence supported appellant's guilt, the trial court found appellant guilty. At the beginning of the punishment hearing, the following occurred between the trial judge and defense counsel:
 
        THE COURT: . . . Would you - do you wish to have your client arraigned on the two paragraphs?
 
 
 
        [Defense counsel]: Judge, to make it clear to the Court, I've let the State know this, there are two paragraphs enhancing the primary offense of intoxicated [sic] assault.
 
 
 
        THE COURT: Yes.
 
 
 
        [Defense counsel]: We are admitting to the second paragraph, the second enhancement paragraph.
 
 
 
        THE COURT: Which would be the third paragraph of the Indictment. The 92-764 - the unauthorized use of a motor vehicle.
 
 
 
        [Defense counsel]: Yes, ma'am.
 
 
 
        THE COURT: The conviction that occurred on the 19th day of March, 1987.
 
 
 
        [Defense counsel]: Correct. And we have filed a Writ on the first enhancement paragraph. And we want the Court - want it clear to the Court at this point in no way are we admitting to the validity of that conviction at this point. So we are pleading true to the second one, not true to the first one.
 
 
 
        THE COURT: You do not wish to have him formally arraigned, correct?
 
 
 
        [Defense counsel]: No, I believe my client is fully aware of the allegations in the two enhancement paragraphs if you will. He pleads not true to the first one and true to the second one.
 
 
 
        THE COURT: All right. You may be seated. What says the State?
 
 
        The State then presented evidence through three witnesses: deputy sheriff Richard Hamb, Dallas police officer Mike Bryan, and the complainant, Rudolph Mitchell. After the State rested, the defense called appellant to testify in his own behalf. Appellant testified he helped the occupants of the car he hit. Appellant admitted to having drunk three alcoholic drinks before the accident. He admitted he had a problem with alcohol, and since the accident he had joined Alcoholics Anonymous (AA) and had begun to attend AA meetings. At the time of trial appellant was on the eighth step of AA's twelve-step program. Appellant testified he had a criminal career that essentially began around 1977 and that every couple of years he would be arrested for something. He testified the last event before this offense was a telephone harassment problem in 1998; however, he later testified he had an evading arrest charge in 1993.
        On cross-examination, appellant testified he was the same person who was sentenced on June 1, 1988 to five years in the Texas Department of Corrections. He also testified he had convictions for resisting arrest, evading arrest, unauthorized use of a vehicle, possession of a controlled substance, and an aggravated robbery. Appellant admitted to drinking on the night of the accident and hitting the complainant's car from the rear. Although he testified the complainant cut in front of him, appellant admitted that by hitting the complainant's vehicle in the rear he was at fault and caused the accident.
        Appellant also presented several witnesses who testified in his behalf, including his mother, his wife, a childhood friend and his employer. The defense witnesses testified to a positive change in appellant after he began attending AA meetings.
        After finding appellant guilty and both enhancement paragraphs true, the trial court assessed appellant's punishment at forty years' confinement in the penitentiary. This appeal followed.
Facts
        The complainant was driving home from work when he saw a bright light in his rear view mirror. As he was moving into the left-hand lane, his vehicle was struck in the rear by appellant's vehicle which was traveling at a high rate of speed. The complainant woke up two days later in the hospital. His neck was broken, his spine crushed, and he was paralyzed from the neck down. He now lives in an apartment equipped for the handicapped.
        The police went to the accident scene. When Dallas Police Officer Mike Bryan approached, appellant was standing against a concrete median. Appellant's eyes were bloodshot and he smelled of alcoholic beverages. Appellant told Bryan he had drunk a few “Hennessey whiskey and coke” drinks. Bryan administered a HGN test to appellant. The test indicated appellant was intoxicated. Due to pins in appellant's legs, Bryan was not able to administer a walking test to appellant. Appellant refused a breath test at the accident scene. Upon such refusal, Bryan arrested appellant. On the way to jail, appellant was belligerent, profane, and spit on the seat of the squad car. A blood- alcohol test taken at the hospital showed appellant's blood-alcohol level to be .15 percent. A level of .08 percent indicates intoxication.
        Appeal
        In his first point of error, appellant contends the trial court erred by finding the challenged enhancement paragraph true because there was no proof appellant had waived his right to an indictment. Appellant's complaint is a collateral attack on a prior conviction. Appellant cites Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. 1979) for the proposition that a prior conviction alleged for enhancement may be collaterally attacked if it is void or if it is tainted by a constitutional defect. Appellant recognizes he has the burden of proof to make such showing. See Battle v. State, 989 S.W.2d 840, 841 (Tex. App.-Texarkana 1999, no pet.). Nevertheless, appellant contends the State's proof at trial failed to show appellant waived his right to an indictment. Therefore, argues appellant, there was no valid affidavit and information, rendering the 1988 prior conviction infirm. Appellant argues he was harmed because the enhancement allegation enhanced the punishment range. Appellant seeks a new punishment hearing.
        The State responds that although there is no requirement the previous judgment show appellant waived his right to be tried by indictment, the 1988 judgment about which appellant complains does, in fact, show appellant waived indictment in that case.
        We agree with the State. The court of criminal appeals has stated that although the better practice would be to show a waiver of indictment, such proof is not required of the State, and no reversible error will result from a lack thereof. See Smith v. State, 683 S.W.2d 393, 406 (Tex. Crim. App. 1984). Moreover, the judgment about which appellant complains states, in relevant part:
 
[W]here shown above that the charging instrument was by information instead of indictment, the Defendant did, with the consent and approval of his attorney, of the attorney for the State, and the Court, waive his right to prosecution by indictment and agree to be tried on an affidavit and information; all such waivers, agreements and consents being in writing and filed in the papers of this cause prior to the Defendant entering his plea herein[.]
 
