I respectfully dissent. It is agreed by the parties that there is no signed, written waiver by appellant in the record. Nor is there any record of an oral waiver in open court. There is only a brief reference to the waiver of a jury trial in a pre-printed judgment form: "The Defendant having been duly arraigned, waived trial by jury, pleaded [a blank with NOT GUILTY inserted] to the information herein, and submitted to the court."

A knowing waiver is an intentional relinquishment or abandonment of a known right or privilege. Robles v. State, 577 S.W.2d 699, 703 (Tex. Crim. App. 1979). For a waiver to be valid the record must show that it was voluntarily and knowingly made. Robles, 683 S.W.2d at 703. A silent record cannot support a presumption that a defendant affirmatively and knowingly waived the right to a trial by jury. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1985); Guillett v. State, 677 S.W.2d 46, 49 (Tex. Crim. App. 1984). Here, the only mention of the waiver of a jury trial is on the pre-printed judgment form, a document not ordinarily seen by a defendant. The record is otherwise silent regarding appellant's level of knowledge as to his right to trial by jury and any waiver of that right. Even if the record clearly established that appellant knew of his right to trial by jury, knowledge that a right exists in no way supports an automatic finding that a waiver of that right was knowing and voluntary, or even that the right was waived.

While it is true that there is a presumption of regularity in the judgment of a trial court, this presumption can be overcome. ⁽¹⁾ Breazeale, 683 S.W.2d at 450; Ex parte Reed, 610 S.W.2d 495 (Tex. Crim. App. 1981). In the instant case, I believe that this presumption has been overcome by the lack of any reference anywhere in the record to any affirmative, knowing waiver by appellant of a jury trial, written or oral. There is nothing in the record to support a finding that the trial court informed appellant of his right to a trial by jury and that appellant affirmatively and knowingly gave up this right in open court.

The state appears to have misread the opinion of the court of appeals. Contrary to the state's allegations in its first ground for review, ⁽²⁾ the court of appeals applied the correct standard for harm analysis of a non-constitutional error, citing twice to Tex. R. App. P. 44.2(b), and finding under that section that the error affected the defendant's substantial rights. ⁽³⁾ Johnson v. State, 984 S.W.2d 736, 738 (Tex. App. - Waco, 1998, pet. granted). As to the state's second ground for review, ⁽⁴⁾ the court of appeals noted that the wording of the federal and Texas statutes regarding written waiver of jury trial are "substantially identical," and stated that "we consider the absence of a written jury waiver from the record to be a statutory error." Johnson, 984 S.W.2d at 738. It then quoted the federal standard as to waiver of jury trial ⁽⁵⁾ and cited authority for that standard, including a case from the United States Court of Appeals for the Fifth Circuit. Based on the similarity of wording between the Texas and federal statutes, the court of appeals applied the federal standard ⁽⁶⁾ and held that "the record in no way reflects that Johnson personally and expressly waived his right to a jury trial in open court" and that appellant's "'substantial rights' have been affected." Id. The record supports this holding. Accordingly, I would affirm the judgment of the court of appeals.

Johnson, J.

Date delivered: April 10, 2002

Publish

1. It is arguable that the presumption of regularity should not apply here. Tex. R. App. P. 44.2(c) reads:

Presumptions. Unless the following matters were disputed in the trial court, or unless the record affirmatively shows the contrary, the court of appeals must presume:

(1) that venue was proved in the trial court;

(2) that the jury was properly impaneled and sworn;

(3) that the defendant was arraigned;

(4) that the defendant pleaded to the indictment or other charging instrument; and

(5) that the court's charge was certified by the trial court and filed by the clerk before it was read to the jury.

Waiver of rights is not mentioned in this list.

2. "The Johnson court's analysis in internally inconsistent: after correctly concluding that there was nonconstitutional error, the court adopts a federal test designed to determine if there was constitutional error instead of reviewing the case for nonconstitutional harm under Tex.R.App.P. 44.2(b)." Emphasis in original.

3. The dissent does appear to have, incorrectly, applied the constitutional standard of Tex. R. App. P. 44.2(a), saying that "the complained of error had no effect on the verdict." Johnson at 739.

4. "The federal test adopted in Johnson improperly transforms appellant's complaint about the failure to comply with the statutory requirement of executing a written jury waiver into an altogether different issue - i.e., whether appellant waived a jury."

5. "A defendant may not effectively waive his right to a jury trial without meeting Rule 23's 'in writing' requirement. The only exception is where the record clearly reflects that the defendant 'personally gave express consent in open court, intelligently and knowingly.' United States v. Saadya, 750 F.2d 1419, 1420 (9^th Cir. 1985)(quoting United States v. Reyes, 603 F.2d 69,71 (9^th Cir. 1979)); accord United States v. Lockwood, 604 F.2d 7, 8 (5^th Cir. 1979)." Johnson at 738. Under the federal standard, a waiver may be written or oral, but there must be a record of it.

6. "Thus, if the record contains no written jury waiver, we will find that the defendant's 'substantial rights' have been affected unless 'the record clearly reflects that the defendant 'personally gave express consent in open court, intelligently and knowingly.''" Johnson at 738.