Opinion filed June 26, 2014




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-12-00124-CR
                                  __________

                CHE PATRICE HUTCHINSON, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                      On Appeal from the 35th District Court
                              Brown County, Texas
                          Trial Court Cause No. CR21451



                      MEMORANDUM OPINION
      Che Patrice Hutchinson waived his right to a jury trial on guilt/innocence
and entered an open plea of guilty to the offense of delivery of a controlled
substance in an amount that was greater than four grams but less than 200 grams.
The trial court accepted Appellant’s plea of guilty and assessed punishment at
confinement for fifty years in the Institutional Division of the Texas Department of
Criminal Justice. In three points of error, Appellant claims that his right to due
process was violated by the use of false and misleading testimony, that he was
denied the effective assistance of counsel, and that the trial court erred when it
denied his motion to withdraw his waiver of a jury trial. We affirm.
                                     Background Facts
      Officers of the Early Police Department identified Appellant as a potential
distributor of methamphetamine based on information provided by a confidential
informant. The confidential informant arranged to purchase methamphetamine
from Appellant, and the transaction was recorded by the officers. Almost a year
later, Appellant was arrested in the backyard outside his home as part of a drug
roundup in Brown County.
      On the date of Appellant’s arrest, Early police officers recovered various
items of evidence from a search of Appellant’s person, truck, and home. The
officers found hydrocodone pills in Appellant’s wallet and marihuana blunts in his
pickup. They found a burned marihuana “roach” in his bedroom, approximately
11.35 grams of marihuana in a bag on top of the refrigerator in the kitchen, and
scales that indicated distribution activity. The officers also recovered multiple cell
phones from Appellant’s person and from inside his home. Because many of the
items were accessible to Appellant’s two children, who were in the home at the
time of his arrest, the officers reported the activity to Child Protective Services.
      After his arrest, Appellant waived his Miranda 1 rights and submitted to
police questioning.      Appellant discussed his drug-dealing past with Detective
Shawn Dibrell; Appellant admitted to selling marihuana, cocaine, and
methamphetamine over a five-year period.              Appellant stated that he received
methamphetamine from a drug cartel several times. Appellant purchased two
ounces of methamphetamine per transaction, and he performed around one
      1
       Miranda v. Arizona, 384 U.S. 436 (1966).
                                                  2
transaction per month for four to five years. Appellant estimated that he purchased
and sold a total of one-half of a kilogram of methamphetamine over that time
period. Appellant also stated that he was still selling marihuana at the time of his
arrest, and he estimated that he had been the middleman in various drug
transactions “a thousand times.” Detective Dibrell testified that, throughout his
interrogation, Appellant had an arrogant attitude as far as dope dealing in general
and toward the police.
                         False and Misleading Testimony
      In his first point of error, Appellant contends that his right to due process
was violated by the State’s knowing use of false and misleading testimony and its
failure to correct such testimony at punishment.
      “The Due Process Clause of the Fourteenth Amendment can be violated
when the State uses false testimony to obtain a conviction, regardless of whether it
does so knowingly or unknowingly.” Ex parte Robbins, 360 S.W.3d 446, 459
(Tex. Crim. App. 2011). “The use of false testimony at the punishment phase is
also a due-process violation.” Ex parte Ghahremani, 332 S.W.3d 470, 477 (Tex.
Crim. App. 2011). A due process violation may arise when the State elicits false
testimony or when the State fails to correct testimony it knows to be false. Id.
Such testimony need not be perjured to constitute a due process violation; the
question is whether the testimony, taken as a whole, gives the factfinder a false
impression. Ex parte Chavez, 371 S.W.3d 200, 208 (Tex. Crim. App. 2012). To
constitute a due process violation, the use of false testimony must have been
material, meaning there is a “reasonable likelihood” that the false testimony could
have affected the outcome. Robbins, 360 S.W.3d at 459; Ghahremani, 332 S.W.3d
at 478.
