Opinion
No. 05-19-00297-CR
06-01-2021
Saul Ranulfo Herrera RIOS, Appellant v. The STATE of Texas, Appellee
Juanita Bravo Edgecomb, The Law Office of Juanita Bravo Edgecomb, Waxahachie, for Appellant. John Creuzot, Dallas County District Attorney, Marisa Elmore, Assistant District Attorney, Dallas, for Appellee.
Juanita Bravo Edgecomb, The Law Office of Juanita Bravo Edgecomb, Waxahachie, for Appellant.
John Creuzot, Dallas County District Attorney, Marisa Elmore, Assistant District Attorney, Dallas, for Appellee.
Before Chief Justice Burns, Justice Pedersen, III, and Justice Goldstein
The Honorable David L. Bridges participated in the submission of this case; however, he did not participate in the issuance of this memorandum opinion due to his death on July 25, 2020. The Honorable Chief Justice Robert D. Burns, III has substituted for Justice Bridges in this cause. Chief Justice Burns has reviewed the briefs and the record before the Court.
The Honorable Justice Bonnie Lee Goldstein succeeded the Honorable David Evans, a member of the original panel. Justice Goldstein has reviewed the briefs and the record before the Court.
MEMORANDUM OPINION
Opinion by Justice Pedersen, III Appellant Saul Ranulfo Herrera Rios was convicted by the trial court of continuous sexual abuse of a child under fourteen years of age. See TEX. PENAL CODE ANN . § 21.02. The trial court assessed punishment at confinement for thirty-five years in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant contends that (1) he was denied his right to a jury trial and (2) the judgment incorrectly reflects that he waived his right to a jury trial.
In a cross-point, the State requests that the trial court's judgment be modified to accurately reflect that appellant was not sentenced pursuant to a plea agreement. We modify the judgment and affirm the judgment as modified.
I. Background
A grand jury indicted appellant for the offense of continuous sexual abuse of a child under fourteen years of age. On February 28, 2019, Judge Martin Richter, sitting by assignment, conducted a bench trial in the case. During trial, a Spanish interpreter translated for appellant, who speaks Spanish and very little English. The judge asked for any objections to pretrial motions—there were none. The judge then swore in appellant and a number of witnesses. The parties invoked the Rule and the trial court duly instructed the witnesses. The State then arraigned appellant. The judge asked appellant how he wished to plead, and appellant entered a plea of not guilty. The trial court asked the parties if they wished to make opening statements. After the parties declined, the trial court directed the State to call its first witness.
By invoking the "Rule," a party requests that the court "order witnesses excluded so that they cannot hear other witnesses' testimony." Tex. R. Evid . 614.
The record of the case does not include a written waiver of trial by jury and does not reflect that the trial court admonished appellant of his right to a jury trial. Appellant testified on his own behalf in both the guilt–innocence phase and the sentencing phase of trial. Neither appellant nor his counsel made any objection to proceeding with a trial before the court; neither requested a jury trial on the record. At the conclusion of the trial, the trial court found appellant guilty as charged and sentenced him to thirty-five years in prison.
The judgment of conviction is titled "Judgment of Conviction by Court—Waiver of Jury Trial," and includes the recitation, "Defendant waived the right of trial by jury and entered the plea indicated above." The case docket sheet includes the notation, "case called to trial – TBC." The record contains no other reference that appellant waived his right to a jury trial. Appellant's motion for new trial, which did not complain that he was denied his right to a jury trial, was overruled by operation of law.
Appellant filed a timely notice of appeal. On appellant's motion, we abated the case to permit the trial court to conduct a hearing and to make findings of fact and conclusions of law regarding the following: (1) whether appellant executed a written jury waiver; (2) whether appellant waived his right to a trial by jury; (3) whether appellant consented to a trial before the court without a jury; and (4) whether the judgment's recitation that appellant waived the right of trial by jury accurately reflects the trial proceedings. After conducting evidentiary hearings on October 3, October 25, and November 1, 2019, the trial court made the following findings of fact:
The current presiding judge of the court, Judge Raquel Jones, conducted the evidentiary hearings.
1. A jury waiver executed by Appellant is not in the record.
2. Appellant speaks Spanish. He was provided with a Spanish-speaking interpreter at the three evidentiary hearing dates, through whom he testified.
3. A Dallas County probation assessment officer testified that her presentence investigation (PSI) report notes indicated Appellant told her he did not want to enter an open plea before the presiding judge.
4. Appellant did not tell the probation assessment officer that he wished to have a jury trial.
5. Appellant did not tell the probation assessment officer that he did not wish to have a trial before the court.
6. Appellant testified that he told his trial counsel he wished to have a jury trial.
7. Appellant testified that his trial counsel provided no legal advice to him regarding his right to a jury trial.
8. At the October 3, 2019 hearing, Appellant admitted signing three of the four pass slips found in the Court's file continuing the case for "Trial by the Court," the last of which was a continuance for trial before the court on February 28, 2019.
9. Appellant changed his testimony at the October 25, 2019 hearing, stating that the signature on the last pass slip, State's Exhibit 4, was not his.
10. Appellant's trial counsel testified that he wrote Appellant's signature on State's Exhibit 4 because Appellant did not have his glasses, and Appellant was aware that counsel was signing for him.
11. Appellant's trial began on February 28, 2019, and concluded on March 1, 2019.
12. Appellant was provided with a Spanish-speaking interpreter at trial, who was sworn in at the beginning of trial.
13. The trial judge did not admonish Appellant of his right to a jury trial on the record.
14. Appellant testified he did not understand that he was being tried for the case on February 28 and March 1, 2019, even though the record reflects that the judge, Appellant's counsel, and the State discussed in open court pre-trial motions that were filed in the case; the trial court arraigned Appellant; Appellant entered a plea of not guilty; witnesses, including the complaining witness, were present, to testify; and Appellant testified in his own defense.
15. Appellant testified that he did not ask his trial counsel to object to the trial before the court.
In its appellate brief, the State explains that the assistant district attorney representing the State in this appeal is the same assistant district attorney who represented the State at the evidentiary hearings and who prepared the State's proposed findings of fact and conclusions of law. The State further states that appellant's testimony at the evidentiary hearing was that "he did ask" his trial counsel to object; the inclusion of "did not ask" was a typographical error in the State's proposed findings of fact.
16. The district attorney in the case testified that the case had always been set for a trial before the court.
17. The district attorney in the case testified that the case was never set for a jury trial.
18. The district attorney in the case testified that a reason for conducting a PSI report for a defendant even though he was opting for trial and not entering a plea is to gather information for the judge to consider when assessing his punishment.
19. Appellant's trial counsel testified that he communicated with Appellant before trial using a Spanish-speaking interpreter.
