Opinion
No. 05-02-00078-CR
Opinion Filed July 11, 2003 Do Not Publish
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-40588-HN. AFFIRM
Before Justices WRIGHT, FITZGERALD, and LANG.
OPINION
Lemuel Latower Johnson was indicted for theft of property valued at less than $1500 with two prior convictions for theft. The indictment also alleged appellant had two prior felony convictions. After the trial court found appellant guilty as charged in the indictment and the enhancement allegations true, the court sentenced appellant to ten years' imprisonment. In his sole point of error, appellant contends the trial court erred by trying appellant without a jury when appellant had not waived in writing his right to a jury trial. We affirm the trial court's judgment. On December 20, 2001, appellant pleaded not guilty to the charged theft offense. The trial court then tried appellant, found him guilty, and sentenced him. The reporter's record of the December 20, 2001 trial does not show the trial court or anyone else informed appellant of his right to a jury trial, nor does it show appellant waived his right to a jury trial, either in writing as required by article 1.13(a) or orally. The original judgment dated December 20, 2001 states, inter alia, "Defendant, in person and in writing in open court waived his right of trial by jury with the consent and approval of his attorney, the attorny [sic] for the State, and the Court. . . . It is, therefore, considered and ordered by the Court that . . . said defendant be adjudged guilty of the offense as shown above, by the Court, a jury having been waived in accordance with law. . . ." Appellant filed a motion for new trial asserting "the verdict is contrary to the law and the evidence." The trial court denied the motion for new trial, and appellant filed a notice of appeal. On September 11, 2002, after the reporter's and clerk's records had been filed in this Court, a supplemental clerk's record was filed containing a "Corrected Judgment." Like the original judgment, the "Corrected Judgment" is dated December 20, 2001. The "Corrected Judgment" omits the language, "Defendant, in person and in writing in open court waived his right of trial by jury with the consent and approval of his attorney, the attorny [sic] for the State, and the Court." However, this "Corrected Judgment" retains the language, "It is, therefore, considered and ordered by the Court that . . . said defendant be adjudged guilty of the offense as shown above, by the Court, a jury having been waived in accordance with law. . . ." On October 21, 2002, the State filed a motion with this Court asking us to declare the "Corrected Judgment" void, and/or abate the appeal and direct the trial court to hold a hearing on the issue of whether appellant waived a jury trial. We abated the appeal for the trial court to hold a hearing on whether appellant waived his right to a jury trial and to file appropriate findings and recommendations. The trial court held the hearing on April 25, 2003 and filed findings of fact. The State argues we should strike the "Corrected Judgment" as void because it was signed after the record was filed in this Court, and rule 25.2(g) prohibits the trial court from taking action on a case after the record has been filed in the court of appeals. See Tex.R.App.P. 25.2(g) ("Once the record has been filed in the appellate court, all further proceedings in the trial court-except as provided otherwise by law or by these rules-will be suspended until the trial court receives the appellate-court mandate."). The "Corrected Judgment" does not state when it was signed. Like the original judgment, it is dated December 20, 2001. The "Corrected Judgment" is identical to the original judgment except for the omission of part of the jury-waiver language, having the words "Corrected Judgment" hand-written on it, and having a new signature by the same trial judge. The docket sheet does not state when the "Corrected Judgment" was signed. A supplemental transcript filed in this Court on May 22, 2003 contains an affidavit from the deputy district court clerk for the 195th Judicial District Court, reflecting that the "Corrected Judgment" was signed between September 4, 2002 and September 11, 2002, about ten months after the appellate record was filed. This clerk did not testify at the April 25, 2003 hearing, and the affidavit was never received into evidence. An affidavit not presented to the trial court may not be considered by the court of appeals unless the issue to which the affidavit relates concerns the appellate court's jurisdiction to decide the appeal. Hernandez v. State, 84 S.W.3d 26, 32 (Tex.App.-Texarkana 2002, pet. ref'd); Yarbrough v. State, 57 S.W.3d 611, 615 (Tex.App.-Texarkana 2001, pet. ref'd). Because the issue of the date of signing of the "Corrected Judgment" does not concern our jurisdiction to decide the appeal and the record does not show the affidavit was ever presented to the trial court, we conclude we may not consider the affidavit. Accordingly, because the "Corrected Judgment" is dated December 20, 2001, and no evidence we can consider shows it was signed after the record was filed in this Court, we conclude it supercedes the original judgment. Accordingly, we deny the State's motion to declare the "Corrected Judgment" void. Having held the "Corrected Judgment" is valid, we next consider the effect of this judgment. Although the "corrected judgment" omits the language that appellant "in person and in writing in open court waived his right of trial by jury," it still contains the language that "a jury [was] waived in accordance with law." Waiver of a jury "in accordance with law" requires it be done "in person and in writing in open court." See Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp. 2003). Thus, the "Corrected Judgment" has the same effect as the original judgment. Recitations in a judgment create a binding presumption of regularity in the absence of direct proof of their falsity. Johnson v. State, 72 S.W.3d 346, 349 (Tex.Crim.App. 2002); Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1984). Accordingly, we must determine whether the hearing conducted pursuant to this Court's order produced evidence constituting direct proof of the falsity of the statement in the judgment. During the hearing, the State's attorney asked the trial judge to "take judicial notice of the pass slips that are in the court's jacket which show that the case was originally set for trial and then subsequently set for TBC after two trial settings." Dan Patterson, appellant's trial counsel, testified that, in his opinion, appellant was aware his case was changed from a jury trial to a trial before the court. Patterson also testified it was his belief that appellant "knowingly agreed to the change from jury trial to a TBC." Patterson also testified he could not recall specifically whether appellant signed a written jury waiver or whether the trial court admonished appellant about his right to a jury trial. However, Patterson stated he did not believe he would have proceeded to a "TBC" unless appellant had knowingly waived his right to a jury trial. Patterson stated the change from jury trial to TBC on the pass slip would not have been made in open court but, probably, in the prosecutor's office. The State's attorney asked the trial judge, "Do you believe you proceeded to a trial on this case without a knowing jury waiver from the defendant?" The judge answered, "I could have. . . . I don't have any independent recollection of the case whatsoever." (Emphasis added.) The judge also stated,
It is apparent from the file that there is no written waiver in the file. My general practice would be that I don't do anything off the record in a TBC, it would have been on the record; and whether or not there was one here at the time we started the trial, I have no recollection. . . . Generally, though, I would put everything on the record.Appellant's counsel on appeal asked the judge to put on the record that he did not hear appellant waive his right to a jury trial, but the judge stated, "I don't have independent recollection of the case at all. I am not saying he did it in front of me, I don't know. Generally my practice is to put everything on the record as a rule." Neither appellant nor the State's attorney who prosecuted appellant testified at the hearing. The trial court made the following findings:
[1] As a matter of law, there is no written jury waiver contained in the trial court's file.
[2] Neither the trial court no[r] defense counsel recall whether a written or oral jury waiver was executed or entered in open court.
[3] Based on the testimony of trial counsel's testimony [sic] at this hearing, this Court believes the defendant knowingly waived his right to a jury trial.The hearing and the trial court's findings established only two relevant facts: no waiver of a jury trial signed by appellant was in the trial court's file, and the reporter's record did not contain an oral waiver by appellant. Defense counsel's and the trial judge's statements about their usual practices and what "could have" or "probably" happened are not "direct proof" that appellant did not waive a jury but are merely speculation about what may have occurred. We conclude neither the hearing nor any other evidence in the record constitutes "direct proof" that appellant did not waive a jury "in accordance with law" as recited in the judgment. Furthermore, appellant "has never alleged that he did not know about his right to a jury trial, nor does the record indicate that he did not." Johnson, 72 S.W.3d at 349. We conclude the presumption of regularity has not been rebutted and that the recitation in the judgment that appellant waived a jury "in accordance with law" is binding on this Court. A waiver of the right to a jury trial, to be "in accordance with law," must be made in writing. Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp. 2003). Thus, it is binding on this Court that appellant waived a jury in writing, and appellant's argument that he did not waive a jury in writing lacks merit. However, even if no presumption of regularity was created or if the presumption was rebutted by the evidence at the hearing, appellant would have to show the lack of a written jury waiver "affect[s] substantial rights" to receive a new trial. Tex.R.App.P. 44.2(b); see Johnson, 72 S.W.3d at 348 (lack of written jury waiver is statutory error, not constitutional error). The lack of a written jury waiver does not "affect substantial rights" when the record reflects the defendant was aware of his right to a jury trial before the bench trial began and that he opted for a bench trial. Johnson, 72 S.W.3d at 349. The record contains the judgments from appellant's thirteen previous felony convictions. Each of these judgments states appellant waived a jury in writing. That appellant had waived a jury trial at least thirteen times previously is some indication he was aware of his right to a jury trial in this case. Also, at the hearing, appellant's trial counsel testified it was his "opinion" and "belie[f]" that appellant was aware his trial was changed from a jury trial to a trial before the court and that appellant agreed to the change. Nothing in the record contradicts trial counsel's opinion and belief that appellant was aware of his right to a jury trial and agreed to change the trier of fact from a jury to the trial judge. We conclude appellant "was not harmed by the violation [of article 1.13(a)] because the record reflects that he was aware of his right to a jury trial and opted for a bench trial." Johnson, 72 S.W.3d at 349. We overrule appellant's sole point of error. We affirm the trial court's judgment.
The "Corrected Judgment" also has stamped on it information that the case is being appealed and where appellant must report after his release.
The trial judge at the hearing was the same judge who presided during appellant's trial before the court. This judge was a visiting judge, not the presiding judge of the 195th Judicial District Court.