Opinion filed October 9, 2014




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-12-00124-CR
                                    __________

                CHE PATRICE HUTCHINSON, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee

                      On Appeal from the 35th District Court
                              Brown County, Texas
                         Trial Court Cause No. CR21451

                   MEMORANDUM OPINION
                 ON MOTION FOR REHEARING
      Appellant asserts in his motion for rehearing that we did not fully address his
contention regarding the withdrawal of his jury trial waiver. In this regard, he
executed a written waiver of his right to a jury trial. Appellant signed the written
jury trial waiver on October 25, 2011. It was also signed by Appellant’s trial
counsel, a prosecutor in the district attorney’s office, and the trial judge and was
filed with the district clerk on October 25, 2011. The written waiver provided in
relevant part as follows:
             Defendant voluntarily, intelligently, and knowingly waives his
      right to trial by jury as guaranteed to him by the Constitutions of the
      United States and of the State of Texas with full understanding that
      trial by jury is a valuable right. Defendant has discussed the waiver
      with his attorney and desires that this case be tried to the Court
      without benefit of jury.

      The trial court notified the parties in a letter dated October 25, 2011, that the
case was set for an open plea on January 31, 2012. Appellant and his trial counsel
appeared before the trial court on January 31, 2012.        Appellant’s trial counsel
advised the trial court at the outset of the hearing that Appellant desired to
withdraw his waiver of jury trial. The trial court denied Appellant’s request to
withdraw his jury trial waiver. Appellant subsequently entered an open plea of
guilty to the charged offense.
      In his third point of error, Appellant asserted that the trial court should have
allowed him to withdraw his previous jury trial waiver. He argued in his initial
briefing that his jury trial waiver was invalid.       In our original opinion, we
interpreted Appellant’s argument as solely a complaint about the validity of his
jury waiver. We concluded that his jury wavier did not comply with all of the
statutory requirements because it was not made “in person or in open court.”
However, we also determined that it did not constitute reversible error.
Accordingly, we overruled his third point of error.
      In his motion for rehearing, Appellant asserts that he had an absolute right to
withdraw his jury trial waiver because it was invalid. We note that Appellant did
not present the trial court with either of his contentions: that his jury trial waiver
was invalid or that he had an absolute right to withdraw his jury trial waiver



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because of its alleged invalidity. We held in Beason v. State, No. 11-11-00308-
CR, 2013 WL 4715784, at *2–3 (Tex. App.—Eastland Aug. 30, 2013, no pet.)
(mem. op., not designated for publication), that the failure to present a claim of a
purportedly invalid jury trial waiver to the trial court results in the alleged error not
being preserved for appeal. See TEX. R. APP. P. 33.1. The same principle would
apply to Appellant’s complaint on appeal that he had an absolute right to withdraw
his jury trial waiver because he did not present this contention to the trial court.
Accordingly, Appellant failed to preserve for appellate review his complaints of an
invalid jury trial waiver and an absolute right to withdraw the purportedly invalid
jury trial waiver.
       Additionally, we disagree with Appellant’s contention that he had an
absolute right to withdraw his jury trial waiver. He premises this contention on a
statement in Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009), wherein
the court stated that “once the defendant validly waives his right to a jury trial, he
does not have an unfettered right to reassert that right” (emphasis added). The
court in Hobbs held that a defendant seeking to withdraw his jury trial waiver must
show an “absence of adverse consequences” from granting the withdrawal. Id.
       Appellant surmises that, if a defendant does not validly waive his right to a
jury trial, he has an absolute right to withdraw his waiver. However, Appellant
does not cite any authority in support of this proposition. Moreover, the defendant
in Hobbs was in the same procedural posture as Appellant. The written waiver of
jury trial in Hobbs was filed on the same day as the hearing wherein the defendant
attempted to withdraw the waiver. 1 Id. at 195. Like the facts in this case, there

       1
        As noted previously, Appellant’s written jury trial waiver had been on file for approximately
three months preceding the hearing wherein Appellant attempted to withdraw it. Accordingly, a great
deal more time transpired in this case than in Hobbs between the filing of the jury trial waiver and the
hearing wherein Appellant attempted to withdraw it.


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was not an intervening court appearance wherein the waiver was made in person or
in open court. Irrespective of this fact, the court in Hobbs determined that the
defendant was still required to establish an absence of adverse consequences in
order to establish error on the part of the trial court in denying the defendant’s
request to withdraw his jury trial waiver. Accordingly, we conclude that Appellant
did not have an absolute right to withdraw his written jury trial waiver.
Furthermore, the trial court did not abuse its discretion in refusing to allow the
withdrawal of the waiver because there was no showing that there would not be
any adverse consequences if the requested withdrawal were granted.
      Appellant additionally contends that we did not address all of the matters
wherein he alleged that trial counsel was ineffective. Appellant’s second point of
error addressed his ineffective assistance claim. He asserted numerous instances
wherein trial counsel was purportedly ineffective. Among other things, Appellant
contends that we did not address his contention that trial counsel failed to lodge an
objection under TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (West Supp. 2014)
to the State’s offer of his custodial statement into evidence. In support of this
contention, Appellant asserted as follows in his brief: “Appellant’s statement was
inadmissible because the prosecution offered no evidence to show that the
recording device used was capable of making an accurate recording, the operator
was competent, and the recording was accurate and had not been altered, as
required by §3(a)(3).” Thus, Appellant is asserting that trial counsel should have
objected to the State’s alleged failure to make the proper predicate under
Article 38.22, section 3(a) for the admission of Appellant’s statement.
      To show ineffective assistance of counsel, a defendant must demonstrate
both (1) that his counsel’s performance fell below an objective standard of
reasonableness and (2) that there is a reasonable probability that, but for counsel’s


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unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Andrews v. State,
159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). We conclude that Appellant has
not satisfied either of these prongs with reference to an objection under
Article 38.22, section 3(a). Appellant’s trial counsel may have believed that the
State could have overcome a predicate objection and that, therefore, an objection
would have been futile.     Given the nature of the statutory elements cited by
Appellant concerning capabilities of the recording device, the competency of the
operator, and the accuracy of the recording, it would appear that the State could
have easily overcome a predicate objection. For the same reason, there is not a
reasonable probability that the result of the proceeding would have been different
had trial counsel lodged a predicate objection under Article 38.22, section 3(a).
      Appellant’s motion for rehearing is denied.




                                               JOHN M. BAILEY
                                               JUSTICE


October 9, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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