State v. Rodgers

Full title: THE STATE OF TEXAS, Appellant v. JOHN EDWARD RODGERS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 9, 2004

No. 05-03-00833-CR (Tex. App. Mar. 9, 2004)

Opinion

No. 05-03-00833-CR.

Opinion issued March 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 336^th Judicial District Court Grayson County, Texas, Trial Court Cause No. 48671. Reversed and Remanded.

Before Chief Justice THOMAS and Justices MORRIS and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice LAGARDE.

This is a State's appeal of the trial court's order granting appellee John Edward Rodgers' motion to set aside his felony DWI indictment based on a collateral attack on a prior 1993 misdemeanor DWI conviction alleged in the second paragraph of the indictment.² Appellee's motion asserted the 1993 conviction was void because appellee's written jury waiver in that case was executed without the approval of an attorney in violation of article 1.13(c) of the code of criminal procedure in effect at that time. See Act of May 27, 1991, 72d Leg., R.S., ch. 652, § 1, 1991 Tex. Gen. Laws 2394, 2394 (requiring that in a criminal prosecution for any offense other than a capital felony case, an attorney must be appointed before a defendant who had no attorney could agree to waive a jury), amended by Act of May 12, 1997, 75^th Leg., R.S., ch. 285, § 1, 1997 Tex. Gen. Laws 1300, 1300-01 (amending subsection (c) to apply only to defendants charged with felony offenses) (current version at Tex. Code Crim. Proc. Ann. art. 1.13(c) (Vernon Supp. 2004)). No appellee's brief has been filed. For reasons that follow, we reverse and remand. The facts in this case are undisputed. Appellee was charged by indictment with the primary offense of DWI alleged to have been committed on or about February 26, 2002. The indictment further alleged that prior to the commission of the primary DWI offense, appellee had been convicted of two prior DWI offenses: cause numbers 93-1-706 and 97-2-403. Appellee's motion to set aside the indictment alleged the conviction in cause number 93-1-706 was void because his jury waiver in that case was not executed with the approval of an attorney. At a hearing held on appellee's motion before a visiting judge appellee's counsel asked that the court "receive the official records of County Court at Law Number One for Cause Number 93-1-706 into the court." The State did not object and the trial court stated it would "take notice of these records." Those official court records are before us in this appeal. Within those official court records in cause number 93-1-706 is included a written document entitled "Waiver of Jury Trial Without an Attorney." That document is signed by appellee, an assistant county attorney, and the presiding judge. In that document, among other things, appellee stated he had no lawyer, but he had been told by the judge that if he were too poor to employ a lawyer, one would be appointed for him in his case. Appellee specifically stated to the court that he did not want a lawyer and did not want the court to appoint a lawyer to represent him. The trial judge acknowledged by his signature on the document that he expressly approved and granted the waivers made by appellee and found them to be knowingly and voluntarily executed. At the conclusion of the hearing, the trial court granted appellee's motion to set aside the indictment, specifically stating: "Actually, it's the language of the court of appeals of San Antonio, and the Court thus is going to rule in this case, because no written waiver was executed by appellant in one of the enhancement cases, the motion to quash will be granted." The language of the court of appeals of San Antonio to which the trial judge referred is from retired justice John F. Onion, Jr.'s opinion in the direct appeal of a conviction in Chaouachi v. State, 870 S.W.2d 88, 94 (Tex. App.-San Antonio 1993, no pet). In reversing and remanding Chaouachi to the trial court, the San Antonio court specifically stated:

Since no distinction is to be made between felonies and misdemeanors in light of the provisions of article 1.13(a), we have no choice but to hold that because no written jury waiver was executed by appellant, the judgment must be reversed and the cause remanded to the trial court.

Id. (citation omitted). Based specifically on that holding, the trial court granted appellee's motion to set aside the indictment in this case. This case, however, is both factually and procedurally distinguishable from Chaouachi. Chaouachi was a direct appeal, not a collateral attack. Moreover, the stated factual basis for the trial court's ruling — i.e., that "no written waiver was executed by appellant in one of the enhancement cases" — is not supported by the record. Here, it is undisputed that appellee, without an attorney, freely and voluntarily waived in writing both his right to have an attorney appointed and his right to a jury. The issue before us is whether a prior conviction by a trial judge resulting from a jury waiver without an attorney is void ab initio and, therefore, subject to a collateral attack. For reasons that follow, we conclude it is not. We first note that appellee does not claim he was denied his constitutional right to trial by jury or that he did not waive that right or even that he was harmed by the claimed statutory violation of article 1.13(c). Rather, he contends his prior conviction in cause number 93-1-706 is void because he waived his right to a jury without approval of counsel.³ Appellee's complaint is simply a collateral attack based on a statutory violation that occurred during the trial court proceedings in a prior case, cause number 93-1-706. Appellee's complaint raises no constitutional issue. See Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Crim.App. 1993) (applicant's failure to sign a written jury waiver form pursuant to article 1.13 a procedural irregularity and not subject to collateral attack). Chaouachi had not signed a written jury waiver, whereas, here, appellee had freely and voluntarily signed a written jury waiver and had also expressly waived his right to have an attorney appointed. Moreover, even in the direct appeal in Chaouachi, upon which the trial court relied, the San Antonio court recognized that applying the plain language rule to article 1.13(c) would lead to an absurd result and recognized that the "absurd consequences" exception should apply. See Chaouachi, 870 S.W.2d at 93. Nevertheless, based on the court of criminal appeals' decision in State ex rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex.Crim. App. 1992), the San Antonio court believed it had no choice but to hold that the failure of appellant to waive a jury in writing was error and, based on Meek v. State, 851 S.W.2d 868, 870 (Tex.Crim.App. 1993), reversed without a harm analysis. But those are not the facts here. Moreover, in holding that a harmless error analysis in the context of the facts in Meek would be "perverse and inappropriate," the court of criminal appeals specifically left open the question of whether that holding extended to the violation of other procedural requirements of article 1.13. See Meek, 851 S.W.2d at 871 n. 6 (stating "[w]e do not intend that this opinion necessarily extends to violations of other requirements of article 1.13. . ."). Appellee makes no claim that he was harmed by the procedural irregularity that occurred here, nor do we find any harm. Cf. Johnson v. State, 72 S.W.3d 346, 348 (Tex.Crim.App. 2002) (applying rule 44.2(b) non-constitutional harm analysis to violation of article 1.13(a)). For all the reasons stated above, we sustain the State's point of error. We reverse the trial court's order setting aside the indictment and remand this cause to the trial court for further proceedings.

2 Although the prior convictions in a felony DWI are jurisdictional elements, the indictment in this case actually characterizes them as "Enhancements."

3 We note that the statute in effect at the time in question simply required that before a defendant who had no attorney could agree to waive a jury, the court had to appoint an attorney to represent him. Appellee is incorrect that the statute required appellee's waiver to have the approval of an attorney. The current version of article 1.13(c) applies only to defendants charged with felonies. See Tex. Code Crim. Proc. Ann. art. 1.13(c) (Vernon Supp. 2004).