*1
ous
strategies.
trial
See: Martin v.
Archie v. However, App.1981). abdication basic Texas, Appellee. The STATE responsibility, threshold such as in the in No. 919-82. stant is the antithesis a considered It strategy. is unthinkable reason Criminal would, ably effective attorney En Banc. case, persuade matter of tactics in any his client waive right his constitutional to June 1983. trial, jury knowing such a waiver was not in his client’s best interests. Richardson, McMann v. 397 U.S. (1970), S.Ct. 25 L.Ed.2d
Supreme Court insisted:
“If right guaranteed to counsel as
by the Constitution is to its pur- serve
pose, defendants cannot be left to the ” incompetent mercies counsel.... U.S. S.Ct.
L.Ed.2d
The the record shows
that applicant’s counsel did little trial prep Applicant’s
aration. ap counsel convinced
plicant right trial, to waive his to a though
even such a waiver would not be
advantageous applicant any way,
and would probably sure to be disadvan
tageous. It is that applicant clear was not
given competent advice and applicant thus prevented making from an informed
and conscious choice regarding
a jury trial.
The supports the trial court’s find-
ings. Appellant’s contentions of ineffective
assistance counsel are sustained. The sought
relief is granted. applicant
ordered released and remanded the sher-
iff of Harris County answer indict-
ment convicting in Cause No. 273577 in the
court.
It is so ordered. *2 Const.,
Tex. Art. 10 provides Sec. no person “and shall be held to answer for a offense, criminal unless on an indictment of a grand jury, except in pun cases in which ishment is fine imprisonment, or other Hall, Brendan Harlingen, for appellant. 1.141, wise than in the penitentiary.” Art. Cisneros, Edna Dist. Atty. and William R. (Acts 1971, V.A.C.C.P. Leg., Chapt. 62nd Wepfer, Asst. Dist. Atty., Raymondville, May 1971) 260—S.B. effective pro Huttash, Robert Atty. State’s and Alfred vides that shall be information Walker, Asst. Austin, State’s Atty., for the person where a represented by legal coun State. sel, open “in court or written instru ment,” voluntarily right waives the accused by any indictment of offense other capital than a felony.” King In (Tex.Cr.App.1971) S.W.2d 43 this Court OPINION ON STATE’S PETITION FOR 1.141, held that supra, Art. was not viola- DISCRETIONARY REVIEW tive of Art. 10 of the Sec. Texas Constitu King tion. In it was further held that DAVIS, TOM G. Judge. waiver of the right upon to trial an indict Appeal is taken from a felony conviction ment is not violative of federal consti for escape from custody. The indictment requirements. tutional alleged appellant was under arrest for and 42.01, Art. (as V.A.C.C.P. amended charged with the offense of murder. See Acts 67th sets Leg.) forth what should Code, 38.07(c). V.T.C.A. Penal Sec. Punish- be shown judgment. Among in a ment, felonies, enhanced by two things to be reflected are the names of the assessed at life. The conviction was re- attorneys defendant, for the State and the versed by the Court of Appeals for the and if represented by any defendant is not Supreme Thirteenth Judicial District. We counsel, knowingly, “that the defendant in- granted the petition State’s for discretion- telligently, and voluntarily right waived the ary review in order to examine the Court Also, to representation by counsel.” Appeals’ upholding action in appellant’s judgment. to be reflected in the contention that the two felony convic- While it be a practice, desirable tions from California alleged in the indict- suggestion is no in Art. ment were subject not to being used absent reflect waiver of indictment proof of waiver of indictments. judg- if upon trial is information. ments the two causes reflected that trials were If presume we that the law of informations. California is the same law of Texas a defendant The Court of Appeals in its cited could waive the to trial indictment our holding Lackey writing either in court open and it 97 (Tex.Cr.App.1978) for proposition necessary would not be the record must reflect a waiver of reflect such waiver. in order for a felony conviction Any attack on the California convic to withstand an appellate challenge. tions is attack. obviously collateral Lackey, unlike the instant the convic Hankins v. tion under attack was on direct appeal from App.1983) appellant attacked the admission the primary offense.
