                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00184-CR

NICHOLAS RYAN KUCERA,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                          From the 249th District Court
                             Johnson County, Texas
                             Trial Court No. F44117


                          MEMORANDUM OPINION


      Nicholas Ryan Kucera appeals from his conviction for the offense of driving

while intoxicated, which was enhanced to a third degree felony based on two prior

convictions. TEX. PEN. CODE ANN. § 49.04 (Vernon 2003). Pursuant to a plea bargain,

Kucera was sentenced to imprisonment for ten (10) years in the Texas Department of

Criminal Justice – Institutional Division. The trial court certified that Kucera had the

right to appeal based on the terms of the plea bargain. Kucera complains that the trial

court erred in finding Kucera guilty of the offense without a proper written waiver of
jury trial as required by article 1.13 of the Code of Criminal Procedure. Because we find

no error, we affirm the judgment of the trial court.

        State’s exhibit 1 was admitted into evidence without objection. The exhibit had a

section on page three that was entitled “Felony Waivers, Confession, and Agreement,”

which contained the statement that “the Defendant waives the following rights: trial by

jury….”     Kucera contends that because the paragraph immediately preceding his

signature on page four does not encompass or discuss the waivers on the previous

pages, there was no written waiver of jury trial. That paragraphs states: “By my

signature below I acknowledge that my behavior surrounding drugs or alcohol within

the last year prior to the date of the offense with which I am charged directly or

indirectly contributed to my involvement with the criminal justice system.”

        We do not need to determine whether or not the written waiver was sufficient

because the record clearly reflects that the error, if any, is harmless. The error Kucera

alleges is statutory error, not constitutional error. Because this is not a structural

constitutional error, harmless error analysis is the proper standard of review. Johnson v.

State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002). Under rule 44.2, if the error “does not

affect substantial rights” then it “must be disregarded.” TEX. R. APP. P. 44.2(b); Johnson,

72 S.W.3d at 348. The lack of a written jury waiver is not harmful when the record

reflects that the defendant was aware of his right to a jury trial and waived that right.

Johnson, 72 S.W.3d at 349. In the absence of direct proof of its falsity, a recitation in the

judgment that a defendant “waived trial by jury” is binding. Id.



Kucera v. State                                                                        Page 2
        In this case, the record reflects that Kucera was aware of his right to trial by jury

and waived that right. At the beginning of the hearing on his guilty plea, Kucera told

the trial court that he had signed a waiver of his right to a jury trial, that he understood

he had a right to a jury trial, and that he had signed the waiver freely and voluntarily.

Furthermore, the judgment recites that Kucera “agreed in open court and in writing to

waive a jury in the trial of this cause and to submit it to the Court.” Kucera has not

presented any evidence asserting that the recitation concerning the jury waiver is

actually false. Absent direct proof to the contrary, the recitation in the judgment that

Kucera waived his right to a jury trial is binding on this Court. See id. Thus, even if

article 1.13(a) was violated, Kucera was not harmed by the violation. We overrule

Kucera’s sole issue.

Conclusion

        We find that, because Kucera understood that he had the right to a jury trial and

that he freely and voluntarily waived that right, any error in the waiver of right to jury

trial was harmless. We affirm the judgment of the trial court.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed September 1, 2010
Do not publish
[CR25]


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