Trahan, Linda Diane v. State ( 2003 )

  Memorandum Opinion issued January 23, 2003

In The

Court of Appeals

For The

First District of Texas

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  NO. 01-96-01232-CR

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LINDA DIANE TRAHAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 727065

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MEMORANDUM OPINION ON REMAND FROM THE

COURT OF CRIMINAL APPEALS

          After a court trial, Linda Diane Trahan, appellant, was convicted of possession of cocaine weighing more than one gram and less than four grams. Appellant pled true to three prior felony enhancements, and the trial court sentenced her to 30 years confinement. In our May 13, 1999 opinion, we found the record did not contain a written jury waiver or statement in open court waiving her right to a jury trial, and we reversed the judgment. Trahan v. State, 991 S.W.2d 936 (Tex. App.—Houston [1st Dist.] 1999). The State filed a petition for review, and, on June 26, 2002, the Court of Criminal Appeals vacated our previous judgment and remanded the cause so we could have the benefit of its decision in Johnson v. State, 72 S.W.3d 346 (Tex. Crim. App. 2002).

          Article 1.13(a) of the Code of Criminal Procedure provides, in part, that the defendant “shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such 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.” Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp. 2003). In Johnson, the Court of Criminal Appeals concluded that, although article 1.13 was violated, Johnson was not harmed by the violation because the record reflected that he was aware of his right to a jury trial and opted for a bench trial. Johnson, 72 S.W.3d at 349. Because Johnson merely alleged that there was no written jury waiver, and not that there was no jury waiver at all, he alleged statutory error, not constitutional error. Id. at 348. The judgment recited that Johnson “waived trial by jury,” and that recitation is binding in the absence of direct proof of its falsity. Id. at 349; Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984).

          On appeal, appellant argues that her case is different from Johnson because appellant did not knowingly waive her right to a trial by jury, unlike Johnson who merely claimed that there was no written documentation of his knowing waiver of a jury trial. Appellant does not provide any evidence in this record to support her contention that she did not knowingly waive her right to a trial by jury. All of appellant’s actions reflect that she knowingly waived a trial by jury. First, appellant and her attorney signed an agreed setting form on August 30, 1996 setting the case for a court trial on September 27, 1996. Second, the court conducted a trial without a jury on September 27, 1996, and appellant’s counsel did not object to the absence of a jury. Third, the trial court’s judgment affirmatively states “the defendant waived his right of trial by jury.” The judgment’s recitation is binding in the absence of direct proof of its falsity. Johnson, 72 S.W.3d at 349; Breazeale, 683 S.W.2d at 450.

          Although article 1.13 was violated, appellant was not harmed by the violation because the record reflects that she was aware of her right to a jury trial and opted for a bench trial.

Conclusion

          We affirm the judgment.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.

Do not publish. Tex. R. App. P. 47.2 (b).