Breazeale v. State

• Decision Date: 11 July 1984
• Docket Number: 604-83,Nos. 387-83,s. 387-83
• Citation: 683 S.W.2d 446
• Parties: Thomas Ray BREAZEALE and Wallace Neil Higgs, Jr., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 446

683 S.W.2d 446

Thomas Ray BREAZEALE and Wallace Neil Higgs, Jr., Appellants, v. The STATE of Texas, Appellee.

Nos. 387-83, 604-83.

Court of Criminal Appeals of Texas En Banc.

July 11, 1984.

On Rehearing Jan. 23, 1985.

Robert A. Jones, Houston, for appellant Thomas Ray Breazeale.

John B. Holmes, Jr., Dist. Atty. and James C. Brough, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State in No. 387-83.

Terrence Gaiser, Houston, for appellant Wallace Neil Higgs, Jr.

John B. Holmes, Jr., Dist. Atty. and Calvin Hartmann and Richard Wilkinson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State in No. 604-83.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant Wallace Neil Higgs, Jr. pled guilty to possession of lysergic acid diethylamide, a controlled substance. The court found appellant guilty and sentenced him to ten years' confinement.

Appellant Thomas Ray Breazeale pled not guilty and was tried before the court for the felony offense of forgery. The court found appellant guilty, found the enhancement allegations contained in the indictment to be true, and sentenced him to life imprisonment. V.T.C.A., Penal Code, § 12.42(d) prior to the 1982 Amendment.

Both cases were reversed by the court of appeals, 655 S.W.2d 230, for the fourteenth supreme judicial district, on the ground that Art. 1.13, V.A.C.C.P. was not complied with because no written waiver of jury trial signed by the appellant appeared in the record.

We granted the State's petition for discretionary review in both cases to address the issue of whether a felony judgment that recites that the appellant waived his right to trial by jury is sufficient where the record does not contain such a waiver.

The State argues that the presumption of regularity based upon recitals in the judgment should control the waiver of the right to trial by jury, and that no other evidence need be included. The State points out that prior case law has applied the presumption on the issue of jury waiver. Harvey v. State, 485 S.W.2d 907, 908, (Tex.Cr.App.1972); Graham v. State, 138 Tex.Cr.R. 449, 136 S.W.2d 830 (1940); Waldrop v. State, 129 Tex.Cr.R. 134, 83 S.W.2d 974 (1935). However, these cases were tried under Art. 10a of the Code of Criminal Procedure of 1925. Art. 10a is the predecessor to the current Art. 1.13, V.A.C.C.P., but there are some critical differences between the two. Art. 10a provided:

'The defendant in a Criminal prosecution for any offense classified as a felony less than a capital offense, shall have the right, upon entering a plea of guilty, to waive the right of a trial by a Jury, conditioned, however, that such waiver must be made in person by the defendant in open Court with the consent and approval of the Court and the duly elected and acting Attorney representing the State. Provided, that said consent and approvals by the Court shall be entered of record on the Minutes of the Court and the consent and approval of the Attorney representing the State shall be in writing, duly signed by said Attorney and filed in the papers of the Cause before the defendant enters his plea of guilty.

'Provided, that before a defendant who has no Attorney can agree to waive a Jury, the Court must appoint an Attorney to represent him.'

Art. 1.13 as amended in 1959 and 1965 reads:

The defendant in a criminal prosecution for any offense classified as a felony less than capital 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. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him.

Acts 1965, 59th Leg. vol. 2, p. 317, ch. 722.

The present article, Art. 1.13 commands that a waiver be made in person by the defendant and signed by him. Ex Parte Felton, 590 S.W.2d 471 (Tex.Cr.App.1979). Art. 10a did not require any writing by the defendant.

The State also cites several recent cases holding that where prior convictions offered into evidence or prior convictions used for enhancement contain only a recital in the judgment alleging waiver of jury trial, the presumption of regularity applies and no written waiver need be included. Williams v. State, 605 S.W.2d 596 (Tex.Cr.App.1980); Berry v. State, 582 S.W.2d 463 (Tex.Cr.App. 1979); McCoy v. State, 529 S.W.2d 538 (Tex.Cr.App.1975). These cases rely on old case law decided under Art. 10a or on cases dealing with the right to counsel. Neither of these cases is convincing. No mandatory statute cognate to Art. 1.13 requires written waiver of the right to counsel.

