ALTON H. CROSBY v. THE STATE OF TEXAS--Appeal from County Court at Law No 2 of Jefferson County

NUMBER 13-01-341-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

ALTON H. CROSBY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law Number Two

of Jefferson County, Texas.

O P I N I O N

Before Justices Dorsey, Ya ez and Baird[1]

Opinion by Justice Baird

Appellant was charged by information with the offense of driving while intoxicated. He entered a pro se plea of guilty to the charged offense. The trial judge found appellant guilty and assessed punishment at seventy-two hours confinement and a fine of $500. Appellant raises four points of error. We affirm.

I. Jeopardy.

The first and second points of error contend appellant=s conviction is barred by the Double Jeopardy Clauses of the United States and Texas Constitutions, respectively. The Double Jeopardy Clause of the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This provision is applicable to the states via the Due Process Clause of the Fourteenth Amendment. Illinois v. Vitale, 447 U.S. 410, 415 (1980). The double jeopardy clause embodies three essential protections against: (1) a successive prosecution for the "same offense" after acquittal; (2) a successive prosecution for the "same offense" after conviction; and, (3) multiple punishments for the "same offense." Id; Ex parte Rhodes, 974 S.W.2d 735, 738 (Tex. Crim. App. 1998).

These points of error relate to the second protection; appellant argues that since the information permits a conviction under two separate theories of prosecution, he has been twice convicted of the same offense. We reject this argument for two reasons. First, inherent within the concept of double jeopardy lies the need for two distinct proceedings, which are "essentially criminal" in nature. Breed v. Jones, 421 U.S. 519, 527 28 (1975). The record before us reflects a single proceeding. The judgment from that proceeding states appellant Apleaded guilty to the charge contained in the information.@ When the charging instrument permits the State to obtain only one conviction, a defendant is not placed in jeopardy for more than one criminal act. Ex parte Goodbread, 967 S.W.2d 859, 861 (Tex. Crim. App. 1998). Because there is only one conviction in the instant case and because there was no separate and distinct proceeding other than appellant=s plea to the charged offense, there was no successive prosecution for the same offense after conviction.

Second, the information alleged, in two separate paragraphs, that appellant committed the offense of driving while intoxicated due to loss of mental and physical faculties, and an alcohol concentration of 0.08 or more. Appellant=s jeopardy argument is premised upon the information alleging two separate offenses. In support of this argument, he relies on State v. Carter, 810 S.W.2d 197 (Tex. Crim. App. 1991). However, at least four courts of appeals have held that Carter does not treat the alternate definitions of "intoxicated" as creating separate and distinct offenses. Price v. State, 59 S.W.3d 297, 300 (Tex. App.BFort Worth 2001, pet. ref=d); Ex parte Crenshaw, 25 S.W.3d 761, 766 (Tex. App.BHouston [1st Dist.] 2000, pet. ref'd); Kilgo v. State, 880 S.W.2d 828, 829 (Tex. App.BDallas 1994, pet. ref'd); Harris v. State, 866 S.W.2d 316, 324 (Tex. App.BSan Antonio 1993, pet. ref'd). We agree with our sister courts of appeals; the definition of intoxicated in section 49.01 of the Penal Code sets forth alternate means of committing one offense B it does not set forth separate and distinct offenses. Tex. Pen. Code Ann. ' 49.01 (Vernon Supp. 2002). Because the information did not allege separate offenses, appellant was convicted only of the single offense of driving while intoxicated.

For these reasons, we hold the Double Jeopardy Clauses of the United States and Texas Constitutions were not violated. Accordingly, the first and second points of error are overruled.

II. Voluntariness of Plea.

The third and fourth points of error contend appellant=s guilty plea was involuntary under the United States Constitution and the Texas Constitutions, respectively. Specifically, appellant argues his waiver of counsel, jury trial and guilty plea were ineffective because of the Adelusional@ expectation of deferred adjudication. App. br. pg. 16. These arguments were raised in appellant=s amended motion for new trial, which was overruled as a matter of law. We subsequently abated this appeal for the trial judge to hold a hearing on that motion. At the conclusion of that hearing, the trial judge denied the motion.

Granting or denying a motion for new trial is within the trial court's discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). We review the trial court's decision under an abuse of discretion standard. Oliver v. State, 32 S.W.3d 300, 305 (Tex. App.BSan Antonio 2000, pet. ref'd). An appellate court may not substitute its judgment for that of the trial court. Salazar, 38 S.W.3d at 148. Instead, we must decide whether the trial court's decision was arbitrary or unreasonable. Id. An abuse of discretion is found when the trial court's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Oliver, 32 S.W.3d at 305. As the sole judge of the credibility of the witnesses, the trial court does not abuse its discretion in overruling a motion for new trial when conflicting evidence exists. Salazar, 38 S.W.3d at 148.

