                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00138-CR



             JUAN LUIS OBESO, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 276th District Court
                 Titus County, Texas
                Trial Court No. 17,713




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                      MEMORANDUM OPINION
       Juan Luis Obeso pled guilty to and was convicted of aggravated robbery. Following

Obeso’s election of jury-assessed punishment, he was sentenced, consistent with the jury’s

ruling, to fifty years’ imprisonment and was ordered to pay a $5,000.00 fine. On appeal, Obeso

argues that the trial court (1) erred in accepting his guilty plea in the absence of a written waiver

of a jury trial on guilt/innocence and (2) failed to properly advise him that he was entitled to a

jury trial on guilt/innocence. 1 We find that the trial court’s failure to obtain a written waiver of

trial by jury on guilt/innocence was harmless error because the record establishes (1) that the trial

court orally admonished Obeso of the risks and consequences that follow waiver of the right to a

trial by jury and (2) that Obeso, notwithstanding those admonishments, intelligently and

knowingly waived that right.

       Under Texas law, a criminal defendant against whom the death penalty is not sought may

waive his right to a jury trial. TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (West Supp. 2013). To

comply with the statutory requirements of Article 1.13(a), a jury trial 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.” Id.

       The record in this case includes a written waiver of a jury trial on guilt/innocence signed

by Obeso’s counsel and the State. However, the waiver was signed by neither Obeso nor the

trial court judge, whose signature evidences approval of the waiver. Obeso claims that the



1
 In our cause numbers 06-13-00139-CR and 06-13-00140-CR, Obeso also appeals, on the same grounds, his
convictions for burglary of a habitation and possession of a controlled substance.

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deficiencies in the written waiver, coupled with the lack of trial court admonishments regarding

waiver, warrant reversal of his conviction.

       While failure to comply with Article 1.13(a) is statutory error, it is not always harmful

error. Johnson v. State, 72 S.W.3d 346, 348–49 (Tex. Crim. App. 2002); see Hobbs v. State, 298

S.W.3d 193, 203 n.43 (Tex. Crim. App. 2009). We conduct a harmless error analysis under Rule

44.2(b) of the Texas Rules of Appellate Procedure to determine whether Obeso’s substantial

rights were affected by the violation of Article 1.13(a). Johnson, 72 S.W.3d at 347–48; see TEX.

R. APP. P. 44.2(b). In the absence of written waiver or a recitation in the judgment that Obeso

waived the right to be tried by a jury on guilt/innocence, we look to see whether Obeso was

aware of this right and whether he intelligently and knowingly waived this right in open court.

Johnson, 72 S.W.3d at 348.

       Obeso understood that he was being tried for aggravated assault, burglary of a habitation,

and possession of a controlled substance. The following exchange between Obeso and his

counsel established that Obeso was pleading guilty to these charges in exchange for the State’s

agreement to (1) abandon five other charges and (2) limit the introduction of evidence relating to

the abandoned charges:

              MR. STOVALL: Mr. Obeso, you understand that we were set for trial
       today on a guilt/innocence case on the burglary of a habitation case as we
       discussed many occasions. Do you understand that?

               MR. OBESO: Yes.

               MR. STOVALL: You understand also the State had previously made an
       offer that would allow you to plead guilty to three charges and dismiss and not
       bring up in front of the jury the other five charges that you have?

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               MR. OBESO: Yes.

               ....

               MR. STOVALL: Do you now as a witness under oath under the penalty
       of perjury state to us, all of us, that it is your intention to enter your plea of guilty
       to the one aggravated robbery, one burglary of a habitation, and one possession of
       controlled substance in exchange for the other five cases being not mentioned and
       never prosecuted?

               MR. OBESO: Yes.

       Prior to accepting Obeso’s plea on guilt/innocence, the court engaged in the following

discussion with Obeso:

              THE COURT: Do you understand what we’re doing here today, the fact
       that we’ve selected a jury and that we’re fixing to have a trial in these cases where
       you are the Defendant?

               THE DEFENDANT: Yes.

              THE COURT: Have you had a chance to talk at great length with your
       attorney, Mr. Corky Stovall, concerning these proceedings and the business that is
       at hand?

               THE DEFENDANT: Yes.

               ....

               THE COURT: All right, now, with regard to accepting your plea of
       guilty, I’m going to advise you, sir, that if you plead guilty, the Court is going to
       find you guilty, and that those findings of guilt can be used to enhance
       punishment against you if you’re ever charged with another crime. Do you
       understand that?

               THE DEFENDANT: Yes.

               THE COURT: Knowing that, you still want to go forward?

               THE DEFENDANT: Yes.

                                                  4
                  ....

                 THE COURT: And also, Mr. Obeso, you have the right to a jury trial.
         And matter of fact, a jury has been selected to try these three cases on punishment
         because, based on what you told me before, I understand that’s the election
         you’ve made. But you’ve got the right to a jury trial on whether or not you are
         guilty of these charges. As to that issue, whether or not you’re guilty or not, are
         you waiving the right to a jury trial on that issue?

                  THE DEFENDANT: Yes.

                  THE COURT: And you’re waiving that right in all three of these cases?

                  THE DEFENDANT: Yes.

The record shows that Obeso knew of his right to a trial by jury on guilt/innocence and

personally gave express consent in open court, intelligently and knowingly. 2

         “[T]he purpose of [Article 1.13] is to ensure that a defendant is fully aware of his right to

have a jury . . . .” Smith v. State, 223 S.W.3d 690, 696 (Tex. App.—Texarkana 2007, no pet.). If

the record demonstrates he was fully aware of his right to a jury trial, no harm can be shown. Id.

We find, based on this record, that although Article 1.13(a) was violated, the error did not affect

Obeso’s substantial rights. Therefore, the error was harmless. We overrule Obeso’s points of

error.




2
 Obeso does not challenge the trial court’s finding that he was competent to stand trial, and he does not argue that
the trial court omitted any other required admonishment. Although Obeso does argue for the first time on appeal
that he did not speak or write English well, the record established that Jon Kregel, a certified translator, was present
during Obeso’s private meetings with his attorney and was translating the proceedings in court. The court instructed
Obeso to notify him if there was any question or point which needed further translation or clarification.
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      We affirm the trial court’s judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:      March 13, 2014
Date Decided:        April 25, 2014

Do Not Publish




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