NO. 07-10-0351-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL A DECEMBER 13, 2011

__________________ ____________ DAVID MORALES, APPELLANT
V. THE STATE OF TEXAS, APPELLEE

__________________ _______________ FROM THE 364 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2009-423,219; HONORABLE BR ADLEY S. UNDERWOOD, JUDGE

__________________ _____________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION
On April 28, 2009, Appellant, David Morale s, was charged by indictment with the third degree felony offense of driving while intoxicated. 1 The indictment also contained three enhancement paragr aphs alleging prior felony convictions. 2 Upon a plea of guilty,

1 The indictment alleged that Appellant had previously been convicted of DWI offenses in 1988 and 2008. See Tex. Penal Code Ann. §§ 49.04, 49.09(b)(2) (West 2011).

2 The indictment alleged that Appellant had previously been convicted of three felonies -- burglary of a building in 1989, sexual assault in 1991 and failing to register as a sex offender in 2001. The State subsequently waived two of the three enhancements, making the offense punishable as a second degree felony. See Tex. Penal Code Ann. § 12.42(a) (West Supp. 2011).2 the trial court assessed Appellant's sentence at ten years confinement. In a single issue, Appellant contends the trial court err ed by denying his motion to quash one of the prior DWI convictions used to enhance his o ffense to a felony. We affirm.
Background
After being indicted, Appellant filed a Motion to Quash Enhancement Portion of the Indictment (Motion to Quash) alleging that he did not knowingly and voluntarily waive his right to counsel in conjunction wit h his 1988 DWI conviction in Castro County. Prior to entering his guilty plea in 1988, Appellant did execute a written Waiver of Jury, Waiver of Attorney, and Waiver of Pre-Sentence Investigation Report ( Waiver ). Furthermore, in that cause, t he trial court issued a written Guilty Plea Admonishment ( Admonishment ) and Appellant executed a written Waiver of Rights and Plea of Guilty (Waiver of Rights). The Waiver stated, in pertinent part, as follows: The defendant in the a bove entitled and numbered cause enters a plea of guilty to the information herein; defendant acknowledges that he has been fully advised of all his rights and the minimum and maximum penalty; and that he understands the natur e of the charges against him. This plea is made voluntarily upon hi s part; defendant expressly waives, gives up, and abandons his right to a jury trial and su bmits this case to the Court on all issues of fact and law. Defendant waives, gives up, and abandons his right to have an attorney represent him, and requests the Court to allow him to act as his own counsel, and prays that the court not force him to hire an attorney nor force him to trial with an appointed attorney. Defendant has been advised of the dangers and disadvantages of proceeding without an attorney. Furthermore, the Admonishment stated, in pertinent part, as follows: If you are not sure how to plead, the Ju dge will enter a “not guilty” plea, for you and give you time to talk to a lawy er. . . . You have the right to plead not guilty, have a jury trial and have the help of your own lawyer during every part of this case. . . . If you w ant to discuss this case with a lawyer before entering a plea, te ll the Judge now so that a bond can be set for3 you and so that you can have two additional weeks to select a lawyer. If you are found indigent, a lawyer will be appointed to represent you. If you are employed or free on bond, a lawyer will probably not be appointed for you.
Finally, the Waiver of Rights stated that Appellant “[had] been advised of [his] right to [e]mploy a lawyer or have the c ourt appoint a lawyer for me” and “hereby waive [the right], and without coercion or duress, enter a plea of guilty as charged . . . .”

The trial court denied Appellant’s Motion to Quash. Appellant subsequently pled guilty and was sentenced to ten years confinement. This appeal followed.

Discussion
Appellant contends the Waiver was defective because it did not contain warnings mandated by article 1.051 of the Te xas Code of Crim inal Procedure, 3 nor did it advise Appellant that the offense might later be used for purposes of enhancement. Appellant

3 The version of Article 1.051 of the Texas Code of Crim inal Procedure in place at the time Appellant plead guilty in the Castro County DWI case stated as follows: If a defendant wishes to waive his right to counsel, the court shall advise him of the dangers and disadvantages of self -representation. If the cour t determines that the waiver is voluntarily and intelligently made, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become a part of the record of the proceedings: “I have been advised this ___ day of _____. 19__, by the (name of court) Court of my right to representation by counsel in t he trial of the charge pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my ca se without an attorney being appointed for me. I hereby waive my right to counsel. (signature of the defendant)” Added by Act of May 30, 1987, 70th Leg., ch. 979, § 1, 1987 Tex. Gen. Laws 3321, effective Sept. 1, 1987. Amended by Act of May 24, 2001, 77th Leg., ch . 906, § 2, 2001 Tex. Gen. Laws 1800; Act of May 17, 2007, 80th Leg., ch. 463, §1, 2007 Tex. Gen. Laws 821.4 next asserts that his waiver of counsel wa s involuntary because his motivation in the 1988 proceedings was to get out of jail.

Standard of Review

If a trial court’s determination of a motion to quash all or part of an indictment turns on an evaluation of the credibility or demeanor of a witness, we apply an abuse of discretion standard when reviewing the trial court’s decision. State v. Moff , 154 S.W.3d 599, 601 (Tex.Crim.App. 2004). However, if, as here, the trial court’s determination was based solely on the indictm ent, the motion to quash, and argument of counsel, a de

novo review is more appropriate. Id. ; Lawrence v. State , 240 S.W.3d 912, 915 & n.2 (Tex.Crim.App. 2007).

