                           NUMBER 13-17-00094-CR

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                           Appellant,

                                             v.

SANTOS GARCIA,                                                                Appellee.


                    On appeal from the 319th District Court
                          of Nueces County, Texas.


                           MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Rodriguez

       By one issue, appellant the State of Texas appeals the granting of appellee Santos

Garcia’s motion to quash the indictment. The State argues that a motion to quash was

not the proper vehicle to challenge a prior conviction. In the alternative, the State asserts

that Garcia failed to prove that his prior conviction was invalid. We reverse and remand.
                                     I.     BACKGROUND

       A Nueces County grand jury indicted Garcia with driving while intoxicated (DWI),

third offense, which is a felony of the third degree.          See TEX. PENAL CODE ANN.

§ 49.09(b)(2) (West, Westlaw through 2017 1st C.S.).

       Garcia filed a motion to quash the indictment, in which he argued that one of his

prior DWI convictions was invalid, citing Alabama v. Shelton, 535 U.S. 654 (2002).

Specifically, Garcia argued that his 1999 DWI conviction could not be used to enhance

his sentence because he did not have the assistance of counsel in that prosecution, and

he did not knowingly and voluntarily waive his right to counsel. The trial court agreed

and quashed the indictment. The State appeals.1

                                      II.    DISCUSSION

A.     Challenge to Validity of Prior Conviction

       The State first asserts that a motion to quash an indictment is not a proper means

to challenge the validity of a prior conviction. We disagree.

       A motion to dismiss the enhancement paragraphs or quash the indictment is a

valid method “by which a defendant can challenge a prior conviction.” Ortegon v. State,

267 S.W.3d 537, 545 (Tex. App.—Amarillo 2008, pet. ref’d) (citing Egger v. State, 62

S.W.3d 221, 223 (Tex. App.—San Antonio 2001, no pet.)); see Rodriguez v. State, 491

S.W.3d 18, 26 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (considering the merits of

a motion to quash which argued that prior convictions were invalid); see also Moreno v.

State, No. 13-03-504-CR, 2005 WL 2036261, at *2 (Tex. App.—Corpus Christi Aug. 25,




       1   See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1) (West, Westlaw through 2017 1st C.S.)
(providing State with the right to appeal an order dismissing an indictment).
                                               2
2005, no pet.) (mem. op., not designated for publication). Indeed, some courts have held

that a defendant must move to quash an indictment that relies on invalid prior convictions

or else risk waiving any challenge to the use of those convictions for enhancement

purposes. State v. Vasquez, 140 S.W.3d 758, 759–60 (Tex. App.—Houston [14th Dist.]

2004, no pet.); see also Malone v. State, No. 12-09-00127-CR, 2010 WL 698621, at *2

(Tex. App.—Tyler Feb. 26, 2010, no pet.) (mem. op., not designated for publication).2

       The State acknowledges our holding in Moreno that a “challenge to such a prior

conviction is properly made through a motion to quash.”           2005 WL 2036261, at *2.

However, the State asks us to overrule Moreno as wrongly decided. According to the

State, Moreno conflicts with authorities which hold that pre-trial proceedings may not be

used as “a ‘mini-trial’ on the sufficiency of the evidence to support an element of the

offense.”     Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005).            These

authorities hold that motions to quash, like any pre-trial motion, cannot be used to “argue

that the prosecution could not prove one of the elements of the crime.” Lawrence v.

State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007).