of two prior out-of-state convictions on the The law in other states is presumed basis that he was fifteen at time of the to be the same as the law of when urged commission of the offenses. Hankins proved to be different. that since there was no evidence before regarding Virginia law, is presumed regarding as to the law informations. be the same as that of felonies accordance with Texas law the must granted This court State’s contain a certification from Juvenile Court to examine this hold- discretionary review Felony Adult Court. This Court found ing by Appeals. such argument be without merit conclud *3 for clarifica- question presented begs ing attack, “In this collateral as with a tion and bar. for the benefit bench habeas corpus proceeding, is his [Han- Court of the ma- reversing Appeals, burden the con kins’] demonstrate not, view, jority my adequately does in ex- victions are void showing proce grips question. with plore come to dure improper in Virginia.” In Ex this write. For reason I parte Rains, 555 S.W.2d (Tex.Cr.App. 478 V.T.C.A., Code, 12.42(d), pro- Penal § 1977), post-conviction corpus pro habeas vides: ceeding, (and the rule set forth therein cited “(d) If it shown on the trial of be approval Hankins) states: has felony offense defendant “The corpus burden in a habeas of two previously finally been convicted is proceeding upon the petitioner here offenses, felony previous and the second a preponderance of the evidence to show felony conviction is for an offense that indigent, he was had no counsel and subsequent previous occurred to the first did affirmatively not the right waive final, having become on con- conviction counsel.” punished by viction he shall be confine- In the instant the burden was on Department ment in the of Correc- Texas appellant to demonstrate prior two tions for life.” California convictions were void. There be- 12.42(d) Said and its forerunners have § ing no evidence to appellant’s con- held at been valid constitutional tention, no is error shown. State, (Tex. tack. Moore 629 266 v.
The judgment of of Appeals the Court App.1982); State, Passmore reversed cause is remanded to 399 there (Tex.Cr.App.1976), and cases cit ed; 554, Court for Spencer consideration of 385 87 appellant’s other U.S. S.Ct. 648, grounds (1967). 17 of error. L.Ed.2d 606 See Rummel v.
Estelle,
263,
1133,
445
100 S.Ct.
63
U.S.
Tex.Jur.3rd,
(1980);
L.Ed.2d 382
25
Crim.
ONION, Presiding Judge, concurring.
Law,
p.
§
We
presented
are here
with a burden of
course,
true,
It
proceedings
that in
proof question relating to
allegations
12.42(d)
under
and its forerunners most
§
two prior non-capital
felony convictions
are or
prior
prior
convictions
were
Texas
from California.
held,
It has
felony
long
convictions.
been
The escape
punishment
conviction with
however,
conviction in a court of a
that a
enhanced
the two
punish
convictions were
used to
sister state
enhance
Corpus
reversed
if the
constitut
felony
Christi
ment
cases
crime
Court of
State,
Garcia v.
140
Appeals holding
felony
ed
Texas.
the prior California
(Tex.Cr.App.
Tex.Cr.R.
830
provisions of
12.42(d)
said
purpose
parte Nitsche,
§
Ex
75 Tex.Cr.R.
of enhancing punishment
then the burden
1101 (Tex.Cr.App.1914);
S.W.
Kinley v.
of proof is upon
State,
beyond
Tex.App.
State
a reason
(1891);
S.W.
Estelle,
able doubt.
Bullard v.
(1875).
665 F.2d Graham v.
Jury Charges for Texas Criminal Practice C.P., 1925, a 12.42(d) forerunner of said § 20; (1981), p. Ann.P.C., ed., 1 Branch’s 2d p. allegation Texas felony convic 689; Errors, Erisman Manual of Reversible tion and a Louisiana conviction. (1st Ed.). Tex.Jur.3rd, See regard conviction, With to the Louisiana *4 Crim.Law, 3716, p. 749. this court wrote: I, Article 10 of the Texas Constitution “The evidence is insufficient because of relates rights of an accused in crimi- the variance allegation between the prosecutions. nal provides It part: in the indictment the conviction was upon an indictment and showing
“Sec. 10.
In all
prosecutions
criminal
upon
it was
information.
It is also insuf-
the accused shall
a speedy public
have
ficient because of the presumption that
trial
an
impartial jury. He shall have
the Laws of Louisiana are the same as
the right to demand the nature and cause
State,
Laws of this state. Green v.
of the
against him,
accusation
and to
46,
392;
165 Tex.Cr.R.
303
Ex
S.W.2d
...;
have a copy thereof
person
and no
parte
642,
Cooper, 163 Tex.Cr.R.
295
shall be held to answer
criminal
felony
S.W.2d 906. A conviction for a
offense, unless on an indictment of a
cannot be had in Texas
an indict-
grand jury, except in
in
cases which the
I,
ment.