Art. 10a did not require written waiver by the defendant, but only by the State. Since the right to jury trial in criminal cases is fundamental to our system of justice and is and has always been intended primarily for the protection of the accused, the focus of the right is upon the defendant. The Legislature made this idea very clear when they replaced Art. 10a with Art. 1.13 and required written waiver by the defendant himself.

Boyd v. State, 660 S.W.2d 820 (1983) controls this case. In Boyd we held that the defendant's motion to quash the enhancement portion of the indictment due to the absence of a jury waiver should have been granted. We held that one purpose of Art. 1.13 is to protect a defendant by expressly conditioning a waiver of the right to jury trial on the requirements that it be in person, in writing, and in open court.

We hold that the presumption of regularity does not apply to waiver of jury trial in the light of the express dictates of Art. 1.13; ¹ to hold otherwise would be to render nugatory the protection of the defendant's right to jury trial which is the purpose of Art. 1.13. In order to show a valid waiver the State must comply with Art. 1.13 and include in the record a waiver of jury trial signed by the defendant. All cases to the contrary are overruled insofar as they apply to trials conducted since the effective date of the adoption of Art. 1.13.

The judgments of the court of appeals reversing the judgments of the trial courts are affirmed.

CAMPBELL, J., concurs in the result.

McCORMICK, J., dissents.

OPINION ON STATE'S MOTION FOR REHEARING

TEAGUE, Judge.

On original submission, this Court, with Judge McCormick dissenting and Judge Campbell concurring in the result, affirmed the judgments of the Fourteenth Court of Appeals, which had reversed the convictions of Thomas Ray Breazeale and Wallace Neil Higgs, Jr., appellants, because each record of appeal did not reflect a formal written waiver of the right to a jury trial. This holding was made notwithstanding that the felony judgment in each cause affirmatively recites that a written waiver of the right to trial by jury was in fact executed.

This Court expressly held: "We hold that the presumption of regularity does not apply to waiver of jury trial in the light of the express dictates of Art. 1.13 (footnote omitted). In order to show a valid waiver the State must comply with Art. 1.13 and include in the record a waiver of jury trial signed by the defendant. All cases to the contrary are overruled insofar as they apply to trials conducted since the effective date of the adoption of Art. 1.13."

We granted the State's motion for rehearing in order to make the determination whether the above holdings are correct statements of the law. We find that they are not. We will, therefore, grant the State's motion for rehearing. We will also remand Higgs' cause to the court of appeals for it to consider Higgs' grounds of error which have not yet been reviewed. Because the court of appeals has reviewed all of Breazeale's other grounds of error, and rejected them, we will affirm the judgment of the trial court in that cause.

The formal judgment in Breazeale's case reflects in part that Breazeale, "in person and in writing, in open court, having waived his right of trial by jury ..." The formal judgment in Higgs' case is in all things identical. No issue was made in the trial courts over whether there had been a written waiver of the right to a jury trial. The State concedes that other than the recitations in the formal judgments, the records of appeals are silent on whether the appellants formally waived their right to a jury trial.

On direct appeal in Higgs' cause, the State argued the following: "The State recognizes that, where there is an affirmative showing of no waiver, such a recitation in the judgment is insufficient. Ex parte Felton, 590 S.W.2d 471 (Tex.Cr.App.1979); Boyd v. State, 633 S.W.2d 661 (Tex.App.--Eastland 1982). However, unlike Felton, there is no affirmative showing that no waiver of jury trial was executed. Neither was there a bill of exception or objection to the record as requried in 40.09(1), (7), V.A.C.C.P. In absence of such an affirmative showing, the recitals create a presumption of regularity. Ex parte Reed, 610 S.W.2d 495 (Tex.Cr.App.1981); McCoy v. State, 529 S.W.2d 538, 539 (Tex.Cr.App.1975); Creeks v. State, 537 S.W.2d 29 (Tex.Cr.App.1976). Further, the appellant neither claims he requested a jury trial nor that he was harmed in any way as a result of no jury."

On direct appeal in Breazeale's cause, the State made the following arguments: "Under the presumption of regularity of judgments, it must be presumed, in the absence of a contrary showing, that the recitation in the judgment and...