      Appellant directs us to four occurrences in which Detective Dibrell gave
allegedly false and misleading testimony during the punishment phase of
                                         3
Appellant’s trial. Appellant argues that those occurrences were material because
there is a reasonable likelihood that they resulted in a harsher punishment, as
evidenced by Appellant receiving a fifty-year sentence when the minimum
sentence was five years and he was eligible for probation.
      First, Appellant points to the State’s failure to correct Detective Dibrell
when he falsely read from a transcript of text messages that were recovered from
Appellant’s cell phone. Specifically, Detective Dibrell read aloud that Appellant’s
outgoing message stated, “Need to smoke meth” when the text message actually
read, “Need to smoke bad.” Second, Appellant claims that the State failed to elicit
testimony regarding certain text messages that would have shown that the text
messages referenced a sale of marihuana rather than methamphetamine. Appellant
argues that the State’s omission of those messages created a false and misleading
impression of the facts. According to Appellant, this omission, along with the
substitution of the word “meth” for “bad,” was material because it portrayed
Appellant as preparing for an imminent sale of methamphetamine rather than
marihuana.    Third, Appellant claims that the State failed to correct Detective
Dibrell when he misidentified Appellant as the sender of a message that read, “Did
you drop it off[?]” and then misidentified Shane Pinkston as the sender of a reply
that read, “Yes and I will be back.” According to Appellant, the opposite was
true—Appellant received the first message and sent the reply message. Appellant
argues that the State’s failure to correct this error was material because it portrayed
Appellant as the person giving instructions, thereby giving the impression that he
was the bigger player in the transaction. Fourth, Appellant complains that the State
knowingly elicited false and misleading testimony when, regarding the transcript
of the text messages, Detective Dibrell answered, “Yes,” after the State asked him
whether the dates filled in the gaps between the buy from November 2010 and the
bust on August 17, 2011. Appellant argues that such a response was false because
                                          4
the dates in the transcript of the text messages covered less than one month’s time
rather than the near ten-month span that was referenced as the “gaps” in time.
Appellant claims that this testimony was material because it gave the impression
that the text messages covered a bigger time frame than they actually did and
“amplified their importance in assessing a proper punishment.”
      We have reviewed all of the evidence in the record, and we disagree with
Appellant’s contention that Detective Dibrell’s testimony left a false impression of
the evidence. At the outset, we note that all of the text messages read aloud by
Detective Dibrell at punishment were admitted into evidence and available for the
trial judge to review during his assessment of Appellant’s punishment. Moreover,
the purpose of Detective Dibrell’s reading of the text messages was to show
specific examples of Appellant’s dealings with narcotics. Any mistake that arose
from an erroneous reading related only to the type of drugs being sold in a single
transaction; Appellant readily admitted that he had been involved in numerous
transactions involving methamphetamine and marihuana, among other narcotics, as
both a buyer and a seller. The fact that Detective Dibrell answered affirmatively to
whether the dates filled a longer time period was not misleading in light of
Detective Dibrell’s testimony that he believed Appellant was still actively involved
in the use and distribution of both methamphetamine and marihuana from the date
he sold to the informant to the date he was arrested for selling narcotics.
      Even if we assume that the aforementioned instances were likely to leave the
trial judge with a false impression of the evidence, we find that such testimony was
immaterial to Appellant’s sentence in light of the ample evidence of Appellant’s
involvement in the distribution of narcotics, including both methamphetamine and
marihuana. The record contains evidence from various sources that demonstrates
Appellant’s criminal behavior related to drug transactions, including Appellant’s
past criminal history, the amount of drugs he trafficked, the frequency of the drug
                                          5
transactions, the types of drugs he trafficked, his attitude toward the police, and the
fact that he had obtained drugs from a drug cartel. Given this evidence, we cannot
conclude that there is a reasonable likelihood that the errors complained of by
Appellant affected his sentence. We overrule Appellant’s first point of error.
