Karen O'Neal Dempsey v. State ( 1993 )

Dempsey v. State

IN THE

TENTH COURT OF APPEALS

No. 10-93-073-CR

     KAREN O'NEAL DEMPSEY,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the County Court

Bosque County, Texas

Trial Court # 11,412

O P I N I O N

      The State filed an information against Karen O'Neal Dempsey for driving while intoxicated, which alleged that she had previously been convicted of the same offense on June 26, 1990. See Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (Vernon Supp. 1993). Dempsey filed a motion to quash the information, alleging that the underlying conviction is void.

      At the hearing on the motion to quash the information, Dempsey asserted that, prior to waiving her right to counsel and pleading guilty, she had not been admonished of the dangers and disadvantages of self-representation. She offered certified copies of several instruments from the 1990 conviction. The court admitted the exhibits into evidence and, at the conclusion of the hearing, denied the motion. After she pleaded guilty and was sentenced, she gave notice of appeal.

      Article 1.051 of the Code of Criminal Procedure, titled "right to representation by counsel," was adopted effective September 1, 1987. Id. art. 1.051 (Vernon Supp. 1993). Although it is limited to "adversarial judicial proceedings," that term is not defined. Id. The article requires a court to advise a defendant who wishes to "waive his right to counsel" of the dangers and disadvantages of self-representation. Id. art. 1.051(g). Dempsey urges us to hold that, because the judge did not admonish her of the dangers and disadvantages of self-representation before she pleaded guilty in 1990, the conviction is void and cannot be used to enhance the present charge.

      We have today, however, decided to follow Cooper v. State, 854 S.W.2d 303 (Tex. App.—Austin 1993, no pet.), where the Austin court, following Johnson v. State, 614 S.W.2d 116 (Tex. Crim. App. 1981) (on rehearing), held that "an admonishment as to the dangers and disadvantages of self-representation need only be given in cases in which the defendant's guilt is contested." See State v. Finstad, No. 10-93-070-CR, slip op. at 4 (Tex. App.—Waco 1993, no pet. h.). Because our decision in Finstad decides the issue presented by Dempsey adversely to her, we overrule her point and affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed December 15, 1993

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