dissenting.
Each of the several judgments entered against relator fail upon their face to comply with the mandate of Art. 10a, Vernon’s C.C.P., in that it is not shown or recited therein that the attorney representing the state in each case consented in writing to the waiver of trial by jury by the relator, and that such written consent was filed in the papers of each case.
The deputy district clerk who had charge of the records and papers in the cases mentioned testified as follows:
“I do not find in these cases any record showing that the District Attorney or his duly authorized Assistant District Attorney signed any waiver of trial by jury before the defendant entered his plea of guilty in any of these cases. I find no such written and signed waiver filed in the papers of any of those cases.”
This testimony was not denied. So then, because of the absence of the written consent of the relator or a showing that such consent was filed among the papers, the undisputed evidence shows that the mandatory provisions of the statute referred to were not complied with.
The judgments are clearly invalid in failing to comply with *36the statute. See: Schoolcraft v. State, 129 Texas Cr. R. 608, 91 S.W. 2d 361; Ex parte Turner, 290 S.W. 2d 520; Ex parte Foster, 162 Texas Cr. R. 191, 283 S.W. 2d 761; Ex parte Dooley, 157 Texas Cr. R. 57, 246 S.W. 2d 631; Thompson v. State, 154 Texas Cr. R. 273, 226 S.W. 2d 872.
In addition to the foregoing, the judgments are invalid by reason of non-compliance with that provision of Art. 10a, Vernon’s C.C.P., which requires “that said consent and approval by the Court shall be entered of record on the Minutes of the Court * * * .”
Such, of necessity, requires that the judgment, which is the entry of record on the minutes of the court, show that the written consent of state’s counsel was filed among the papers of the case.
My brethren overturn this prima facie case of failure to comply with the mandate of the statute and the undisputed evidence showing violation of that mandate because it was the custom and practice of the attorney for the state to file his written consent to the waiver by the accused of his right of trial by jury. My brethren cite no authority sustaining their position, and I know of none.
I know that, here, my brethren by hearsay, innuendo, and presumption are impeaching a judgment of a court of record in the face of positive testimony to the contrary.
A valid judgment is necessary to a sentence, without which there can be no valid sentence.
Under the record before this court relator is entitled to be discharged from further incarceration under the judgments mentioned.
I respectfully record my dissent.