Opinion filed January 5, 2018




                                              In The


          Eleventh Court of Appeals
                                          __________

      Nos. 11-17-00062-CR, 11-17-00063-CR, & 11-17-00064-CR
                            __________

                    ROLANDO SANTAMARIA, Appellant
                                                  V.
                        THE STATE OF TEXAS, Appellee


                    On Appeal from the 35th District Court
                            Brown County, Texas
            Trial Court Cause Nos. CR23946, CR24604, & CR24605


                        MEMORANDUM OPINION
      The grand jury returned indictments1 against Appellant for two second-degree
felony offenses of sexual assault2 and for one third-degree felony offense of
attempted sexual assault.3 Appellant waived his right to a jury trial in each case, and


      1
       Each indictment alleged a criminal act against a different victim.
      2
       See TEX. PENAL CODE ANN. § 22.011 (West Supp. 2017).
      3
       See id. § 15.01 (West 2011).
the trial court, after a bench trial, found him guilty of all three offenses. The trial
court assessed punishment at confinement for fifteen years for each of the two
convictions of sexual assault and confinement for ten years for the conviction of
attempted sexual assault. The trial court sentenced Appellant and ordered that the
sentences run concurrently. On appeal, Appellant argues that his education level
rendered him unable to intelligently waive his right to a jury trial. We affirm.
                                          I. Background Facts
       Appellant, a citizen of Mexico, is a massage therapist who has lived in the
United States since 1988.4 During 2014 and 2015, Appellant offered massage
services out of a nail salon in Early and provided massages to Debra Diane Johnson,
Sonya Silva, and Lindsay Womack. Johnson, Silva, and Womack each alleged that
Appellant inappropriately touched their sexual organs during their massages. Silva
reported Appellant to the police in 2015, and Appellant left the country. Appellant
was arrested in 2016, and Womack and Johnson reported their assaults shortly after
Appellant’s arrest was publicized.
       Before trial, Appellant expressed in writing that he wished to waive his right
to a jury trial in all three cases against him. At a pretrial hearing, the trial court asked
Appellant about his age and education level and about his ability to read, write, and
understand the English language. Appellant said that he had an elementary level
education and that his ability to read and write the English language was “[n]ot too
good,” but he stated that he did not need an interpreter for the hearing. The trial
court also explained the ramifications of Appellant’s waivers and asked whether he
agreed to and understood the waivers. Appellant said that he agreed and understood.
The State agreed to all three jury waivers, and the trial court approved.




       4
        Appellant is not a citizen of the United States but is a permanent resident.

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                                         II. Analysis
       Appellant claims in a single issue on appeal in each case that his elementary
education was insufficient as a matter of law to provide him with the cultural and
educational background necessary to voluntarily, knowingly, and intelligently waive
his right to a jury trial. A defendant is guaranteed the right to a jury trial by the
United States and Texas Constitutions. U.S. CONST. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury . . . .”); TEX. CONST. art. I, § 15 (“The right of trial by jury shall remain
inviolate.”); see TEX. CODE CRIM. PROC. ANN. art. 1.12 (West 2005). A defendant
can waive the right to a jury trial, but the State must prove that the waiver was made
voluntarily, knowingly, and intelligently. Brady v. United States, 397 U.S. 742, 748
(1970) (citing Brookhart v. Janis, 384 U.S. 1, 4–5 (1966); Adams v. U.S. ex rel.
McCann, 317 U.S. 269, 275 (1942); Johnson v. Zerbst, 304 U.S. 458, 464 (1938);
Patton v. United States, 281 U.S. 276, 312 (1930)); see Hobbs v. State, 298 S.W.3d
193, 197 (Tex. Crim. App. 2009) (citing Guillett v. State, 677 S.W.2d 46, 49 (Tex.
Crim. App. 1984); Samudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App. 1983)).
Article 1.13 of the Texas Code of Criminal Procedure governs the waiver of jury
trials in Texas. Hobbs, 298 S.W.3d at 197 (citing CRIM. PROC. art. 1.13(a)). For a
waiver to be proper under Article 1.13, the defendant must make the waiver in person
and in writing, in open court, and do so with the consent and approval of both the
trial court and the State. CRIM. PROC. art. 1.13(a) (West Supp. 2017).
       The record reflects that all of the requirements of Article 1.13 were satisfied.
Appellant signed written waivers for all three causes, appeared in open court, and
agreed to the waivers. The prosecutor signed each waiver and consented to the three
waivers at the pretrial hearing. The waivers were also filed before Appellant entered
his pleas of not guilty in each case. Finally, the trial court, on the record, accepted
the agreed waivers.
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      Appellant nonetheless claims that his waivers were ineffective, despite
compliance with Article 1.13, because of his education level. Appellant argues that,
because he only possesses an elementary school education, he does not have
adequate knowledge of the United States legal system to intelligently waive his right
to a jury trial. Whether “there is an intelligent, competent, self-protecting waiver of
jury trial by an accused must depend upon the unique circumstances of each case.”
Adams, 317 U.S. at 278.
      In these cases, the trial court explained to Appellant what the waivers meant:
      Each of these cases you are scheduled for jury, and you have an
      absolute right for a jury, and they are set on Monday, but you are saying
      to me that you are waiving your right to a jury, you agree that the case
      can be taken up without a jury for either guilt/innocence or for
      punishment purposes. That would mean it would be tried before me as
      the judge or some other judge in my place if for some reason I wasn’t
      able to do it.
             And then you are doing so voluntarily and intelligently and
      knowingly, understanding this is a valuable right, but that you give that
      up and you agree to go forward. You are not pleading guilty to
      anything, but you are just simply saying you are going to have a nonjury
      trial before a judge and not with a jury for either guilt/innocence or
      punishment purposes. Do you understand all of that?
Appellant said that he understood and agreed to the waivers. The trial court also
ensured that Appellant did not need an interpreter and was able to read and
understand the written waivers he had signed. The record reflects that the trial court
properly explained to Appellant what his waivers meant and made an adequate
inquiry to ensure that Appellant understood his choice to waive his constitutional
right to a jury. See Martinez v. State, 449 S.W.3d 193, 199–200 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref’d) (citing Smith v. State, 363 S.W.3d 761, 767–68
(Tex. App.—Austin 2012, pet. ref’d); Hoang v. State, 825 S.W.2d 729, 732 (Tex.
App.—Houston [14th Dist.] 1992, pet. ref’d)) (record supported trial court’s

                                          4
“implicit determination” that Spanish-speaking defendant voluntarily and
knowingly waived his right to jury trial where the trial court questioned him and
determined that he wished to proceed with a bench trial rather than a jury trial). We
conclude, as our sister courts have under analogous circumstances, that Appellant
voluntarily, knowingly, and intelligently waived his right to a jury trial in all three
causes. See id.; Smith, 363 S.W.3d at 767–68 (criminal defendant waived jury trial
where the trial court explained the meaning of a bench trial and the contents of the
jury-waiver form and ensured that the defendant was “intelligently, knowingly, and
voluntarily” waiving her constitutional rights); Hoang, 825 S.W.2d at 732 (waiver
of jury trial effective for Vietnamese-speaking defendant where trial court asked if
defendant understood he had a right to a jury trial, if he understood what a jury trial
was, and if he agreed to waive his right and have the trial court decide the case).
Accordingly, we overrule Appellant’s sole issue on appeal.
                                         III. This Court’s Ruling
        We affirm the judgments of the trial court.




                                                                   MIKE WILLSON
                                                                   JUSTICE


January 5, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J., Bailey, J.,
and Wright, S.C.J., sitting by assignment.5



        5
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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