IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 22, 2005
______________________________
ALEXANDER LOPEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;
NO. 3587; HONORABLE FELIX KLEIN, JUDGE _______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINIONThis is an appeal from a felony driving while intoxicated conviction enhanced by two prior misdemeanor DWI convictions. Appellant Alexander Lopez plead guilty pursuant to a plea bargain agreement and appeals the denial of his pre-trial motion to quash the enhancement paragraphs in the indictment. We will affirm.
Appellant was charged by indictment with the offense of driving while intoxicated in January 2002. This offense was enhanced in paragraphs two and three of the indictment. Paragraph two of the indictment set forth a prior misdemeanor DWI conviction for an offense committed in July 1994. Paragraph three of the indictment alleged a prior misdemeanor DWI conviction for an offense committed in August 1988. The trial court held a hearing on appellant's pre-trial motion to quash the enhancement paragraphs. Appellant was the only witness called at the hearing. Appellant testified that he did not recall the following: (1) being arrested in August of 1988, (2) going to court in August of 1988, (3) then being placed on probation, (4) agreeing to any waiver of rights (including the right to counsel), (5) being in jail at that time, or (6) "anything" from 1988. He further testified that he suffers from Posttraumatic Stress Syndrome as a result of his military service during the Vietnam War. The State then asked appellant to identify the signature on documents labeled "Waiver of Rights," "Waiver of Attorney," "Application for Probation," and "Motion to Withdraw the Application for Probation." All of these documents were purportedly signed in 1988, and appellant testified the signatures appeared to be his. Neither party, however, moved to have these documents admitted into evidence and they are not contained in the record before us. (1) Further, there is no document or testimony in the record before us regarding the July 1994 offense and accompanying conviction.
At the close of the hearing, appellant's counsel requested that the trial court take judicial notice of appellant's 1988 case on file with the county clerk's office in Lamb County. The State did not oppose the request. The trial court granted appellant's counsel's request, (2) and then denied the motion to quash indictment.
Appellant raises the following single issue on appeal: Whether the trial court erred in denying appellant's motion to quash the indictment when appellant presented evidence that raised an issue as to whether a prior misdemeanor DWI conviction used to enhance a felony DWI offense was void as a matter of law because appellant did not make a knowing waiver of counsel.
An accused bears the burden of proof on a motion to quash an indictment. Wheat v. State, 537 S.W.2d 20, 21 (Tex.Crim.App. 1976). When an appellant collaterally attacks an enhancing misdemeanor conviction on the ground here raised, the appellant has the burden to prove that, with respect to the enhancing misdemeanor convictions, he did not voluntarily, knowingly, and intelligently waive his right to counsel. Garcia v. State, 909 S.W.2d 563, 566 (Tex.App.-Corpus Christi 1995, pet. ref'd) (citing Disheroon v. State, 687 S.W.2d 332, 334 (Tex.Crim.App. 1985)). The appellant bears this burden only when collaterally attacking the enhancement misdemeanor convictions. Garcia, 909 S.W.2d at 566. On direct appeal of a conviction, the State bears the burden of establishing that the record affirmatively shows a valid waiver of counsel. Upton v. State, 853 S.W.2d 548, 553 (Tex.Crim.App. 1993). (3)
A motion to quash is properly denied when a defendant offers no proof with respect to the allegations contained in his motion. Worton v. State, 492 S.W.2d 519, 520 (Tex.Crim.App. 1973); Bell v. State, 814 S.W.2d 229, 231 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd). During the course of the hearing, appellant offered no evidence that his prior misdemeanor DWI convictions were obtained without a knowing waiver of counsel. Appellant's testimony that he did not remember the 1988 conviction or the circumstances surrounding the conviction is not evidence the conviction was void for that reason.
Nor does appellant's unsworn motion to quash indictment constitute evidence of the truth of its assertion that appellant did not intelligibly or voluntarily waive his right to counsel in the misdemeanor prosecutions. The general rule is that an unsworn motion does not, by itself, present evidence on which relief can be granted. Whitehead v. State, 130 S.W.3d 866, 873 (Tex.Crim.App. 2004). Case law also holds that a motion to quash an enhancement allegation in an indictment is not self-proving. Worton, 492 S.W.2d at 520 (cited in Whitehead, 130 S.W.3d at 873).
Because appellant failed to produce any evidence to demonstrate the prior misdemeanor DWI convictions were improperly obtained, the trial court did not err in denying his motion to quash the enhancement allegations. We overrule appellant's issue and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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2. ' ' ' " "
3.
le error by permitting the State’s fingerprint expert to testify when the witness was not qualified as an expert. We disagree with appellant and affirm the trial court’s judgment.