20. Appellant's trial counsel testified that he advised his client of his right to a jury trial.
21. Appellant's trial counsel testified that the case had been set for a trial before the court since October 2018.
22. Appellant's trial counsel testified that Appellant was aware that he was having a trial before the court on the day trial started and knew what a trial was.
23. Appellant's trial counsel testified that if he had more time, he would have filed a written jury waiver.
24. This Court finds Appellant's testimony that he was not aware of his right to a jury trial to not be credible.
25. The Court finds Appellant's testimony that he was not aware he was being tried for the offense on February 28 and March 1, 2019 to not be credible.
26. The Court finds Appellant's testimony that he did not voluntarily consent to a trial before the court to not be credible.
In its appellate brief, the State notes that this finding is also a typographical error made by the assistant district attorney and is not supported by the evidence. Appellant was not asked whether he was aware of his right to a jury trial and never testified that he was not aware of that right.
Additionally, the court made the following conclusions of law based on the evidence elicited at the hearing:
1. Appellant did not execute a written jury waiver.
2. Appellant waived his right to a trial by jury.
3. Appellant voluntarily consented to a trial before the court without a jury.
4. The recitation in the judgment that Appellant waived the right of trial by jury accurately reflects the proceedings, and, other than the incredible testimony of Appellant, the record contains no direct proof of its falsity.
The appeal was reinstated.
II. Analysis
Appellant raises five issues on appeal. Each of his issues pertains to his argument that he was denied his right to a jury trial. He first urges that he was denied his right to a jury trial under article 1.13 of the Texas Code of Criminal Procedure. In his second and third issues, appellant asserts that he was denied his constitutional right to a jury trial as afforded by the Texas and United States Constitutions. Fourth, he contends that he did not consent to a bench trial. In his fifth issue, appellant asserts that the recitation in the judgment that he waived his right to a jury trial is incorrect.
As noted above, this Court ordered the trial court to conduct an evidentiary hearing and to make findings of fact and conclusions of law to determine whether appellant waived his right to a jury trial or consented to a bench trial. The trial court complied with our instructions. Appellant incorporates the trial court's findings of fact and conclusions of law into the statement of facts of his appellate brief; however, his appellate argument completely ignores the trial court's findings and conclusions. As a general rule, appellate courts "afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor." Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We use the same deferential standard in "reviewing a trial court's application of law to the facts or to mixed questions of law and fact, especially when the findings are based on credibility and are supported by the record." Miller v. State , 393 S.W.3d 255, 262–63 (Tex. Crim. App. 2012). "When the trial court makes explicit findings of fact, we consider, in the light most favorable to the trial court's ruling, whether the record supports those findings." Id. (citing State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006) ); see Reece v. State , No. 01-14-00484-CR, 2015 WL 7300098, at *4 (Tex. App.—Houston [1st Dist.] Nov. 19, 2015, no pet.) (mem. op., not designated for publication) (applying this deferential standard of review to trial court's findings of fact and conclusions of law following abatement hearing). We review legal rulings de novo unless the trial court's findings that are supported by the record are dispositive. Miller , 393 S.W.3d at 263.
A. Jury Trial Waiver
Both the United States Constitution and the Texas Constitution guarantee the right to a trial by jury. U.S. CONST . amend. VI ; TEX. CONST . art. 1, § 15 ; see also TEX. CODE CRIM. PROC. ANN . art. 1.12. "As a matter of federal constitutional law, the State must establish, on the record, a defendant's express, knowing, and intelligent waiver of jury trial." Hobbs v. State , 298 S.W.3d 193, 197 (Tex. Crim. App. 2009). A defendant's mere acquiescence in proceeding to trial without a jury does not constitute an express waiver. See Ex parte Lyles , 891 S.W.2d 960, 962 (Tex. Crim. App. 1995).
Article 1.13(a) of the Texas Code of Criminal Procedure sets out the required formalities of a jury waiver in Texas. See CRIM. PROC . art. 1.13(a). It provides, in relevant part, that the defendant "shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that ... the waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state." Id. Here, appellant contends—and the State does not dispute—that he did not waive his right to a jury trial in person, in writing, and in open court. Thus, the trial court erred by failing to observe the mandatory requirements of article 1.13. See id. ; Johnson v. State , 72 S.W.3d 346, 347 (Tex. Crim. App. 2002). "Because neither the state nor the federal constitution requires that this waiver be written, a violation of this aspect of Article 1.13(a) constitutes a statutory error rather than a constitutional error." Hinojosa v. State , 555 S.W.3d 262, 265–66 (Tex. App.—Houston [1st Dist.] 2018, pet. ref'd) (citing Johnson , 72 S.W.3d at 348 ). Therefore, we analyze harm under rule 44.2(b) of the Texas Rules of Appellate Procedure and consider whether the error affected the appellant's "substantial rights." See Johnson , 72 S.W.3d at 348 (citing TEX. R. APP. P . 44.2(b) ); see also Ex parte McCain , 67 S.W.3d 204, 209–10 (Tex. Crim. App. 2002).
Appellant also contends that he did not orally waive his right to a jury trial and did not voluntarily consent to a trial before the court. A court's failure to obtain any jury waiver at all is a "structural" constitutional error that affects the very framework of the underlying trial. Davidson v. State , 225 S.W.3d 807, 811 (Tex. App.—Fort Worth 2007, no pet.) (citing Loveless v. State , 21 S.W.3d 582, 584 (Tex. App.—Dallas 2000, pet. ref'd), abrogated on other grounds by Johnson , 72 S.W.3d at 348 ). Accordingly, we consider whether the State established, on the record, appellant's express, knowing, and intelligent waiver of a jury trial. Hobbs , 298 S.W.3d at 197.
In Johnson , the Court of Criminal Appeals held that the lack of a written jury waiver is not harmful if the record in another way reflects that the defendant was aware of, and waived, his right to a jury trial. Johnson , 72 S.W.3d at 349. Like the judgment in appellant's case, the judgment in Johnson recited that the defendant had "waived trial by jury." See id. Use of the term "waive" presumes knowledge because "to waive a right one must do it knowingly—with knowledge of the relevant facts." Id. (citing BLACK'S LAW DICTIONARY 1276 (7th ed. abridged 2000)). "Waiver" is defined as the "act of waiving or intentionally relinquishing or abandoning a known right, claim or privilege." Id. (citing WEBSTER'S THIRD INT'L DICTIONARY 2570 (1966)). The Johnson court reasoned that such a recitation of a waiver of jury trial is "binding in the absence of direct proof of [its] falsity." Id. (citing Breazeale v. State , 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g)). Without such direct proof, the appellant cannot overcome the presumption of regularity in the judgment. See id.
