Scott Tyler Lee v. State ( 1991 )

Lee-ST v. State

NO. 10-88-205-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          SCOTT TYLER LEE,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

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From County Court at Law No. 1

Brazos County, Texas

Trial Court # 357-87

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O P I N I O N

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          In this case the Appellant, Scott Tyler Lee, was charged by an amended information with the offense of driving a motor vehicle while intoxicated with one prior conviction alleged, to which Appellant entered a plea of not guilty. Trial was had before the court without a jury, whereupon the trial court found the Appellant guilty and assessed his punishment at a fine of $500.00 and one year in jail, with both the fine and jail time being probated for two years, with the imposition of sentence being suspended pending Appellant's good behavior. Court costs were assessed against the Appellant.

          Appellant comes to this court upon one point of error, wherein he asserts the trial court erred in trying Appellant without Appellant having waived a jury either orally or in writing. We respectfully overrule Appellant's point of error and affirm the trial court's judgment.

          On March 26, 1987, the Appellant and his attorney signed and filed an instrument entitled, "Waiver of Arraignment, Plea of Not Guilty, and Request for Bench/Jury Trial." The word "Jury" was deleted as herein shown. Likewise, in the body of the instrument itself, the Appellant requested that the case "be set on the docket for a jury/bench trial."

          Thereafter on April 17, 1987, Appellant's attorney signed for himself and for Appellant another instrument wherein Appellant announced ready for "jury/bench trial." Here again the word "jury" was deleted. At the top of this second instrument, beside the title of said instrument was recited, "Waiver of Arraignment, Plea of Not Guilty, and Request for Bench/Jury Trial." Here the trial court wrote, "Bench Trial, CDD," same being the trial court's initials. The trial of the case took place on August 1, 1988, as well as the signing by the trial court of the judgment appealed from.

          We are of the opinion and hold that the two written instruments hereinabove described, both of which are a part of the record before us, are sufficient to constitute a waiver of trial by jury on the part of the Appellant.

          Aside and apart from the foregoing, we believe this case should be affirmed for an additional reason: Article 1.13 of the Code of Criminal Procedure provides in essence that in a felony less than capital the defendant has the right to waive his right to trial by jury provided such waiver is made in person by the defendant in writing in open court with the consent and approval of the court and the State's attorney.

          However, in the case before us, Appellant is charged with driving while intoxicated with one previous conviction, which means that Appellant is charged with a misdemeanor. Guinn v. State (Houston 14th CA 1985) 696 S.W.2d 436, PDR refused. This being the case, we must point out that our Court of Criminal Appeals has held that in a misdemeanor case, waiver of jury trial in writing is not necessary, and that an oral waiver of the right to trial by jury is sufficient. Lamb v. State (Tex.Cr.App. 1966) 409 S.W.2d 418 at p. 420; Samudio v. State (Tex.Cr.App. 1983) 648 S.W.2d 312.

          The record before us contains only a partial statement of facts. In the absence of a complete statement of facts, we must presume that the record supports the judgment.

          Judgment of the trial court is affirmed.

                                                                                 JOHN A. JAMES, JR.

                                                                                 Justice (Retired)

Before Chief Justice Thomas,

          Chief Justice McDonald (Retired)

          and Justice James (Retired)

Affirmed

Opinion delivered and filed January 24, 1991

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