This is an appeal from a conviction for the offense of aggravated assault. Trial was before the court upon a plea of nolo contendere and punishment was assessed at seven years confinement in the Texas Department of Corrections.
Appellant argues that the record does not contain (1) an effective jury waiver signed by the appellant or (2) a written consent and approval of appellant's jury waiver signed by the State's attorney, both of which are required by Tex Code Crim.Pro.Ann. art. 1.13 (Vernon 1977). Although we find that the record does contain an effective jury waiver by appellant, we hold that it does not contain the written consent and approval by the State as required by this statute. Consequently, we must reverse and remand.
Tex Code Crim.Pro.Ann. art. 1.13 (Vernon 1977) reads:
The defendant in a criminal prosecution for any offense classified as a felony less than capital 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. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him. (Emphasis supplied).
In the record is a document signed by appellant entitled "Agreement To Stipulate — Application For Probation" which states in part: "Defendant having heretofore waived his rights to trial by jury, voluntarily enters his plea of guilty to the charge herein, and requests the Court accept said plea and proceed to trial without a jury." This statement is almost identical to that quoted in Henderson v. State, 619 S.W.2d 175 (Tex.Cr.App. 1981) in which the Court of Criminal Appeals held this language to be sufficient to meet the requirements of article 1.13. We hold therefore, that the record in this case does contain an effective waiver of appellant's right to a jury trial.
Appellant also asserts as error the omission from the record of a written consent to jury waiver signed by the attorney for the State. Compliance with the requirements of article 1.13 of the Texas Code of Criminal Procedure is a prerequisite to a trial without a jury in a felony case. Lawrence v.State, 626 S.W.2d 56 (Tex.Cr.App. 1981); Thompson v.State, 154 Tex.Crim. R., 226 S.W.2d 872 (1950). In the record, the only document signed by the State's attorney is one entitled "State's Recommendation" in which appellant, his attorney and the State's attorney agreed to an "open plea." The State argues that this document, taken together with the recitations of compliance in the judgment, meets the requirements of article 1.13, with regard to a written waiver by the State just as the agreement to stipulate filed inHenderson was held to be sufficient to meet the requirements of a written waiver by defendant. They cite no authority to support this contention other than Henderson. We decline to extend Henderson beyond its express holding. *Page 770
We recognize there are instances where failure to comply with article 1.13 will not require reversal. In the absence of a showing of harm, a valid conviction will not be set aside by habeas corpus or other collateral attack merely because the State failed to sign the consent to the jury waiver of a defendant when the evidence shows that the State agreed to the waiver. Ex parte Collier, 614 S.W.2d 429 (Tex.Cr.App. 1981) (en banc ); Gonzalez v. State, 508 S.W.2d 388 (Tex.Cr.App. 1974). While the instant case falls within the guidelines of Collier in that there is no showing of harm to appellant and no showing that the State's attorney did not consent to the waiver of a jury trial, this case is a direct appeal of the conviction, and is controlled byLawrence. Therefore, no showing of harm is required. The absence from the record of written consent by the State's attorney to appellant's jury waiver is reversible error.
The judgment is reversed and the cause remanded.