                                  NO. 07-04-0328-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                SEPTEMBER 22, 2005

                         ______________________________


                         ALEXANDER LOPEZ, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                       _________________________________

              FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

                   NO. 3587; HONORABLE FELIX KLEIN, JUDGE
                       _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      This is an appeal from a felony driving while intoxicated conviction enhanced by two

prior misdemeanor DWI convictions. Appellant Alexander Lopez plead guilty pursuant to

a plea bargain agreement and appeals the denial of his pre-trial motion to quash the

enhancement paragraphs in the indictment. We will affirm.
       Appellant was charged by indictment with the offense of driving while intoxicated in

January 2002. This offense was enhanced in paragraphs two and three of the indictment.

Paragraph two of the indictment set forth a prior misdemeanor DWI conviction for an

offense committed in July 1994.        Paragraph three of the indictment alleged a prior

misdemeanor DWI conviction for an offense committed in August 1988. The trial court held

a hearing on appellant’s pre-trial motion to quash the enhancement paragraphs. Appellant

was the only witness called at the hearing. Appellant testified that he did not recall the

following: (1) being arrested in August of 1988, (2) going to court in August of 1988, (3)

then being placed on probation, (4) agreeing to any waiver of rights (including the right to

counsel), (5) being in jail at that time, or (6) “anything” from 1988. He further testified that

he suffers from Posttraumatic Stress Syndrome as a result of his military service during the

Vietnam War. The State then asked appellant to identify the signature on documents

labeled “Waiver of Rights,” “Waiver of Attorney,” “Application for Probation,” and “Motion

to Withdraw the Application for Probation.” All of these documents were purportedly signed

in 1988, and appellant testified the signatures appeared to be his. Neither party, however,

moved to have these documents admitted into evidence and they are not contained in the

record before us.1 Further, there is no document or testimony in the record before us

regarding the July 1994 offense and accompanying conviction.




       1
       The State has attached to its brief certified copies of documents concerning the
1988 conviction. Because these documents are not part of the appellate record, we have
not considered them on appeal. TEX . R. APP . P. 34.1. See James v. State, 997 S.W.2d
898, 901 n. 5 (Tex.App.–Beaumont, 1999, no pet.) (appellate court must determine case
on record as filed and cannot consider documents attached to briefs).

                                               2
       At the close of the hearing, appellant’s counsel requested that the trial court take

judicial notice of appellant’s 1988 case on file with the county clerk’s office in Lamb County.

The State did not oppose the request. The trial court granted appellant’s counsel’s

request,2 and then denied the motion to quash indictment.


       Appellant raises the following single issue on appeal: Whether the trial court erred

in denying appellant’s motion to quash the indictment when appellant presented evidence

that raised an issue as to whether a prior misdemeanor DWI conviction used to enhance

a felony DWI offense was void as a matter of law because appellant did not make a

knowing waiver of counsel.


       An accused bears the burden of proof on a motion to quash an indictment. Wheat

v. State, 537 S.W.2d 20, 21 (Tex.Crim.App. 1976). When an appellant collaterally attacks

an enhancing misdemeanor conviction on the ground here raised, the appellant has the

burden to prove that, with respect to the enhancing misdemeanor convictions, he did not

voluntarily, knowingly, and intelligently waive his right to counsel. Garcia v. State, 909

S.W.2d 563, 566 (Tex.App.–Corpus Christi 1995, pet. ref’d) (citing Disheroon v. State, 687

S.W.2d 332, 334 (Tex.Crim.App. 1985)). The appellant bears this burden only when

collaterally attacking the enhancement misdemeanor convictions. Garcia, 909 S.W.2d at

566. On direct appeal of a conviction, the State bears the burden of establishing that the



       2
         Both the 1988 and 1994 misdemeanor convictions referred to in the enhancement
paragraphs occurred in the county court of Lamb County. Appellant does not contend that
any fact established by the county court’s file in either case constitutes evidence supporting
his motion to quash. We need not address, then, the evidentiary effect of the district court’s
statement in response to counsel’s request that the court “will take notice on file.”

                                              3
record affirmatively shows a valid waiver of counsel. Upton v. State, 853 S.W.2d 548, 553

(Tex.Crim.App. 1993).3


       A motion to quash is properly denied when a defendant offers no proof with respect

to the allegations contained in his motion. Worton v. State, 492 S.W.2d 519, 520

(Tex.Crim.App. 1973); Bell v. State, 814 S.W.2d 229, 231 (Tex.App.–Houston [1st Dist.]

1991, pet. ref’d). During the course of the hearing, appellant offered no evidence that his

prior misdemeanor DWI convictions were obtained without a knowing waiver of counsel.

Appellant’s testimony that he did not remember the 1988 conviction or the circumstances

surrounding the conviction is not evidence the conviction was void for that reason.


       Nor does appellant’s unsworn motion to quash indictment constitute evidence of the

truth of its assertion that appellant did not intelligibly or voluntarily waive his right to counsel

in the misdemeanor prosecutions. The general rule is that an unsworn motion does not,

by itself, present evidence on which relief can be granted. Whitehead v. State, 130 S.W.3d

866, 873 (Tex.Crim.App. 2004).           Case law also holds that a motion to quash an

enhancement allegation in an indictment is not self-proving. Worton, 492 S.W.2d at 520

(cited in Whitehead, 130 S.W.3d at 873).


       Because appellant failed to produce any evidence to demonstrate the prior

misdemeanor DWI convictions were improperly obtained, the trial court did not err in




       3
        Goffney v. State, 843 S.W.2d 583 (Tex.Crim.App. 1992), cited by appellant,
involved a direct appeal.

                                                 4
denying his motion to quash the enhancement allegations. We overrule appellant’s issue

and affirm the judgment of the trial court.




                                                  James T. Campbell
                                                      Justice


Do not publish.




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