Here, in addition to the express recitation in the judgment, the record contains several case pass slips signed by appellant and his attorney, indicating that the "type of setting" in appellant's case was a court trial. See Jackson v. State , 76 S.W.3d 798, 803 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.) (finding no harm per Johnson where the judgment indicated appellant waived right to jury and there were "several continuances and re-settings for the bench trial"); see also Levy v. State , No. 14-16-00846-CR, 2017 WL 3403601, at *2 (Tex. App.—Houston [14th Dist.] Aug. 8, 2017, pet. ref'd) (mem. op., not designated for publication) (holding appellant was aware of his right to jury trial and opted for bench trial where judgment recited defendant waived jury trial and record contained multiple case reset forms signed by appellant indicating "type of setting" was court trial). Second, the court conducted a trial without a jury on February 28, 2019, and appellant's counsel did not object to the absence of a jury. Third, appellant testified during both phases of the trial and did not object to the absence of a jury. Fourth, appellant's attorney filed a motion for new trial and the motion did not mention that appellant did not knowingly waive his right to a trial by jury. See Sluis v. State , No. 01-98-00359-CR, 2003 WL 124873, at *1 (Tex. App.—Houston [1st Dist.] Jan. 16, 2003, pet. ref'd) (op. on remand, not designated for publication) (in addition to judgment recitation, actions reflecting appellant's knowing waiver of jury trial included reset form signed by appellant and his attorney setting case for court trial, appellant's counsel's failure to object to absence of jury, and counsel's failure to mention appellant did not knowingly waive right to jury trial in motion and amended motion for new trial).
Pass slips dated September 14, 2018, December 20, 2018, and January 24, 2019, appear to contain the signatures of the attorney for the State, appellant's trial counsel, and appellant. At the first evidentiary hearing, appellant testified that he signed these three slips. At the second evidentiary hearing, appellant changed his testimony, stating that the signature on the January 24, 2019 pass slip was not his.
During the abatement hearings, the trial court heard testimony from appellant, his trial counsel, and the trial prosecutor for the State. Assistant District Attorney Kishwer Lakhani, the trial prosecutor for the State, testified that defense counsel told her that he wanted to set the case for a trial before the court. She also stated that this case had never been set for a jury trial; it had always been set for a trial before the court.
Kenneth Onyenah, trial counsel for appellant, testified that he advised appellant of his right to a jury trial. He further stated that although they had the option to go forward with a jury trial, they decided to go with a non-jury trial. Starting in October 2018, the plan was to go forward with a non-jury trial. Onyenah testified that on the first day of trial, February 28, 2019, he informed appellant that this was his trial on the merits of the case. He further stated that appellant was "competent" and knew what a trial was. Onyenah testified that a written jury waiver was not signed because the judge rushed them and started the trial before the parties had time to complete a written jury waiver. Onyenah stated that he would have signed a jury waiver if he had been given time to do so.
Appellant concedes that he was aware of his right to a jury trial. He testified that he told his attorney that he wanted a jury trial. He did not remember when this conversation took place, but he remembered that his attorney had increased his fee by $5,000 because a jury trial was more work. Appellant testified that he never signed any paperwork waiving his right to a jury trial or requesting a trial before the judge only; however, he agreed that his signature was on several of the pass slips filed in his case. Beginning with the pass slip dated September 14, 2018, the pass slips contained check marks in the box next to the words "Trial Before the Court," and the checked box and words "Trial Before the Court" were also circled. Appellant asserted that his attorney gave him blank forms to sign. He stated that after the forms were filled in and signed by both attorneys, his attorney would give him the pink copy with his court date for the following month. Appellant claimed that he did not understand the meaning of the checked box next to the words "Trial Before the Court."
Appellant's brief states, "The record is clear that Rios was aware of his right to a jury trial."
Pass slips are forms to request a continuance of a case; they have boxes that can be checked to designate the purpose, including, among other reasons, announcement, agreed plea of guilty, open plea of guilty, jury trial, and trial before the court.
Appellant testified that on the first day of trial, neither the trial judge nor his attorney told him that this was his trial—he thought it was just another hearing. Notwithstanding his assertion that he did not understand that the February 28th proceeding was his trial, appellant also stated that during trial, he asked his trial counsel to object because he wanted to have a jury trial.
Appellant cites Davidson v. State to support his argument that acquiescence in proceeding to trial without a jury does not constitute an express waiver. See 225 S.W.3d at 811. In Davidson , our sister court concluded that Davidson was denied his constitutional right to a jury trial. Id. As in the case before us, the trial court held an evidentiary hearing to determine whether Davidson had waived his right to a jury trial. Id. at 808. Davidson testified at the hearing, explaining that he never waived his right to a jury trial, he was surprised and protested when his bench trial began, and he was told by his trial counsel to be quiet and not make a scene or run the risk of a longer punishment. Id. Davidson testified that his trial counsel never asked him if he waived his right to a jury trial and he never agreed to do so. Id.
Davidson's trial counsel did not appear to testify at the abatement hearing. Id. at 810. Evidence at the hearing showed that trial counsel did not remember whether Davidson had waived a jury trial, could not affirmatively state that Davidson waived a jury trial, and had no notes in his file indicating that Davidson waived his right to jury trial. Id. The trial court made numerous findings and conclusions that Davidson had not waived a jury trial. Id. at 809–11. Accordingly, our sister court concluded that "the record from the abatement hearing clearly shows that Appellant did not expressly waive, in any form to the trial court, his right to a trial by jury." Id. at 811.
Davidson is distinguishable from the case before us because, in Davidson , there was no evidence in the record that the defendant had waived his right to a jury trial. See Snider v. State , No. 08-12-00050-CR, 2013 WL 6671510, at *2 (Tex. App.—El Paso Dec. 18, 2013, pet. ref'd) (not designated for publication) (distinguishing Davidson because evidence at abatement hearing established that defendant was aware of her right to a jury trial and voluntarily waived it.). Unlike Davidson , the trial court here did not find appellant's testimony that he did not voluntarily consent to a trial before the court to be credible. Unlike Davidson's trial counsel, appellant's trial counsel appeared at the abatement hearing and testified that it had always been their plan to have a trial before the court. Appellant's trial counsel stated that he would have filed a signed jury waiver if he had more time before the trial began. In addition, the trial prosecutor testified that the only type of setting the case ever had was a trial before the court. Unlike Davidson , the trial court here made findings of fact and conclusions of law that appellant waived his right to a trial by jury and voluntarily consented to a trial before the court. With respect to the judgment, the trial court concluded that the recitation that appellant waived the right of trial by jury accurately reflected the proceedings and—other than the testimony of appellant found to be not credible—the record contained no direct proof of its falsity.
