Stacey David Holloway v. State

Opinion issued December 16, 2004 In The Court of Appeals For The First District of Texas NO. 01-03-00803-CR __________ STACEY DAVID HOLLOWAY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 928846 MEMORANDUM OPINION Without an agreed recommendation from the State, appellant, Stacey David Holloway, pleaded no contest to aggravated robbery. The trial court sentenced appellant to five years in prison. In his sole point of error, appellant contends that his conviction was secured without a written jury waiver and was thus invalid. We affirm the judgment of the trial court. Background On July 8, 2003, appellant pled no contest to the felony charge of aggravated robbery indicating that he was not contesting the charges and orally stating that he did not want a jury trial. Furthermore, a Waiver of Constitutional Rights, which included the statement “I waive the right of trial by jury,” was supplemented by a Plea of Guilty (No Contest) form, which was signed by appellant after he stated that “I understand the above allegations.” The trial court found appellant guilty and thereafter assessed punishment at five years in prison. Appellant filed written notice of appeal on July 30, 2003. Jury Waiver In his sole point of error, appellant contends that his conviction was secured without a written jury waiver and was thus invalid. A defendant has 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 Supp. 2004-2005). A conviction secured without a jury and without a written jury waiver is invalid and must be reversed and a new trial ordered. Ex Parte Tovar, 901 S.W.2d 484, 485 (Tex. Crim. App. 1995). Where no written waiver of jury trial can be found and no waiver was reflected either in the reporter’s record or as an entry on the judge’s docket sheet, the trial court should not proceed with a bench trial in the absence of a written waiver of appellant’s right to a jury trial. See Sluis v. State, 11 S.W.3d 410, 412 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). In this case, appellant’s “substantial rights” were not affected because the record reflects that appellant personally gave express consent in open court, voluntarily, intelligently and knowingly. See Sluis, 11 S.W.3d at 412. Appellant admitted that he was entering his plea freely and voluntarily and that he did not want to have a jury trial. Appellant, his attorney, the prosecutor, and the judge all signed the written waivers, including the written jury waiver, which were included in the clerk’s record and as an exhibit. The record indicates that appellant waived his right to trial by jury in writing in open court with the consent and approval of the trial court and the prosecutor, pursuant to article 1.13 of the Texas Code of Criminal Procedure. Further, the trial court’s judgment contains a recitation that appellant “appeared in person” and “waived his right of trial by jury.” This recitation is binding absent proof of its falsity. Johnson v. State, 72 S.W.3d 346, 347 (Tex. Crim. App. 2002). We overrule appellant’s sole point of error. Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Nuchia, Hanks, and Higley. Do not publish. Tex. R. App. P. 47.2(b).