                          Ineffective Assistance of Counsel
      In his second point of error, Appellant argues that he was denied his Sixth
Amendment right to effective assistance of counsel. Appellant contends that his
trial counsel was deficient because (1) he failed to properly investigate the case
before trial, (2) he was unprepared for the guilt/innocence phase, and (3) he failed
to object to inadmissible evidence during the punishment phase.
      To determine whether Appellant’s counsel rendered ineffective assistance,
we must first determine whether Appellant has shown that his counsel’s
representation fell below an objective standard of reasonableness and, if so, then
determine whether there is a reasonable probability that the result would have been
different but for his counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687
(1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999);
Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986). A reasonable
probability is a probability sufficient to undermine confidence in the outcome of
the trial. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55. We must
indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance, and Appellant must overcome the presumption
that, under the circumstances, the challenged action could be considered sound trial
strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex.
Crim. App. 2000).
      An allegation of ineffective assistance of counsel must be firmly founded in
the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
                                          6
“Direct appeal is usually an inadequate vehicle for raising such a claim because the
record is generally undeveloped.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005).       This is true when evaluating the question of deficient
performance where counsel’s reasons for failing to do something do not appear in
the record. Id. The Court of Criminal Appeals has said that “trial counsel should
ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003). If trial counsel has not had the opportunity to explain his actions, we
will not find deficient performance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Garcia v. State,
57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
      Appellant first contends that counsel’s performance was deficient because
counsel failed to properly investigate the case; namely, counsel did not employ an
independent chemist to reweigh the methamphetamine recovered by police despite
Appellant’s insistence that the substance weighed less than four grams. Appellant
argues that his trial counsel’s failure to have the methamphetamine reweighed was
prejudicial because it altered the plea bargaining process. According to Appellant,
had the weight been less than four grams, there is a reasonable probability that
Appellant would not have pleaded guilty because the State’s offer of twenty years
would have been the maximum punishment available if the factfinder believed that
the substance weighed less than four grams. Alternatively, even if the weight had
been unfavorable, Appellant contends that he would have been able to make an
informed decision as to the State’s offer.
      Under Strickland, an attorney has the duty “to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691. We consider an attorney’s decision to
limit the scope of his pretrial investigation with “a great deal of deference to the
                                             7
attorney’s judgment, looking to the reasonableness of the decision in light of the
totality of the circumstances.” Cantu v. State, 993 S.W.2d 712, 718 (Tex. App.—
San Antonio 1999, pet. ref’d). Appellant’s trial counsel explained at the hearing
on Appellant’s motion for new trial that one of the reasons he chose not to have the
substance reweighed was to avoid additional charges against Appellant; the State
had represented to counsel that it was likely to file an additional charge of
conspiracy against Appellant if the substance was reweighed. Moreover, counsel
could have reasonably concluded that reweighing the substance was unnecessary
based on the evidence that the substance weighed over four grams. Appellant’s
complaint about the weight of the methamphetamine centered around the fact that
the weight was so close to the minimum required for his charge—four grams—that
there could have been a discrepancy in the true weight based on the weight of the
packaging that held the methamphetamine. Detective Dibrell testified that, before
the methamphetamine was sent off for testing, law enforcement determined that
the weight of the substance, with packaging included, was 4.55 grams. The lab
technician who conducted the testing of the substance testified that the substance
had a net weight of 4.09 grams, meaning that was the weight without any
packaging. Given the lack of evidence that the methamphetamine weighed less
than four grams, and trial counsel’s intent to avoid an additional charge against
Appellant, we cannot conclude that counsel’s decision not to have the substance
reweighed by an independent chemist was unreasonable in light of the totality of
the circumstances.
      Appellant next contends that he received ineffective assistance at trial due to
his trial counsel’s alleged lack of preparedness. Specifically, Appellant complains
that his trial counsel (1) arrived an hour late for court on the day Appellant’s case
was set for trial and then informed the court that he wished to withdraw from the
case and that the case needed to be reset for consideration of other important
                                         8
issues, (2) stated on the record that he was unfamiliar with the local practices in
Brown County in that he erroneously believed that the case would be reset for
sentencing after Appellant entered his plea, and (3) falsely informed Appellant that
he could challenge the weight of the controlled substance at punishment if
Appellant pleaded guilty.