Art.
Constitution of
See
Sec.
imprisonment,
fine or
Texas, Vernon’s Ann.St.”
otherwise
penitentiary,
than in the
impeachment,
cases of
and in cases aris-
In Melancon the State made no effort to
ing in the
or
army
navy,
militia,
or in the
prove that Louisiana laws permitted prose-
when in actual service in time of war or
cution of felonies on informations.
If it
public danger.”
had done so then
presumption
would
never have arisen. Melancon made clear
Accordingly it has been held that
in a
in determining
sufficiency
of evi-
case
felony
the State Constitution
dence relating
to a
conviction
felony
requires an indictment presented by a
in a sister
alleged
state
for enhancement of
grand jury and such is essential to a valid
punishment,
presumed
it is to be
Hollingsworth
State,
trial.
v.
87 Tex.Cr.R.
laws of the
the same
sister state are
as
399,
In the on rehearing the Hall court an “abstract of Only to exhibit No. went further and wrote: exempli- judgment” and other certified offer an fied court documents did
“The complains objection as follows: there is insufficient evidence to show that the law in prosecu Minnesota authorized object grounds “I to 10 on the tion of felonies information. In the ... prosecution predicated in the case is presumed absence of it is felony predicated for a is a law of another this state is same as and there is no waiver of information Nichols, parte state. Ex the court in the file and *6 (Tex.Cr.App.1979); Almand v. that the law of California is well aware McKinney 377 (Tex.Cr.App.1976); S.W.2d the in presumed to be the same as law S.W.2d on an may prosecute Texas and no one 1974); Jackson v. S.W.2d without a information waiver. (Tex.Cr.App.1973). felony may a Since objections to “Three other unrelated prosecuted by now be information in this all no. 10 were offered and then exhibit state, 1.141, V.A.C.C.P., it is pre Art. and the exhibit objections were overruled felony may sumed that in Minnesota a was admitted.” prosecuted information. Gibbs in Texas that the requirement There is no State, 544 403 (Tex.Cr.App.1976). must include requisites judgment ground This of error is overruled.” indictment, Article recitation of a waiver of appear question It does not the of 42.01, V.A.C.C.P., practice albeit better waiver of indictment was raised in Hall. Pre- statutorily required. not though even the same as law is suming that California case, it
Turning to the facts of this is to the con- of Texas law in absence observed that the indictment two the requirement no trary, there was prior for the convictions and other docu- judgment” of purpose punishment. of enhancement of “abstract in of themselves in exhibit 10 paragraph alleged One enhancement convic- ments hardly this seems also reflected further reflection it information. The legal with any in full accord constitute a waiver when asked if he had cause to show would King 1.141, supra, Gibbs why judgment pronounced holds. should not be Article Upon him Gibbs answered “None.” case, include a of recitation a waiver of indict- the the could were second State objection ment. The only shown that the laws of the of directed to exhib- have State indictments, it require No. was without but prop- merit was California do not erly overruled.3 infor- permit prosecution be had mation.”
Contrary to the Appeals’ opin- Court of ion, objection to the exhibit No. 10 the not offer of the laws was State did objection California, deal the only offered at of we must relating so complaint the urged appeal. presumption now on the laws of California are Appel- lant recite in of did in motion for new trial the same as the laws of Texas absence his appellate complaint, ap- contrary. proof sup- Here the but motion pears to ported allegations have been overruled the facial of the indict- hearing. prior ment as to the convictions.
