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,

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

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).

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 . . . .’”).

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

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.