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

              No. 06-11-00060-CR
        ______________________________


      ROBERT HUGH MCCARTY, Appellant

                         V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the Sixth Judicial District Court
               Lamar County, Texas
               Trial Court No. 23969




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                            MEMORANDUM OPINION

        In his most recent trouble with the criminal law, after Robert Hugh McCarty pled guilty to

a charge of driving while intoxicated (DWI) and true to two prior DWIs, McCarty was convicted

of DWI—as a third DWI offense, making the offense a third-degree felony. See TEX. PENAL

CODE ANN. §§ 49.04 (basic DWI), 49.09(b)(2) (West 2011) (two prior DWIs makes DWI

third-degree felony).1

        On appeal, McCarty argues that the evidence was legally insufficient to support his

conviction because the two prior DWI convictions were void and thus not available to enhance his

offense to a third-degree felony. He claims that the prior DWIs were void because he was

indigent and was not represented by counsel during their adjudication. McCarty’s claim on

appeal amounts to a collateral attack on the two prior DWI convictions. We affirm the trial

court’s judgment because McCarty has not demonstrated from this record that the prior DWI

convictions are void.

        A collateral attack on a prior judgment is permitted only if the prior judgment is void.

Rhodes v. State, 240 S.W.3d 882, 887 (Tex. Crim. App. 2007). ―We have long held that a defect

that renders a sentence void may be raised at any time.‖ Ex parte Rich, 194 S.W.3d 508, 511



1
 Additionally, based on McCarty’s plea of true to a sentence-enhancement of arson, he was sentenced to seven years’
imprisonment. See TEX. PENAL CODE ANN. §§ 12.42(a)(3) (enhancing third-degree felony, with one prior
enhancement offense, to a second-degree-felony punishment range), 12.33 (West 2011) (incarceration range for
second-degree felony, two years to twenty years).


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(Tex. Crim. App. 2006); Ex parte Black, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996).2 It is true

that a criminal judgment is void if that judgment is rendered in a proceeding in which an indigent

defendant is required to face trial without appointed counsel, unless he or she waived the right to

counsel. Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001).

           When prior convictions are collaterally attacked, the judgments reflecting those

convictions are presumed to be regular and the accused bears the burden of defeating that

presumption. Swanson v. State, 722 S.W.2d 158, 164 (Tex. App.—Houston [14th Dist.] 1986,

pet. ref’d). Bald assertions by a defendant that he was without the assistance of counsel at his

prior convictions are not sufficient to overcome the presumption of regularity of the judgments.

Id. (citing Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985)). The fact that a

judgment is silent as to the name of defense counsel alone is insufficient to overcome the

presumption of regularity of the records before the court. Chancy v. State, 614 S.W.2d 446, 447

(Tex. Crim. App. [Panel Op.] 1981); Ex parte Swinney, 499 S.W.2d 101, 103 (Tex. Crim. App.

1973).

           McCarty’s two prior DWI convictions were introduced as exhibits for the trial court.

McCarty, who was found to be indigent in this case, first argues that he was ―clearly indigent‖ in

1987 and 2007 when the two prior convictions were adjudicated. In support, he cites to his

sister’s testimony that he lost a job at Campbell Soup as a result of an arson conviction in 1984. In

March 2011, McCarty testified that he received a disability check in the amount of $673.00 per
2
    An appellant does not forfeit this claim by pleading true to enhancement paragraphs. Rich, 194 S.W.3d at 513.

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month for the past six years. The assumption McCarty asks this Court to draw is that the

disability checks were McCarty’s sole source of income after 1984.

       McCarty’s sister also testified, however, that McCarty ―did odd jobs‖ and ―did work for the

lawn services and different people‖ in the recent past. This was confirmed by McCarty, who

stated that he was employed in ―professional yard work, landscaping, mowing yards and stuff‖ for

the past eight years.

       [F]or a judgment to be void, the record must leave no question about the existence
       of the fundamental defect. If 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, 65 S.W.3d at 668–69. The evidence presented by this record fails to establish that McCarty

was indigent during 1987 and 2007.

       Also, we do not find that McCarty was without counsel when he pled guilty to the two prior

DWI convictions. The 2007 DWI conviction stated on the judgment that McCarty appeared ―in

person, (and by attorney),‖ and pled guilty to the offense. The 1987 DWI conviction also

indicated McCarty had counsel. This judgment stated that ―the Defendant then and there in open

court, and in writing, requested permission to waive a trial by jury and to be tried before the Court,

to which counsel for both the State of Texas and Defendant added their written consent and

approval.‖

       Where there is a claim that an indigent person was denied counsel, or that a waiver of



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counsel was involuntary, the record must demonstrate the truth of the claim. Nothing in the prior

DWI judgments establishes that McCarty was not represented by counsel; in fact, they suggest the

opposite. The fact that McCarty’s counsel was not identified by name is insufficient to overcome

the presumption of validity. See Chancy, 614 S.W.2d at 447; Swanson, 772 S.W.2d at 164

(appellant fails to meet his burden when his ―testimony that he was not represented by counsel at

the time he pled guilty in the prior felony case is uncorroborated by any evidence in the record‖).

       Based on the record before us, McCarty has not overcome the presumption of regularity of

the prior DWI convictions.       Chancy, 614 S.W.2d at 447; Swanson, 722 S.W.2d at 164.

Therefore, the evidence was legally sufficient to sustain the trial court’s judgment in this case.

       We affirm the trial court’s judgment.




                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:        September 20, 2011
Date Decided:          September 21, 2011

Do Not Publish




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