Ex parte Aaron, 69408

• Decision Date: 08 May 1985
• Docket Number: No. 69408,69408
• Citation: 691 S.W.2d 680
• Parties: Ex parte Elzie AARON.
• Court: Texas Court of Criminal Appeals

Page 680

691 S.W.2d 680

Ex parte Elzie AARON.

No. 69408.

Court of Criminal Appeals of Texas,

En Banc.

May 8, 1985.

Nancy B. DeLong, Huntsville, for appellant.

Latham Boone, II, Dist. Atty. and David Weeks, Asst. Dist. Atty., Anderson, Robert

Huttash, State's Atty., Austin, for the State

Before the court en banc.

OPINION

MILLER, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

On December 15, 1981, pursuant to a plea bargain, applicant pled guilty to the felony offense of burglary of a building. See V.T.C.A. Penal Code § 30.02. On March 8, 1982, the trial court assessed punishment at eight years confinement in the Texas Department of Corrections.

In his pro se application for writ of habeas corpus applicant contends, inter alia, that at the time of his plea of guilty before the 12th District Court, the attorney representing the State did not sign the consent form for him to waive trial by jury as required by Art. 1.13, V.A.C.C.P. ¹ Applicant further contends that his waivers and consent to stipulate evidence were not approved by the court in writing and ordered filed in the file of the papers of the cause as required by Art. 1.15, V.A.C.C.P., ² since the trial judge's signature does not appear thereon.

On March 16, 1984, an evidentiary hearing was held with applicant represented by an attorney from Staff Counsel for Inmates. At the hearing, a document entitled "Waiver of Rights on a Plea of Guilty--Defendant's Written Stipulations and Waivers" was introduced into evidence. By and through this two-page document, applicant entered a plea of guilty; stipulated in writing to the commission of each element of the offense alleged in the indictment; waived trial by jury; waived the appearance, confrontation, and cross-examination of witnesses; consented to the State's use of affidavits, oral stipulations, written witness statements or other documentary evidence to support the judgment; and waived all rights to appeal.

The document bears the signature of both the applicant and his attorney. The document fails, however, to reflect the signature of the attorney for the State consenting to the waiver of trial by jury. The document also fails to reflect the signature of the trial judge approving the waivers and the applicant's consent to the stipulation of evidence and ordering them to be included in the papers and records of the case. The written judgment of conviction was not introduced into evidence at the hearing. See, Morris v. State, 483 S.W.2d 260, 262 (Tex.Cr.App.1972) (Onion, P.J concurring); Willhoite v. State, 642 S.W.2d 531 (Tex.Cr.App.--Houston [14th] 1982, no pet.). See also, Breazeale v. State, 683 S.W.2d 446 (Tex.Cr.App.1985) (Opinion on Rehearing).

We will first consider applicant's claim that the guilty plea was invalid because the attorney representing the State did not sign the consent form for him to waive trial by jury as required by Art. 1.13, supra.

On direct appeal, when the record reflects the failure of the prosecutor to sign the waiver agreement, the conviction will be reversed, and a prosecutor's post-conviction affidavit reflecting his intent to sign the waiver form will not satisfy the requirements of Art. 1.13. Lawrence v. State, 626 S.W.2d 56 (Tex.Cr.App.1981). When the attack is collateral, however, the same rule does not apply. ³

In Ex parte Collier, 614 S.W.2d 429 (Tex.Cr.App.1981), the en banc Court considered a claim, brought by writ of habeas corpus, that a guilty plea was invalid because of the failure of the attorney for the State to comply with the requirements of Art. 1.13, supra. At the evidentiary hearing in Collier, the district attorney filed an affidavit stating that the State agreed to waive trial by jury but that the "copy filed was inadvertently not signed by me." In Collier, we overruled all contrary cases to the extent of any conflict and held:

"We conclude that it would be ridiculous to set aside a conviction ... based merely upon the missing signature of the district attorney when it is obvious that the State did indeed consent to the jury waiver.

We hold that in the absence of a showing of harm a valid conviction may not be set aside by habeas corpus or collateral attack merely because the State failed to sign the consent to the jury waiver of a defendant as required by Article 1.13, V.A.C.C.P., where the evidence does show that the State did in fact agree to such waiver."

Id. at 454.

