






Ex Parte Gustavo Villalpando















IN THE
TENTH COURT OF APPEALS
 

No. 10-02-016-CR

EX PARTE GUSTAVO VILLALPANDO

 

From the County Court
Robertson County, Texas
Trial Court # 8443-A
                                                                                                                
                                                                                                         
O P I N I O N
                                                                                                                

     Villalpando pled guilty to a misdemeanor charge of driving while intoxicated.  Tex. Rev.
Civ. Stat. art. 6701l-1(b).  The misdemeanor conviction at issue was used to enhance a
subsequent DWI charge to a felony.  Villalpando filed a writ of habeas corpus with the convicting
court of the misdemeanor conviction.  The writ of habeas corpus was denied on the merits. 
Villalpando appeals.
      Villalpando argues on appeal that the trial court erred in not granting his writ of habeas corpus
because: (1) the information by which he was charged was defective; (2) his guilty plea was not
knowingly, intelligently, nor voluntarily entered; (3) he was not afforded the assistance of counsel
at the guilt/innocence phase of his trial; and (4) he was not afforded the assistance of counsel at
the probation revocation hearing.  We affirm the denial of Villalpando’s writ of habeas corpus.
CHARGING INFORMATION – PRIOR TO DECEMBER 1985
      We look first at the argument that the charging information was defective.  Villalpando was
charged by information with driving while intoxicated in 1984.  Because the information was
presented to the court in 1984, we apply the law in effect at that time in our analysis of the
information instead of applying article 1.14(b), which went into effect in December 1985.  Tex.
Code Crim. Proc. art. 1.14(b) (Vernon Supp. 2002).  Article 1.14(b) requires a defendant to
object to defects of either form or substance before the date of trial on the merits or waive the right
to object to the defect on appeal or in any other post-conviction proceeding.  Id.
      Villalpando asserts the information was defective because it did not state the manner and
means by which he was intoxicated.  The information reads in pertinent part: “Gustavo
Villalpando did then and there unlawfully, while intoxicated, drive and operate a motor vehicle
in a public place, to wit: a public road in said county and state.”  The information as written
alleges the offense of DWI.  An information that does allege an offense confers jurisdiction on the
trial court.  Ferguson v. State, 622 S.W.2d 846, 849 (Tex. Crim. App. 1981).  
      When a charging instrument alleges an offense, any objection to the instrument is to the form
rather than the substance, and therefore not a fundamental defect.  Green v. State, 578 S.W.2d 411
(Tex. Crim. App. 1979).  The failure to include a statement by what manner and means a
defendant was intoxicated is not a defect of substance, but a defect of form that may be classified
as a “notice” problem.  See American Plant Food v. State, 508 S.W.2d 598, 603 (Tex. Crim.
App. 1974).
      An alleged form defect is properly raised by a timely filed motion to quash.  Graham v. State,
657 S.W.2d 99, 104 (Tex. Crim. App. 1983); Ferguson v. State, 622 S.W.2d 846, 851 (Tex.
Crim. App. 1981).  “[I]t would seem to be a defect of such mere form as ought to be deemed
cured by the verdict, because the objection is one which relates simply to the convenience of the
defendant in making his defense, while by not taking the objection he seems to have suffered no
inconvenience, and therefore, to have waived it.”  American Plant Food v. State, 508 S.W.2d 598,
604 (Tex. Crim. App. 1974) (quoting Melley v. State, 93 Tex. Crim. 522, 525, 248 S.W. 367
(Tex. Crim. App. 1922).  Thus, an alleged form defect in a charging instrument cannot be raised
for the first time on appeal or on writ of habeas corpus.  Graham, 657 S.W.2d at 104.
      In 1984, Villalpando filed an affidavit of indigency and was appointed counsel.  Hearing for
the cause was first set for December 1984 and then for April 1985.  An application for subpoenas
was filed in November 1984.  No motion to quash was ever filed.  The next entry in the record
is a motion and order to withdraw filed March 13, 1990.
      Villalpando swore to and signed his Waiver of Defendant’s Rights and Written Stipulation of
Evidence Without an Attorney (Waiver) on March 15, 1990, and pled guilty to the driving while
intoxicated charge from 1984.  Villalpando argues the information was defective because the
manner and means of intoxication was not stated.  The defect argued is one of form, thus,
Villalpando’s remedy was to timely file a motion to quash requiring the State to specifically allege
the manner and means of intoxication it would seek to prove.  Tex. Code Crim. Proc. art. 28.01
§ 1(4) (Vernon Supp. 2002).  Villalpando did not file a timely motion to quash based on a defect
of form; therefore, he cannot raise the issue for the first time in his writ of habeas corpus.  We
overrule Villalpando’s first issue.
GUILTY PLEA
      Villalpando next argues that the trial court erred when his writ of habeas corpus was denied
because his guilty plea to the misdemeanor DWI charge of 1984 was not knowingly, intelligently,
and voluntarily entered.  Villalpando asserts that because the information failed to give sufficient
notice of the nature and cause of the accusation he could not have known what he was pleading
to when he entered his plea of guilty.  He continues his argument to insist that had he fully
understood that in the future a subsequent charge of DWI could be used to send him to prison, he
would not have agreed to plead guilty to the misdemeanor charge in 1990.
      In the above analysis of the charging information, we outlined the course available to
Villalpando to question sufficiency of notice.  Because Villalpando did not timely file a motion to
quash based on a defect of form, he cannot now use his failure to argue his guilty plea was not
knowingly entered.  See Graham v. State, 657 S.W.2d 99 (Tex. Crim. App. 1983); American
Plant Food v. State, 508 S.W.2d 598, 604 (Tex. Crim. App. 1974).
      Villalpando asserts his 1990 guilty plea to the misdemeanor charge of DWI was not
knowingly, intelligently, and voluntarily made because he was not warned that the conviction
could be used to enhance a subsequent charge.  In Meadows, the Court of Criminal Appeals
restated its holding from Worton, that it is unnecessary for the court to admonish a defendant that
a conviction on a plea of guilty could later be used for enhancement purposes.  Meadows v. State,
499 S.W.2d 156, 157 (Tex. Crim. App. 1973); Worton v. State, 492 S.W.2d 519, 520 (Tex.
Crim. App. 1973).  Both Meadows and Worton involved felony guilty pleas, and were reviewed
under article 26.13.  Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2002).  The
admonishment provisions of article 26.13 apply to felony, not misdemeanor cases.  Johnson v.
State, 614 S.W.2d 116, 120 n.1 (Tex. Crim. App. 1981); Id.  Because the court is not required
to admonish a felony defendant that a conviction could be used to enhance a subsequent charge,
neither is the court required to do so for a misdemeanor defendant. Johnson, 614 S.W.2d at 120
n1.
      Because there was no requirement that the trial court admonish Villalpando that his conviction
could be used to enhance a subsequent charge, he has not met his burden of proof to show his
guilty plea to the 1984 misdemeanor charge of DWI was not made knowingly, intelligently, and
voluntarily.  We overrule Villalpando’s second issue.
ASSISTANCE OF COUNSEL
      Finally, Villalpando argues in two issues that the record fails to show he knowingly,
intelligently, and voluntarily waived his right to counsel at the guilt/innocence phase of his trial
or at his probation revocation hearing.  The defendant has the burden to show he did not
voluntarily waive his right to counsel.  Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim.
App. 1985).
      On March 15, 1990, Villalpando swore to, and signed, his Waiver.  In pertinent part his
Waiver states:
[t]hat I know that I have the right to be represented by an attorney in this cause, and that
if I cannot afford to hire an attorney, then the Court would appoint an attorney to
represent me; that I have no attorney and after being informed by the Court of my right
to have an attorney, I wish to exercise my Constitutional right to proceed to trial without
the benefit of counsel.  I further state that I have been informed by the Court and I fully
understand the dangers and disadvantages of proceeding to trial without the assistance of
counsel.  I voluntarily waive my right to have an attorney defend me in this cause.  I am
fully competent, and I am fully prepared to enter a plea and fully understand the nature
of the charges against me.

