Opinion
No. 01-00-00810-CR.
Opinion issued October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Court at Law, Washington County, Texas, Trial Court Cause No. 99-527.
Panel consists of Justices HEDGES, NUCHIA, and HIGLEY.
MEMORANDUM OPINION ON REMAND
Appellant pleaded not guilty to the misdemeanor offense of driving while intoxicated (DWI). After a bench trial, the trial court found her guilty and assessed punishment at 90 days' confinement, probated for 18 months, and a fine of $750. On January 3, 2002, we issued an opinion reversing the judgment of the trial court and remanding the case for a new trial. Routt v. State, No. 01-00-00810-CR, slip op. at 5 (Tex.App.-Houston [1st Dist.] Jan. 3, 2002) (not designated for publication). The Court of Criminal Appeals vacated our judgment and remanded the case for our reconsideration in light of its opinion in Johnson v. State, 72 S.W.3d 346, 349 (Tex.Crim.App. 2002). See Routt v. State, No. 0244-02, slip op. at 2 (Tex.Crim.App. July 31, 2002). We affirm.
Waiver of Jury Trial
In her sole issue, appellant contends that the record contains no written waiver of a jury trial. The Code of Criminal Procedure requires that, in order to waive the right to a jury trial, a defendant in a criminal prosecution must make such waiver in person and 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). In Johnson, the Court of Criminal Appeals held that the trial court's failure to obtain a written jury waiver was harmless error. 72 S.W.3d at 349. The judgment contained a recitation that the defendant waived a jury trial, which the Court concluded was "binding in the absence of direct proof of its falsity." Id. Although article 1.13 was violated, the Court held that the defendant was not harmed. Id. Similarly, the judgment in this case recites that appellant "in person, in writing, and in open Court, waived right of trial by jury with the consent and approval of the Court." Appellant did not present any direct evidence that the recitation was false. In the absence of such proof, we presume that appellant was aware of her right to a jury trial and opted for a bench trial. See id. We recognize that the judgment is dated February 3, 2003. We are bound to presume the regularity of a judgment. Meek v. State, 851 S.W.2d 868, 870 (Tex.Crim.App. 1993). To overcome the presumption of regularity, a defendant must object to the accuracy of the judgment or affirmatively disprove the disputed recitation. Id. Appellant never challenged the judgment for its correctness. In addition to the judgment, there is other evidence regarding jury waiver. For example:(1) On May 22, 2000, in a letter accompanying appellant's second motion for continuance, trial counsel stated, "Please set this cause for a bench trial at your earliest convenience."
(2) On May 26, 2000, in a letter from the court administrator to trial counsel, the court administrator stated, "In confirmation of my telephone conversation with your office this date, the above referenced cause is set for bench trial per your request on July 17, 2000 at 1:30 p.m."
(3) On May 26, 2000, the State submitted its application for a subpoena form, indicating that a bench trial was set for July 17, 2000.
(4) During the proceedings, neither appellant nor trial counsel stopped the proceedings and advised the trial court that this was supposed to be a trial by jury.We find no harm in appellant receiving the bench trial that she requested. See Jackson v. State, 76 S.W.3d 798, 803 (Tex. App.-Corpus Christi 2002, no pet.). Based on Johnson, we hold that any violation of article 1.13(a) was harmless. See Johnson, 72 S.W.3d at 349; Kmiec v. State, 91 S.W.3d 820, 824 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). We overrule appellant's sole point of error.