NO. 12-18-00282-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BOBBY CULPEPPER, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

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APPEAL FROM THE 7TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Bobby Culpepper appeals his conviction for felony boating while intoxicated. In two 

issues, Appellant challenges the sufficiency of the evidence supporting his conviction and the trial 

court’s denial of his motion to quash the indictment. We affirm.

BACKGROUND

Appellant was charged by indictment with boating while intoxicated with two prior 

convictions for operating a motor vehicle while intoxicated, enhanced by a prior felony conviction.

He filed a motion to quash the indictment because the record in one of the prior operating while 

intoxicated offenses, cause number 101,686-A, appears to indicate that he entered his plea without 

counsel, and he was unable to obtain the court reporter’s record to determine whether he 

voluntarily waived his rights when he pleaded guilty. After a hearing, the trial court denied the 

motion, Appellant pleaded “not guilty,” and the matter proceeded to a jury trial.

At trial, the evidence showed that Texas Game Warden Brad Clark observed Appellant 

commit two criminal offenses by riding a jet ski on public water after sunset and within fifty feet 

of a boat and an island at greater than headway speed. While investigating these offenses, Clark 

observed signs of intoxication in Appellant. After conducting field sobriety tests, Clark arrested 

Appellant for boating while intoxicated. A blood test measured Appellant’s blood alcohol content 
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at 0.126 grams per 100 milliliters. Additionally, certified copies of documents from two prior 

driving while intoxicated cases were admitted into evidence, and the State’s fingerprint expert 

testified that the prints in the documents matched Appellant’s.

Ultimately, the jury found Appellant “guilty” as charged in the indictment and assessed his 

punishment at imprisonment for twenty years. This appeal followed.

MOTION TO QUASH

In Appellant’s second issue, he argues that the trial court erred by denying his motion to 

quash the indictment because there is no showing that he voluntarily waived his right to counsel 

in cause number 101,686-A.

Standard of Review and Applicable Law

A conviction obtained when an indigent defendant is tried without appointed counsel or 

waiver of appointed counsel is void. Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). A 

defendant may challenge the validity of an enhancing conviction on this basis by moving to quash 

the indictment. Ortegon v. State, 267 S.W.3d 537, 545 (Tex. App.—Amarillo 2008, pet. ref’d). 

To prevail in such a challenge, the defendant has the burden to prove that, with respect to the 

enhancing conviction, he (1) was indigent, (2) was without counsel, and (3) did not voluntarily 

waive the right to counsel. See Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985). 

An appellate court reviews a trial court’s ruling on a motion to quash de novo. State v. Ross, 573 

S.W.3d 817, 820 (Tex. Crim. App. 2019).

Analysis

Appellant contends that there is no proof that he had or waived counsel in cause number 

101,686-A. Consequently, he argues that his DWI conviction in that case is void and the trial court 

erred by denying his motion to quash. We disagree.

In support of his argument, Appellant cites Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 

19 L. Ed. 2d 319 (1967) for the proposition that if the records from a prior conviction do not 

establish the defendant had or waived counsel, the conviction is presumed void. In Burgett, the 

judgment in the petitioner’s prior conviction stated that he appeared without counsel, and there 

was no indication in the record that counsel was waived. Id. at 112. The Supreme Court held that 

the record raised a presumption that the petitioner was denied his right to counsel and therefore 

the conviction was void. Id. at 114. 
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However, subsequent to its decision in Burgett, the Supreme Court disagreed with a 

respondent that Burgett stands for the proposition that “every previous conviction used to enhance 

punishment is ‘presumptively void’ if waiver of a claimed constitutional right does not appear 

from the face of the record.” See Parke v. Raley, 506 U.S. 20, 31, 113 S. Ct. 517, 524, 121 L. Ed. 

2d 391 (1992). In Parke, the records of the respondent’s prior convictions did not contain 

transcripts of the plea proceedings to affirmatively show that his guilty pleas were knowing and 

voluntary. Id., 506 U.S. at 23, 113 S. Ct. at 520. The Court distinguished the case from Burgett, 

noting that at the time of the prior conviction in Burgett, state criminal defendants’ right to counsel 

was not yet recognized and thus it was reasonable to presume the defendant did not waive that 

right. Id., 506 U.S. at 31, 113 S. Ct. at 524. The Court adhered to its precedent holding that even 

when a collateral attack on a final conviction rests on constitutional grounds, the presumption of 

regularity makes it appropriate to assign a burden of proof to the defendant. Id.