Villalpando’s Waiver is also signed by the county clerk and the presiding judge.  The
Misdemeanor Judgment of Probation (Judgment) dated March 15, 1990, also recites Villalpando’s
knowing, intelligent, and voluntary waiver of his right to representation and is signed by
Villalpando, the presiding judge, the deputy clerk, and the adult probation officer.
      On April 3, 1990, Villalpando swore to, and signed, his Defendant’s Plea of True to State’s
Motion to Revoke Without An Attorney (Plea of True).  His Plea of True is also signed by the
county clerk, the attorney for the State, and the presiding judge.  The waiver-of-rights- to-counsel
section of Villalpando’s Plea of True presents exactly the same rights and warnings as are noted
above in his Waiver.
      Villalpando has presented no evidence that he did not voluntarily waive his right to counsel;
he only points to the style of documents as being deficient.  Villalpando’s sworn to, and signed,
Waiver, Judgment, and Plea of True amply demonstrate he knowingly, intelligently, and
voluntarily waived his right to representation by counsel at the guilt/innocence phase of his trial
and at his probation revocation hearing.  We overrule Villalpando’s third and fourth issues.
CONCLUSION 
      We hold that: (1) Villalpando cannot for the first time argue a defect of form to his charging
information in a writ of habeas corpus; (2) he failed to prove his guilty plea was not knowingly,
intelligently, and voluntarily entered; (3) he failed to prove he did not voluntarily waive his right
to counsel at the guilt/innocence phase of his trial; and (4) he failed to prove he did not voluntarily
waive his right to counsel at the probation revocation hearing.  Because the court did not err, we
affirm the denial of Villalpando’s writ of habeas corpus.


                                                                         TOM GRAY
                                                                         Justice


Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Affirmed
Opinion delivered and filed August 7, 2002
Publish
[CR25]
