concurring.
The majority conditionally grants the writ of mandamus sought in this case on the basis that the judge was without authority to enter the judgment in this case. The majority’s decision rests on its contention that, because the record does not show that the defendant did in fact enter a plea to the indictment, the “trial” was a nullity. I agree with the result reached by the majority, but for different reasons. Accordingly, I concur in the result only.
I agree with the majority that the statement in the order of the trial judge that “The Defendant ... entered his plea of Not Guilty” may not be conclusive in this case. See Perez v. State, 578 S.W.2d 753, 754 (Tex.Crim.App.1979) (en banc). However, a defendant may waive his right to enter a plea to the indictment, in which case the *791judge will enter a plea of “Not Guilty” on his behalf. TEX.CODE CRIM.PROC.ANN. art. 26.12 (Vernon 1966). Thus, in a trial to a jury, by failure of a defendant to object to the jury charge and to the court order, both of which recite that he has entered a plea of not guilty, the defendant has waived his right to plead to the indictment and the court’s statement constitutes entry of a plea of not guilty. See Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App.1964) (where defendant did object to both the jury charge and the court’s order, he did not waive his right to enter a plea); Seale v. State, 158 Tex.Cr.R. 440, 256 S.W.2d 86, 88 (1953) (defendant failed to object to jury charge, thereby waiving his right to plead, and the judge also thereby entered a plea of not guilty for him). Similarly, I would hold that, in a trial to the judge, failure to object to an order reciting that the defendant had entered a plea results in a waiver of that right and thereby constitutes entry of a plea of not guilty on behalf of the defendant by the judge.
Furthermore, the majority apparently ignores article 44.24 of the Code of Criminal Procedure which provides in pertinent part:
(a) The courts of appeals ... shall presume that ... [the defendant] pleaded to the indictment or other charging instrument ... unless such matters were made an issue in the court below, or it otherwise affirmatively appears to the contrary from the record.
(Vernon Supp.1986). There is no showing that failure to enter a plea was made an issue in the trial court. Thus, we must look to the record, to see if it “affirmatively” shows that a plea was not entered. Here, the record contains no such affirmative showing. At most, a portion of the record is silent on this issue, while another portion, the order of the court, affirmatively supports the presumption. Silence in the record does not amount to an “affirmative” showing. See Ward v. State, 168 Tex.Cr.R. 493, 329 S.W.2d 887, 888 (1959) (recitations in court’s charge to the jury and in the judgment refuted the claim that no plea was entered); Vasquez v. State, 653 S.W.2d 492, 494-95 (Tex.App. — Corpus Christi 1983), aff'd, 665 S.W.2d 484 (Tex.Crim.App.1984) (although statement of facts failed to show that defendant entered his plea before the jury, the presumption in article 44.24 prevails where no objection was made at trial and the issue was not raised in a motion for new trial. Furthermore, the judgment recited that a plea of not guilty was entered). Thus, the presumption under article 44.24 should control in this case. Consequently, the purported lack of a plea cannot be a basis for holding that the “trial” in this case was a nullity.
However, I would still hold this purported trial to be void and of no effect because the trial judge had no authority to grant the defendant’s motion for a directed verdict without the appearance by or approval of the State. The courts of Texas must look to the Constitution of this state, the statutes enacted by the legislature of this state, and the common law of this state for their authority to act. If such power has not been conferred upon them, and did not exist at common law, then the attempted exercise of such power by the court is ineffectual and void. Malley v. State, 125 Tex.Cr.R. 625, 69 S.W.2d 765, 766 (1934); State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 175 (1930).
It is clear that, if the action of the trial judge were characterized as a dismissal of the case, his action would be void because he has no authority to take such action. TEX.CODE CRIM.PROC.ANN. art. 32.02 (Vernon 1966); Wallace v. State, 145 Tex.Cr.R. 625, 170 S.W.2d 762, 764 (1943); Malley, 69 S.W.2d at 766; State v. Anderson, 26 S.W.2d at 176. Similarly, we have been cited to no source of authority in the trial court to render a directed verdict against the State in a criminal case for failure to appear when the case was called for trial. There is no contention that the Speedy Trial Act would apply to the facts here, nor is this an instance in which the State appeared but was unable to prove up its case. I consequently see no basis in the facts of *792this case for upholding the trial court’s rendition of, in effect, a default judgment.
Furthermore, provisions of the Code of Criminal Procedure indicate that the court has no such authority to render a default against the State. Article 2.03 provides in pertinent part:
“(b) It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant ...” [Emphasis added.]
(Vernon 1977). This statute places an affirmative obligation upon the trial court to insure that the State,' as well as the defendant, receives a fair trial. The trial court has not fulfilled this obligation when it enters a directed verdict against the State for failure of the prosecuting attorney to appear promptly.
In addition, another course of action was open to the trial court, which action would both protect the interests of the State and insure that trial was not unduly delayed due to the neglect or indifference, if any, of one prosecuting attorney. See TEX.CODE CRIM.PROC.ANN. art. 2.07 (Vernon 1977). Under this statute, the judge of the court could have appointed an attorney pro tern to perform the duties of office during the absence, if any, of the attorney for the State. Finally, the court may have been justified in imposing some sanctions against the attorney representing the State under these circumstances (See e.g. TEX. REV.CIV.STAT.ANN. art. 312 (Vernon 1973)), but such sanctions could not be imposed against the State itself, absent some affirmative grant of such authority.
Consequently, I would hold that, regardless of whether this action is characterized as a dismissal of the ease without permission of the State’s attorney or a default or directed verdict entered against the State without its appearance or approval, this action of the trial court was void. As a result, I concur only in the result reached by the majority in this case.