On appeal Further, appellant allegations contends that there we observe that “was insufficient evidence of non-capital introduced convictions were for of State Texas at the hearing pun- felonies and occurred after the effective ishment to authorize of of appel- supra. enhancement date Article While Texas lant’s punishment.” requires law an affirmative waiver of non-capital In his response to the State’s is requirement that the waiver of review, discretionary appellant states necessity be reflected a formal part: of presumption sentence. There also a “What has done since regularity judgment. of trial, of do, time and continues to ob- In Moore v. (Tex. ject to the admissibility ‘pen pack- App.1982), it held where the State trial; ets’ offered by the State of Texas at a prima made facie showing judg- and further state that there was insuffi- punish- ment conviction used to enhance cient evidence introduced regu- resulting ment and the sentence were at hearing on punishment lar on their face and there was no affirma- authorize enhancement appellant’s * ** any tive defect defend- Appellant herein has ant, presumption regularity attacked variance between the prior judgment prevailed. enhancement in the indict- ment and the proof shown the State. Before a conviction be relied objection His points appeal, again, punishment, for enhancement of are that the State failed to meet its bur- must have become final to the com * * * den. has never re- *7 primary mission of the offense quested that this court any or other court State, the indictment. Arbuckle v. 132 Tex. any alleged ‘invalidate’ California convic- (Tex.Cr.App. Cr.R. * * * tions. Appellant attacking is not State, Carter v. 1937); (Tex. 510 323 S.W.2d the validity of the alleged convictions Once, however, Cr.App.1974). the State themselves is attacking but the State’s proof the prima finality makes facie of then in attempting prove efforts to the allega- v. defendant. Lewis the burden shifts to * * * tions contained State, in the indictment. 501 88 (Tex.Cr.App.1973); S.W.2d * * * The could State, supra; Ashley State, v. State have met Carter that 527 burden one doing of (Tex.Cr.App.1975); Tinney things; two first S.W.2d State, the could have State shown that appel- (Tex.Cr.App.1979); S.W.2d waived indictment if that Williams v. lant his to exhibit, required prove if proof judgment Even the State or waiv- one indictment, er anof would not be limited void, its only that the State did not meet
App.1980). See also Hamlin v. proof. (Tex.App. Worth burden — Ft. 1982). question it would have removed all While the case if the had made Tex.Jur.3rd, Crim.Law, from State p. In 25 in- require that law did not it is written: case, utilizing dictment in a prima “Once the state has made a facie law was the presumption that California case, the de- burden then shifts to the same there were as Texas showed fendant. It has been held that the de- conclude waivers of I cannot has, fendant a burden to sus- generally, reversible error is reflected tain his he received a assertion that had made out a circumstances. Once State pardon, had been set shifted to the prima facie case burden aside, granted that a new trial had been he did not sustain. appellant, which burden prior appeal or that an had therein, stated, been taken or that I concur. For the reasons of conviction relied on for enhancement not,
purposes is void. These burdens do CAMPBELL, J., opinion. joins this ” fall on the ordinarily, state.... CLINTON, concurring. Judge, judgments, instant case the sen- tences certi- pen packets properly were escape punish- For the offense fied and was identified with them appellant life, confinement for ment was assessed at testimony. The by expert fingerprint felonies prior of two being allegations the enhancement conformity was in The of California. committed in the State in the indictment that the Corpus reversed judgment was convictions were informations. Once it found Appeals because Christi Court case the bur- prima the State made a facie had convictions the two California information, den shifted to show that State prosecuted been because of convictions were void the law California did not show what in each lack of a waiver of the indictment is no and there respect in this in or- case. validly waived The information.1 prosecuted der to be appellant did offer evidence challenges the Prosecuting Attorney lack of indictment waivers and did not in appeals conclusion of the court insufficiency the trial attack not be used two convictions could the enhancement the evidence to enhancement, granted we allegations. only objection His was to one to determine review discretionary indict- exhibit because it did not include that conclusion is correct.2 whether objection ment waivers. This was without were alleged convictions merit as mentioned. He makes The indictment previously No. 204904 and Cause no claim the California convictions were Cause No. 1. The lyzed valid waiver. Unlike the record in Gibbs victions could not be used absent hibition proved be the same as the law of Texas when not of this case. applicable state obtained “Since the law in other California law was the situation Corpus proves by to Christi Court of their indictment or valid waiver foreign Therefore, different, use of thusly: *8 (Tex.Cr.App. 1980), validity. convictions unless introduced in the trial states the California Hall v. No evidence of convictions presumed ana- con pro of a is 2. The State following question waiver.” rather than nothing Penal convictions were final California enhancement of “May merely [1976]), Code a defendant from which on the Prosecuting Attorney presents objecting 12.42, by the record before us felony punishment under for review: ground prosecuted to collaterally we convictions, alleged and their [403] simple by admission the California infer a valid information, attack expedient V.T.C.A., contains records into respectively, Court All were and Exhibit Superior objections overruled California, State of County, “upon Fresno 10 was admitted.