In Snider , evidence that appellant was aware of her right to a jury trial and voluntarily waived that right included five motions for continuance indicating the case was set for jury trial, a conversation between the trial court and defense counsel in which defense counsel stated "we have waived the jury," and the fact that appellant did not contradict or voice opposition to her attorney's statements at the time they were made. Snider , 2013 WL 6671510, at *2.
Based on this record, and with the required deference to the trial court's determination of the historical facts, we conclude that appellant was not harmed by the trial court's failure to observe the mandatory requirements of article 1.13 that appellant waive his right to a jury trial in person, in writing, and in open court. See CRIM. PROC . art. 1.13(a) ; Johnson , 72 S.W.3d at 349. In addition, the record does not support appellant's assertion that he did not waive his right to a jury trial in any way. Indeed, all of appellant's actions reflect that he was aware of his right to a jury trial and voluntarily waived that right. See Snider , 2013 WL 6671510, at *2. Because the evidence in the record and the trial court's factual findings show that appellant was aware of his right to a jury trial, waived that right, and opted for a bench trial, we conclude, like our sister court in Snider , that appellant was not denied his constitutional and statutory right to a jury trial. We overrule appellant's first, second, third, and fourth issues.
Appellant failed to bring forth sufficient evidence to establish the falsity of the recitations in the judgment. See Johnson , 72 S.W.3d at 349 ("We must presume that statement [of jury waiver] correct in the absence of direct proof of its falsity." (emphasis added)). Accordingly, we overrule appellant's fifth issue.
B. Judgment Modification
In a cross-point, the State requests that the trial court's judgment be modified to reflect that there was no plea bargain regarding sentencing in this case. Appellate courts may modify a trial court's judgment and affirm it as modified. See TEX. R. APP. P . 43.2(b) ; Bigley v. State , 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). This Court "has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so." Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, writ ref'd) (en banc). Appellate courts may reform trial court judgments where "the evidence necessary to correct the judgment appears in the record." Id. If a clerical error in the trial court's judgment is brought to our attention, we have a "mandatory duty" to correct it. Id.
Here, the "Terms of Plea Bargain" section of the judgment reads as follows: "35 YEARS TDC." However, other than the written judgment, the record contains no other documents, plea paperwork, or any indication that the State and appellant entered into a plea bargain agreement. Based on the record before us, we modify the judgment to accurately reflect that there was no plea bargain, as follows: "Terms of Plea Bargain: N/A."
III. Conclusion
We modify the judgment as set forth in this opinion, and we affirm the trial court's judgment as modified.
Burns, C.J., concurring.
Goldstein, J., dissenting.
CONCURRENCE DUBITANTE
Concurrence by Chief Justice Burns
While I feel compelled to concur in the judgment, I write separately to explain why I agree with much of the substance and sentiment of the dissent. Today, we follow Johnson v. State , 72 S.W.3d 346, 347 (Tex. Crim. App. 2002), a 5–4 decision involving a misdemeanor charge that disserves the Constitution and renders meaningless the jury waiver procedure established by the legislature. In addition to abandoning that procedure, the record does not reveal anything close to the exchange between a judge and a defendant that should evidence a knowing and voluntary waiver,1 revealing instead silence by the court and confusion, a lack of comprehension, or resistance by the defendant. Despite Johnson's abandonment of article 1.13,2 I am nonetheless obligated to follow it and concur in the judgment.
"As a matter of federal constitutional law, the State must establish, on the record, a defendant's express, knowing, and intelligent waiver of jury trial." Hobbs v. State , 298 S.W.3d 193, 197 (Tex. Crim. App. 2009). Recognizing the magnitude of the right at issue, our legislature imposed nine requirements for a valid waiver:
"1. Made in a criminal prosecution
2. Other than one for which the State seeks the death penalty
3. By the defendant
4. In person
5. In writing
6. In open court
7. With the consent and approval of the Court
8. In writing
9. With the consent and approval of the State."
Johnson , 72 S.W.3d at 350 n. 1 (Meyers, J. dissenting); see TEX. CODE CRIM. PROC. art. 1.13.
In contrast to the statutory requirements, none of the discussion about Rios's entitlement to a jury, if any actually occurred, took place in open court. Rios's native language was Spanish, he testified he did not understand written or spoken English well, and his counsel—who did not speak Spanish—used an interpreter only once during their pre-trial conferences. Rios did not sign a jury waiver, nor was he advised by the trial judge of his right to a jury trial. Indeed, the only affirmative evidence of waiver in our record is Rios's own counsel's testimony claiming Rios knew about his right to a jury trial and waived it. In contrast, Rios unequivocally testified he wanted a jury trial and did not consent to a bench trial.
If we were permitted to follow article 1.13, these facts would further distinguish Johnson and Jackson and would fall far short of demonstrating a waiver since in both cases the appellant complained only of the absence of a written waiver, not the deprivation of their constitutional right. See Johnson , 72 S.W.3d at 348 ("Since Johnson alleges merely that there was no written jury waiver, and does not allege that there was no jury waiver at all, he alleges statutory error, not constitutional error"); Jackson v. State , 76 S.W.3d 798, 802 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.) ("Appellant does not argue on appeal that her right to a jury trial was violated. She does not argue that she was deprived of a jury trial.").
Rios was represented by counsel and that box is checked. This language and waiver is for illustrative purposes only relative to comparison of waiver of fundamental constitutional rights.
The prosecutor did not seek a written waiver and did not orally remind the judge to warn Rios about his entitlement to a jury trial when Rios was arraigned before trial. The judge, apparently believing probation was possible for the crime with which Rios was charged, failed to inform Rios of the possible range of punishment during arraignment and needed to be told the range of punishment after he found Rios guilty. While the judge's, prosecutor's, and defense counsel's desires for a bench trial are clear, their preferences do not speak to what Rios wanted. He testified he wanted a jury trial.
After we abated Rios's appeal and directed the trial court to examine whether any evidence supported the judgment's bare recitation of waiver, the trial court issued findings of fact in which it found Rios's signature on several pass slips and his failure to object to trial by the court sufficient to support the judgment's pro forma recitation. But our inquiry is not whether Rios had previously consented to a bench trial nor whether, as his trial was conducted, he acquiesced to a bench trial. We examine whether, on the morning of his trial and before it commenced, he knowingly and voluntarily waived his right to a jury trial.
In challenging the bare recitation in the judgment and submitting direct proof rebutting it, Rios rebutted the presumption of regularity. See Johnson , 72 S.W.3d at 349 (recitation of waiver of jury trial "binding in the absence of direct proof of [its] falsity") (citing Breazeale v. State , 683 S.W.2d 446, 450–51 (Tex. Crim. App. 1984) (op. on reh'g)); Meek v. State , 851 S.W.2d 868, 870 (Tex. Crim. App. 1993) (absence of written waiver and defendant's denial of signing waiver rebutted presumption of regularity arising from recitation in judgment).
