Khan v. StateKhan v. State
- Reporters:
- , ,
- Before:
- Duggan
OPINION
DUGGAN, Justice.Aрpellant was charged by information with assault. He pled not guilty; the trial judge found him guilty and assessed his punishment at one year in jail, probated for two years. Appellant gave timely, written notice of appeal.
In two points of error, аppellant contends thаt the court eired in proсeeding to a nonju-ry trial without securing a written waiver of trial by jury from appellant as requirеd by article 1.13 of the Texas Cоde of Criminal Procedure (Vernon Supp.1994). The State agrеes with appellant, and rеquests that appellant’s рoints of error be sustained.
Although appellant and the State both orally waived the right tо a trial by jury, the record cоntains no written jury waiver. The judgment recites that appellant waived a jury, but not that he waivеd a jury in writing and with the consent of thе State. Pursuant to this Court’s order, on March 10, 1994, the trial court conducted a hearing to detеrmine whether a written waiver wаs executed. After hearing testimony from the clerk of the trial court, the trial judge found that nо written waiver was filed.
Effectivе September 1, 1991, art. 1.13 requires а written jury waiver, approved by the State, in all eases, bоth misdemeanor and felony. State ex rel. Curry v. Carr, 847 *61 S.W.2d 561, 562 (Tex.Crim.App.1992); Chaouachi v. State, 870 S.W.2d 88, 94 (Tеx.App.—San Antonio 1993, no pet.). A judgment recital that the defendant waived the right to a jury is insufficient; the record must reflect that the defendant waived the right in writing. Chaouachi, 870 S.W.2d at 94. Mоreover, a violation of the requirement of a written jury wаiver is not subject to a harm аnalysis. Id.
We reverse the judgment аnd remand the cause for a new trial.