        We are required to presume the regularity of trial court proceedings. Kelley v. State, 676 S.W.2d 104, 108 (Tex. Crim. App. 1984). Recitations in a formal judgment are binding in the absence of direct proof of their falsity. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984). Appellant has not shown the falsity of the recitation in the 1988 judgment that he waived indictment. Because appellant's first point of error is without either factual or legal merit, it is overruled.
        In point of error two, appellant contends that, despite his guilty plea and judicial confession, the evidence is factually insufficient to “prove the element of causation.” Appellant argues his testimony at trial “raised a reasonable doubt about whether he caused the accident at all, let alone whether it was caused by reason of his intoxicated driving, as alleged in the indictment.” Specifically, appellant points to the following portion of his testimony as raising reasonable doubt about causation: “I was going down the highway and Mr. Mitchell [complainant] was in the far left hand lane. He tried to exit at the last minute when he cut in front of me, I clipped him.” Appellant contends the trial court should have either withdrawn his plea of guilty or found him not guilty.
The State responds appellant's contention is without merit.
Analysis
        Appellate standards of review for legal and factual sufficiency of the evidence do not apply to felony cases where a defendant enters a plea of guilty or nolo contendere. See Ex parte Martin, 747 S.W.2d 789, 791 (Tex. Crim. App. 1988); Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986); see also McGill v. State, 200 S.W.3d 325, 329 (Tex. App.-Dallas 2006, no pet.). Under Texas law, when a criminal defendant waives a jury and pleads guilty or nolo contendere, the State is only required to introduce sufficient evidence to show the defendant's guilt. See Tex. Code Crim. P. Ann. art. 1.15 (Vernon 2005). It need not introduce evidence to show the defendant's guilt beyond a reasonable doubt. See Ex parte Martin, 747 S.W.2d at 792-93. Evidence is sufficient to show guilt if it embraces every essential element of the offense charged. Tex. Code Crim. P. Ann. art. 1.15; Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).
        Under the indictment, the State was required to prove that appellant, by accident or mistake, while operating a motor vehicle in a public place, was intoxicated, and by reason of that intoxication caused serious bodily injury to another. See TEX. PEN. CODE ANN. § 49.07(a)(1) (Vernon 2003).
        Appellant pleaded guilty to the allegations in the indictment. Appellant also signed a written judicial confession admitting the allegations contained in the indictment. Appellant's judicial confession was admitted into evidence at trial as State's Exhibit 1.   See Footnote 3  Additionally, Bryan testified to appellant's condition at the time of his arrival on the accident scene. Appellant smelled of alcoholic beverages. Appellant's performance of the HGN test indicated intoxication. Later blood test results showed appellant's blood-alcohol content was .15 percent. Appellant was belligerent, profane, and spat on the seat of the squad car during the ride to the jail. Appellant admitted he hit the complainant's car from behind and that he was taking “full responsibility” for causing the accident. Appellant does not contest that the complainant was severely injured in the accident.
        Appellant's point of error two is without merit. We affirm.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
060590F.U05
 
Footnote 1          The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The two enhancement paragraphs read as follows:
 
 
And it is further presented to said Court that prior to the commission of the aforesaid offense, the said defendant was convicted of a felony offense of UNAUTHORIZED USE OF A MOTOR VEHICLE, on the 1ST day of JUNE, 1988, A.D., in Cause Number F88-71531-M on the docket of 194TH JUDICIAL DISTRICT COURT, of DALLAS County, Texas under the name of KEVIN CHARLES WATSON and said conviction was a final conviction,
 
 
 
And it is further presented to said Court that prior to the commission of each of the aforesaid offenses, the said defendant was convicted of a felony offense of UNAUTHORIZED USE OF A MOTOR VEHICLE, on the 19TH day of MARCH, 1987, A.D., in Cause Number F86-92764-LS on the docket of 282ND JUDICIAL DISTRICT COURT, of DALLAS County, Texas under the name of KEVIN CHARLES WATSON and said conviction was a final conviction,
 
Footnote 3 Appellant's judicial confession admits that on March 4, 2005, he “unlawfully then and there while operating a motor vehicle in a public place, while intoxicated, in that the defendant did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, and any other substance into defendant's body and defendant had an alcohol concentration of at least 0.08, by accident and mistake and by reason of that intoxication, did thereby cause serious bodily injury to another, namely, RUDOLPH MITCHELL, hereinafter called complainant, by operating a motor vehicle, a deadly weapon, and by traveling at a high rate of speed and at a speed not reasonable and prudent under the existing circumstances causing the motor vehicle operated by defendant to strike and collide into a motor vehicle occupied by said complainant[.]”