Townsend v. StateTownsend v. State
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OPINION
J. CURTISS BROWN, Chief Justice.Clifford Neal Townsend, the appellant, was charged with the misdemeanor offense of driving while intoxicated. Following a bench trial, the court assessed punishment, enhanced by a prior misdemeanor, at two years confinement, probated for two years, and a $300 fine. In his sole point of error, the appellant asserts his conviction is invalid because he did not waive his right to a jury trial in accordance with
Article 1.13(a) provides:
The defendant in a criminal prosecution for any offense other than a capital felony case in which the State notifies the court and the defendant that it will seek the death penalty 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. The consent and approval of the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea.
When construing a statute, courts may consider: the object sought to be attained by the statute; the circumstances under which the statute was enacted; legislative history; common law or former statutory provisions; consequences of a particular construction; administrative construction of the statute; and the title (caption), preamble and emergency provision. Tex. Gov’t Code Ann. § 311.023 (Vernon 1988). These factors may be considered regardless of whether a statute appears ambiguous on its face. Id.
Before 1973, capital defendants could waive the right to a jury trial if the State was not seeking the death penalty. However, a 1973 amendment to art. 1.14 eliminated this right. Act effective June 14, 1973, 63 Leg., R.S., ch. 426 art. 3 § 5, 1973 *388Tex.Gen. Laws 1129; see also Ex Parte Felton, 815 S.W.2d 733, 734 n. 1 (Tex.Crim.App.1991); Ex Parte McKinney, 688 S.W.2d 559, 560 (Tex.Crim.App.1985); Ex Parte Bailey, 626 S.W.2d 741, 742 (Tex.Crim.App.1981). After the 1973 amendment, a capital defendant could not waive the right to a jury trial unless the State reduced the capital murder charge to the lesser included offense of murder. Ex Parte McLelland, 588 S.W.2d 957, 959 (Tex.Crim.App.1979). The defendant could also waive a jury trial if the State dismissed the capital murder indictment, and proceeded on an indictment or information for a lesser included offense. Ex Parte Bailey, 626 S.W.2d 741, 743 n. 3 (Tex.Crim.App.1981). Otherwise, the capital defendant could not waive his right to a jury trial.
Articles 1.13 and 1.14 were amended in 1991. Before the amendment, art. 1.13(a) applied to criminal prosecutions “for any offense classified as a felony less than capital.”
House Bill 9 included 13 amendments to the Code of Criminal Procedure and the Penal Code. All of these amendments concern capital felony prosecutions. Section 15 of H.B. 9 states that the changes to art. 1.13 and 1.14 apply “to the trial of a capital offense that commences on or after the amendment’s effective date. Following the guidelines of statutory construction listed in Tex.Gov’t Code Ann. § 311.023, we believe the amendment was not intended to require written waivers of jury trials in misdemeanor cases. However, the Court of Criminal Appeals recently held that art. 1.13 applies to misdemeanor offenses. State ex rel. Curry v. Carr, 847 S.W.2d 561 (Tex.Crim.App.1992) (orig. proceeding). In accordance with that opinion, we must consider the appellant’s point of error.
The State argues that the record does not affirmatively show the clerk was requested to include the waiver in the transcript. Rule 51 requires the clerk of the. trial court to include “any written waivers” in the transcript on appeal.
Relying on Breazeale v. State, the State argues that the judgment recital is presumed to be correct. 683 S.W.2d 446, 450 (Tex.Crim.App.1984) (on rehearing). We agree. The judgment recital in this case stated in part that the defendant “appeared in person ... [and represented by counsel] ... and both parties announced ready for trial. The defendant was arraigned, the defendant knowingly, intelligently, voluntarily and expressly waived trial by jury, and in open court pleaded as indicated above.” Even presuming the recital is correct, it does not state that the defendant waived the right to a jury trial in writing. The judgment in Breazeale stated *389that the defendants “in person and in writing, in open court, having waived [their] right of trial by jury ...” Id. at 449. The defendants in Breazeale relied solely on the fact that the signed waivers were not included in the transcripts.- They never suggested they had not waived their right to a jury trial. Under those facts, the defendant failed to overcome the presumption that the judgment recitals were accurate. Id. at 451.
In this case, the judgment recital does not meet the requirements of a valid waiver as specified in
Nonetheless, we hold the error was harmless beyond a reasonable doubt. The appellant testified in his motion for new trial that he never waived his right to a jury trial in writing. He admitted that he knew he was entitled to a jury trial, but accepted the advice of his attorney and proceeded to trial without a jury. Furthermore, the judgment states that he knowingly, intelligently, voluntarily and expressly waived trial by jury. While the recital does not satisfy the requirements of art. 1.13, it does satisfy the constitutional requirements for a valid waiver. See Breazeale, 683 S.W.2d at 452 (Clinton, J., concurring) (although waiver did not comply with art. 1.13, constitutional requirements of a knowing and voluntary waiver were met). Under the facts of this case, we find the error was harmless. Accordingly, we affirm the conviction.