Opinion
No. 05-02-00299-CR.
Opinion Issued January 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-86900-00. AFFIRMED.
Before Justices MORRIS, JAMES, and FITZGERALD.
OPINION
Daren Shane Nielson appeals his conviction for assault causing family violence. The trial court found appellant guilty and assessed punishment at confinement for one year, probated for two years and a fine of $800.00. In three points of error, appellant contends: (1) the document he signed did not qualify as an intentional and knowing waiver of his right to a jury trial, thereby denying him his right to a jury trial under the (a) United States Constitution and (b) the Texas Constitution; and (2) the court erred in denying his motion for new trial after a witness violated Texas Rule of Evidence 614, "the rule." We affirm the trial court's judgment. Waiver of Jury Trial In his first two points of error, appellant complains he was denied his right to a jury trial as guaranteed under the United States and Texas Constitutions because the document signed by him did not qualify as an intentional and knowing waiver. The necessity for the record to show waiver when a defendant waives a jury trial is substantially the same under federal and state law. See Loveless v. State, 21 S.W.3d 582, 585 (Tex.App.-Dallas 2000, pet. ref'd); compare Fed.R.Crim.P. 23 with Tex. Code. Crim. Proc. Ann. art. 1.13(a)(Vernon Supp. 2003). Article 1.13 specifies the requisites for a jury trial waiver, stating "such 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." Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp. 2003). Furthermore, the consent and approval is to be entered of record and the writing signed by the attorney for the defendant. Id. Prior to trial, appellant signed a form stating that he "represents to the court that he . . . has waived a trial by jury, and submits all issues of fact to the court." Appellant, appellant's counsel, and the prosecutor signed this form. Before appellant entered his plea, the court noted — on the record — a waiver of jury trial was signed by appellant and the prosecutor, and the court approved the waiver. Appellant contends the form is invalid because: (1) the document does not consent to a trial by judge; (2) is not entitled "Jury Trial Waiver"; (3) is not notarized; and (4) does not include documentation showing appellant understood the document. We have found no authority suggesting a jury trial waiver requires these items, and appellant provides no authority stating any of these things are required in a written jury waiver. The written waiver contained in the record appears, therefore, to be sufficient to demonstrate appellant waived a jury trial. Although we agree the document signed by appellant appears to be sufficient to show appellant waived his right to a jury trial, we also note appellant has shown no harm from lack of a written waiver because through the judgment, the record otherwise reflects appellant's waiver of a jury trial. Absent evidence of impropriety, we will indulge every presumption in favor of the regularity of the proceedings and documents in the lower court. See Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000); Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1984) (op. on reh'g). Accordingly, record recitations, such as judgments, will be binding unless directly proved false. See Breazeale, 683 S.W.2d at 450. An appellant has the burden to overcome the presumption of regularity. Id. at 451. In applying the presumption of regularity to the waiver of a jury trial, the court of criminal appeals has stated the lack of a written jury waiver is not harmful when the record in another way reflects a defendant waived his right to a jury trial. Johnson v. State, 72 S.W.3d 346, 349 (Tex.Crim.App. 2002). In Johnson, the court stated the recitation in the judgment that the defendant had "waived trial by jury" was sufficient to show the defendant had known about his right to a jury trial. Id. The court pointed out the defendant never alleged he did not know of his right to a jury trial, and the record did not indicate any lack of knowledge of the defendant's right to a jury trial. Id. Therefore, with no affirmative showing of falsity, the recitation in the judgment was sufficient to show a valid waiver. Id.; see also Vega v. State, 707 S.W.2d 557, 559 (Tex.Crim.App. 1984) (op. on reh'g); Breazeale, 683 S.W.2d at 450. In the present case, the judgment recites appellant "knowingly and intelligently waived trial by jury." Although appellant contends the judgment is not "regular," appellant has not presented any evidence asserting the recitation concerning jury waiver is actually false. 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)); See Breazeale, 683 S.W.2d at 450 ("[I]f such recitation [of jury waiver] is present, the burden is then on the accused to establish otherwise, if he claims that the contrary is true."). Furthermore, appellant does not claim he was unaware of his right to a jury trial, and the record does not indicate appellant was unaware of this right. See Johnson, 72 S.W.3d at 349. Appellant waived his right to a jury trial in writing. The prosecutor, the court, and appellant's counsel approved his waiver. As in Johnson, the judgment states appellant waived his right to a jury trial. We conclude appellant was not denied his right to a jury trial. Accordingly, we overrule appellant's first and second points of error.
Appellant cites United States v. Saadya and United States v. Guerrero-Peralta as stating a waiver must show express consent to a trial before the judge as opposed to the jury. We have reviewed both cases and conclude neither makes this assertion. See United States v. Saadya, 750 F.2d 1419 (9th Cir. 1985); United States v. Guerrero-Peralta, 446 F.2d 876 (9th Cir. 1971).