Biederman v. State

• Decision Date: 12 February 1987
• Docket Number: No. 11-86-140-CR,11-86-140-CR
• Citation: 724 S.W.2d 436
• Parties: Robert Leon BIEDERMAN, Sr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 436

724 S.W.2d 436

Robert Leon BIEDERMAN, Sr., Appellant, v. STATE of Texas, Appellee.

No. 11-86-140-CR.

Court of Appeals of Texas Eastland.

Feb. 12, 1987.

Discretionary Review Refused April 29, 1987.

Wayne S. Weaver, Scott D. Allen, P.C., Stephenville, for appellant.

John Terrill, Dist. Atty., Stephenville, for appellee.

Opinion

DICKENSON, Justice.

The jury convicted Robert Leon Biederman, Sr., of the felony offense of driving while intoxicated and assessed his punishment at confinement for a term of five years and a fine of $2,000. We affirm the conviction.

TEX.REV.CIV.STAT.ANN. art. 6701l -1(e) (Vernon Supp.1987) provides that when it is shown on the trial of a DWI offense "that the person has previously been convicted two or more times" of a DWI offense, the punishment shall consist of a fine of not less than $500 nor more than $2,000 and confinement [in jail for not less than 30 days nor more than two years] or imprisonment [in the state penitentiary for not less than 60 days nor more than five years]. The jury assessed the maximum fine and the maximum term of imprisonment.

The indictment alleged that appellant committed the felony offense of DWI on March 28, 1986, alleging five prior DWI offenses. Four of those prior offenses were proved, but one was not. The State proved three misdemeanor DWI offenses from Hood County [October 19, 1983; March 29, 1984; and May 10, 1984] and one prior felony DWI offense from Erath County [November 21, 1985]. The indictment alleged one prior misdemeanor DWI offense from Tarrant County [June 1, 1984], but no proof was offered as to this offense. The charge authorized the jury to convict appellant if they believed from the evidence beyond a reasonable doubt that appellant operated a motor vehicle in a public place on March 28, 1986, while intoxicated and prior to that offense had been convicted of the felony offense of DWI in Erath County on November 21, 1985, and prior to that offense had been convicted of misdemeanor DWI in Hood County on May 10, 1984, and prior to that offense had been convicted of misdemeanor DWI in Hood County on March 29, 1984, and prior to that offense had been convicted of misdemeanor DWI in Hood County on October 19, 1983, and that each conviction had become final prior to the commission of the next offense.

The charge omitted the Tarrant County offense which had been alleged in the indictment since no evidence was offered as to that offense.

Appellant presents three points of error. First, he argues that the trial court erred in admitting over objection proof of the three misdemeanor DWI offenses from Hood County where there is no evidence that appellant was represented by counsel at the time of trial. While appellant correctly notes that the County Judge of Hood County could not recall whether appellant was represented by counsel at the time of each of these guilty pleas, the court records which were introduced by the State to prove up these three convictions clearly show that appellant was "informed of his right to counsel, and of his right to request the appointment of counsel if unable to obtain counsel." In each case the records show that appellant waived the right to counsel, waived the right to trial by jury, and entered a plea of guilty. The first point of error is overruled. See, e.g., Maddox v. State, 591 S.W.2d 898 at 902 (Tex.Cr.App.1979):

[T]he burden of proof is on the appellant to show that he was denied the right to counsel, or that he was without counsel, was indigent and did not voluntarily waive his right to counsel during those proceedings relating to his prior convictions.

Next, appellant argues that there is a fatal variance between the...