an then legally information in said pending appellant sep- In his motion new trial last named court and of which said court arately the trial court erred in contended ”3 jurisdiction had et cetera. To admitting in causes 26371 the information those allegations the State offered three 204904, respectively, “because there exhibits, numbers which are of an was no waiver indictment demon- loosely “pen packets.”4 However, called Apparently strated in the cause.” Exhibit from which the issues in this was denied some six hearing the motion arise, cause mainly is a compilation of rec- days later. ords from the clerk of the Superior Court of (and only) appeal On direct first Fresno viz: County, ground implicating of error Exhibit 10 is: judgment Cause an abstract of “There insufficient evidence intro- was
and sentence and underlying felony in- at the presented the State of Texas hear- formation the district at- duced enhance- torney. ing punishment on to sustain punishment.” ment appellant’s judgment Cause a combination of commitment to prison state and min- Pointing nowhere in the record out that is order, ute and underlying felony infor- permits law any proof that California mation presented by the district attor- prosecution felony cases ney. appellant rather or that than information The papers in Exhibit duly 10 are and prop- indictment, he the evi- argues waived erly certified, verified, attested and and for dence is to authorize enhance- insufficient good measure there is a separate but relat- ment of to under V.T. his life verification, ed admitted Exhibit as Code, 12.42(d). C.A. Penal through that all attorney replies its district
When the appel- State offered Exhibit lant it had was that “has objected prove appellant inter alia: previously finally convicted of two been “I object to 10 on grounds and, construing argu- offenses”5
prosecution predicated prosecu- a—is ment of a variance essentially felony predicated tion for a on an infor- such; contention, rejecting relies eases mation and there is no waiver of indict- finally, asserts it made the State that once ment in the file and the is well Court prima allega- a aware the law facie case enhancement pre- in California is true, appellant sumed tions are burden of same as law in had the may prosecute proving no one in that informa- “the convictions are void” tion without a predi- waiver.” in California could not affirmatively of those convictions do not re- intemal data obtained and maintained pursu- regarding Department flect that waived indictment Corrections 1.141, supra, appellant; ant hodgepodge papers, to Art. or in the absence of 9 is a Exhibit permits prosecu- completed including that California a abstract of tion completed information in the absence waiv- No. sentence in Cause 26371 and er of indictment?” combined of commitment state Prosecuting We must observe that prison the State order in No. and minute Cause candidly Attorney admits his as well as internal a cumulative such records as appel- drafted and filed without access summary summary sentencing case and a granting petition, late record. Since say, (Needless to of con- data. had the been has not favored with a brief from failed, for the victions for enhancement con- the State. tents of 8 and 9 to be examined and Exhibits extremely harm- understood would be emphasis supplied by 3. All the writer of this appellant.) prejudicial ful and opinion unless otherwise indicated. 5.Emphasis the State. added pen packet 4. Exhibit 8 is not a in the usual seemingly sense for it is a collection of all *9 cated on an information “as now the law we understand opinion of the court in Texas.” The attorney district did not below, the court sustained the ground first address the issue of waiver of indictment. which, recalled, of error complained out, however, As already pointed being un- that evidence introduced the State was able to find in the anything “from insufficient to its enhancement alle- which waiver,” we infer a valid may gations. appeals court of held the California convic- it, Though the court did not cite tions could not be used for enhancement. State, Holcombe v. 424 S.W.2d 1, note See ante. 635, (Tex.Cr.App.1968) squarely sup- In response to the petition filed ports appellant and the conclusion of the Prosecuting 2, State Attorney, see note appeals. court of Thus it has not been ante, appellant insists that what he was and found in this cause that mounted doing still is “object is to to the admissibili- a “collateral attack” the California ” ty ‘pen of the packets,’ contending that convictions, they nor held that áre void. the State has failed to meet its burden of The premise question presented by proving up prior alleged. convictions it He review Prosecuting Attorney the State disclaims any collateral attack on validity of record, without appellate access to the see the alleged convictions. The core of his 2, is, therefore, false, note and the position being is: “There no evidence intro- granted improvidently seems to have been duced at the trial of this cause on that account. that the Defendant ever waived his hand, important On the other the issue is ‘pen packets’ were inadmis- problem recurring and the is a one. sible.” See (Tex.Cr.App. Hall v. 619 S.W.2d proposition, stated, That core as is unten 1980). difficulty What causes much is the able. Being properly certified and linked to “presumption,” socalled in the absence of appellant, the exhibits were admissible as proof to the the law of an contrary, 3731a, 