                                      NO. 07-05-0249-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL A

                                  SEPTEMBER 28, 2006
                            ______________________________

                         REGINAL WAYNE YOUNG, APPELLANT

                                                V.

                            THE STATE OF TEXAS, APPELLEE
                          _________________________________

       FROM THE COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY;

          NO. 0944215; HONORABLE DEBORAH NEKHOM HARRIS, JUDGE
                       _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                                  MEMORANDUM OPINION


       Following a plea of not guilty, appellant Reginal Wayne Young was convicted at a

bench trial of possession of marihuana and sentenced to thirty days confinement and a

$500 fine. By five issues, he contends the trial court committed reversible error by (1)

failing to obtain a written jury waiver, (2) failing to obtain a waiver of jury trial on the record,

(3) failing to obtain a written waiver of arraignment, (4) failing to arraign him on the record,

and (5) overruling his motion to suppress evidence. We affirm.


       Appellant was arrested for public intoxication after a police officer observed him

staggering out of an alleyway and toward a busy street. At appellant’s bench trial, Officer
Jose Palomares testified he arrested appellant because when he approached him, he

could smell alcohol on appellant’s breath and noticed his speech was slurred. After placing

him under arrest, Officer Palomares searched appellant’s wallet and discovered a small

plastic baggie containing a green leafy substance. The substance later tested positive for

marihuana. Testifying in his defense, appellant conceded he had marihuana in his wallet

but claimed he had not had anything to drink at the time the officer approached him.

Furthermore, appellant testified that upon learning the reason for his arrest, he asked

Officer Palomares to administer field sobriety tests or a Breathalyzer test to prove he was

not intoxicated. However, the officer refused. The court subsequently found appellant

guilty of possession of marihuana.


       By issues one and two, appellant contends the trial court committed fundamental

error when it failed to obtain a written waiver of jury trial or document the waiver on the

record as required by Art. 1.13 of the Code of Criminal Procedure. We disagree.


       Article 1.13(a) provides that a criminal defendant may waive the right of trial by jury

upon entering a plea but requires that the waiver 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. The statute further provides that the trial court's consent and

approval must be “entered of record on the minutes of the court,” and the consent and

approval of the State's attorney must be “in writing, signed by him, and filed in the papers

of the cause before the defendant enters his plea.” Id. These requirements apply to




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misdemeanors as well as felony cases. See State ex rel. Curry v. Carr, 847 S.W.2d 561,

562 (Tex.Crim.App. 1992).


       In the instant case, the State concedes the record does not contain a written jury

waiver and that there was no exchange at trial regarding appellant’s right to waive jury trial.

In fact, the State does not challenge appellant’s contention that the trial court erred in this

regard. Instead, the State maintains that any error by the trial court failed to affect

appellant’s substantial rights. Since appellant merely alleges that his waiver was not

properly reflected in the record, and not that he was denied the right to a jury trial, he

alleges statutory error, not constitutional error. Johnson v. State, 72 S.W.3d 346, 348

(Tex.Crim.App. 2002). See also Ex parte McCain, 67 S.W.3d 204, 209-10 (Tex.Crim.App.

2002) (explaining that a violation of the mandatory terms of Article 1.13(a) is not

jurisdictional, constitutional, or fundamental error). Therefore, in determining whether there

was harm, we must conduct a section 44.2(b) harm analysis and disregard the error if it did

not affect appellant's substantial rights. Johnson, 72 S.W.3d at 348; Tex. R. App. P.

44.2(b).


       The trial court heard appellant’s motion to suppress prior to the bench trial.

Appellant was represented by counsel throughout. At the conclusion of the bench trial, the

trial court rendered judgment stating that appellant “having been duly arraigned, waived

trial by jury . . . .”1 The Court of Criminal Appeals has held that, under the presumption of



       1
       The pertinent pre-printed language of the judgment is identical to that quoted in
Johnson, 72 S.W.3d at 352 (Johnson, J., dissenting).

                                              3
regularity of judgments, we must presume such a statement is correct in the absence of

direct proof of its falsity. Johnson, 72 S.W.3d at 349; Jackson v. State, 76 S.W.3d 798,

802 (Tex.App.–Corpus Christi 2002, no pet.). Appellant does not argue the record

contains such direct proof of the falsity of the recitation in the judgment and, having

examined the record, we find none. Like the record in Johnson, therefore, the record

reflects that appellant “was aware of his right to a jury trial and opted for a bench trial.” 72

S.W.3d at 349. Accordingly, we find the trial court’s failure to obtain a written jury waiver

or a waiver on the record did not affect appellant’s substantial rights. Appellant’s first two

issues are overruled.


       By issues three and four, appellant contends the trial court’s failure to obtain a

written waiver of arraignment or arraign him on the record violated his right to due process.

However, there is nothing in the record indicating appellant ever objected to the absence

of an arraignment, requested to be formally arraigned, or otherwise brought the matter to

the attention of the trial court. Instead, appellant raises the issue for the first time on

appeal. Consequently, any error by the trial court with regard to arraignment was waived

and these issues present nothing for review. Buck v. State, 503 S.W.2d 588, 589

(Tex.Crim.App. 1974). See also Tex. R. App. P. 33.1. Issues three and four are overruled.


       By issue five, appellant alleges the trial court erred in overruling his motion to

suppress the marihuana evidence found during the search incident to his arrest because

the arresting officer lacked probable cause to arrest him for public intoxication. Again, we

disagree.


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       At a motion to suppress hearing, the trial court is the sole trier of fact and judge of

the credibility of the witnesses and the weight to be given their testimony. State v. Ross,

32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Under the bifurcated standard of appellate

review for a ruling on a motion to suppress described in Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997), we review the court's ruling for an abuse of discretion, but give

almost total deference to the trial court's findings of fact especially when the findings are

based on an evaluation of credibility and demeanor. Ross, 32 S.W.3d at 856.


       The Penal Code provides that a person commits the offense of public intoxication

if “the person appears in a public place while intoxicated to the degree that the person may

endanger the person or another.” Tex. Pen. Code Ann. § 49.02 (Vernon 2003). In the

present case, Officer Palomares testified he arrested appellant after he observed him

stumbling toward a busy street, smelled alcohol on his breath, and heard him slur his

speech. Although appellant recounted a somewhat different version of events, the trial

court may believe or disbelieve all or any part of a witness's testimony, whether or not the

testimony is controverted. Ross, 32 S.W.3d at 855. Considering the appropriate standard

of review, we find the trial court did not err in overruling the motion to suppress.

Appellant’s fifth point is overruled.


       Accordingly, the trial court’s judgment is affirmed.




                                                  James T. Campbell
                                                      Justice
Do not publish.



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