Here, unlike in Burgett, a state criminal defendant’s right to counsel was already 

recognized when Appellant was convicted in cause number 101,686-A in 1993. See Gideon v. 

Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 795, 9 L. Ed. 2d 799 (1963). Thus, it is reasonable 

to presume that Appellant waived that right and assign him the burden to prove otherwise. See

Parke, 506 U.S. at 31, 113 S. Ct. at 524. The record contains docket sheets from cause number 

101,686-A reciting that Appellant appeared at a plea hearing “w/o,” and his “rights were fully 

explained and formalities waived.” Although “w/o” appears to indicate that Appellant appeared 

without counsel, the record in this case does not establish on its face that Appellant neither had 

counsel nor waived his right to counsel, and Appellant did not establish this fact by other evidence. 

Therefore, we conclude that the trial court correctly denied Appellant’s motion to quash the 

indictment. See Disheroon, 687 S.W.2d at 334; see also Ross, 573 S.W.3d at 820. Accordingly, 

we overrule Appellant’s second issue.

EVIDENTIARY SUFFICIENCY

In his first issue, Appellant contends that the evidence is insufficient to prove his prior 

conviction in cause number 101,686-A. 

Standard of Review and Applicable Law

In Texas, the Jackson v. Virginia standard is the only standard that a reviewing court 

should apply in determining whether the evidence is sufficient to support each element of a 
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criminal offense that the state is required to prove beyond a reasonable doubt. Brooks v. State, 

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, the relevant question 

is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational 

trier of fact would have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). The 

responsibility of the trier of fact is to fairly resolve conflicts in the testimony, to weight the 

evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. The jury is the 

exclusive judge of the credibility of witnesses and the weight to be given their testimony. Wyatt 

v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). Likewise, reconciliation of conflicts in the 

evidence is within the exclusive province of the jury. Id. Because the jury is the sole judge of a 

witness’s credibility, and the weight to be given the testimony, it may choose to believe some 

testimony and disbelieve other testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 

2008).

Boating while intoxicated is a third-degree felony when it is shown at trial that the 

defendant was previously convicted twice of any other offense relating to the operating of a motor 

vehicle while intoxicated. TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2019). To establish 

that a defendant has been convicted of a prior offense, the state must prove beyond a reasonable 

doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. Flowers

v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific document or mode of proof is 

required to prove these elements. Id. While evidence of a certified copy of a final judgment and 

sentence may be a preferred and convenient means, the state may prove the elements in a number 

of ways, including (1) the defendant’s admission or stipulation, (2) testimony by a person who was 

present when the person was convicted of the crime and can identify the defendant as that person, 

or (3) documentary proof that contains sufficient information to establish both the existence of a 

prior conviction and the defendant’s identity as the person convicted. Id. at 921-22.

Analysis

Appellant argues that the evidence is insufficient to prove his prior conviction in cause 

number 101,686-A because there is no judgment in the record. We disagree.

Although the State did not introduce a judgment to prove Appellant’s conviction in cause 

number 101,686-A, there is sufficient other evidence to support the jury’s finding that the 

conviction exists. The record contains a signed probation order in cause number 101,686-A 
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naming Appellant as the defendant. The order recites that Appellant pleaded “GUILTY/NO 

CONTEST,” and the trial court adjudged him guilty of DWI and assessed his punishment at a fine 

of $800.00 and confinement for one year, suspended for a term of two years. The State’s 

fingerprint expert testified that a fingerprint on the order matches Appellant’s. Viewing the 

evidence in the light most favorable to the verdict, we conclude that the jury was rationally justified 

in finding, beyond a reasonable doubt, that Appellant was convicted of DWI in cause number 

101,686-A. See id.; Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Brooks, 323 S.W.3d at 

899. Accordingly, we overrule Appellant’s first issue.

DISPOSITION

Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered November 27, 2019.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 27, 2019

NO. 12-18-00282-CR

BOBBY CULPEPPER,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 7th District Court 

of Smith County, Texas (Tr.Ct.No. 007-0892-18)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court below 

for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.