4; official records. Article 2 and §§ given point other state on a is the same as (Tex. Stearn v. 571 S.W.2d this at 158. state. Hall v. See Cr.App.1978); Ashley v. 527 S.W.2d (3rd Ed.1980) Ray, Texas Law of Evidence 302, 304 (Tex.Cr.App.1975). Exhibit 10 was presump 150. The 1 Texas Practice § allega relevant to the enhancement plight to ameliorate the tion often serves tions, and concedes he has not prove party neglects plead who “any raised variance between the enhance attempt to do so: foreign law or fails in an ment allegations in the indictment and the “if the law of the other state is not invoked shown Even State.” law,” the local proven applies the court file,” waiver of indictment “in the the ex cit, Practice 213- Ray, op 1 Texas hibit was admissible and the trial did 214. But in some situations it has been not err in receiving it in evidence. If need when the undoing of case be, the State was not limited content of law in a sister prove pertinent failed to “the file” to show waiver of indictment— state.6 be shown de hors Exhibit 10. However, problem by allowed the ad- as the courts Corpus Christi Court of found, law when hering to the Texas common correctly State did not taking affirmatively prove procedural provision there is no waiver of indictment in states; conviction, judicial either California nor could it be of laws of other notice Accordingly, is, inferred from the record. his own motion judge may a trial not of now, Act, particularly 6. The rule seems to have been Article Uniform Extradition Clubb, cases; e.g., parte 3, V.A.C.C.P., e.g., parte troublesome in extradition Ex Ex Cooper, 1969) (Tex.Cr.App. Ex 163 Tex.Cr.R. Gardner, (1956); parte parte Harry, Ex 159 Tex.Cr.R. Beeth, (1954); parte 1972). Ex (1941). Tex.Cr.R. S.W.2d 484 But see *10 judicial take notice simply of the laws 'of other of the By reading Su cit., 173,1 states. Ray, op Texas Practice United in Hurta preme § Court of the States 211. The common law rule was adopted California, do v. 110 U.S. 4 S.Ct. English as courts of (1884) matter convenience— L.Ed. 232 we learn that in the Consti foreign sources of law were scarce and of the Arti tution State of California language However, was different. Pro- as provided: cle 8§ fessor Ray points out: required “Offenses heretofore indictment,
“The prosecuted by prose- reasons which led to the shall be common information, law rule not applicable are our cuted after examination today to states. It seems magistrate, clear that notice of the and commitment laws of sister exami- justified states could be with or without such laws, commitment, the same basis as be may pre- notice of local nation and as namely, ascertainability with reasonable scribed law.” The certainty. (statutes source materials Turning present of that constitution and reports) ascertaining for of the laws state we see that the first sentence of the sister states are almost as as accessible same numbered still so article section those for local laws and counsel are avail- provides, and with rea- we have ascertained able to present find and the materials to certainty penal sonable from the code and the judge in the same manner as where a procedure jurisdic- code of criminal of that point of local law is in question.” tion, examining that once an has magistrate Ray, cit., found and sufficient op certified cause be- Texas Practice 214. § We “a agree point merit, guilty public lieve that accused is has but here offense,” Code, 872, Penal “it be the made shall absolutely present no effort duty attorney county the trial district of the applicable court law of Califor- Thus, nia. which the offense triable to in the file presumption that California county law is court of superior days the same as within against Texas works commitment, State. after an information Procedure, the defendant Criminal However, ante, as excerpted en- each 739; short, see also §§ paragraph hancement did indictment we are able to and have find determined allege respectively that the conviction was required by that waiver of is not had an information “then legally ” on an pending in a court proper jurisdiction, “legally pending” information to be in a thereby implicitly invoking California law. jurisdiction. court with While factual matters ultimately be Therefore, the socalled is not presumption implicated, whether an information is “le- here, applicable and failure of the State to gally pending” essentially a question of prove by appellant a waiver of indictment law. Whatever the limitations on a trial regarding the California convictions does court, a question when sufficiency findings not render the evidence depends on a matter of law we respect “the to said reject the notion appellate that an convictions, as the indictment are just must look to the record made in ” ‘true,’ insupportable by the evidence. trial court for “evidence” of constitutional or statutory provisions in the law of a sister Christi Corpus state. readily easily Prom available and Court of should be reversed appellate judges accessible sources are com- for this reason. remanded petent to ascertain with reasonable certain- ty whether law of another re- state McCORMICK, J., joins. quires that an accused prosecu- first waive MILLER, Judge, dissenting. tion by indictment in prosecu- order tor proceed and trial court to Appeals, an infor- As stated the Court of mation. presumed other the law law in states is different, right guaran-
of Texas when not
proved
fundamental
constitutional
*11
(Tex.Cr.
by
Hall v.
