Affirmed and Memorandum Opinion filed July 31, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00629-CR

                         MELVIN JETSON, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1291685

                 MEMORANDUM                      OPINION


      Appellant appeals his conviction for aggravated assault with a deadly
weapon. See Tex. Penal Code § 22.02. In two issues appellant contends the trial
court erred in (1) sentencing him to five years in prison without first conducting a
separate punishment hearing; and (2) conducting a bench trial without a written
waiver of a jury trial. Finding that appellant was not entitled to a separate
punishment hearing and that the record supports the judgment’s recitation of jury
waiver, we affirm.

                                     BACKGROUND

         Appellant raises procedural issues and does not challenge the sufficiency of
the evidence to support his conviction. Therefore, in this memorandum opinion, a
detailed recitation of the offense is not necessary. See Tex. R. App. P. 47.4.

         Appellant entered a plea of not guilty to the offense of aggravated assault
with a deadly weapon. The case was called to trial and the parties were awaiting a
jury panel. Following a short recess, appellant made known his desire for a bench
trial.

         The following day the court proceeded to a bench trial on the offense of
aggravated assault with a deadly weapon. At the conclusion of the one-day trial,
the court recessed the case to review medical records and medications the
defendant was taking. The court reconvened the next day, found appellant guilty of
the second degree felony of aggravated assault, and assessed punishment at five
years in prison. Appellant made no objection.

                                       ANALYSIS

Separate Punishment Hearing

         In his first issue appellant argues the trial court erred in sentencing him to
five years in prison without first conducting a separate punishment hearing.
Appellant argues that article 37.07 of the Texas Code of Criminal Procedure
entitles him to a separate hearing on punishment, and that by failing to hold such a
hearing he was harmed because he did not have the opportunity to present
mitigating evidence. Appellant also argues he did not have an opportunity to object
to the trial court’s failure to hold a punishment hearing.

         Article 37.07 of the Code of Criminal Procedure authorizes bifurcation of
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jury trials in Texas, but not bench trials.

      The bifurcation statute provides, “In all criminal cases, other than
      misdemeanor cases of which the justice court or municipal court has
      jurisdiction, which are tried before a jury on a plea of not guilty, the
      judge shall, before argument begins, first submit to the jury the issue
      of guilt or innocence of the defendant of the offense or offenses
      charged, without authorizing the jury to pass upon the punishment to
      be imposed.” The bifurcation statute “is applicable only to pleas of not
      guilty before a jury.” The statute “ha[s] no application to a trial before
      the court on a plea of not guilty.”
Barfield v. State, 63 S.W.3d 446, 449–50 (Tex. Crim. App. 2001) (citations
omitted); see Tex. Code Crim. Proc. art. 37.07, § 2(a).

      To preserve error for appeal, a party must make a timely request, objection,
or motion with sufficient specificity to apprise the trial court of the complaint. Tex.
R. App. P. 33.1(a); see also Weyandt v. State, 35 S.W.3d 144, 154 (Tex. App.—
Houston [14th Dist.] 2000, no pet.). Rule 33.1 ensures that trial courts are provided
the opportunity to correct their own errors before a case need be appealed. If a
defendant fails to inform the trial judge of the potential error through a “timely
request, objection, or motion,” there is no such opportunity for correction at the
trial level. Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001).

      In this case, appellant did not object to being immediately sentenced upon a
finding of guilt by the trial court, and did not inform the trial court that he had
additional evidence relating to punishment. In his brief, appellant argues he “had
neither an opportunity to present mitigating evidence nor had an opportunity to
object to the trial court’s failure to hold a punishment hearing.” The court of
criminal appeals has determined, however, that a defendant may raise the issue of a
separate punishment hearing in a motion for new trial. Issa v. State, 826 S.W.2d
159, 161 (Tex. Crim. App. 1992) (finding motion for new trial preserved issue
under article 42.12 in a probation revocation proceeding). Appellant did not file a
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motion for new trial; therefore, he waived error. See id.

       Waiver notwithstanding, article 37.07 of the Code of Criminal Procedure
does not entitle appellant to a separate or bifurcated punishment hearing. “A bench
trial is a unitary trial, and the decision of the court is not fixed until it renders
judgment on guilt and punishment after all the evidence and arguments are heard.”
Prihoda v. State, 352 S.W.3d 796, 807 n. 2 (Tex. App.—San Antonio 2011, no
pet.) (citing Barfield, 63 S.W.3d at 451). The court in Barfield held that, “the
unauthorized ‘bifurcation’ of a trial without a jury does not mean that a genuinely
separate punishment phase exists.” Barfield, 63 S.W.3d at 450. Because the guilt
and punishment stages are not bifurcated in a bench trial, there is no requirement
for a separate punishment hearing. Id. at 449–50; see also Ferguson v. State, 313
S.W.3d 419, 424 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (“[E]ven if a trial
court employs procedures characteristic of bifurcation, a bench trial remains a
unitary trial punctuated by a recess in the middle.”).