      Appellant, however, has failed to demonstrate that his trial counsel’s actions
at trial caused him any prejudice. Although counsel was late and was unfamiliar
with the local practices in Brown County, he and Appellant received the relief they
sought from the trial court: they received a resetting of the punishment hearing so
that counsel could have witnesses available to testify on Appellant’s behalf.
Counsel also stated on the record that Appellant wished to withdraw his plea.
Furthermore, counsel did not indicate that he wished to withdraw from the case
but, rather, that he believed Appellant’s family wanted to employ other counsel.
Then Appellant stated that he did not say he wanted to fire his lawyer. Appellant
has not claimed that counsel was unprepared when the subsequent punishment
hearing took place. We note that counsel called multiple witnesses to testify on
Appellant’s behalf and that the record does not indicate counsel was unprepared
for the punishment phase. Moreover, Appellant’s trial counsel has denied that he
ever told Appellant that the weight could be challenged at punishment, and
counsel’s testimony demonstrates that counsel understood that the weight issue had
no bearing on punishment after Appellant pleaded guilty to the charged offense.
While Appellant may have misunderstood his discussion with trial counsel, we
cannot conclude that trial counsel’s representation fell below an objective standard
of reasonableness in light of counsel’s testimony.      Further, even if counsel’s
actions were deficient, Appellant has failed to demonstrate that there is a
reasonable likelihood the outcome of his trial would have been different but for
counsel’s errors.
                                         9
      Appellant also claims ineffective assistance of counsel at the punishment
hearing. Specifically, Appellant complains of trial counsel’s failure to object to the
admission of Appellant’s statements made during the custodial interrogation
following his arrest, the admission of evidence allegedly seized illegally from his
home, and the admission of the transcript of the text messages. In addition,
Appellant complains of trial counsel’s decision to offer letters from certain
character witnesses when those letters were excluded on hearsay grounds.
       Appellant argues that the recording of his statements made during custodial
interrogation was inadmissible because it lacked the proper foundation and because
the recording device was not shown to be capable of making an accurate recording.
But the record is silent as to any potential trial strategy that counsel could have
employed in failing to object to the recording on foundation or authentication
grounds. Because the record is undeveloped on the subject, we are not inclined to
speculate as to counsel’s reasons for failing to object to the recording of
Appellant’s statements made during custodial interrogation. See Goodspeed, 187
S.W.3d at 393–94. Trial counsel could have reasonably determined, on the basis
of listening to the audio recording, that Detective Dibrell had personal knowledge
as to the contents of the recording and that the recording was what he claimed it to
be. See TEX. R. EVID. 901. As such, Appellant has failed to show that counsel’s
failure to object to the recording was so outrageous that no competent attorney
would have engaged in it. See Garcia, 57 S.W.3d at 440.
      Appellant also argues that the marihuana seized at Appellant’s home was
inadmissible as the fruit of an unlawful search. A motion to suppress is the proper
vehicle to challenge the fruits of an allegedly unlawful search. Jackson v. State,
973 S.W.2d 954, 956–57 (Tex. Crim. App. 1998). In order to establish ineffective
assistance, an appellant must prove that a motion to suppress, had it been filed,


                                         10
would have been granted. Id. Therefore, an appellant must develop facts and
details of the search sufficient to conclude that the search was invalid. Id. at 957.
