Kesha Latrice Jenkins v. State

• Court: Court of Appeals of Texas
• Decided: January 9, 2008
• Docket: 10-06-00133-CR
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00133-CR

Kesha Latrice Jenkins,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 05-01970-CRF-361

ABATEMENT ORDER

            Appellant’s brief is overdue in this appeal. 

            Therefore, we abate this appeal to the trial court to conduct a hearing within 30 days of the date of this Order pursuant to Texas Rule of Appellate Procedure 38.8(b)(2) and (3).  Tex. R. App. P. 38.8(b)(2), (3).  This is the third time we have abated this appeal.

            Supplemental Clerk’s and Reporter’s Records are ordered to be filed within 45 days of the date of this Order.  See id.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal abated

Order issued and filed January 9, 2008

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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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