TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00311-CR
Dallas Ray Mikolajczyk, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
NO. 420-515, HONORABLE DAVID PURYEAR, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of driving while his driver's license was suspended pursuant to the Texas Motor Vehicle Safety Responsibility Act. Act of May 26, 1987, 70th Leg., R.S., ch. 922, § 2, 1987 Tex. Gen. Laws 3111, 3112 (Tex. Rev. Civ. Stat. Ann. art. 6701h, § 32(c)(1)(A), since amended and codified at (Tex. Transp. Code Ann. § 601.371 (West 1996)). The county court at law assessed punishment at incarceration for sixty days and a $500 fine.
Appellant's first point of error is that he was not given proper notice that his license had been suspended. Lack of notice is an affirmative defense on which appellant had the burden of production and persuasion. Turner v. State, 860 S.W.2d 147, 149 (Tex. App.--Austin 1993), rev'd on other grnds, 897 S.W.2d 786 (Tex. Crim. App. 1995); former art. 6701h, § 32(c)(3). The record contains a partial statement of facts that does not include any testimony. (1) Appellant did not file a statement limiting the appeal. Tex. R. App. P. 53(d). We must presume that the omitted portions of the statement of facts are relevant to this appeal and support the judgment. Johnson v. State, 894 S.W.2d 529, 535 (Tex. App.--Austin 1995, no pet.). On this record, appellant has failed to demonstrate that he was not given notice that his driver's license was suspended or that the statutory requisites for suspending a driver's license were not followed in any other respect.
Appellant also contends under this point of error that former article 6701h unconstitutionally permitted the State to terminate a property interest without due process of law. We have held, however, that a license to drive is not property, but a privilege subject to reasonable regulations. Ex parte Arnold, 916 S.W.2d 640, 642 (Tex. App.--Austin 1996, pet. filed). The contention that article 6701h violated due process of law also has been rejected. Riggle v. State, 778 S.W.2d 127, 129 (Tex. App.--Texarkana 1989, no pet.). Point of error one is overruled.
By point of error two, appellant complains that the court erroneously denied his motion for a pretrial evidentiary hearing. Appellant contends such a hearing was necessary to permit him to adduce exculpatory evidence, citing Brady v. Maryland, 373 U.S. 83 (1963), and Jencks v. United States, 353 U.S. 657 (1957). Specifically, appellant asserts that such a hearing would have shown that his driver's license was unlawfully suspended.
Appellant's motion for pretrial evidentiary hearing did not mention Brady or Jencks. According to the motion, appellant sought the pretrial hearing for the purpose of addressing various issues pertaining to the nature and purpose of the statute by which his license was suspended. The court did not err by overruling this motion. Appellant's contention that his driver's license was unlawfully suspended was an affirmative defense and properly reserved for trial. Point of error two is overruled.
Next, appellant urges that the information was defective because it did not name the complaining witness. Appellant did not raise this contention in a pretrial motion to quash or dismiss the information, thereby waiving his right to complain on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (West Supp. 1996). In any event, there need not be a victim or complaining witness in a driving with license suspended prosecution. See State v. Pierce, 816 S.W.2d 824, 826 (Tex. App.--Austin 1991, no pet.). Point of error three is overruled.
In point of error four, appellant contends the court's charge was defective because it did not require a finding that appellant's driver's license had been legally suspended. The record before us does not reflect that appellant objected to the charge on this ground, and an examination of the charge belies appellant's complaint. In applying the law to the facts, the court instructed the jury that it was to convict appellant only if it found that appellant's license had been legally suspended. Point of error four is overruled.
Finally, appellant contends that the laws and regulations regarding the licensing of drivers are an unconstitutional restriction on the right to travel. The right to travel does not, however, give appellant the right to operate a motor vehicle on the public roads of this State without a license. Coyle v. State, 775 S.W.2d 843, 846 (Tex. App.--Dallas 1989, no pet.). Driving is not a constitutionally protected right, but a privilege. Ex parte Arnold, 916 S.W.2d at 642. Point of error five is overruled.
The judgment of conviction is affirmed.
Before Justices Jones, Kidd and B. A. Smith
Affirmed
Filed: July 17, 1996
Do Not Publish
1. In the partial statement of facts, the court calls the case for trial and asks the parties
if they are ready to proceed. Appellant, who represented himself at trial as he does on
appeal, stated that he was not ready and demanded a pretrial evidentiary hearing. The
partial statement of facts ends with the court announcing that voir dire would begin.
of facts that does not include any testimony. (1) Appellant did not file a statement limiting the appeal. Tex. R. App. P. 53(d). We must presume that the omitted portions of the statement of facts are relevant to this appeal and support the judgment. Johnson v. State, 894 S.W.2d 529, 535 (Tex. App.--Austin 1995, no pet.). On this record, appellant has failed to demonstrate that he was not given notice that his driver's license was suspended or that the statutory requisites for suspending a driver's license were not followed in any other respect.
Appellant also contends under this point of error that former article 6701h unconstitutionally permitted the State to terminate a property interest without due process of law. We have held, however, that a license to drive is not property, but a privilege subject to reasonable regulations. Ex parte Arnold, 916 S.W.2d 640, 642 (Tex. App.--Austin 1996, pet. filed). The contention that article 6701h violated due process of law also has been rejected. Riggle v. State, 778 S.W.2d 127, 129 (Tex. App.--Texarkana 1989, no pet.). Point of error one is overruled.
By point of error two, appellant complains that the court erroneously denied his motion for a pretrial evidentiary hearing. Appellant contends such a hearing was necessary to permit him to adduce exculpatory evidence, citing Brady v. Maryland, 373 U.S. 83 (1963), and Jencks v. United States, 353 U.S. 657 (1957). Specifically, appellant asserts that such a hearing would have shown that his driver's license was unlawfully suspended.
Appellant's motion for pretrial evidentiary hearing did not mention Brady or Jencks. According to the motion, appellant sought the pretrial hearing for the purpose of addressing various issues pertaining to the nature and purpose of the statute by which his license was suspended. The court did not err by overruling this motion. Appellant's contention that his driver's license was unlawfully suspended was an affirmative defense and properly reserved for trial. Point of error two is overruled.
Next, ap