Opinion
No. 09-09-00530-CR
Submitted on November 11, 2010.
Opinion Delivered November 24, 2010. DO NOT PUBLISH.
On Appeal from the County Court at Law No. 1 Montgomery County, Texas, Trial Cause No. 09-23,833.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
In this appeal from the denial of a petition for writ of habeas corpus, Ronald Eddie Duncan contends a misdemeanor conviction is void for lack of a valid waiver of the right to counsel. We affirm the order denying habeas relief. Ronald Eddie Duncan was arrested on a capias that issued after the dismissal of his appeal from a misdemeanor conviction for interference with the duties of a public servant. See Duncan v. State, 220 S.W.3d 131 (Tex. App.-Waco 2007, pet. ref'd). On Duncan's behalf, Joseph Dale Robertson filed an application for writ of habeas corpus with the convicting court. See Tex. Code Crim. Proc. Ann. arts. 11.09, 11.12 (West 2005). The petition alleged that Duncan's confinement in the Montgomery County Jail was unlawful on the grounds that Duncan had not knowingly and voluntarily waived his right to counsel at his criminal trial. The trial court issued the writ of habeas corpus and conducted an evidentiary hearing. On November 4, 2009, the trial court denied relief and remanded Duncan to the custody of the Sheriff of Montgomery County. Duncan was released from custody on December 1, 2009, after having served his 180-day sentence. The State contends that the appeal is moot because Duncan is no longer confined. The judgment in the criminal case states that a $1,000 fine had been imposed and the habeas record does not show that the fine has been discharged, but on remand to the trial court for a hearing on indigence the trial court determined that Duncan had been released on December 1, 2009 after having discharged his 180-day sentence of jail confinement. An applicant need not be in actual physical custody as a prerequisite for habeas relief. See Tex. Code Crim. Proc. Ann. art. 11.21 (West 2005); see also Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010) (the showing of a collateral consequence establishes restraint for purposes of article 11.07). In Harrington, the Court of Criminal Appeals held that potential future consequences arising out of the applicant's 2006 conviction for driving while intoxicated supported the habeas court's findings that the applicant was confined for purposes of article 11.07 habeas jurisdiction. Id. at 457-58. Furthermore, the Court of Criminal Appeals has held that a misdemeanor judgment may be collaterally attacked if it is void and its existence may have detrimental collateral consequences in some future proceeding. Tatum v. State, 846 S.W.2d 324, 327 (Tex. Crim. App. 1993). Duncan contends his conviction for interfering with the duties of a public servant may subject him to enhanced penalties if he is charged and convicted of a subsequent offense. We conclude that Duncan's subsequent release from jail did not moot the appeal. See Harrington, 310 S.W.3d at 457-58. Duncan contends the habeas record established that his 2004 misdemeanor conviction for interfering with the duties of a public servant is void because Duncan did not waive his right to counsel in that case. Duncan concedes that the trial court granted Duncan's pre-trial motion to dismiss his court-appointed attorney and allowed Duncan to exercise his right of self-representation and proceed pro se. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding that an accused has a right to conduct his own defense). Duncan claims the waiver is invalid because he did not sign the written waiver of counsel required by article 1.051. See Tex. Code Crim. Proc. Ann. art. 1.051(g) (West Supp. 2010). Article 1.051 requires the trial court to provide the waiver form to the defendant, but does not require the defendant to sign it. See Burgess v. State, 816 S.W.2d 424, 431 (Tex. Crim. App. 1991) (article 1.051 does not require the trial court to obtain a signed waiver from a defendant who validly invokes his constitutional right of self-representation). Duncan claims that waiver is invalid because he changed his mind on the day of trial and requested counsel. A criminal defendant may request to withdraw his waiver of counsel, but the trial court may deny the request if granting it would obstruct orderly procedure or interfere with the fair administration of justice. Medley v. State, 47 S.W.3d 17, 23-24 (Tex. App.-Amarillo 2000, pet. ref'd). The habeas applicant bears the burden of proof by a preponderance of the evidence on his factual allegations. Ex parte Chandler, 182 S.W.3d 350, 353 n. 2 (Tex. Crim. App. 2005). In the habeas hearing, the trial court took judicial notice of the file from Duncan's appeal. The appellate record did not contain a reporter's record. See Duncan, 220 S.W.3d at 133. In the habeas proceedings, Duncan failed to produce a reporter's record of the proceedings from his criminal case. Consequently, the habeas court did not have a record before it from which it could determine whether Duncan's attempted withdrawal of his waiver of his right to counsel was made at a time when it would not have interfered with the orderly administration of justice. See Medley, 47 S.W.3d at 23. The habeas record does not establish a denial of Duncan's right to counsel in the proceedings that resulted in his conviction for interfering with the duties of a public servant. Because the habeas record does not show that the conviction is void, the trial court did not err in denying the petition for writ of habeas corpus. Accordingly, the trial court's order denying the petition for writ of habeas corpus is affirmed. AFFIRMED.