Meek v. State
| Decision Date | 07 April 1993 |
| Docket Number | No. 859-92,859-92 |
| Citation | 851 S.W.2d 868 |
| Parties | Jack David MEEK, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
James M. Leitner, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty. and Karen A. Clark and Tracey Tirey, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of felony theft; the court assessed punishment at one year in jail pursuant to TEX.PENAL CODE ANN. § 12.44(a), and probated the sentence. The conviction was affirmed in an unpublished opinion. Meek v. State, No. 01-90-01165-CR, 1992 WL 76431 (Tex.App.--Houston [1st Dist.] April 16, 1992). We granted appellant's petition to determine whether appellant established that a written waiver of jury was not filed prior to the bench trial and, if so, whether the failure to execute such a written waiver on a plea of not guilty rendered the conviction a nullity. 1
Appellant was tried before the court without a jury on a plea of not guilty. Appellate counsel was appointed after a pro se notice of appeal was filed. Counsel noticed that a jury waiver was not in the record although the judgment stated a jury had been waived and that appellant had pled guilty. 2 Counsel then filed a motion to remand the case under TEX.R.APP.P. 55 to allow the record to correctly show what happened. The Court of Appeals granted the motion, and the trial court conducted a hearing and entered findings of fact and conclusions of law.
At the hearing it was stipulated that nothing in the trial records, other than the face of the judgment, affirmatively demonstrated that a jury waiver had been filed, that the judgment was nunc pro tunc for one which had indicated appellant had been prosecuted for a misdemeanor under § 12.44(b), when in fact he had been prosecuted for a felony but punished for a misdemeanor under § 12.44(a). The court made the following findings of fact on the issue of the jury waiver:
5. ... The judgment recites that the defendant did [waive a trial by jury in accordance with article 1.13]....
6. The clerk's file does not contain a written waiver of trial by jury, executed as required by TEX.CODE CRIM.PROC. art. 1.13....
7. The prosecutor who tried the defendant testified at the hearing that she signed the jury waiver form normally used in this court but could not say whether the defendant and his counsel signed it or whether it was filed with the clerk.
8. ... The court has no independent recollection of how the jury waiver document was handled in this particular case.
9. The defendant testified at the hearing that he did not sign the jury waiver document....
The trial court further found that appellant testified that he did not recall being admonished as to his right to a jury trial, that he was aware of his right to a trial by jury, that he was aware that he was tried without a jury, and that he admitted that he did not at trial object to the absence of a jury or indicate on the day of trial that he wanted a jury trial. Among its conclusions of law, the trial court found that:
2. The record does not establish all of the necessary steps for a valid waiver of jury trial under Article 1.13, in that it fails to show that the waiver document was filed as required.
The Court of Appeals, relying primarily on Breazeale v. State, 683 S.W.2d 446 (Tex.Crim.App.1984) (opinion on rehearing), held that in light of the facts that appellant had not objected to the judgment that was entered, had made no issue in the trial court over whether a formal jury waiver had been filed, and had not requested in his designation of the record that a formal written waiver be included, appellant had failed to overcome the presumption that the recitations in the judgment were correct. We will reverse.
In Breazeale, the judgments 3 recited that the defendants had in writing in open court waived their right to a trial by jury and that no issue was raised in the trial courts as to whether there was a valid written waiver. The records on direct appeal were "silent on whether the appellants formally waived their right to jury trial." Breazeale, 683 S.W.2d at 449. We held that the absence of a written jury waiver from the record on direct appeal did not overcome the presumption of regularity and truthfulness of the judgment where there was not an objection to the accuracy of the judgment, and there was no affirmative showing in the record that a written jury waiver was not executed by the defendant. Id. at 450-51. Breazeale is distinguishable from the instant case and is not controlling. In the instant cause, appellant effectively objected to the accuracy of the judgment by his request for a remand pursuant to TEX.R.APP.P. 55, 4 and obtained a hearing on the issue of the written jury waiver where the record was developed and evidence was admitted disputing the judgment's statements that a waiver was signed by appellant.
