                                       NO. 07-10-0351-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL A

                                      DECEMBER 13, 2011

                             ______________________________


                                DAVID MORALES, APPELLANT

                                                  V.

                             THE STATE OF TEXAS, APPELLEE

                           _________________________________

              FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

        NO. 2009-423,219; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
                       _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                   MEMORANDUM OPINION


       On April 28, 2009, Appellant, David Morales, was charged by indictment with the

third degree felony offense of driving while intoxicated.1 The indictment also contained

three enhancement paragraphs alleging prior felony convictions.2 Upon a plea of guilty,


1
 The indictment alleged that Appellant had previously been convicted of DWI offenses in 1988 and 2008.
See Tex. Penal Code Ann. §§ 49.04, 49.09(b)(2) (West 2011).
2
 The indictment alleged that Appellant had previously been convicted of three felonies -- burglary of a
building in 1989, sexual assault in 1991 and failing to register as a sex offender in 2001. The State
subsequently waived two of the three enhancements, making the offense punishable as a second degree
felony. See Tex. Penal Code Ann. § 12.42(a) (West Supp. 2011).
the trial court assessed Appellant's sentence at ten years confinement. In a single

issue, Appellant contends the trial court erred by denying his motion to quash one of the

prior DWI convictions used to enhance his offense to a felony. We affirm.


                                      Background


      After being indicted, Appellant filed a Motion to Quash Enhancement Portion of

the Indictment (Motion to Quash) alleging that he did not knowingly and voluntarily

waive his right to counsel in conjunction with his 1988 DWI conviction in Castro County.

Prior to entering his guilty plea in 1988, Appellant did execute a written Waiver of Jury,

Waiver of Attorney, and Waiver of Pre-Sentence Investigation Report (Waiver).

Furthermore, in that cause, the trial court issued a written Guilty Plea Admonishment

(Admonishment) and Appellant executed a written Waiver of Rights and Plea of Guilty

(Waiver of Rights). The Waiver stated, in pertinent part, as follows:

      The defendant in the above entitled and numbered cause enters a plea of
      guilty to the information herein; defendant acknowledges that he has been
      fully advised of all his rights and the minimum and maximum penalty; and
      that he understands the nature of the charges against him. This plea is
      made voluntarily upon his part; defendant expressly waives, gives up, and
      abandons his right to a jury trial and submits this case to the Court on all
      issues of fact and law.

      Defendant waives, gives up, and abandons his right to have an attorney
      represent him, and requests the Court to allow him to act as his own
      counsel, and prays that the court not force him to hire an attorney nor
      force him to trial with an appointed attorney. Defendant has been advised
      of the dangers and disadvantages of proceeding without an attorney.

Furthermore, the Admonishment stated, in pertinent part, as follows:

      If you are not sure how to plead, the Judge will enter a “not guilty” plea, for
      you and give you time to talk to a lawyer. . . . You have the right to plead
      not guilty, have a jury trial and have the help of your own lawyer during
      every part of this case. . . . If you want to discuss this case with a lawyer
      before entering a plea, tell the Judge now so that a bond can be set for

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        you and so that you can have two additional weeks to select a lawyer. If
        you are found indigent, a lawyer will be appointed to represent you. If you
        are employed or free on bond, a lawyer will probably not be appointed for
        you.


        Finally, the Waiver of Rights stated that Appellant “[had] been advised of [his]

right to [e]mploy a lawyer or have the court appoint a lawyer for me” and “hereby waive

[the right], and without coercion or duress, enter a plea of guilty as charged . . . .”


        The trial court denied Appellant’s Motion to Quash. Appellant subsequently pled

guilty and was sentenced to ten years confinement. This appeal followed.


                                              Discussion


        Appellant contends the Waiver was defective because it did not contain warnings

mandated by article 1.051 of the Texas Code of Criminal Procedure,3 nor did it advise

Appellant that the offense might later be used for purposes of enhancement. Appellant


3
 The version of Article 1.051 of the Texas Code of Criminal Procedure in place at the time Appellant plead
guilty in the Castro County DWI case stated as follows:

        If a defendant wishes to waive his right to counsel, the court shall advise him of the
        dangers and disadvantages of self-representation. If the court determines that the waiver
        is voluntarily and intelligently made, the court shall provide the defendant with a
        statement substantially in the following form, which, if signed by the defendant, shall be
        filed with and become a part of the record of the proceedings:

            “I have been advised this ___ day of _____. 19__, by the (name of court) Court of
            my right to representation by counsel in the trial of the charge pending against me. I
            have been further advised that if I am unable to afford counsel, one will be appointed
            for me free of charge. Understanding my right to have counsel appointed for me free
            of charge if I am not financially able to employ counsel, I wish to waive that right and
            request the court to proceed with my case without an attorney being appointed for
            me. I hereby waive my right to counsel. (signature of the defendant)”

Added by Act of May 30, 1987, 70th Leg., ch. 979, § 1, 1987 Tex. Gen. Laws 3321, effective Sept. 1,
1987. Amended by Act of May 24, 2001, 77th Leg., ch. 906, § 2, 2001 Tex. Gen. Laws 1800; Act of May
17, 2007, 80th Leg., ch. 463, §1, 2007 Tex. Gen. Laws 821.



                                                     3
next asserts that his waiver of counsel was involuntary because his motivation in the

1988 proceedings was to get out of jail.


       Standard of Review


       If a trial court’s determination of a motion to quash all or part of an indictment

turns on an evaluation of the credibility or demeanor of a witness, we apply an abuse of

discretion standard when reviewing the trial court’s decision. State v. Moff, 154 S.W.3d

599, 601 (Tex.Crim.App. 2004). However, if, as here, the trial court’s determination was

based solely on the indictment, the motion to quash, and argument of counsel, a de

novo review is more appropriate. Id.; Lawrence v. State, 240 S.W.3d 912, 915 & n.2

(Tex.Crim.App. 2007).


