                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00189-CR



         JAMES ARTHUR BAXLEY, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 8th District Court
               Hopkins County, Texas
               Trial Court No. 1725860




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Burgess
                                                  OPINION

           James Arthur Baxley appeals his conviction for driving while intoxicated (DWI), third

offense.1 Baxley argues that, because the judgment of conviction for one of the predicate DWI

convictions in this case fails to identify defense counsel and fails to allocate an attorney’s fee for

appointed counsel, it establishes that he was not represented by counsel. Baxley reasons that,

because he was convicted of the predicate DWI offense without the assistance of counsel, the

predicate DWI is void, citing Gideon v. Wainwright, 372 U.S. 335 (1963). Baxley concludes that,

because the predicate DWI conviction is void, the evidence is insufficient to support his conviction

for DWI, third offense, in this case, citing Burgett v. Texas, 389 U.S. 109 (1967). We overrule

this point of error and affirm the trial court’s judgment.2

I.         Is the Hunt County Judgment Void?

           In Gideon, the United States Supreme Court held that the Sixth Amendment’s right to

counsel is a fundamental right guaranteed to defendants in state court via the Due Process Clause

of the Fourteenth Amendment. Gideon, 372 U.S. at 342. Therefore, a criminal defendant who is

unable to afford counsel in a felony case is entitled to appointment of counsel at the State’s

expense. Id.3 The Supreme Court expanded that right to include appointment of counsel in “any




1
    See TEX. PENAL CODE ANN. § 49.09(b) (West Supp. 2017).
2
    Baxley pled true to one enhancement allegation and was sentenced to twelve years’ confinement.
3
 See also Burgett v. Texas, 389 U.S. at 114 (“Gideon v. Wainwright established the rule that the right to counsel
guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it
unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one.”).

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misdemeanor case ‘that actually leads to imprisonment.’” Alabama v. Shelton, 535 U.S. 654, 661

(2002) (quoting Argesinger v. Hamlin, 407 U.S. 25, 33 (1972)).

       In Burgett v. Texas, “[t]he State offered into evidence a certified copy of [a] Tennessee

conviction[]. The conviction read[,] in part, ‘Came the Assistant Attorney-General for the State

and the Defendant in proper person and without Counsel.’” Burgett v. Texas, 389 U.S. at 112.

The Supreme Court held, “[T]he certified records of the Tennessee conviction on their face raise

a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and

therefore that his conviction was void. Presuming waiver of counsel from a silent record is

impermissible.” Id. at 114–15. The Supreme Court then ruled, “To permit a conviction obtained

in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance

punishment for another offense is to erode the principle of that case.” Id. at 115 (citing Greer v.

Beto, 384 U.S. 269 (1966)). Consequently, under the principle established in Burgett, a prior

conviction obtained in violation of the defendant’s right to counsel is void and cannot be used for

purposes of either guilt or enhancement of punishment in a subsequent case. Id.

       In the present case, the judgment of conviction for the predicate DWI offense from Hunt

County, Texas (the Hunt County judgment), states:

       ATTORNEY FOR THE STATE:               JOEL LITTLEFIELD/JEFFREY E. DAILEY
                                             JESSSICA EDWARDS/CYNTHIA BRADDY
       ATTORNEY FOR THE DEFENDANT:

In the section entitled “COURT COSTS,” the judgment states, “$383.00 & $ _______

APPOINTED ATTORNEY FEE – TS.” The body of the judgment states, “On the date stated

above, the above numbered and entitled cause was regularly reached and called for trial, and the


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State appeared by the attorney stated above, and the Defendant and the Defendant’s attorney, as

stated above, were also present.” On the last page of the judgment, the signature line for the

Defendant’s attorney is blank. Based on the Hunt County judgment, Baxley asks us to find that

the conviction “on [its] face raise[s] a presumption [he] was denied his right to counsel in the [Hunt

County offense] proceeding, and therefore that his conviction was void.” Accordingly, we must

decide whether the wording of the Hunt County judgment is equivalent to the Tennessee judgment

at issue in Burgett.4

         To begin with, the Hunt County judgment at issue in this case recites that “the Defendant

and Defendant’s attorney, as stated above, were also present.” Although it does not name defense

counsel, it does not contain the specific statement found in the Tennessee conviction at issue in

Burgett: “Came the Assistant Attorney-General for the State and the Defendant in proper person

and without Counsel.” Id. (emphasis supplied). Accordingly, the Hunt County judgment does not

establish “on its face . . . that [Baxley] was not represented by counsel in violation of the Fourteenth

Amendment.”