Factual Background
During appellant’s hearing on the State’s motion to adjudicate guilt, the State called Bobbie Ledbetter, an investigator with the Randall County District Attorney’s Office, to testify about appellant’s prior criminal record. Ledbetter had obtained a set of rolled fingerprints from appellant and was prepared to testify about the comparison of those prints to fingerprints attached to judgments in other criminal cases. Prior to testifying about her comparison, Ledbetter testified concerning her qualifications to examine fingerprints as follows:
Q: How are you employed?
A: I am a criminal investigator for the District Attorney of Randall County.
Q: And prior to coming to work for the District Attorney’s Office, did you also work in the Randall County Sheriff’s Office?
A: Yes, I did.
Q: And during your tenure there, were you trained to be a fingerprint expert?
A: Yes, I was.
Q: If you could just briefly state your credentials that qualify you to be a fingerprint expert.
A: I spent seven years with the Crime Scene Unit of the Randall County Sheriff’s Department, required extensive on-the-job training, as well as training under renowned fingerprint expert Pat Wertheim in a 40-hour advanced ridgeology class, as well as on the job training from Sergeant Bruce Evans and FBI fingerprint expert, Allen Claude Stevens.
Q: Okay. And have you testified before in the courts of Randall County as a fingerprint expert?
A: Yes, I have.
Q: And, in fact, have you testified in this court on numerous occasions as an expert?
A: Yes, I have.
Thereafter, Ledbetter testified that she had taken a set of rolled prints from appellant on a fingerprint card. Appellant’s trial counsel then objected to the testimony of Ledbetter as a fingerprint expert contending that she was not qualified by education, training, or experience to testify as a fingerprint expert. The trial court overruled the objection and later gave appellant a running objection to any testimony regarding Ledbetter’s opinion as a fingerprint expert. Appellant contends that the trial court committed error by allowing Ledbetter to express an expert opinion regarding fingerprints.
Standard of Review
As an appellate court, we review a trial court’s decision to admit evidence over an objection under an abuse of discretion standard. See McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2008). Further, we will not reverse that decision absent a clear abuse of discretion. Id. The trial court abuses its discretion when the decision to admit the evidence lies outside the zone of reasonable disagreement. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007).
Law
Rule 702 of the Texas Rules of Evidence provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
See Tex. R. Evid. 702. Rule 702 has two hurdles that any proposed expert must overcome in order to give an expert opinion. Those are that 1) scientific, technical or other specialized knowledge will aid the trier of fact, and 2) the expert is qualified to testify on the subject. See Harnett v. State, 38 S.W.3d 650, 658 (Tex.App.–Austin 2000, pet. ref’d). Appellant is only contesting the second requirement, qualifications of the expert.
Analysis
The testimony of Ledbetter can be fairly read to state that she had trained for seven years, while working with the Randall County Sheriff’s Department, as an expert in fingerprints. This training consisted of extensive on-the-job training under the tutelage of Sergeant Bruce Evans and an FBI fingerprint expert, Allen Claude Stevens. Further, Ledbetter testified that she took an additional 40 hour class in advanced ridgeology and had testified as an expert in the trial court in question on numerous occasions. Against this testimony, appellant lodged a general objection to the qualifications of the witness.
It is the responsibility of the proponent of expert testimony to establish that the proposed witness is indeed qualified. See Matson v. State, 819 S.W.2d 839, 851 (Tex.Crim.App. 1991). The State contends it established Ledbetter’s qualifications by the testimony of Ledbetter regarding her training and experience. There is no rigid formula for determining whether or not a witness is qualified to render an expert opinion. Id. at 852 n.10. Further, we only have the general objection of trial counsel to consider, although appellant could have requested to take the witness on voir dire and pointed out specific deficiencies. See Rule 705(b). Our review of the testimony leads us to the conclusion that the trial court did not abuse its discretion when it allowed the witness to give an opinion regarding the fingerprints. Appellant points to a number of cases where the proposed witness had more experience, different training, or other factors for the proposition that this demonstrates Ledbetter is not qualified. See Russeau v. State, 171 S.W.3d 871, 882 (Tex.Crim.App. 2005) (witness had sixteen years experience); Rogers v. State, 463 S.W.2d 18, 20 (Tex.Crim.App. 1965) (witness had attended Institute of Applied Science, had approximately two years practical experience working with identification section). Appellant’s basic premise is wrong. These cases do not show that Ledbetter was not qualified, rather, as the Court in each point out, they demonstrate that the witness in that case was qualified. In short, the trial court heard the testimony about qualifications and against a general objection about qualifications overruled the same and allowed the testimony. We agree and overrule appellant’s single issue.
Conclusion
Having overruled appellant’s issue, we affirm the trial court’s judgment.
Mackey K. Hancock
Justice
Do not publish.