Townsend v. State

865 S.W.2d 469, 1993 Tex. Crim. App. LEXIS 173, 1993 WL 457207

• Court: Court of Criminal Appeals of Texas
• Decided: November 10, 1993
• Docket: 109-93
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

In a trial before the court in 1992 Appellant was convicted of driving while intoxicated. The court found an enhancement allegation true and assessed punishment at confinement for two years, probated for two years, and a $300 fine. The Court of Appeals affirmed his conviction. Townsend v. State, 846 S.W.2d 386 (Tex.App.—Houston [14th Dist.] 1992).

At the hearing on a motion for new trial, Appellant testified he never executed a written waiver of his right to a jury trial. He also testified he knew he was entitled to a trial by jury, but he accepted counsel’s advice and chose to be tried by the court. The Court of Appeals held that the trial court violated Article 1.13(a), V.A.C.C.P., by failing to obtain a written jury waiver. However, the appellate court concluded that the error was harmless. We granted Appellant’s petition to determine whether the Court of Appeals erred in conducting a harm analysis.

The State responds that Art. 1.13 does not apply to misdemeanor cases and that the Court of Appeals should not have reviewed the merits of Appellant’s point of error because Appellant did not include the statement of facts from the guilt and punishment phases of trial in the appellate record. The State has not cross-petitioned for, nor have we granted, review of the Court of Appeals’ holdings on these matters; therefore, we will not address them.¹ Haughton v. State, 805 S.W.2d 405, 407 n. 1 (Tex.Cr.App.1990); Keith v. State, 782 S.W.2d 861, 863 n. 4 (Tex.Cr.App.1989); Wilson v. State, 772 S.W.2d 118, 120 n. 3 (Tex.Cr.App.1989).

Turning to the propriety of a harm analysis, we note the Court of Appeals decided this case before this Court issued the opinion in Meek v. State, 851 S.W.2d 868 (Tex.Cr.App.1993). In Meek, we held that a violation of Art. 1.13’s requirement that a defendant sign and file a jury waiver is not subject to a harm analysis. Id. at 871.

The State contends a harm analysis in this case would be appropriate and would show the error was harmless. We adhere to our holding in Meek based on the rationale therein and as further explained in Warmowski v. State, 853 S.W.2d 575, 578 (Tex.Cr.App.1993), and Marin v. State, 851 S.W.2d 275, 281-82 (Tex.Cr.App.1993). Error in trying a defendant before the court without the defendant’s written jury waiver requires reversal.

The judgments of the Court of Appeals and the trial court are reversed, and this cause is remanded to the trial court.

McCORMICK, P.J., concurs in the result.

1 . Wc point out that the Court of Appeals relied on State ex rel. Curry v. Carr, 847 S.W.2d 561 (Tex.Cr.App.1992), in which this Court held that Art. 1.13(a) as amended in 1991 applies to misdemeanor cases, entitling the State to have a misdemeanor case tried before a jury when the State does not consent to and approve a defendant's jury waiver.