619
teed
both the Texas and United
S.W.2d
158
States
App.1980). Although
Constitutions. See Tex. Const. Art.
10
this rule does obviate
the
5. It is no less a
the
and
U.S. Const.Amend.
necessity
looking
of
to California consti
right
rep-
the
to be
tutional,
law,
right
fundamental
than
statutory
ultimately
and case
guaranteed by
resented
counsel as
Art.
analy
the issue before us is resolved
an
and
10 of the Texas Constitution
sis of cases decided
the United States
6th Amendment
the U.S. Constitution.
Supreme Court.
right
with the denial of
dealing
The cases
discretionary
in its
pur-
analagous
counsel are therefore
review asserts that
the burden should be
in-
poses of discussion in this
which
placed
appellant
to show that he did not
right
volves the
to be tried for a
waive indictment
that he
not
and
should
grand
indictment returned
a
upon
jury.
allowed to defeat
attempts
State’s
Rains,
right-to-counsel
a
habeas
supra,
introduce
California convictions
that the defendant
corpus petition, we held
simple expedient
objecting
on the basis
he
proof
had the burden of
to show that
that
judgmental
no waiver of indictment or
counsel,
indigent, he had no
and he did
was
appears
“pen pack
recitation thereof
By analysis in the case
not waive counsel.
containing
et”
the California conviction rec
bar,
appellant’s
at
burden of
was
previous holdings
At first
our
ords.
blush
upon
that he was not convicted
an
to show
appear
agree
posi
would
with the State’s
that he did not waive his
indictment and
involving
tion.
In cases
a collateral attack
right
upon
to be convicted
an indictment.
upon
conviction,
a prior
whether that attack
he
Appellant successfully showed that
against
be made
a conviction
used
being
upon
by simply
not convicted
on-going
enhance
in an
trial or
objecting
pointing
to the record
corpus
a conviction via a habeas
affirmatively
convictions which
proceeding, we have
held that
uniformly
showed that
those convictions were had
the burden of
the defendant
upon
information,
upon affidavit
to show a
by preponderance of
his
burden
Concerning
indictment.
second
that
the conviction was obtained in viola
holding
proof, waiver
of the rights guaranteed
tion
him either
Rains,
supra,
entirely
which relied
the United
Constitution or the Texas
States
holding
Carnley,
Supreme
Court’s
generally Chancy
Constitution.
See
Burgett, su-
supra,
approval
cited
(Tex.Cr.App.1981);
controlling.
Carnley,
pra,
Su-
Tinney v.
Compare Chancy, supra, wherein the de-
fendant testified that had attorney he at previous trial but the sen- judgment and
tence from the trial reflected that fact he in counsel;
did have and the Court ruled
the presumption of regularity prevailed and
decided, therefore, that the defendant had
not met his burden of proof.
Compare Tinney, wherein the
defendant attacked his two convic- being
tions used for enhancement by point-
ing out that no appeared transfer order record; and, therefore, there was
showing that the district court con-
ducted his jurisdiction trial had proper since
the indictments were returned to a differ-
ent district court by grand jury. This held that simply pointing out
absence order, transfer the defendant
failed to meet his burden of to show the prior convictions were void.
purported defect did not rise to the level of
a denial of a specifically enumerated consti-
tutional right such as dealt with in Burgett,
supra, and for this reason the Court’s hold-
ing proper.
For these reasons and the set reasons
forth Ap- Court of
peals, the decision of the Court of Appeals
should be affirmed.
TEAGUE, J., joins.
Robert Lyon, Mesquite, appel- Charles lant. Lee, Rio, Huttash,
Thomas F. Del Robert Walker, Atty. State’s and Alfred Asst. Austin, Atty., State’s for the State. COSPER, Appellant, Warren Texas, Appellee. The STATE of
No. OPINION ON PETITION 238-83. APPELLANT’S FOR DISCRETIONARY REVIEW Court of Criminal En Banc. PER CURIAM. Appeal is taken from a conviction for
June engaging organized activity. criminal V.T.C.A., Code, After Penal Section 71.02. Appellant guilty, assessed finding $2,000 at five fine. years and a