      In this case, trial counsel testified that he made a judgment call not to file a
motion to suppress because he believed that the search was lawful based on the
information contained in the offense report. Trial counsel stated that he believed
the officers were entitled to enter Appellant’s home based on the exigency of the
situation and in the interests of officer safety.      Detective Dibrell testified at
punishment that the officers entered the home to conduct a search after having
heard yelling and screaming coming from inside. The officers could smell the
odor of burned marihuana in the residence upon making entry. Thereafter, the
officers obtained written consent from Appellant and his wife to search their home,
and the officers recovered the marihuana at issue from the top of the refrigerator in
the kitchen during this subsequent search.           Detective Dibrell denied ever
threatening to call CPS in an effort to obtain consent to search the house. At the
hearing on Appellant’s motion for new trial, Appellant did not recall Detective
Dibrell to testify to the events surrounding the search of Appellant’s home.
Appellant did, however, call his wife—Melanie Hutchinson. Melanie testified that
officers busted in her front and back door while her husband was outside. Melanie
also testified that she signed the consent to search the home after the home was
already searched and that she only signed the consent because she was terrified and
because the officers said they had called CPS. Although Melanie’s testimony
contradicted some of Detective Dibrell’s testimony, it did not establish that the
search was unlawful. See Turrubiate v. State, 399 S.W.3d 147, 155–56 (Tex.
Crim. App. 2013) (holding that officer who enters home without a warrant because
he had probable cause to believe contraband was in the home, smelled marihuana,
identified himself to the occupant, and believed a child’s health and safety was
endangered by presence of drugs could give rise to exigent circumstances
                                          11
justifying warrantless entry). Given the lack of a fully developed record on this
issue, we cannot conclude that counsel’s decision not to file a motion to suppress
constituted ineffective assistance.
      Appellant further complains of his trial counsel’s failure to object to the
transcript of the text messages that Detective Dibrell read aloud in his testimony.
Although trial counsel objected to the text messages on relevancy grounds,
Appellant contends that counsel should have also objected on grounds of hearsay
and lack of authentication. Additionally, Appellant alleges that trial counsel failed
to object to, or bring out on cross-examination, the inaccurate recitation of the text
messages by Detective Dibrell, as described in Appellant’s first point of error.
      During his testimony at the hearing on the motion for new trial, trial
counsel’s only reference to the text messages concerned the fact that the text
messages reflected certain prejudicial facts against Appellant related to infidelity in
Appellant’s marriage and some allegations about drug sales. Counsel made no
reference to his strategies with respect to the admission or exclusion of the text
messages and the possibility of an objection on hearsay or authentication grounds.
As we have discussed, when the record is undeveloped as to an allegation of
ineffective assistance, we will not speculate as to counsel’s trial strategies in taking
the complained-of action. Given that the cell phone from which the text messages
were recovered was found in Appellant’s home and that Appellant never denied
that he wrote the outgoing messages from his phone, counsel could have
reasonably concluded that the messages fell under the statement-against-interest
exception to the hearsay rule and that they could be properly authenticated. See
TEX. R. EVID. 803(24). In addition, counsel could have reasonably determined that
the inaccurate recitation of text messages had a minor effect on the proceedings
and that the trial judge did not misunderstand the evidence based on those
inaccuracies. Accordingly, we conclude that counsel’s decision not to object to
                                          12
the admission of the text messages was not so outrageous that no competent
attorney would have engaged in such conduct. See Garcia, 57 S.W.3d at 440.
      Finally, Appellant claims that his trial counsel was ineffective when he
attempted to offer seventeen letters from character witnesses rather than having
those witnesses give live testimony or providing those letters to the probation
officer in charge of Appellant’s presentence investigation report. These letters
were excluded on hearsay grounds, and trial counsel admitted that he thought the
letters would be admitted based on his belief that such was the custom in Bexar
County where trial counsel’s practice is located.      Four of the authors of the
excluded letters testified at the hearing on Appellant’s motion for new trial that
they would have testified to Appellant’s good character had they been called to do
so during the punishment hearing.
