                                    NO. 07-11-0338-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                   MAY 11, 2012
                          ______________________________


                      MICHAEL ANTHONY JIMENEZ, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                 NO. 63,023-D; HONORABLE DON EMERSON, JUDGE

                          _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Following a plea of not guilty, Appellant, Michael Anthony Jimenez, was

convicted by the trial court of assault causing bodily injury to a family member, a third

degree felony.1 The trial court also found that Appellant had previously been convicted

of two prior felonies, enhancing the range of punishment to confinement in the Texas


1
 Tex. Penal Code Ann. § 22.02(b)(2) (West 2011). See also Tex. Fam. Code Ann. §§ 71.002(b) and
71.005 (West 2008 & Supp. 2011).
Department of Criminal Justice for life, or for any term of not more than ninety-nine

years or less than twenty-five years.2 Punishment was assessed at twenty-five years

confinement.      The sentence was ordered to run concurrently with two other felony

offenses.3 Presenting two issues, Appellant contends (1) the trial court erred in denying

his right to a jury trial and (2) the judgment is erroneous as it reflects he pleaded guilty

when, in fact, he pleaded not guilty. We affirm the judgment as modified hereinbelow.


                            FACTUAL AND PROCEDURAL BACKGROUND


        Appellant and the victim had a dating relationship. Additionally, the victim lived

with Appellant's family to care for his ill mother. As to the offense alleged in cause

number 63,023-D, the victim testified that on January 7, 2011, she and Appellant were

involved in a physical altercation. He arrived at the family's residence and pushed the

door in and began hitting and punching her with a closed fist. She had a previous

wound to one of her ears which he reopened during the altercation.                          Her injuries

required her to be transported to the hospital by ambulance.


        On June 6, 2011, the trial court called three cause numbers for trial, 62,876-D,

62,969-D, and 63,023-D. Originally, Appellant protested the consolidation of the three

cause numbers and requested to proceed only on cause number 63,023-D. The trial

court refused the request and after a short recess Appellant's counsel announced


2
See Tex. Penal Code Ann. §12.42(d) (West Supp. 2011).
3
 In cause numbers 62,876-D and 62,969-D, Appellant was also convicted of committing the same
offense, against the same family member, on December 25, 2010, and December 10, 2010, respectively.
Appellant's concurrent sentences of thirty-five years and twenty-five years respectively are the subject of
separate appeals in appellate cause numbers 07-11-0336-CR and 07-11-0337-CR. Those appeals will
be addressed by a separate opinion issued this same date.


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"ready" to the trial court's call of cause number 63,023-D. Appellant entered a plea of

"not guilty" and, although no written jury waiver appears in the record of this cause,4 the

following colloquy occurred:


       THE COURT:              All right sir. You have handed me today a waiver of
                               trial by jury in which you've told me that it is your
                               desire not to have a jury determine guilt/innocence or,
                               if you are found guilty, to assess punishment in this
                               case, but you want me to do all that. Is that your
                               desire, sir?

       MR. JIMENEZ:            Yes, Your Honor.


Following the presentation of evidence, the trial court pronounced Appellant guilty as

charged in the indictment and assessed his sentence at twenty-five years confinement.

This appeal followed.


                                            DISCUSSION


       By his first issue, Appellant maintains the trial court erred in refusing to grant him

a jury trial. Appellant argues the trial court erred in proceeding without a jury because

the record does not reflect a written waiver of a jury and the announcements by counsel

as to how the case was going to proceed were confusing. We disagree.


       A defendant has an absolute right to a jury trial.5                 As a matter of federal

constitutional law, the State must establish, on the record, a defendant's express,




4
 Following the conclusion of proceedings in cause number 63,023-D, the trial court immediately
proceeded to a plea of guilty in cause numbers 62,876-D and 62,969-D. Written waivers of jury appear in
both of those cause numbers.
5
See U.S.Const. amend. VI; Tex Const., art. I, § 15; Tex. Code Crim. Proc. Ann. art. 1.12 (West 2005).

                                                   3
knowing, and intelligent waiver of jury trial.   Hobbs v. State, 298 S.W.3d 193, 198

(Tex.Crim.App. 2009).


       Although neither the federal nor Texas Constitutions require that a jury be waived

in writing, Johnson v. State, 72 S.W.3d 346, 348 (Tex.Crim.App. 2002), article 1.13 of

the Texas Code of Criminal Procedure provides that waiver of a jury "must be made in

person by the defendant in writing in open court . . . ." Tex. Code Crim. Proc. Ann. art.

1.13(a) (West 2005).


       Here, the record at least facially demonstrates that a written waiver of a jury

exists because the trial court used one to question Appellant about his right to a jury

trial. The record also reflects a clear and unequivocal waiver of that right. While the

possibility exists that the trial court was confusing Appellant's written waiver in cause

numbers 62,876-D and 62,969-D for a written waiver in this cause, even assuming,

arguendo, that the failure to execute and file a written waiver in cause number 63,023-D

was error, it was statutory, not constitutional error, and we review the alleged error for

harm under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Johnson, 72

S.W.3d at 348. Under that standard, if the error does not affect Appellant's substantial

rights, then it must be disregarded.


       Considering the record as a whole, it is clear that Appellant expressly waived his

right to a jury trial in cause number 63,023-D.        Moreover, the judgment recites

"JUDGMENT OF CONVICTION BY COURT--WAIVER OF JURY TRIAL."                             That

recitation is binding in the absence of direct proof of its falsity. Id. at 349. Because




                                            4
there is nothing in the record indicating that recitation to be false and there is nothing to

suggest Appellant's substantial rights were affected, issue one is overruled.


                                REFORMATION OF JUDGMENT


       By his second issue, Appellant maintains the judgment incorrectly reflects a plea

of guilty.   The State concurs, as do we.         This Court has the power to modify the

judgment of the court below to make the record speak the truth when we have the

necessary information to do so. Tex. R. App. P. 43.2(b). Ramirez v. State, 336 S.W.3d

846, 852 (Tex.App.--Amarillo 2011, pet. ref'd) (citing Bigley v. State, 865 S.W.2d 26, 27-

28 (Tex.Crim.App. 1993)). Appellate courts have the power to reform whatever the trial

court could have corrected by a judgment nunc pro tunc where the evidence necessary

to correct the judgment appears in the record. Ashberry v. State, 813 S.W.2d 526, 529

(Tex.App.--Dallas 1991, pet. ref'd). The power to reform a judgment is "not dependent

upon the request of any party, nor does it turn on the question of whether a party has or

has not objected in the trial court." Id. at 529-30.


       Here, the summary portion of the judgment reflects that Appellant entered a plea

of guilty to the charged offense while the reporter's record clearly shows that he entered

a plea of not guilty. Accordingly, we sustain issue two and we modify the trial court's

judgment to reflect a plea of "Not Guilty."


       We further note that the judgment also reflects the trial court's finding as to the

second enhancement to be "N/A." Because the reporter's record also reflects the court

found two enhancements to be true, the trial court's judgment is reformed to reflect a

finding of "True" as to the second enhancement.

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                                     CONCLUSION


      As modified hereinabove, the trial court's judgment is affirmed.


                                               Patrick A. Pirtle
                                                   Justice



Do not publish.




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