In the case at bar, the district attorney did not file an affidavit showing the State did in fact agree to the waiver of jury trial. The record of the evidentiary hearing does show, however, that the trial judge reviewed applicant's rights with him, including his right to trial by jury, and determined that he voluntarily waived his rights and entered a plea of guilty. Further, applicant's trial attorney was called as a witness for the State at the evidentiary hearing, and testified as follows:

"Q. When Elzie made his plea of guilty, to your understanding, was it the intention of both the District Attorney's Office and of the Judge to accept his plea, accept his stipulation of evidence and his waiver of rights?

"A. Yes. I wouldn't think it would be any other case.

"Q. And at the time the plea was entered, you'all operated on that assumption, that they were accepted?

"A. Right ..."

Applicant does not contend that he was deprived of a jury trial, nor does he deny that he waived trial by jury. ⁴ Applicant's trial attorney signed the waiver form which expressly stated that applicant executed the waiver with the advice and consent of defense counsel. At trial, applicant's attorney proceeded on the understanding that the district attorney's office had consented to the waiver of trial by jury and applicant does not claim otherwise. What is missing is the district attorney's signature on the written form. The colloquy quoted above is the only record evidence of the district attorney's intention to consent to the waiver of trial by jury. While the issue is close, we hold that the record sufficiently demonstrates the understanding of the parties at trial that the State did agree to the applicant's waiver of trial by jury. Applicant's contention is overruled.

We will next consider applicant's claim that his guilty plea was invalid because his waivers and consent to stipulate evidence were not approved by the Court in writing and ordered filed in the file of the papers of the cause as required by Art. 1.15, supra, since the trial judge's signature does not appear thereon. ⁵

On direct appeal, this Court has consistently held that compliance with Art. 1.15, supra, is mandatory in a trial before the court, regardless of the plea, for a stipulation to be considered as evidence. Clark v. State, 657 S.W.2d 121 (Tex.Cr.App.1983); Ellard v. State, 650 S.W.2d 840 (Tex.Cr.App.1983); Young v. State, 648 S.W.2d 6 (Tex.Cr.App.1983); Valdez v. State, 555 S.W.2d 463 (Tex.Cr.App.1977); Hughes v. State, 533 S.W.2d 824 (Tex.Cr.App.1976); Elder v. State, 462 S.W.2d 6 (Tex.Cr.App.1971). ⁶

We believe, however, that the same rule should not apply when the attack is collateral. Collier, supra, teaches that when a defendant collaterally attacks his conviction by asserting that the State did not consent to the waiver of trial by jury, additional evidence may be adduced to demonstrate that the State did in fact consent. Such evidence, if believed, will defeat the collateral attack even where the original consent form is not signed by the State. We believe that the Collier rule should be extended to apply to habeas corpus or collateral attacks based upon a trial judge's failure to comply with Art. 1.15, supra. Thus, in the absence of a showing of harm, a valid conviction will not be set aside by habeas corpus or collateral attack merely because the trial judge failed to sign the defendant's written waivers and consent to stipulate evidence as required by Art. 1.15, V.A.C.C.P., where the evidence does show that the trial judge did in fact approve the defendant's waivers and consent to stipulate evidence.

In the case at bar, the trial judge testified at the evidentiary hearing that, among other things, he reviewed the applicant's rights with him, determined that he was competent, and that he voluntarily waived his rights to a jury trial and to confront his accusers. The trial judge testified that it was his intention to approve the plea and enter it of record. He also testified that he certainly did intend to sign the stipulation and waiver form, and the fact it was not signed was merely an oversight. The testimony of applicant's trial attorney reflects that when the applicant made his plea of guilty, it was the attorney's understanding that the judge intended to accept the plea, the stipulation, and the waiver of rights. Applicant does not assert that he did not waive those rights or that his waiver was not knowingly and voluntarily made. We find the evidence sufficiently demonstrates the trial judge's approval of the applicant's waivers and consent to the stipulation of evidence notwithstanding the omitted signature on the form. Applicant's contention is overruled.

The relief sought is denied.

TEAGUE, J., dissents.

CLINTON, Judge, concurring.

Some of us have protested the emasculation of Article 1.13 and 1.15, V.A.C.C.P. See, e.g., Ex parte Collier, 614 S.W.2d 429, 435 and 436 (Tex.Cr.App.1981) (Clinton, J., concurring and Teague, J., dissenting). But the 1931 legislative act from which they are derived continues to be honored more in its breach--even to the extent of calling a violation of Article 1.15 "trial error." ¹

Today the majority would have this Court declare that when the trial judge fails to cause the court to approve in writing the waiver and consent of an accused prescribed by Article 1.15, proof may be taken on some later occasion that the trial court did in fact approve the waiver and consent. I venture the...