      At the punishment hearing, Appellant’s trial counsel called and questioned
four witnesses who testified to Appellant’s good character and asked the court to
consider leniency in Appellant’s sentence.        Given counsel’s clear effort in
providing the court with multiple character witnesses who testified in Appellant’s
favor, we cannot conclude that counsel’s failure to successfully admit into
evidence the letters related to Appellant’s good character constituted representation
that fell below an objective standard of reasonableness. Moreover, Appellant has
failed to establish a reasonable probability that his punishment would have been
different had the letters been admitted or had every author given live testimony in
light of the similarity in nature of the excluded evidence to the testimony that was,
in fact, elicited during punishment. Accordingly, we hold that Appellant has failed
to establish that he was denied the effective assistance of counsel. We overrule
Appellant’s second point of error.




                                         13
                                     Jury Waiver
      In his third point of error, Appellant claims that the trial court should have
allowed him to withdraw his waiver of a jury trial because his written waiver was
invalid.
      Both the United States Constitution and the Texas Constitution guarantee the
right to a trial by jury. U.S. CONST. amend. VI; TEX. CONST. art. I, § 15; see also
TEX. CODE CRIM. PROC. ANN. art. 1.12 (West 2005). “As a matter of federal
constitutional law, the State must establish, on the record, a defendant’s express,
knowing, and intelligent waiver of jury trial.” Hobbs v. State, 298 S.W.3d 193,
197 (Tex. Crim. App. 2009).         Article 1.13 of the Texas Code of Criminal
Procedure sets out the required formalities of a jury waiver in Texas. See CRIM.
PROC. art. 1.13 (West Supp. 2013). Article 1.13 provides, in relevant part, that the
defendant “shall have the right, upon entering a plea, to waive the right of trial by
jury, conditioned, however, that . . . the 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.” Id.; see Johnson v. State, 72 S.W.3d 346, 347
(Tex. Crim. App. 2002).
      Once a defendant waives his right to a jury trial in compliance with the
statute, he does not have an unfettered right to withdraw this waiver. Hobbs, 298
S.W.3d at 197. The defendant must establish, on the record, that his request to
withdraw his jury waiver has been made sufficiently in advance of trial such that
granting his request will not (1) interfere with the orderly administration of the
business of the court, (2) result in unnecessary delay or inconvenience to
witnesses, or (3) prejudice the State. Id. at 197–98. This subsequent request to
withdraw the waiver is subject to the trial court’s discretion, and we will not
overturn a denial of such a request absent a clear showing that the trial court
abused its discretion in doing so. Id. at 198.
                                          14
      In this case, Appellant sought to withdraw his written jury waiver on the day
he was set to enter his open plea and go to trial. The trial court denied Appellant’s
request, and Appellant entered a plea of guilty. Although Appellant complains of
the trial court’s denial of his motion to withdraw his jury waiver, he frames his
argument in terms of the validity of his waiver under the requirements set forth in
Article 1.13. Appellant makes no reference to whether his request to withdraw his
waiver was made sufficiently in advance of trial such that it would not have caused
interference with the orderly administration of the court, resulted in unnecessary
delay or inconvenience to witnesses, or prejudiced the State. Accordingly, we
limit our review to the validity of Appellant’s jury waiver, rather than whether the
trial court abused its discretion in denying a request to withdraw the jury waiver.
      The judgment in the instant case recites that Appellant, Appellant’s attorney,
and the State’s attorney agreed in open court and in writing to waive a jury trial. In
addition, the record contains a written waiver of jury trial that is approved by the
court and is signed by Appellant, his attorney, and the State’s attorney. However,
the record before us does not show that Appellant made his jury waiver in person
or in open court. Appellant claims that, at the time the written waiver was filed,
the case had been set for pretrial hearings but that Appellant was not present in the
courtroom and no hearing was held thereon. The only reference to the jury waiver
that is depicted in the record, other than the judgment and the written waiver itself,
appears where Appellant attempted to withdraw his waiver just before entering his
plea of guilty. The State has not disputed that Appellant’s waiver was not, in fact,
made in person and in open court.           By failing to observe the mandatory
requirements of Article 1.13, the trial court erred because Appellant’s jury waiver




                                         15
was not conducted in person and in open court. See Johnson, 72 S.W.3d at 347;
Whitmire v. State, 33 S.W.3d 330, 332–33 (Tex. App.—Eastland 2000, no pet.). 2
         Nevertheless, Appellant is not entitled to a reversal because he has failed to
establish that he was harmed by the trial court’s error. In the context of a jury
waiver that fails to satisfy the requirements of Article 1.13, we must disregard such
an error if it does not affect an appellant’s substantial rights.                                  See TEX. R.