       We find these cases distinguishable.             In Woods, a defendant charged with

evading arrest filed a motion to suppress, arguing that the arrest was illegal. Woods,

153 S.W.3d at 414. The court of criminal appeals held, sua sponte, that “[b]y asking for

the trial judge to suppress the arrest, and the details of his flight and evasion of the

detention by Officer Eder, Appellant was in effect asking the trial judge to rule on whether

the prosecution had proof of an element of the offense.” Id. at 415. Later cases have




       2   We express no opinion on this holding.
                                                    3
recognized that Woods is not to be generally applied in any case where a pretrial ruling

might undermine the State’s case:

        Rather, Woods deals with a specific subset of fact-specific, idiosyncratic
        suppression orders so enmeshed with the merits of the case-in-chief that
        the suppression question could not be resolved pretrial, either because it
        would require the trial court to make a finding that evidence underpinning
        an element of the offense was legally insufficient (i.e., implicitly rule on guilt
        or innocence), or because it would require the trial court to make a credibility
        determination that necessarily renders an element of the crime legally
        insufficient.

State v. Villegas, 506 S.W.3d 717, 733 (Tex. App.—El Paso 2016), pet. dism’d,

improvidently granted, 544 S.W.3d 375 (Tex. Crim. App. 2018). Thus, the rule set out in

Woods has generally been applied to offenses for which “lawful detention is an element

of the charged offense . . . .” See Gonzalez v. State, 501 S.W.3d 283, 286 (Tex. App.—

Corpus Christi 2016, no pet.); Pickens v. State, 159 S.W.3d 272, 274 (Tex. App.—

Amarillo 2005, no pet.); see also James v. State, No. 04-17-00548-CR, 2018 WL

2121348, at *3 (Tex. App.—San Antonio May 9, 2018, pet. filed) (mem. op., not

designated for publication); Isbell v. State, No. 02-14-00124-CR, 2017 WL 3526339, at

*5 (Tex. App.—Fort Worth Aug. 17, 2017, pet. ref’d) (mem. op. on reh’g, not designated

for publication).3 To wit, the court of criminal appeals itself has described the holding of

Woods as applying “when the validity of an arrest or detention is an element of the

charged offense . . . .” York v. State, 342 S.W.3d 528, 544 (Tex. Crim. App. 2011).



         3 We decline to follow any contrary authority. See State v. Adams, No. 08-14-00088-CR, 2015

WL 9917213, at *2 (Tex. App.—El Paso Jan. 27, 2015, pet. ref’d) (op., not designated for publication)
(holding that the trial court could not test the legal validity of a prior conviction within a pretrial motion to
quash); Mauldin v. State, No. 12-13-00370-CR, 2014 WL 5511404, at *2 (Tex. App.—Tyler Aug. 29, 2014,
no pet.) (mem. op., not designated for publication) (similar); Pullis v. State, No. 10-13-00135-CR, 2014 WL
31423, at *2 (Tex. App.—Waco Jan. 2, 2014, pet. dism’d) (mem. op., not designated for publication)
(similar).

                                                       4
         Here, Garcia’s motion to quash did not ask the court to predict the sufficiency of

the evidence or to try the case in miniature during a preliminary hearing.                        Just the

opposite, Garcia asked the trial court to resolve a discrete legal issue unrelated to the

validity of an arrest: the violation of his Sixth Amendment right to counsel. Rather than

forbidding a motion to quash, controlling authority recognizes that quashing the charging

instrument may, in some cases, be an appropriate remedy for a Sixth Amendment

violation. State v. Terrazas, 962 S.W.2d 38, 41 (Tex. Crim. App. 1998) (en banc) (citing

State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995) (en banc)) (recognizing that

“when a Sixth Amendment violation has occurred”, this may provide “constitutional

grounds for dismissing a charging instrument”).4 The State’s first argument is without

merit.

B.       Sufficiency of Evidence to Prove Invalidity of Prior Conviction

         In the alternative, the State asserts that Garcia failed to prove that the prior

conviction was invalid. The State contends that the only evidence introduced at the

hearing—Garcia’s own testimony—is inadequate to prove that he did not knowingly and

voluntarily waive his right to counsel in that prosecution. We agree.

         Uncounseled convictions cannot be used against a person either to support guilt

or enhance punishment for another offense. Parke v. Raley, 506 U.S. 20, 27 (1992).



