Reinhard Wilson v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-467-CR REINHARD WILSON, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY NO. 397613, HONORABLE DAVID CRAIN, JUDGE PRESIDING PER CURIAM The county court at law found appellant guilty of assault and assessed punishment at incarceration for 180 days and a $1000 fine, probated. Tex. Penal Code Ann. § 22.01 (West 1989 & Supp. 1994). We will reverse the judgment because appellant's waiver of trial by jury was not properly secured. The Code of Criminal Procedure provides that a waiver of trial by jury must be in writing, with the consent and approval of the court and prosecutor. Tex. Code Crim. Proc. Ann. art. 1.13(a) (West Supp. 1994). Effective September 1, 1991, article 1.13(a) was made applicable to misdemeanors. State ex rel. Curry v. Carr, 847 S.W.2d 561 (Tex. Crim. App. 1992). If it is shown on direct appeal that the defendant's jury waiver was not reduced to writing, reversal is mandatory. Townsend v. State, 865 S.W.2d 469 (Tex. Crim. App. 1993); Meek v. State, 851 S.W.2d 868 (Tex. Crim. App. 1993). Appellant contends in his first point of error that article 1.13(a) was violated in this cause, noting that the record does not contain a written jury waiver. The judgment recites that appellant "waived trial by jury." Appellant asks this Court to order a hearing in the trial court so that evidence can be developed whether the waiver was in writing. Tex. R. App. P. 55; see Meek, 851 S.W.2d at 870. In its brief, the State concedes that no written jury waiver exists. The judgment in this cause is distinguishable from that at issue in Breazeale v. State, 683 S.W.2d 446, 449 (Tex. Crim. App. 1984) (opinion on motion for rehearing). In that case, the judgment stated that the defendant waived trial by jury "in writing." The court held that the burden was on the accused to establish that this recital was not true, and that the absence of a written jury waiver in the transcript was not sufficient to overcome the presumption of regularity in the judgment. Id. at 450-51. In the cause before us, the judgment does not recite that appellant waived trial by jury in writing or otherwise state that article 1.13(a) was followed. Thus, this record presents reversible error even in the absence of the State's commendable confession of error. Appellant's motion to supplement the record is dismissed. Point of error one is sustained. Given our disposition of the first point of error, we need not address points two and three. The judgment of conviction is reversed and the cause is remanded to the county court at law. Before Justices Powers, Aboussie and Jones Reversed and Remanded Filed: March 30, 1994 Do Not Publish