      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00447-CR




                                  Ex parte Patrick J. Overman




         FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
            NO. 23045, HONORABLE SUZANNE BROOKS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In January 1989, Patrick J. Overman appeared without counsel in the county court

at law and pleaded guilty to misdemeanor driving while intoxicated. He was adjudged guilty and

sentenced to incarceration for 180 days and a $1000 fine, but imposition of sentence was suspended

and he was placed on probation. In November 2002, Overman applied for a writ of habeas corpus

to set aside this conviction. See Ex parte Schmidt, 109 S.W.3d 480, 483 (Tex. Crim. App. 2003);

Tex. Code Crim. Proc. Ann. art. 11.09 (West 1977). The writ issued and relief was denied. The

issue presented is whether Overman showed himself entitled to habeas corpus relief on the ground

that he was without counsel at the 1989 trial. See Ex parte McCain, 67 S.W.3d 204, 207-10 (Tex.

Crim. App. 2002). We conclude that he did not. Therefore, we will affirm the order denying relief.

               There is no dispute that Overman was constitutionally entitled to counsel at his trial.

See Alabama v. Shelton, 535 U.S. 654, 658 (2002). In this habeas corpus proceeding, Overman had

the burden of proving by a preponderance of the evidence that he was denied this right. See Ex parte
Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993); Ex parte Adams, 768 S.W.2d 281, 287-88

(Tex. Crim. App. 1989). To meet this burden, Overman had to overcome the recital in the trial

court’s 1989 judgment of conviction that “the defendant, after being warned, knowingly and

intelligently waived his right to counsel.” Recitations in the judgment are presumed to be correct

and are binding in the absence of direct proof of their falsity. Breazeale v. State, 683 S.W.2d 446,

450 (Tex. Crim. App. 1985) (op. on reh’g).

                At the hearing below, Overman testified that he was indigent at the time of his 1989

trial. He said that he was embarrassed and anxious, and just wanted to dispose of the matter quickly.

He testified that he was advised of his rights by the court and asked if he still wanted to plead guilty,

but he did not remember being offered an attorney. Asked if “they ever indicate[d] to you that they

would pay for an attorney,” Overman answered, “They read my rights, and I think the rights say that,

you know, one will be appointed for you if you can’t afford one.” During cross-examination,

Overman was asked, “You keep saying you were looking to put it behind you, but I haven’t heard

you say that you were confused about your rights, you weren’t read your rights, you didn’t

understand your rights, isn’t that correct?” He answered, “I just said yes, yes, yes to everything. And

you know, as I recall when they called me back up to — to give me the sentence, they read me my

rights and asked me if I still wanted to plead guilty and I said yes.” Overman acknowledged that his

plea was voluntary. But he added, “I never waived my rights. I just said I’m pleading guilty.”

                The court made written findings of fact and conclusions of law. Among other things,

the court found that Overman knowingly and voluntarily pleaded guilty at his 1989 trial; was advised

of his rights before he entered his plea, including the right to an appointed attorney if he could not



                                                   2
afford to employ counsel; and did not request a court-appointed attorney or notify the court that he

was indigent and could not afford an attorney. The court concluded that Overman knowingly and

intelligently waived his right to an attorney as recited in the judgment of conviction.

               Overman correctly argues that the right to counsel must be affirmatively waived, and

that a waiver may not be inferred merely from the failure to request an appointed attorney. Oliver

v. State, 872 S.W.2d 713, 715 (Tex. Crim. App. 1994). He also points to the absence of a written

waiver of counsel of the sort prescribed by the code of criminal procedure. See Tex. Code Crim.

Proc. Ann. art. 1.051(g) (West Supp. 2004). Article 1.051(g), however, is not mandatory. Burgess

v. State, 816 S.W.2d 424, 431 (Tex. Crim. App. 1991).1 A waiver of the right to counsel need not

be in writing to be effective. Id. at 430. The 1989 judgment of conviction recites that Overman

waived his right to counsel, and the only evidence to the contrary is Overman’s testimony at the writ

hearing. It has long been held that the defendant’s testimony alone is not sufficient to disprove

recitations in the judgment. Disharoon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985). We

hold that appellant did not meet his burden of proving the absence of a waiver of counsel, and we

overrule point of error two.

               In point one, Overman urges that his waiver of counsel was not knowing and

voluntary. Appellant relies on Geeslin v. State, 600 S.W.2d 309, 313 (Tex. Crim. App. 1980), in

which the court said that to decide whether a defendant’s waiver is intelligent and voluntary, the

court should inquire into the defendant’s background, age, education, and experience. The court


   1
        Even if article 1.051(g) were mandatory, the violation of a mandatory statutory requirement
is not, in itself, grounds for habeas corpus relief. Ex parte McCain, 67 S.W.3d 204, 210 (Tex. Crim.
App. 2002).

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added that the record must reflect such an inquiry and it should further show that the defendant was

informed of his right to counsel and that he affirmatively waived that right. Id.2

               Geeslin was a direct appeal in which the issue presented was whether the record

reflected a voluntary waiver of counsel. That is not the issue presented in this habeas corpus

proceeding. The 1989 judgment of conviction, which is presumed to be correct, recites that

Overman knowingly and voluntarily waived his right to counsel. Contrary to Overman’s argument

to this Court, it was not the State’s burden to prove the accuracy of that recital. It was Overman’s

burden to overcome the presumption of regularity by direct evidence and prove by a preponderance

of the evidence that this recital was incorrect.

               The only evidence Overman cites as proving that he did not knowingly and

voluntarily waive his right to counsel at his 1989 trial is his testimony that he was embarrassed,

nervous, and anxious to have the matter behind him. But he also acknowledged being told that he

had a right to appointed counsel. There is no evidence that appellant did not understand this right

or that his decision to forego it was not made voluntarily. We hold that Overman did not prove by

a preponderance of the evidence that his waiver of counsel was unknowing or involuntary. Point of

error one is overruled.




   2
       The court of criminal appeals later made it clear that an inquiry concerning the defendant’s
age, education, background, and mental health history is not required in every instance where the
accused wishes to waive counsel. See Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App.
1988). There is no set formula for determining whether a waiver of counsel is knowing and
voluntary. Id.

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              The order denying habeas corpus relief is affirmed.




                                            __________________________________________

                                            W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: July 1, 2004

Do Not Publish




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