Waiver of Counsel
The Sixth Amendment guar antees criminal defendants the right to assistance of counsel in criminal cases. U.S. Const. amend. IV; 4 Faretta v. California , 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Impli ed in the right to counsel, and in other protections of the Sixth Amendment, is a right of self representation. Faretta , 422 U.S. at 819-20. A criminal defendant’ s waiver of the right to counsel and decision to represent himself must be made “knowingly and intelligently.” 422 U.S. at 835. That decision should also be made vo luntarily and competently. Faretta , 422 U.S. at 834-35; Collier v. State , 959 S.W.2d 621, 625 (Tex.Crim.Ap p. 1997). The decision to waive counsel and to proceed pro se is made “knowingly and intelli gently” if it is made with a

4 This Sixth Amendment right to counsel applies to t he states through the d ue process clause of the Fourteenth Amendment. Gideon v. Wainright , 372 U.S. 335, 342, 83 S.C.t 792, 9 L.Ed.2d 799 (1963). See also Tex. Const. Art. 1, § 10.5 full understanding of the right to counsel t hat is being abandoned, as well as of the dangers and disadvantages of self representation. Collier , 959 S.W.2d at 626. The decision is made voluntarily if it is not coerced. Id. The competence that is required of a defendant seeking to waive his right to couns el is the competence to waive the right, not the competence to represent himself. Godinez v. Moran , 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed. 2d 321 (1993).
Where an accused collaterally attacks the validity of prior convictions on the basis of a denial of the right to counsel, the accused bears the burden of proving that “he did not voluntarily, know ingly, and intelligently waive his right to counsel.” Williams v. State , 946 S.W.2d 886, 900 (Tex.App.—W aco 1997, no pet.) (quoting Garcia v. State , 909 S.W.2d 563, 566 (Tex.App.—Corpus Christ i 1995, pet. ref’d)). Further, “bald assertions by a defendant that he was without the assistanc e of counsel at his prior convictions are insufficient to overcome th e presumption of regularity of the records before the court in the case." Id. (citing Swanson v. State , 722 S.W.2d 158, 164 (Tex.App.—Houston [14 th Dist.] 1986, pet. ref’d)).
Here, Appellant's Waiver acknowledged he had been fully advised of his rights and his plea was made voluntarily. His Waiver indicated he had been advised of the dangers and disadvant ages of proceeding pro se, that he abandoned his right to have counsel represent him, and that he was requesting the court to allow him to act as his own counsel. In the Admonishment , Appellant was advised t hat, if he was unsure how to plead, the trial court would enter a “not guilty” plea for him and give him additional time to talk to counsel. The Admonishment also advised Appellant that, if he wanted to speak with counsel before entering his pl ea, the Judge would se t a bond and give him6 two weeks to select counsel or have couns el appointed to represent him if he was indigent. In the Waiver of Rights, Appellant acknowledged he had been advised of his right to counsel or to court-appointed counsel and waived the right without coercion or duress. Despite this, Appel lant presented no further evidence to the trial court establishing that his waiver of counsel in the 1988 proc eeding was either involuntary, unknowing, or unintelligently exercised.
The language of article 1.051( g) is not mandatory, only substantial compliance is required. See Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App. 1984) (“This Court requires no formalistic questioning to establish a knowing and intelligent waiver [of the right to counsel] nor wi ll it author a script for courtr oom recitation by trial judges faced with this dilemma.”) In the absence of any evidence to the contrary, we find the trial court’s Waiver, Admonishment , and Waiver of Rights substantially complied with article 1.051(g). See Muniz v. State , 851 S.W.2d 238, 255-56 (Tex.Crim.App. 1993); Knorpp v. State , No. 07-91-0108-CR, 1998 Tex. Ap p. LEXIS 2086, at *14-15 (Tex.App.—Amarillo April 7, 1998, no pet.) (mem. op., not designat ed for publication).
Furthermore, a guilty plea is generally considered voluntary if the defendant was made fully aware of its “direct” consequences. State v. Jimenez , 987 S.W.2d 886, 888 & n.4 (Tex.Crim.App. 1999) (a consequence is “direct” where it is definite, immediate and largely automatic). If, how ever, the consequence is “collate ral” rather than “direct,” the defendant need not be kno wledgeable of the “collate ral” consequence before his plea is considered kno wing and voluntary. Ex parte Morrow , 952 S.W.2d 530, 536-37 (Tex.Crim.App. 1997), cert. denied , 517 U.S. 1192, 116 S.Ct. 1683, 134 L.Ed.2d 7847 (1996) (“A consequence is ‘colla teral’ if it is not a definit e, practical co nsequence of a defendant’s guilty plea.”)
“[I]t is well settled that a trial court is not required to admonish a defendant that the consequences of [a] plea include the possibility that the conviction which ensues from the plea might be used for enhancement purposes in a subsequent trial.” Ex parte Dmuitru , 850 S.W.2d 243, 244-45 (Tex.App.—Houston [1 st Dist.] 1993, no pet.) (emphasis added). Ignorance of a collateral consequence does not render a plea involuntary. Id. Accordingly, we find that the trial court did not abuse its discretion in denying Appellant’s Motion to Quash because Appellant failed to meet his burden of proof and overcome the presum ption that the 1988 judgment wa s regular. Appellant’s single issue is overruled. Conclusion The trial court’s judgment is affirmed.

Patrick A. Pirtle Justice Do not publish.