In contrast to the judgment's recital that appellant waived his right to a trial by jury in compliance with article 1.13, the trial court's findings of fact state that a written waiver as required by article 1.13 was not included in the file, that neither the prosecutor nor the court recalled whether appellant had signed the waiver and that appellant denied signing any such waiver. We conclude that these findings of fact are sufficient to overcome the presumption that the recitations in the judgment were correct.
The issue now is whether a violation of article 1.13's requirement that a defendant sign and file a jury waiver calls for reversal.
Article 1, Section 10 of the Texas Constitution, Rights of accused in criminal prosecutions, provides, in relevant part that "[i]n all criminal prosecutions the accused shall have a speedy public trial by an impartial jury". Article 1, Section 15 of the Texas Constitution, Right of trial by jury, provides in relevant part that:
The right to a trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.
At the time of appellant's trial article 1.13 of the Texas Code of Criminal Procedure provided in relevant part that:
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.
TEX.CODE CRIM.PROC.ANN. art. 1.13 (Vernon 1990).
The question arises whether the violation of the jury waiver requirements of article 1.13 calls for reversal or whether such violation is subject to a harmless error analysis. We recently addressed the applicability of a ...
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Bigby v. State
...rule concerning number of days for preparation for trial was too speculative to be considered by harmless error rule); Meek v. State, 851 S.W.2d 868 (Tex.Crim.App.1993) (the defendant's written waiver of the right to trial by jury is not subject to a harmless error rule); Warmoski v. State,......
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...rights forfeited only by express waiver include: Marin v. State, 851 S.W.2d at 280 (10 day preparation for trial); Meek v. State, 851 S.W.2d 868, 870 (Tex.Crim.App.1993) (written waiver of jury trial); Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App.1992) (right to Finally, the Court of......
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Chaouachi v. State, 04-93-00011-CR
...the violation of article 1.13(a)'s requirements call for a reversal or is harmless error. TEX.R.APP.P. 81(b)(2). In Meek v. State, 851 S.W.2d 868, 870 (Tex.Crim.App.1993), the Court of Criminal Appeals addressed the issue in a felony case whether "the violation of the jury waiver requiremen......
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...of [its] falsity") (citing Breazeale v. State , 683 S.W.2d 446, 450–51 (Tex. Crim. App. 1984) (op. on reh'g)); Meek v. State , 851 S.W.2d 868, 870 (Tex. Crim. App. 1993) (absence of written waiver and defendant's denial of signing waiver rebutted presumption of regularity arising from recit......
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...the defendant to present sufficient proof to defeat the presumption of regularity afforded a valid trial court judgment. Meek v. State, 851 S.W.2d 868 (Tex. Crim. App. 1993) (where the defendant brought sufficient proof to overcome the judgment’s recitation that he validly waived a jury in ......
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...no pet .), §15:147 Medina v. State , 986 S.W.2d 733 (Tex.App.—Amarillo 1999, pet. ref’d ), §§13:03, 13:111; Form 13-17 Meek v. State , 851 S.W.2d 868 (Tex.Cr.App. 1993), §20:70 Mendoza v. State , 30 S.W.3d 528 (Tex.App.—San Antonio 2000, no pet.), §3:41 Mendoza v. State , 959 S.W.2d 321 (Te......
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Punishment Phase
...the defendant to present sufficient proof to defeat the presumption of regularity afforded a valid trial court judgment. Meek v. State, 851 S.W.2d 868 (Tex. Crim. App. 1993) (where the defendant brought sufficient proof to overcome the judgment’s recitation that he validly waived a jury in ......
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Punishment Phase
...the defendant to present sufficient proof to defeat the presumption of regularity afforded a valid trial court judgment. Meek v. State, 851 S.W.2d 868 (Tex. Crim. App. 1993) (where the defendant brought sufficient proof to overcome the judgment’s recitation that he validly waived a jury in ......