Appellant testified he was arrested for the charged offense on January 7, 2001. He secured his release by posting a cash bond on that same date. While on bond he continued to work and became very ill, which led to a considerable loss of weight. When he appeared pro se on January 30, 2001, he was extremely fatigued. He further stated that he had no legal education or general understanding of the criminal justice system. Appellant stated he was told that if he did not have an attorney he would have to plead guilty. Appellant signed a document entitled ADefendant=s Waiver, Plea of Guilty/Nolo Contendre, Self Representation.@ This document included the following reference to deferred adjudication.

I have been further informed by the Court, and understand, that if the Court defers adjudicating my guilt and places me on community supervision, on violation of any imposed condition, I may be arrested and detained as provided by law. I will then be entitled to a hearing limited to the determination by the Court of whether to proceed with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision and my right to appeal continue as if adjudication of guilt had not been deferred.

Appellant testified that at the time of his plea, he thought he would pay court costs and not be convicted. However, upon his plea of guilty, appellant was convicted and sentenced to 72 hours confinement and a fine of $500.00. Appellant testified he did not understand any of the ramifications of his plea. Had he understood the ramifications, he would not have pled guilty.

On cross-examination, appellant testified to entering a big room with other individuals. Appellant stated he did not remember anyone speaking to the audience. However, it was possible someone did make a presentation but he (appellant) did not notice. Appellant did not recall being told he could plead not guilty and that he could retain an attorney. Appellant admitted reading some papers before signing them. He testified he understood the contents of the papers. He admitted waiving his rights to jury trial, and the confrontation and presence of witness. Appellant stated he did not understand the range of punishment or the right to retain counsel.

Debra Falgout testified personally and by affidavit. She stated that the procedure for the past sixteen years in Jefferson County, was to have misdemeanor defendants gathered in the jury assembly room. Once assembled, one of the misdemeanor court judges would inform the defendants en mass of their rights. Falgout=s affidavit stated these admonishments include, inter alia, the ranges of punishment for class A and B misdemeanor offenses, and the right to counsel, and:

(4) The judge then tells them that a defendant has a right to represent himself/herself and plead guilty or no contest, and if that is the choice they will be sent up to the courtrooms for final dispositions of those cases; the judge explains that upon such a plea, the defendant will be waiving the right to an attorney, and the right to a jury trial, and that the defendant, on his/her plea of guilty or no contest, will be found guilty and punishment assessed: that the defendant will immediately be remanded to the custody of the Sheriff until the sentence is served.

The affidavit concludes: AAt no time, within my knowledge, have defendants= cases ever been disposed of from the >Appearance Docket= described above without the judges having first spoken to them as described and the procedures follow[ed].@ She further testified that if any defendant said he/she did not have an attorney, the defendant was never told he/she had to plead guilty.

We are confronted with a classic example of conflicting testimony. The trial judge resolved this conflict against appellant. We are unable to say the resolution of this conflict was arbitrary or unreasonable. Id. Therefore, we hold the trial judge did not abuse his discretion in denying appellant=s amended motion for new trial. The third and fourth points of error are overruled.[2]

The judgment of the trial court is affirmed.

CHARLES F. BAIRD

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 31st day of October, 2002.

[1]Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

[2] By overruling these points of error, we do not mean to imply that we approve of the procedures described above. We are unaware of any other county that provides en mass admonishments to pro se defendants. From the testimony of Falgout we know this procedure has been employed for at least sixteen years. The record does not explain what gave rise to the need for these en mass proceedings. This practice should not be condoned as it can only lead to confusion which could lead to the loss of valuable constitutional rights without a knowing, intelligent and voluntary waiver. The better practice would be to have the trial judge individually advise pro se defendants of their rights followed by an inquiry of whether the defendant wished to waive those rights. We are also troubled by the written admonishment containing language regarding deferred adjudication. Clearly, deferred adjudication community supervision may not be granted to a defendant who is charged with an offense of driving, flying, or boating while intoxicated. Tex. Code Crim. Proc. Ann. art. 42.12 '5(d)(1)(A) (Vernon Supp. 2002). This defective admonishment, like the en mass procedure, can only serve to confuse defendants, and to unnecessarily consume judicial resources, as in the instant case. Hopefully, these defects will be cured in the very near future.