APP. P.44.2(b); Ex parte McCain, 67 S.W.3d 204, 209–10 (Tex. Crim. App. 2002).
Thus, in this case, we must ascertain whether Appellant understood his right to a
trial by jury and knowingly and intelligently waived that right before his bench
trial began. See Johnson, 72 S.W.3d at 348–49.
         The Court of Criminal Appeals has stated that the lack of a valid waiver
under Article 1.13 is not harmful when the record in another way reflects that a
defendant waived his right to a jury trial. Id. at 349. For example, in Johnson, the
court stated that the recitation in the judgment that the defendant had “waived trial
by jury” was sufficient to show the defendant had the requisite knowledge of his
right to a jury trial. Id. The court noted that the defendant never alleged that he
was unaware of his right to a jury trial, and the record did not indicate any lack of
knowledge of the defendant’s right to a jury trial. Id. The court reasoned that,
with no affirmative showing of falsity, the recitation in the judgment was sufficient
to show a valid waiver. Id.; see also Vega v. State, 707 S.W.2d 557, 559 (Tex.
Crim. App. 1984); Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App.
1984). In other words, to justify a finding of harm, there must be some affirmative
evidence in the record—not just a lack of evidence—that a defendant’s waiver was
not made knowingly and intelligently. Johnson, 72 S.W.3d at 349.

         2
          Appellant previously filed a motion to abate this appeal so that the record could be clarified regarding his
jury waiver. We overruled the motion to abate the appeal. In his brief, Appellant renewed his motion to abate the
appeal in the event this court applied a presumption of regularity to the record before us. We overrule Appellant’s
renewed motion to abate the appeal.

                                                         16
      As we previously discussed, the judgment in this case recites that Appellant
“agreed in open court and in writing to waive a jury in the trial of this cause and to
submit it to the Court.” As the Court of Criminal Appeals has stated, “The very
use of the term ‘waive’ presumes knowledge, because ‘to waive a right one must
do it knowingly—with knowledge of the relevant facts.’” Id. Moreover, the
presence of a written waiver that is signed by Appellant and his counsel indicates
his knowledge of his right to a jury trial. The fact that the record does not contain
direct proof that a waiver was made in person and in open court suggests that the
requirements of Article 1.13 were not satisfied, but it does not address the question
of harm. See Johnson, 72 S.W.3d at 349; Whitmire, 33 S.W.3d at 330.
      Furthermore, there is some evidence in the record that Appellant was aware
of his right to a jury trial. Appellant’s request to withdraw his previous jury waiver
indicates his knowledge of his right to a jury trial because, in making the request to
withdraw the waiver, Appellant never claimed that he was unaware of or
misunderstood his right to a jury trial. In addition, the record shows that the trial
court, before accepting Appellant’s plea of guilty during the open plea, confirmed
with Appellant that Appellant understood his right to a jury, was aware of the
waiver he filed, and understood the effects of a guilty plea. Though this evidence
may be insufficient, without more, to indicate that a waiver was properly executed,
it does constitute some evidence that Appellant’s previous written waiver was
made knowingly and intelligently.        Given this evidence, in addition to the
recitation of waiver in the judgment, we cannot conclude that the trial court’s error
affected Appellant’s substantial right to a jury trial. Accordingly, we overrule
Appellant’s third point of error.




                                         17
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                JOHN M. BAILEY
                                                JUSTICE


June 26, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J. and Bailey, J.




                                           18