4
 The State argues that Baxley has waived his complaint because he did not preserve it in the trial court. Preservation
of error is systemic and a first-level appellate court should ordinarily review the issue on its own motion; this review,
though, must not be overly technical in its examination of whether error was preserved. Archie v. State, 221 S.W.3d
695, 698 (Tex. Crim. App. 2007). Generally, one must present the trial court with a timely, proper objection in order
to preserve potential errors for appellate review. TEX. R. APP. P. 33.1. However,
          [t]he rules that require a timely and specific objection, motion, or complaint do not apply to two
          relatively small categories of errors: violations of “rights which are waivable only” and denials of
          “absolute systemic requirements.” Such errors may be raised for the first time on appeal. . . .
          Examples of rights that are waivable-only include the rights to the assistance of counsel, the right
          to trial by jury, and a right of appointed counsel to have ten days of trial preparation which a statute
          specifically made waivable-only.
Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003) (footnotes omitted). Because Baxley argues that the
Hunt County judgment is void due to the denial of assistance of counsel during that proceeding, he asserts a complaint
that cannot be waived by merely failing to object at trial. Accordingly, we will proceed to the merits of Baxley’s
argument.

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       In instances where the judgment does not show on its face that it was obtained without

assistance of counsel, a different rule applies. In that instance, the attack on the prior judgment is

collateral, and “the record must leave no question about the existence of the fundamental defect.”

Nix v. State, 65 S.W.3d 664, 668–69 (Tex. Crim. App. 2001). Also, the “[a]ppellant has the burden

to show that he was indigent and did not voluntarily waive his right to counsel.” Chancy v. State,

614 S.W.2d 446, 447 (Tex. Crim. App. [Panel Op.] 1981). Moreover, “[i]f the record is

incomplete, and the missing portion could conceivably show that the defect does not in fact exist,

then the judgment is not void, even though the available portions of the record tend to support the

existence of the defect.” Nix, 68 S.W.3d at 668–69. The appellate record in this case does not

establish on its face that Baxley was indigent or that he was not represented by counsel at the time

of the 2008 Hunt County conviction, and he did not establish those facts by other testimony or

evidence. Accordingly, Baxley has failed to conclusively establish that the Hunt County judgment

was void, and “[t]he presumption of regularity prevails.” Id.

II.    Sufficiency of the Evidence

       We turn now to Baxley’s challenge to the sufficiency of the evidence. In evaluating legal

sufficiency, we review all the evidence in the light most favorable to the trial court’s judgment to

determine whether any rational jury could have found the essential elements of the offense beyond

a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863

(Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency review focuses on the

quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring). We

                                                  5
examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772,

778 (Tex. Crim. App. 2007).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge is “one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id. at 240. We defer to the jury “to fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper,

214 S.W.3d at 13 (citing Jackson, 443 U.S. at 318–19).

        The offense of DWI is enhanced to the level of a third degree felony when it is proved that

the defendant has twice before been convicted “of any other offense relating to the operating of a

motor vehicle while intoxicated . . . .”5 TEX. PENAL CODE ANN. § 49.09(b)(2). The prior

intoxication-related offenses are elements of the offense of DWI. Gibson v. State, 995 S.W.2d

693, 696 (Tex. Crim. App. 1999). The “prior intoxication-related convictions . . . enhanc[e] the

offense,” not the punishment. Id. As elements of the offense, the prosecution must plead the prior



5
 A predicate offense of operating an aircraft, watercraft, or amusement ride may also be used to enhance the offense
level. TEX. PENAL CODE ANN. § 49.09(b)(2).
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convictions to vest the trial court with jurisdiction. Hernandez v. State, 18 S.W.3d 699, 701 (Tex.

App.—San Antonio 2000), aff’d, 109 S.W.3d 491 (Tex. Crim. App. 2003). The prior convictions

must be proved at the guilt/innocence phase of trial to secure a conviction. Id.

       The State offered judgments of conviction for two prior DWI cases.          Both alleged that

Baxley was convicted of DWI. State’s Exhibit 24 was a conviction for DWI from Delta County

in cause number 2003-34, entered on July 23, 2003. State’s Exhibit 25 was a conviction for DWI

from Hunt County in cause number CR0801170 entered August 1, 2008.                 Baxley lodged no

objection to the admission of either exhibit. These exhibits were sufficient evidence of Baxley’s

prior convictions for DWI. See TEX. PENAL CODE ANN. § 49.09 (West Supp. 2017); Tutt v. State,

940 S.W.2d 114, 123 (Tex. App.—Tyler 1996, pet. ref’d).

III.   Conclusion

       For all of the foregoing reasons, we affirm the trial court’s judgment and sentence.



                                                     Ralph K. Burgess
                                                     Justice

Date Submitted:       March 1, 2018
Date Decided:         April 9, 2018

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