For judicial efficiency, I have not repeated the evidence outlined in the concurring opinion, but incorporate it as part of my analysis.
Our record also includes significant evidence contradicting a waiver. First, and foremost, Rios was a native Spanish-speaker, in custody. He testified:
• He did not understand he had the right to a jury trial but told his attorney he wanted a jury trial;
• His counsel requested, but may not have received, an additional fee to compensate for the extra work of a jury trial;
• He did not think he had ever signed any paperwork indicating he wanted a trial before the court rather than a jury;
• When he signed pass slips they were blank;
• He did not understand the meaning of the checks marked on the pass slips for a bench trial—shown to him during the hearing regarding whether he waived his right to a jury trial but apparently not after his attorney had checked that box after Rios signed the blank forms—because they were written in English and his attorney informed him only that each was to get a new trial date;
• Only once when he met with his attorney, including the times he signed pass slips, did he have an interpreter;
• At only one of the four pretrial settings did Rios's English-speaking attorney bring an interpreter;
• The pretrial hearings were cursory and no important issues were ever addressed at any of them;
• On the day of his trial he thought he was in court for another hearing;
• Neither the judge nor his attorney informed him he was in court for his trial on the day of his trial;
• The trial judge did not admonish him of his right to a jury trial before commencing the trial;
• He instructed his counsel to object to proceeding on the morning of his trial without a jury;
• He wanted a trial before a jury and never consented to a trial before the court; and,
• His attorney wanted another $5,000 for a jury trial.
We have no evidence that anyone informed Rios that his entitlement to a jury was absolute rather than conditioned on his ability to pay the additional fee.
In fact, the State admitted to typographical errors in the findings not supported by the evidence; specifically, that Rios was never asked whether he was aware of his right to a jury trial, never testified that he was not aware of that right and that he testified that he did ask his trial counsel to object to the trial before the court.
In its findings of fact, the trial court negated this evidence by determining Rios lacked credibility regarding whether he understood that he was being tried without a jury. But the record does not support that finding. Indeed, the only discussion about credibility in the record is the State's argument at the hearing regarding waiver, that it was "hard to believe" Rios's attorney provided no advice whatsoever about proceeding to trial and that on the day of the trial Rios thought he was at another hearing. But the lack of a payment for a jury trial and the information about the judge's reluctance to be the factfinder in a bench trial, if anything, call into question defense counsel's testimony and not Rios's.
In a non-responsive answer during his testimony, Rios's trial counsel disclosed an exchange in chambers between the trial judge, defense counsel, and the prosecutor. Rios's counsel said, "before the trial, we went before Judge Richter, too, of course, and he said years ago he tried a sexual assault case.... And he said that has been h[a]unting [sic] him he has sleepless nights. Okay. And he didn't even want to try the case." The record is silent as to whether defense counsel relayed this information to his client before the trial began, but it seems highly unlikely that Rios would have persisted in a presumed waiver of a jury had the information been relayed to him. Although ineffective assistance of trial counsel was not raised by Rios's court-appointed appellate attorney, this curious admission by Rios's trial counsel creates further doubt that Rios made a knowing and voluntary waiver and makes it "hard to believe" that Rios's counsel in fact discussed Rios's entitlement to a jury with him.
Similarly, the trial court's finding that several pretrial motions were discussed and resolved on the morning of trial creates no inference that Rios knew he was getting and consented to a bench trial since Rios did not speak English and the record provides no basis to believe he had any understanding of the import of the court's ruling on those motions.
The record also reflects considerable miscommunication or confusion by or between Rios, the judge, and his counsel. The probation assessment officer—who was wholly disinterested and the only other witness who spoke Spanish—testified that when she spoke with Rios in September prior to his October trial, Rios was confused about what an open plea meant, told her he did not want to enter an open plea with the judge, and made clear his desire for a trial. I believe the probation officer's testimony reveals that Rios had not been informed he had an absolute right to a jury trial. Yet the trial judge, in conducting a hearing regarding waiver months after the trial, included a finding that Rios failed to inform the probation officer that he did not want a trial before the court. Given the absence of any duty that Rios inform the probation officer he wanted a jury trial, however, I see no relevance for such silence.
It may be that Rios is guilty as charged and that his conduct merits every day of his 35-year, no-parole sentence. The record is clear that the trial attorneys wanted a bench trial rather than a jury trial. However, it is far from clear that Rios—who personally holds the right to a jury trial—knowingly and intelligently waived his right. It seems to me that defense counsel, the prosecutor, and the judge—all of whom swore an oath to uphold the Constitution—and our judicial system in its search for truth and justice, could well afford the additional ten minutes in court necessary to protect Rios's rights. DISSENTING OPINION
Dissenting Opinion by Justice Bonnie Lee Goldstein
Article 1.13 of the Code of Criminal Procedure is plain, clear, and mandatory, but in its application and practice, has been rendered meaningless. I respectfully dissent.
There is no dispute that there is no signed, written waiver by Rios in the record. Nor is there any record of an oral waiver in open court. There are only two documents upon which to conclude that Rios waived this fundamental, constitutional right: (1) pass slips with check marks and (2) a brief reference to the waiver of a jury trial in a boilerplate, pre-printed judgment form that is self-populated based upon information inserted by the clerk. I find this evidence insufficient to support waiver. Given the aggregate total of the evidence and record before us, not limiting my review to the findings of fact and conclusions of law submitted pursuant to our order, I disagree with the majority opinion.
Applicable Law
I start with the constitutions of the United States and of this State. Both the United States Constitution and the Texas Constitution guarantee the right to a trial by jury. U.S. CONST. amend. VI. ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury."); TEX. CONST. art. 1, § 15 ("The right of trial by jury shall remain inviolate."); see also TEX. CODE CRIM. PROC. ANN. art. 1.12. "As a matter of federal constitutional law, the State must establish, on the record, a defendant's express, knowing, and intelligent waiver of jury trial." Hobbs v. State , 298 S.W.3d 193, 197 (Tex. Crim. App. 2009) (citing Guillett v. State , 677 S.W.2d 46, 49 (Tex. Crim. App. 1984) ); see also Martinez v. State , 449 S.W.3d 193 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (clear on record with use of interpreter); Smith v. State , 363 S.W.3d 761, 767 (Tex. App.—Austin 2012, pet. ref'd). A defendant's mere acquiescence in proceeding to trial without a jury does not constitute an express waiver. See Ex parte Lyles , 891 S.W.2d 960, 962 (Tex. Crim. App. 1995). A court's failure to obtain any jury waiver at all is a "structural" constitutional error that affects the very framework of the underlying trial. Davidson v. State , 225 S.W.3d 807, 811 (Tex. App.—Fort Worth 2007, no pet.) (citing Loveless v. State , 21 S.W.3d 582, 584 (Tex. App.—Dallas 2000, pet. ref'd)), abrogated on other grounds by Johnson v. State , 72 S.W.3d 346, 348 (Tex. Crim. App. 2002).