       Because appellant waived error with regard to a separate punishment
hearing, and was not entitled to a separate punishment hearing in a bench trial, we
overrule his first issue.

Written Waiver of Jury Trial

       In his second issue, appellant argues the trial court erred in conducting a
bench trial despite appellant’s failure to waive a jury trial in writing. Appellant,
however, was not harmed by the lack of a written jury waiver.

       Appellant argues that his conviction must be reversed because the record
does not contain a written waiver of a jury trial in accordance with article 1.13 of
the Texas Code of Criminal Procedure. In this case, the judgment of the trial court
contains a recitation of a waiver of a jury trial. The Court of Criminal Appeals has


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held that such a recitation is generally sufficient. Johnson v. State, 72 S.W.3d 346,
349 (Tex. Crim. App. 2002). The omission of a written waiver is statutory error,
not a constitutional one, and it must be presumed that the recitation in the judgment
is binding in the absence of direct proof of falsity. Id. We analyze harm under
Texas Rule of Appellate Procedure 44.2(b) and do not reverse unless the error
affected appellant’s substantial rights. Id.

      In this case, after expressing his desire for a bench trial, the trial court
admonished appellant as follows:

      THE COURT: Okay. Back on record. It is now 10:30 and we are
      awaiting the bailiff to deliver the jury.
      There’s been some discussion about Mr. Jetson potentially waiving
      his right to a jury trial and having a Court trial instead. And so, the
      State has indicated that they’re in agreement with that if indeed Mr.
      Jetson — if that is Mr. Jetson’s desire.
      So, here’s the bottom line, Mr. Jetson, is that you have a
      Constitutional right to a jury trial. Anybody and everybody does that’s
      charged with a crime. Okay? And what that means, and I know that
      has been discussed with you and your lawyer before, is that any time
      like yourself, you’re charged with this aggravated assault, you have
      the right to have a jury of your peers, 12 people that sit over there in
      those chairs, listen to all the evidence in this case and then at the end
      of it then they go back in the jury room and they consider everything
      they heard and saw and then they decide if you’re guilty or not. Do
      you understand that?
      THE DEFENDANT: Yes, ma’am.
      THE COURT: That is an absolute Constitutional right that you have.
      However, you can waive that right. And that just means give that right
      up and decide that you want a Court trial. And if that’s the case, that’s
      fine, too, as long as the State agrees.
      Now, a Court trial means that I, just me, I will hear all the witnesses in
      the case from their side and your side. And then after I hear it all, then
      I’ll decide whether or not they’ve met their burden of proof and
      whether they’ve proved beyond a reasonable doubt that you’re guilty

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      or not guilty.
      If I think that you’re not guilty, then I find you not guilty. If I think,
      however, that you’re guilty, then I find you guilty. And then I also
      assess the punishment in your case.
      But that is a decision of yours. And so, what do you want to do? Do
      you want to talk to [defense counsel] Mr. St. John for a minute or
      have you made up your mind or what do you want to do?
      THE DEFENDANT: I prefer you.
      THE COURT: All right.
      Mr. St. John, what do you say?
      MR. ST. JOHN: Your Honor, I’ve had discussions with Mr. Jetson on
      a number of occasions about because of the extended time that he’s
      been in this Court with his mental health history and he feels very
      comfortable with the Court, which, of course, is the reason why we
      were going to go to the Court for punishment. And certainly I’m in
      agreement with his decision to have a Court trial, your Honor.
      THE COURT: Well, I just want — look, I guess I don’t want you
      thinking right off, you know, the Judge has been really nice to me and
      professional with me and she’s going to find me not guilty. I could,
      but I don’t know if I will because I haven’t heard anything. But I may
      not. Does that make sense?
      THE DEFENDANT: Yes, ma’am.
      THE COURT: Okay. So, knowing all that, what do you want to do?
      THE DEFENDANT: Go with you.
      THE COURT: Okay. So, you understand, I’m the one and I’m the
      only one that’s going to hear all the witnesses and decide?
      THE DEFENDANT: Yes, ma’am.

      The judgment states appellant waived a trial by a jury. Appellant did not
allege that he did not know about his right to a jury trial, or that he did not agree to
a bench trial. Appellant argues, without discussion, that the above “colloquy is
insufficient to demonstrate the Appellant intelligently and knowingly waived his
constitutional right to a jury trial in open court.”

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      Appellant’s statement that the “colloquy is insufficient” is not evidence that
the judgment’s recitation of voluntary waiver is false. There is no evidence in the
record that the judgment’s recitation is false. The record reflects that appellant was
properly admonished of his right to a jury trial and knowingly waived that right.
Having no evidence in the record that the judgment’s recitation that appellant
waived a trial by a jury is false, we are bound by that statement. We overrule
appellant’s second issue and affirm the trial court’s judgment.

                                              PER CURIAM



Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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