         4Moreover, if the State’s argument were accepted, then whenever a pretrial motion is too harsh
for the State’s case, that motion would be barred, without any statutory or constitutional authority for
disrupting the normal mechanics of pretrial motion practice. Under this unwieldy and arbitrary rule, Garcia
would also be precluded from moving for suppression, meaning that a potentially invalid and prejudicial
conviction would inevitably go before the jury. See Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App.
2005); see also Burgett v. Texas, 389 U.S. 109, 115 (1967) (“The admission of a prior criminal conviction
which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we
are unable to say that the instructions to disregard it made the constitutional error ‘harmless beyond a
reasonable doubt . . . .’”).
                                                     5
Thus, “an uncounseled misdemeanor conviction without jail sentence cannot be used to

enhance a penalty so as to convert a subsequent misdemeanor to a felony with a prison

term.” Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985) (en banc).

        Garcia submits that the burden should be on the State to prove that his 1999

conviction for DWI was had with the benefit of counsel or that counsel was knowingly and

voluntarily waived. Garcia cites no authority for his proposal.

        Instead, “the presumption of regularity that attaches to final judgments makes it

appropriate to assign a proof burden to the defendant” in a collateral attack on a prior

conviction.5 Parke, 506 U.S. at 31; West v. State, 720 S.W.2d 511, 519 (Tex. Crim. App.

1986) (en banc) (plurality op.); Sample v. State, 405 S.W.3d 295, 301–02 (Tex. App.—

Fort Worth 2013, pet. ref’d). It is therefore the defendant’s burden to prove that he was

uncounseled and that he did not competently and intelligently waive his right to counsel.

Disheroon, 687 S.W.2d at 334; Garcia v. State, 909 S.W.2d 563, 566 (Tex. App.—Corpus

Christi 1995, pet. ref’d); see Iowa v. Tovar, 541 U.S. 77, 92 (2004).6

        An appellant’s testimony, by itself, is generally insufficient to carry this burden on

collateral attack. Disheroon, 687 S.W.2d at 334. “Appellant must show that he was

without counsel by some evidentiary vehicle other than simply his own testimony.” Id.;

see Egger, 62 S.W.3d at 225. “Bald assertions by a defendant that he was without the

assistance of counsel at his prior convictions are not sufficient to overcome the


        5 An appellate court generally indulges every presumption in favor of the regularity of the trial court
proceedings. Simon v. State, 525 S.W.3d 798, 799 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The
presumption of regularity is a judicial construct that requires a reviewing court, absent evidence of
impropriety, to indulge every presumption in favor of the regularity of the trial court’s judgment. Id.
        6 This burden is consistent with the rules that apply to motions to quash in general. See Rodriguez

v. State, 491 S.W.3d 18, 26 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (“The defendant bears the
burden of proof on a motion to quash . . . .”).
                                                      6
presumption of regularity of the records before the court in the case.” Disheroon, 687

S.W.2d at 334; James v. State, 997 S.W.2d 898, 902 (Tex. App.—Beaumont 1999, no

pet.). To hold otherwise would allow the mere assertions of a defendant to invalidate

convictions obtained many years ago. Disheroon, 687 S.W.2d at 334.

       At the hearing, the sole evidence was Garcia’s testimony. According to Garcia,

he was convicted of DWI in Bexar County in 1999, but he did not receive advice from an

attorney. Garcia explained that he simply signed a plea agreement acting pro se, and

neither the prosecutor nor the judge advised him that he had a right to seek representation

of defense counsel.

       Garcia’s testimony, standing alone, is insufficient to carry his burden on collateral

attack. See id. Accordingly, we must conclude that the trial court erred in quashing the

indictment.

       We sustain the State’s sole issue.

                                   III.     CONCLUSION

       We reverse the judgment of the trial court and remand the matter to the trial court

for further proceedings consistent with this opinion.


                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
30th day of August, 2018.




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