A jury trial is "fundamental to the American scheme of justice." Duncan v. Louisiana , 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) ; accord Samudio v. State , 648 S.W.2d 312 (Tex. Crim. App. 1983). Because of the "fundamental" and "inviolate" nature of the right to trial by jury, Texas law requires waiver of jury trial to be made in person, in writing, and in open court. See TEX. CODE CRIM. PROC. ANN. art. 1.13. Article 1.13(a) of the Texas Code of Criminal Procedure sets out the required formalities of a jury waiver in Texas. See id. art. 1.13(a). It provides, in relevant part, that the defendant "shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that ... the waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state." Id.
A knowing waiver is an intentional relinquishment or abandonment of a known right or privilege. Robles v. State , 577 S.W.2d 699, 703 (Tex. Crim. App. 1979). For a waiver to be valid, the record must show that it was voluntarily and knowingly made. Id. at 703. A silent record cannot support a presumption that a defendant affirmatively and knowingly waived the right to a trial by jury. Guillett , 677 S.W.2d at 49 ; Breazeale v. State , 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g).
Discussion
Here, Rios contends—and the State does not dispute—that he did not waive his right to a jury trial in person, in writing, and in open court. Nor was he advised by the trial judge of his right to a jury trial. There is no evidence, or factual finding, of an express and intelligent waiver of a jury trial. The pass slips markings and a self-populated judgment form do not reflect a knowing waiver of jury trial as further discussed below. The trial court erred by failing to observe the mandatory requirements of article 1.13. See TEX. CODE CRIM. PROC. ANN. art. 1.13. Without Rios's express, knowing, and intelligent waiver of a jury trial established by the record, the error in this case is of a constitutional magnitude.
The majority feels constrained to follow the Johnson line of cases, which hold that "[b]ecause neither the state nor the federal constitution requires that this waiver be written, a violation of this aspect of Article 1.13(a) constitutes a statutory error rather than a constitutional error," Hinojosa v. State , 555 S.W.3d 262, 265–66 (Tex. App.—Houston [1st Dist.] 2018, pet. ref'd) (citing Johnson , 72 S.W.3d at 348 ), thus analyzing harm under rule 44.2(b) of the Texas Rules of Appellate Procedure and considering whether the error affected the appellant's "substantial rights." See Johnson , 72 S.W.3d at 348 (citing TEX. R. APP. P. 44.2(b) ); see also Ex parte McCain , 67 S.W.3d 204, 209–10 (Tex. Crim. App. 2002).
The case before us is critically distinguishable from Johnson , as Rios without equivocation denies and disputes that he knowingly and intelligently waived his right to trial by jury. Relying on the trial court's findings of fact, in which the trial court found Rios's signature on several pass slips and his failure to object to trial by the court, the Majority finds sufficient basis to support the pro forma recitation in the judgment that Rios knowingly and voluntarily waived his right to a jury trial. The Majority deems these facts sufficiently close to those giving rise to the holdings in Johnson , 72 S.W.3d at 347 (failure to obtain written jury waiver is harmless if defendant knowingly and voluntarily waived right), Jackson v. State , 76 S.W.3d 798, 803 (Tex. App.—Corpus Christi-Edinburg 2002, no pet.) (defendant waived jury trial despite absence of signed jury waiver form, where counsel affirmatively requested bench trial and defendant did not assert she was deprived of right to jury trial), and Levy v. State , No. 14-16-00846-CR, 2017 WL 3403601, at *2 (Tex. App.—Houston [14th Dist.] Aug. 8, 2017, pet. ref'd) (mem. op., not designated for publication) (concluding that multiple case reset forms, each signed by defendant, indicating bench trial for each setting, supported judgment's recitation of waiver). In both Johnson and Jackson , however, the defendant complained only of the absence of a signed written waiver but otherwise did not challenge the existence of a sufficient waiver. Johnson , 72 S.W.3d at 348 ("Since Johnson alleges merely that there was no written jury waiver, and does not allege that there was no jury waiver at all, he alleges statutory error, not constitutional error."); Jackson , 76 S.W.3d at 802 ("Appellant does not argue on appeal that her right to a jury trial was violated. She does not argue that she was deprived of a jury trial."). Likewise, in Levy , the defendant signed multiple case reset forms, was admonished by the court regarding his right to a jury trial, and complained only about the absence of a signed jury waiver form. Levy , 2017 WL 3403601, at *1.
Critical to the distinction and determination of a knowing and voluntary waiver, none of these cases involved a native-Spanish speaking defendant who testified he did not understand written or spoken English. In each of these cases, the court presumed recitation of waiver in a judgment was correct, absent contrary evidence in the record. Here, the record is replete with contrary evidence, including the stipulation between the parties acknowledging that the waiver language in the judgment was incorrect, offering direct proof of the falsity of the judgment recitations.
See Smith v. State , 363 S.W.3d 761, 768 (Tex. App.—Austin 2012, pet. ref'd) ("In summary, the trial court first asked Smith if she wanted a trial by jury or a trial before the court. Smith stated that she wanted a trial before the court. The trial court then explained to Smith the meaning of a trial before the court and asked her if she understood. Smith answered, ‘I understand.’ The trial court again asked her if that was what she wanted. Smith stated, ‘Yes, I do.’ The trial court then presented Smith with a jury-waiver form, explained the contents of the form to her, and asked her if the form was correct in indicating that she was ‘intelligently, knowingly and voluntarily’ waiving her right to a trial by jury. Smith answered, ‘Correct.’ After obtaining her signature on the form, the trial court then asked her if she had ‘any questions about the waiver.’ Smith answered, ‘No.’ ").
This distinction applies to the analysis of current state law. To be clear, the plain, clear mandatory statutory language is applicable across the board to every defendant accused of a crime.
The generated form entitled "Judgment of Conviction by Court—Waiver of Jury Trial" contains boilerplate language, blanks to fill, and boxes to check. With respect to the waiver of right to counsel, the standardized language expressly provides: "Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court" with a box to be check for counsel or waiver of counsel.3 In stark contrast, relative to a jury trial waiver, the boilerplate language cursorily provides:
Johnson's circular analysis negates harm in the presence of waiver. Johnson , 72 S.W.3d at 351 (Meyers, J. dissenting) ("Harm in this instance should not be gauged by looking to whether a waiver took place, i.e. whether there was error; it should be gauged by looking to the deleterious effects of the parties' failure to follow the procedure in Article 1.13 ).
