Kevin D. Razer v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00661-CR

Kevin RAZER,

Appellant

v.

The STATE of Texas ,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-3604

Honorable Sharon MacRae , Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: September 6, 2006

AFFIRMED

Kevin Razer appeals the trial court's order denying his motion to suppress one of the prior misdemeanor convictions relied upon to charge Razer with felony driving while intoxicated. Razer asserts that the prior conviction was void because he was not represented by an attorney when he executed his written jury waiver. We affirm the trial court's judgment.

Razer's motion is a collateral attack on the prior conviction. In a collateral attack, a defendant can only succeed by demonstrating that the prior conviction was void; that is, by showing some jurisdictional defect or denial of a fundamental or constitutional right occurring in that prior cause. Egger v. State, 62 S.W.3d 221, 224 (Tex. App.--San Antonio 2001, no pet.).

At the time of Razer's prior conviction, article 1.13(c) of the Texas Code of Criminal Procedure, which was held to be applicable to misdemeanor offenses, provided: "Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him." Act of May 27, 1991, 72nd Leg., R.S., ch. 652, 1, 1991 Tex. Gen. Laws 2394, 2394,amended by Act of May 12, 1997, 75th Leg., R.S., ch. 285, 1, 1997 Tex. Gen. Laws 1300, 1300-01 (amending subsection (c) to apply only to defendants charged with felony offenses); see also Chaouachi v. State, 870 S.W.2d 88, 90, 91 (Tex. App.--San Antonio 1993, no pet.) (discussing article 1.13(c)). Notwithstanding the mandatory nature of the statute, the Texas Court of Criminal Appeals held that article 1.13(c) did not "embody a constitutional or fundamental right." Ex parte McCain, 67 S.W.3d 204, 206 (Tex. Crim. App. 2002). The court held that a violation of article 1.13(c) would be a procedural violation that would not render a conviction void. Id. at 208-210. Because a violation of article 1.13(c) does not render a conviction void, Razer cannot succeed in collaterally attacking his prior conviction on that basis. (1) See Egger, 62 S.W.3d at 224; see also State v. Rodgers, No. 05-03-00833-CR, 2004 WL 423153, at *2 (Tex. App.--Dallas Mar. 9, 2004, no pet.) (holding violation of article 1.13(c) did not render conviction void therefore conviction was not subject to collateral attack) (not designated for publication); State v. Nieto, No. 08-02-00326-CR, 2003 WL 21198360, at *5 (Tex. App.--El Paso May 22, 2003, no pet.) (same) (not designated for publication).

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. This court's prior decision in Chaouachi is readily distinguishable because in Chaouachi the court was addressing a violation of article 1.13 in the context of a direct appeal. 870 S.W.2d at 89-90; see also State v. Rodgers, No. 05-03-00833-CR, 2004 WL 423153, at *2 (Tex. App.--Dallas Mar. 9, 2004, no pet.) (not designated for publication).