                                   NO. 07-07-0127-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                   JUNE 12, 2008
                          ______________________________

                           JERRY WAYNE HILL, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

      FROM THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY;

               NO. 1007370D; HONORABLE SHAREN WILSON, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


       Appellant, Jerry Wayne Hill, pleaded guilty to a charge of felony driving while

intoxicated. Appellant appeals the denial of his motion to quash contending that the trial

court erred in finding that the evidence supported a free and voluntary waiver of his right

to an attorney during one of the prior jurisdictional convictions. We affirm.
                                        Background


       On July 7, 2006, appellant was charged by indictment for the offense of driving while

intoxicated. The State alleged in the indictment that appellant had been previously

convicted of two prior driving while intoxicated charges, making the current offense a third

degree felony. On February 27, 2007, prior to the plea, the trial court heard appellant’s

motion to quash the indictment, which contended that the indictment included a prior

conviction, for jurisdictional purposes, where appellant waived his right to an attorney.

Appellant contended that, although the record relating to the prior conviction contained a

written waiver of counsel, the waiver did not include an inquiry into appellant’s educational

background or his ability to understand the contents of the waiver. Therefore, appellant

claimed that the prior conviction was void and could not be used for enhancement

purposes. The trial court denied appellant’s motion to quash. Subsequently, appellant

pleaded guilty to the indictment as charged.


       Appellant filed his notice of appeal contending that the trial court erred in denying

his motion to quash the indictment. We affirm.


                                     Law and Analysis


       An appellate court will review a trial court’s ruling on a motion to quash an indictment

under an abuse of discretion standard. See Thomas v. State, 621 S.W.2d 158, 163

(Tex.Crim.App. 1980). Right to counsel may be waived if such waiver is made voluntarily

and with knowledge of the consequences of self-representation. See Garcia v. State, 909

S.W.2d 563, 565 (Tex.App.–Corpus Christi 1995, pet. ref’d). In collaterally attacking the

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validity of prior convictions on the basis of a denial of the right to counsel, appellant has

the burden of proof to show the involuntariness of the waiver of his right to counsel.1 Id.

at 566.


       In this case, the record shows a written waiver of appellant’s right to counsel in the

prior conviction being collaterally attacked. Further, the judgment of conviction for the prior

conviction states, “. . . the Defendant appeared in person having waived his right to an

attorney; . . . [t]he Defendant was arraigned and the defendant after being admonished of

the consequences thereof by the Court pleaded guilty to the charge set forth in the

information.” Hence, the evidence before us demonstrates that appellant signed a waiver

and that the trial court orally admonished appellant on the consequences. We do not know

whether the trial court inquired into appellant’s educational background or his ability to

understand the contents of the waiver. Appellant did not present any testimony or

documentation during the pretrial hearing on the motion to quash to demonstrate that the

trial court did not perform such an inquiry. In short, appellant, who has the burden of proof

on a collateral attack to the judgment, has presented no evidence that the waiver of his

right to attorney was not knowingly or voluntarily. Further, the trial court that accepted

appellant’s plea of guilty in the prior conviction had the opportunity to observe appellant’s

demeanor when deciding whether appellant voluntarily, knowingly, and intelligently waived

counsel. Therefore, we give great deference to the trial court’s decision regarding the

voluntariness of appellant’s waiver of counsel. Id. at 566-67. We conclude that appellant



       1
       In a direct appeal of the conviction, the State bears the burden of establishing that
the record affirmatively shows a valid waiver of counsel. Id. at 566.

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has failed to demonstrate that the trial court erred in its denial of his motion to quash the

indictment.


                                        Conclusion


       For the foregoing reasons, we affirm the judgment of the trial court.




                                   Mackey K. Hancock
                                        Justice



Do not publish.




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