The Judge Presiding is listed as the Hon. Martin Richter, Visiting. The Judgment is signed by Judge Presiding Raquel "Rocky" Jones.
Both parties announced ready for trial. Defendant waived the right of trial by jury and entered the plea indicated above. The Court then admonished Defendant as required by law. It appeared to the Court that Defendant was mentally competent to stand trial, made the plea freely and voluntarily, and was aware of the consequences of this plea.
There is no box to check, no blank to fill, no reference to statutory compliance, nor any other indication that there was a specific finding by the court that Rios knowingly, intelligently, and voluntarily waived his right to trial by jury, as it would, and did, with the waiver of right to counsel or entering the plea.
Significantly, the State and Defense stipulated as part of the evidentiary hearing that this is the form judgment language:
So given that the parties are all aware as to how the judgments are typed, we're willing to stipulate that the judgment itself, I believe that the Clerk, once they determine it's a Trial Before the Court, just does a quick pull down menu, picks Trial Before the Court, that information gets put into the judgment, and the rest of it, the rest of the information is, kind of, like, I believe, it's entered form-like. So the recitations in the judgment, for example, on the second page of the judgment where it states, both parties announced ready for trial. Defendant waived the right of trial by jury, entered the plea indicated above, that -- that information is all entered automatically once the Clerk enters judgment of conviction by court. And I believe we're willing to stipulate that that's form-language.
The facts as reflected in the trial transcript, the evidentiary transcript, and the findings by the court show such an egregious departure from constitutional and statutory mandates, that it warrants distinction from the cases relied upon by the majority.
The trial transcript is silent on jury waiver. The trial judge did not admonish Rios of his right to a jury trial before commencing the trial. While the pass slips are part of the trial court file, the record is silent at time of trial of the check mark indicating a trial before the court, not to be confused or conflated with the affirmative waiver of jury trial, or Rios's knowledge of same.
It was not until the evidentiary hearing upon order of this Court, at Rios's behest, that a record was made, contradictory at best, of the significance of the pass slips. The only other reference of the waiver of a jury trial is on the pre-printed judgment form, a document not ordinarily seen by a defendant. The record is otherwise silent regarding Rios's level of knowledge as to his right to trial by jury and any waiver of that right. Even if the record clearly established that Rios knew of his right to trial by jury, knowledge that a right exists in no way supports an automatic finding that a waiver of that right was knowing and voluntary, or even that the right was waived.
There is a presumption of regularity in the judgment of a trial court, but this presumption can be overcome. Breazeale , 683 S.W.2d at 450 ; Ex parte Reed , 610 S.W.2d 495, 499 (Tex. Crim. App. 1981). In the instant case, I believe that this presumption has been overcome by the lack of any reference anywhere in the record to any affirmative waiver by Rios of a jury trial, written or oral. There is nothing in the record to support a finding that the trial court informed Rios of his right to a trial by jury and that Rios affirmatively, expressly, knowingly and intelligently gave up this right in open court or at any stage in the process.
The only findings were upon Rios's motion and this Court's abatement to require the trial court conduct a post-trial, evidentiary hearing to address specific concerns. A blank jury waiver form, generally signed and filed of record, was admitted as an exhibit during this proceeding.
The majority applies the correct standard for harm analysis of a non-constitutional error, citing Texas Rule of Appellate Procedure 44.2(b), and finding under that section that the error did not affect Rios's substantial rights. The wording of the federal and Texas statutes regarding written waiver of jury trial are "substantially identical," and under Johnson the majority considered the absence of a written jury waiver to be a statutory error. Constitutional error was not addressed and Rios specifically raises a constitutional challenge to the deprivation of his right to jury trial.
It is undisputed that the record in no way reflects that Rios personally and expressly waived his right to a jury trial in open court, orally or in writing. Based upon Rios's lack of English proficiency, trial counsel's lack of Spanish facility, and the lack of an interpreter on all but one occasion and trial, I would conclude that Rios's substantial rights have been adversely affected so as to constitute harmful error.
1. Evidentiary Hearing
The majority reiterates in detail the findings of fact found to be dispositive for consideration in establishing statutory jury waiver. The record is replete with contrary evidence, as set out in the concurring opinion,4 that cannot be disregarded and undermines the trial judge's post-trial findings, including typographical errors admitted by the State.
In its findings of fact, the trial court disregarded this evidence by determining Rios lacked credibility as to whether he was aware of his right to jury trial, that he was being tried for the offense on the date of the trial, and that he did not voluntarily consent to trial before the court. The record does not support these findings5 ; indeed, the only discussion about credibility in the record is the State's argument at the hearing regarding waiver; namely, that it was "hard to believe" Rios's attorney provided no advice whatsoever about proceeding to trial and that on the day of the trial Rios thought he was at another hearing. Defense counsel provided no clear, unequivocal statement that Rios expressly understood, intelligently, voluntarily, and knowingly waived his right to a jury trial. Neither did the State.
Pass Slips:
The court made three findings relative to the signing of the pass slips. What is absent from the findings, but is part of the record, is defense counsel's testimony. With regard to the pass slips, defense counsel failed to answer the question asked about whether the "Trial Before the Court" box was checked or marked before Mr. Rios signed it.
Q. When you presented the pass slips to Mr. Rios to sign, had you already circled or check marked Trial Before the Court, before he signed?
A. I think it was signed before we talked to the DAs, the other way around.
Q. So you talked to the DA? You do have your client sign, you talk to the DA, and then you --
A. Yes. I always have my client sign the pass slip to show that they are here, and then we talk to the DA. Normally the DA is not down here, he is upstairs, so we go upstairs. And the DA will sign it and give us a copy.
Q. Okay
Further, the record indicates that Rios did not sign all the pass slips and once counsel signed on Rios's behalf.
The trial court's findings establish there was no written jury waiver in the record, no admonishment by the trial judge of Rios's right to a jury trial, and that Rios testified that he wanted a jury trial. Moreover, neither findings associated with the district attorney nor defense counsel's testimony establishes the requisite clear, unequivocal, knowing, intelligent, and voluntary waiver.
Waiver of Jury Trial :
Q. (By Ms. Elmore) Did Mr. Rios ever express to you that he did not want a Trial Before the Court?
MS. EDGECOMB: Objection to that question. "Did Mr. Rios express"; that's communications between the attorney and his client as privileged.
THE COURT: Counsel, can you rephrase that question?
Q. (Ms. Elmore) Do you believe that Mr. Rios did not want a Trial Before the Court?
A. Well, what I believe that he -- he maintained that he was innocent from the --
MS. EDGECOMB: Objection to anything further as to what Mr. Rios maintained as privileged communication.
THE COURT: Sustained.
