      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00293-CR



                   Christopher Holquin a/k/a Christopher Holguin, Appellant

                                                   v.

                                    The State of Texas, Appellee




  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
     NO. B-03-0812-S, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Christopher Holquin pleaded guilty to sexually assaulting a child. See Tex.

Pen. Code Ann. § 22.011 (West Supp. 2004-05). The district court adjudged him guilty and

sentenced him to sixteen years in prison. By two points of error, Holquin complains that his jury

waiver was defective and that his trial attorney rendered ineffective assistance. We will overrule

these contentions and affirm the conviction.

                In a prosecution for any offense other than a capital felony, the defendant may waive

the right of trial by jury


        conditioned, however, that such 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. The consent and approval by the court shall be entered of
        record on the minutes of the court, and the consent and approval of the attorney
        representing the State shall be in writing, signed by him, and filed in the papers of the
        cause before the defendant enters his plea.
Tex. Code Crim. Proc. Ann. art. 1.13(a) (West 2005). In this cause, the clerk’s record contains a

written waiver of jury trial signed by Holquin and his attorney, but the waiver is not signed by the

prosecutor or the trial court. Holquin contends that the failure to comply with article 1.13(a)

rendered his jury waiver ineffective.

                In Johnson v. State, 72 S.W.3d 346, 347 (Tex. Crim. App. 2002), the record did not

contain a written jury waiver. The judgment recited, however, that the defendant waived trial by

jury. Id. at 349. The court of criminal appeals held that the violation of article 1.13 did not affect

the defendant’s substantial rights because the recital in the judgment “reflects that he was aware of

his right to a jury trial and opted for a bench trial.” Id.; see Tex. R. App. P. 44.2(b) (harmless error

rule).

                Here, the record does contain a written jury waiver signed by Holquin and his

attorney. The waiver states that it was made on January 29, 2004, and recites that Holquin had been

advised of his right to a jury and was voluntarily waiving it. When he appeared in court with counsel

to enter his plea on April 8, 2004, he acknowledged the court’s admonishment that he had “an

absolute right to have a jury trial on this matter.” The court then said, “I see that there’s a waiver of

a jury signed by you and your attorney. The attorney for the State has not signed it, but obviously

she consents to that by us being here.” Neither Holquin nor the State objected to going forward

without a jury. The trial court’s judgment recites that the jury waiver was made with the district

attorney’s consent and the court’s approval.

                Clearly, Holquin was aware of his right to a jury trial and waived it in writing. The

reporter’s record confirms the judgment’s recital that counsel for the State agreed to the waiver and



                                                   2
the trial court approved it, although neither did so in writing. Under the circumstances, the failure

to fully comply with article 1.13(a) did not affect Holquin’s substantial rights. Point of error one is

overruled.

               In point of error two, Holquin contends his trial counsel was ineffective because he

adduced testimony regarding other acts of sexual misconduct. Holquin judicially confessed to the

single sexual assault alleged in the indictment. At trial, however, he was questioned by his attorney

and admitted that he repeatedly engaged in unlawful sexual conduct with the complainant over a

period of years. Holquin also complains that his attorney suggested to the court that it assess the

maximum penalty of twenty years’ imprisonment.

               We can quickly dispose of the latter contention. Contrary to Holquin’s assertion, the

reporter’s record reflects that counsel asked the court to consider deferred adjudication with

incarceration in the county jail for a short time, followed by therapy. Counsel did state to the court

that Holquin had “hurt enough people,” but he did not recommend the maximum punishment.

               Holquin must show that his counsel made such serious errors that he was not

functioning effectively as counsel and that these errors prejudiced the appellant’s defense to such a

degree that he was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). We must indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption,

any allegation of ineffectiveness must be firmly founded in the record and the record must




                                                  3
affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.

App. 2001).

               We have no record from which we may discern counsel’s trial strategy. Holquin did

not raise ineffectiveness of counsel in his motion for new trial. Nothing in the trial record reveals

counsel’s reason for questioning Holquin about the other acts of sexual misconduct, although

counsel’s reference to statements made by Holquin to the police and child protective service workers

suggests that the full extent of Holquin’s sexual misconduct was already known. On this record,

Holquin does not overcome the strong presumption that his trial counsel’s strategy was reasonable

from counsel’s perspective at trial. Point of error two is overruled.

               The judgment of conviction is affirmed.




                                              __________________________________________

                                              Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: April 14, 2005

Do Not Publish




                                                 4