       Waiver of Counsel


       The Sixth Amendment guarantees criminal defendants the right to assistance of

counsel in criminal cases. U.S. Const. amend. IV;4 Faretta v. California, 422 U.S. 806,

807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Implied in the right to counsel, and in other

protections of the Sixth Amendment, is a right of self representation. Faretta, 422 U.S.

at 819-20. A criminal defendant’s waiver of the right to counsel and decision to

represent himself must be made “knowingly and intelligently.” 422 U.S. at 835. That

decision should also be made voluntarily and competently. Faretta, 422 U.S. at 834-35;

Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App. 1997). The decision to waive

counsel and to proceed pro se is made “knowingly and intelligently” if it is made with a

4
 This Sixth Amendment right to counsel applies to the states through the due process clause of the
Fourteenth Amendment. Gideon v. Wainright, 372 U.S. 335, 342, 83 S.C.t 792, 9 L.Ed.2d 799 (1963).
See also Tex. Const. Art. 1, § 10.

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full understanding of the right to counsel that is being abandoned, as well as of the

dangers and disadvantages of self representation. Collier, 959 S.W.2d at 626. The

decision is made voluntarily if it is not coerced. Id. The competence that is required of

a defendant seeking to waive his right to counsel is the competence to waive the right,

not the competence to represent himself. Godinez v. Moran, 509 U.S. 389, 399, 113

S.Ct. 2680, 125 L.Ed.2d 321 (1993).


       Where an accused collaterally attacks the validity of prior convictions on the

basis of a denial of the right to counsel, the accused bears the burden of proving that

“he did not voluntarily, knowingly, and intelligently waive his right to counsel.” Williams

v. State, 946 S.W.2d 886, 900 (Tex.App.—Waco 1997, no pet.) (quoting Garcia v.

State, 909 S.W.2d 563, 566 (Tex.App.—Corpus Christi 1995, pet. ref’d)). Further, “bald

assertions by a defendant that he was without the assistance of counsel at his prior

convictions are insufficient to overcome the presumption of regularity of the records

before the court in the case."     Id. (citing Swanson v. State, 722 S.W.2d 158, 164

(Tex.App.—Houston [14th Dist.] 1986, pet. ref’d)).


       Here, Appellant's Waiver acknowledged he had been fully advised of his rights

and his plea was made voluntarily. His Waiver indicated he had been advised of the

dangers and disadvantages of proceeding pro se, that he abandoned his right to have

counsel represent him, and that he was requesting the court to allow him to act as his

own counsel. In the Admonishment, Appellant was advised that, if he was unsure how

to plead, the trial court would enter a “not guilty” plea for him and give him additional

time to talk to counsel. The Admonishment also advised Appellant that, if he wanted to

speak with counsel before entering his plea, the Judge would set a bond and give him

                                            5
two weeks to select counsel or have counsel appointed to represent him if he was

indigent. In the Waiver of Rights, Appellant acknowledged he had been advised of his

right to counsel or to court-appointed counsel and waived the right without coercion or

duress.    Despite this, Appellant presented no further evidence to the trial court

establishing that his waiver of counsel in the 1988 proceeding was either involuntary,

unknowing, or unintelligently exercised.


       The language of article 1.051(g) is not mandatory, only substantial compliance is

required. See Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App. 1984) (“This

Court requires no formalistic questioning to establish a knowing and intelligent waiver

[of the right to counsel] nor will it author a script for courtroom recitation by trial judges

faced with this dilemma.”) In the absence of any evidence to the contrary, we find the

trial court’s Waiver, Admonishment, and Waiver of Rights substantially complied with

article 1.051(g). See Muniz v. State, 851 S.W.2d 238, 255-56 (Tex.Crim.App. 1993);

Knorpp v. State, No. 07-91-0108-CR, 1998 Tex. App. LEXIS 2086, at *14-15

(Tex.App.—Amarillo April 7, 1998, no pet.) (mem. op., not designated for publication).


       Furthermore, a guilty plea is generally considered voluntary if the defendant was

made fully aware of its “direct” consequences. State v. Jimenez, 987 S.W.2d 886, 888

& n.4 (Tex.Crim.App. 1999) (a consequence is “direct” where it is definite, immediate

and largely automatic). If, however, the consequence is “collateral” rather than “direct,”

the defendant need not be knowledgeable of the “collateral” consequence before his

plea is considered knowing and voluntary. Ex parte Morrow, 952 S.W.2d 530, 536-37

(Tex.Crim.App. 1997), cert. denied, 517 U.S. 1192, 116 S.Ct. 1683, 134 L.Ed.2d 784



                                              6
(1996) (“A consequence is ‘collateral’ if it is not a definite, practical consequence of a

defendant’s guilty plea.”)


       “[I]t is well settled that a trial court is not required to admonish a defendant that

the consequences of [a] plea include the possibility that the conviction which ensues

from the plea might be used for enhancement purposes in a subsequent trial.” Ex parte

Dmuitru, 850 S.W.2d 243, 244-45 (Tex.App.—Houston [1st Dist.] 1993, no pet.)

(emphasis added).     Ignorance of a collateral consequence does not render a plea

involuntary. Id. Accordingly, we find that the trial court did not abuse its discretion in

denying Appellant’s Motion to Quash because Appellant failed to meet his burden of

proof and overcome the presumption that the 1988 judgment was regular. Appellant’s

single issue is overruled.

                                       Conclusion

       The trial court’s judgment is affirmed.




                                                 Patrick A. Pirtle
                                                     Justice

Do not publish.




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