Q. (By Ms. Elmore) So could you answer the question, did you believe that he did not want a -- a Trial Before the Court?
MS. EDGECOMB: Objection as to any communication, "what did Mr. Rios want", asking for communication as to what he answered that question -- as to how he answered that question, as to how he communicated it.
MS. ELMORE: I'm just asking about [trial counsel's] belief, not communications. His personal --
THE COURT: I'll allow that.
THE WITNESS: Well, I believed that he was, though. And that's why we tried the case.
MS. ELMORE: That's nonresponsive.
MS. EDGECOMB: Objection; that's responsive.
Q. (By Ms. Elmore) Did Mr. Rios ask you to object during the Bench Trial that he wanted a jury trial?
MS. EDGECOMB: Objection as to any communications during the trial as to what Mr. Rios might have asked the attorney during trial; that's privilege communications.
THE COURT: Sustained
Defense counsel testified at the evidentiary hearing that no jury trial waiver was signed, asserting that they were rushed by the judge. The trial transcript reflects that there had been time to discuss pretrial motions, address objections, invoke the rule, arraign the defendant, and take a plea of not guilty. What is conspicuously absent is the trial court's advising Rios of the right to a jury trial and waiver by Rios of that right.
Defense counsel's testimony did not contradict Rios's unequivocal denial of waiver or establish an express, knowing, and intelligent waiver of the right to jury trial. The State for its part also failed to meet its burden, simply advising from the inception this was non-jury trial, without ever establishing the express, knowing, and intelligent waiver required. While it is clear from the State's and defense counsel's testimony that they each intended to conduct a trial before the court, neither affirmatively represented or established that Rios made an express, knowing, intelligent and voluntary waiver of his right to have a jury trial.
As this evidentiary hearing was held solely and explicitly for the purpose of establishing whether there had been a waiver of this fundamental constitutional right, defense counsel's vague equivocations do not contradict, let alone cast doubt on, the veracity of his client's testimony, and the State's testimony does nothing more than offer a conclusory assumption without substantiation. This is not a right that can be perfunctorily waived by agreement between attorneys for the State and defense. At every stage, the system failed to assure this defendant of his constitutional right to a jury trial, and this failure cannot be countenanced.
Based upon the complete testimonial and evidentiary record before us, which conflicts substantially with the findings of the trial court, I am not persuaded by the latter's findings as a basis for the conclusions of law. See, e.g. , Fulgham v. Fischer , 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.) (factual findings not binding when appellate record includes a reporter's record); Pitts v. State , 113 S.W.3d 393, 397 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (findings of fact not conclusive, even if unchallenged, when reporter's record is included in the appellate record).
The record does not reflect any lie or dishonesty by Rios, and given the absence of a licensed court interpreter, or even a competent translator, during most of Rios's interactions with his non-Spanish speaking counsel and Rios's counsel's interest in defending his own conduct, Rios's counsel's testimony does not suffice to create a credibility issue. Even if a credibility issue existed—on such a sparse record and in light of Rios's unequivocal denial that he knowingly and voluntarily waived his right to a jury, as well as his minimal understanding of English—the State's burden on this constitutional issue is not satisfied.
I am thus not relying solely on the "mere assertions" of a defendant to invalidate a conviction. See Egger v. State , 62 S.W.3d 221, 225 (Tex. App.—San Antonio 2001, no pet.).
The record also reflects considerable miscommunication or confusion by or between Rios, the judge, and his counsel. Rios's trial counsel testified the trial judge "rushed" the trial and confirmed that Judge Richter did not admonish Rios about the jury waiver form or his right to a jury. The trial judge apparently believed probation was possible for the crime with which Rios was charged and failed to inform Rios of the possible range of punishment during Rios's arraignment. Similarly, the discussion of pretrial motions on the morning of trial creates no inference that Rios knew he was getting and consented to a bench trial because Rios did not speak English and the record provides no basis to believe he had any understanding of the import of the court's ruling on those motions.
Judge Richter told counsel he did not want to try "a sexual assault case."
The probation assessment officer—who was wholly disinterested and the only witness who spoke both English and Spanish fluently—testified that when she spoke with Rios in September prior to his October trial he was confused about what an open plea meant, told her he did not want to enter an open plea with the judge, and thus refused the further interview that had been scheduled by his attorney. Nevertheless, the probation-assessment officer testified that Rios did not want to "go Open before the Judge." This solitary piece of testimony is the only affirmative evidence from a neutral source about Rios's actual desire about the trial proceedings.
Rios was scheduled for a Pre-Sentence Investigation Report (PSI), a process utilized when there is a probability of probation, with an agreed or open plea, but not normally conducted when a trial is requested. Here Rios had no possibility of probation, nor was he entering an agreed plea to go Open to the Court on sentencing. The prosecutor testified that defense counsel said he wanted a PSI so the court had more background information for sentencing purposes.
Unlike Johnson , the record reflects the falsity of the judgment's purported waiver such that the pro forma language can be of no constitutional or statutory consequence. The State and defense stipulated that the form self-populates and that the form language "[b]oth parties announced ready for trial[,] Defendant waived right of trial by jury[,] and entered the plea indicated above," is information "entered automatically once the Clerk enters judgment of conviction by court," and is not correct. There is no evidence suggesting the boilerplate jury waiver found by the trial judge was given at time of trial, and due to its inclusion as a perfunctory administrative function, electronically signed by a judge who did not try the case, it can be given no Johnson weight under the aggregate circumstances. In total, the record reflects Rios's unequivocal rejection of a trial by the court and does not support the trial court's finding to the contrary. No evidence supports the trial court's findings regarding Rios's purported waiver. I would likewise disregard the trial court's conclusion of law that Rios waived his right to a jury trial. Pitts , 113 S.W.3d at 397 (trial court's legal conclusions are not binding on appellate court). The record reflects harm from the trial court's failure to observe the mandatory requirements of article 1.13, in the constitutional context of the right to a jury trial and does not clearly reflect Rios's express, knowing and intelligent waiver of his right to a jury trial. The court's failure to obtain any jury waiver at all is a structural constitutional error that affects the very framework of the underlying trial. See Davidson , 225 S.W.3d at 811.
Those who take an oath to "preserve, protect and defend the Constitution and laws of the United States and of the State of Texas" must be vigilant to safeguard one of the bedrocks of our judicial system—the right to a trial by jury. In this technological era, where boilerplate language is utilized for judicial efficiency, we should at a minimum be cognizant that waiver of fundamental, constitutionally mandated rights cannot be relegated to a perfunctory exercise, buried in small print, without substance, thought or reflection. Such is not our system of justice.
Based upon the totality of the irregularities, the contradictory evidence and the critical distinctions permitting departure from Johnson , there being no express, knowing, intelligent, and voluntary waiver, and in keeping with the legislatively mandated plain, clear, and meaningful statutory language, I respectfully dissent.