Opinion
No. 01-98-00359-CR.
Opinion Issued January 16, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from County Criminal Court at Law No. 8, Harris County, Texas, Trial Court Cause No. 97-44408.
OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS
After a court trial, Ken R. Sluis, appellant, was convicted of misdemeanor assault and sentenced to 60 days confinement, probated for one year, and a $300 fine. In our January 20, 2000 opinion, we found the record did not contain a written jury waiver or statement in open court waiving his right to a jury trial, and we reversed the judgment. Sluis v. State, 11 S.W.3d 410 (Tex.App.-Houston [1st Dist.] 2000). The State filed a petition for review, and, on June 26, 2002, the Court of Criminal Appeals vacated our previous judgment and remanded the cause so we could have the benefit of its decision in Johnson v. State, 72 S.W.3d 346 (Tex.Crim.App. 2002). Article 1.13(a) of the Code of Criminal Procedure provides, in part, that the defendant "shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that 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." In Johnson, the Court of Criminal Appeals concluded that, although article 1.13 was violated, Johnson was not harmed by the violation because the record reflected that he was aware of his right to a jury trial and opted for a bench trial. Id. at 349. Because Johnson merely alleged that there was no written jury waiver, and not that there was no jury waiver at all, he alleged statutory error, not constitutional error. Id. at 348. The judgment recited that Johnson "waived trial by jury," and that recitation is binding in the absence of direct proof of its falsity. Id. at 349; Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1984). On appeal, appellant argues that his case is different from Johnson because appellant did not knowingly waive his right to a trial by jury unlike Johnson who merely claimed that there was no written documentation of his knowing waiver of a jury trial. Appellant does not provide any evidence in this record to support his contention that he did not knowingly waive his right to a trial by jury. All of appellant's actions reflect that he knowingly waived a trial by jury. First, appellant and his attorney signed a reset form on December 3, 1997 setting the case for a court trial on December 22, 1997. Second, the court conducted a trial without a jury on December 22, 1997, and appellant's counsel did not object to the absence of a jury. Third, although appellant's attorney filed both a motion for new trial and amended motion for new trial, neither motion mentioned that appellant did not knowingly waive his right to a trial by jury. Finally, the trial court's judgment affirmatively states "the defendant waived his right of trial by jury." The judgment's recitation is binding in the absence of direct proof of its falsity. Johnson, 72 S.W.3d at 349; Breazeale, 683 S.W.2d at 450. Although article 1.13 was violated, appellant was not harmed by the violation because the record reflects that he was aware of his right to a jury trial and opted for a bench trial.
On April 8, 1999, this Court issued an order of abatement remanding the case to the trial court for a finding concerning whether appellant executed a written waiver and requesting that a copy of the waiver be included in a supplemental appellate record. Because the supplemental findings of the trial court were made after we received the trial record, the trial court was without jurisdiction to make the supplemental findings of fact and conclusions of law. See Tex. R. App. P. 25.2(e); Green v. State, 906 S.W.2d 937, 939 (Tex.Crim.App. 1995). The trial court's findings of fact are thus null and void, and we should not consider them. See Berry v. State, 995 S.W.2d 699, 701 (Tex.Crim. App. 1999).