concurring.
There is too much said by the State and in the opinion of the Court about “the presumption of regularity of judgments”— as if the sole issue is whether it may be applied in the circumstances of these causes. That approach, I suggest, creates much of the difficulty we are experiencing in not yet finding a satisfactory solution to this problem. Let us address it in another way.
Whether trial be by jury or court is largely an option granted an accused by a combination of constitutional and statutory provisions. Article I, §§ 10 and 15, Constitution of the State of Texas; Articles 1.05, 1.12, 1.13, 1.14 and 1.15, V.A.C.C.P. See generally Turner v. McDonald, 676 S.W.2d 371 (Tex.Cr.App.1984).
Complying with one requisite of a judgment laid down in Article 42.01, V.A.C.C.P., the trial judge signed and caused to be entered of record judgments which recite as historical fact that each accused “in person and in writing, in open court, ... waived his right to trial by jury ...” That is to say, the trial court found that each appellant had exercised his right to waive *452trial by jury — opting instead for a trial before the court.
Though appellants’ respective grounds of error were framed somewhat differently, the essence of their contentions to the court of appeals is that since the record does not contain a written waiver of jury trial executed by each in accordance with Article 1.13, V.A.C.C.P. (notwithstanding a recitation in the judgment that each accused had waived his right to trial by jury), the trial judge erred in conducting a trial-before the court. In short, they sought to reverse their respective convictions on the proposition that when, dehors the judgment, the record on appeal fails to show that an accused exercised a right granted by statute to waive his constitutional right to trial by jury, the resultant judgment of conviction is invalid. The proposition, raised for the first time on appeal, was accepted and upheld by the court below.
The right of a criminally accused person to a trial by jury is constitutionally guaranteed. Article I, §§ 10 and 15, supra. However, appellants have not claimed that right; nor have they complained that it was wrongfully denied. Indeed, though
presented with ample opportunities in the trial court, appellants never expressed any opposition to the ease being heard by the trial court without a jury.1
In Samudio v. State, 648 S.W.2d 312 (Tex.Cr.App.1983) a unanimous Court held that “counseled acquiescence to a non-jury proceeding” does not amount to waiver of right to trial by jury in a misdemeanor case, with respect to which neither Article 1.13 nor any statute governing waiver of jury trial - applies, and that with only a silent record as to waiver the State “failed to meet its constitutional burden of establishing waiver of jury trial,” id., at 315. Of course, here the record is not silent: The judgment of conviction recites that appellant “waived his right to trial by jury.” Thus, the record affirmatively demonstrates a waiver by each appellant, so the State has discharged its constitutional burden.
What appellants are really asserting is that a waiver of jury trial in the manner prescribed by Article 1.13 is not documented in the record. Contrary to the notion expressed in the opinion on original submission, that assertion does not rise to a level of constitutional dimension, for there is no constitutional provision which prohibits an accused from knowingly and intelligently waiving his right to trial by jury in a felony prosecution. Ex parte Ross, 522 S.W.2d 214, 222 (Tex.Cr.App.1975). Samudio is therefore inapposite.
Though it may be said that Article 1.13 “commands that a waiver be made in person and signed by him,” making compliance with its provisions mandatory, Ex parte Felton, 590 S.W.2d 471 (Tex.Cr.App.1979), nothing more is implicated here than an alleged failure in the trial court to conform to statutory prescriptions for showing a waiver of jury trial. We do not know that there was an actual failure to conform— just that the record before the Court does not contain papers reflecting compliance.
The trial court having found that each appellant waived his right to trial by jury, a plethora of procedural means was readily available to contest that finding in the forum of the trial court. A motion for new trial that the court “has committed [a] material error calculated to injure the rights of defendant” is a solid ground under Arti*453ele 40.03, Y.A.C.C.P. and, if supported by the showing appellant now alleges to be the ease, granting a new trial would have placed the cause in the same position as before any trial had been held, Article 40.-08, id. A motion in arrest of judgment suggesting that “judgment has not been legally rendered against him” would lie under Article 41.01, V.A.C.C.P., and related provisions of Chapter Forty One. More informally, at allocution under 42.07, id., an accused could make it known that he had not properly waived his right to trial by jury pursuant to Article 1.13. Thereafter, a formal bill of exception to make the record disclose any event or occurrence relevant to the issue of waiver was available under Article 40.09, § 6(a), id. Even an objection to the record in accordance with Article 40.09, § 7, id., would have it “speak the truth” about any alleged failure to follow Article 1.13.
In these circumstances to resort to “the presumption of regularity of judgments” is but a facile and vacuous methodology of appellate review. Appellants’ contention that the trial court erred in proceeding to trial without a jury simply has not been preserved for appellate review, and that is what we ought to hold. On that basis I join the judgments of the Court.
The judgments of the Houston (14th) Court of Appeals should be reversed and the judgment of the trial court affirmed in Breazeale v. State, our Cause No. 387-83; Higgs v. State, our Cause No. 604-83 should be remanded to the court of appeals to decide his remaining grounds of error.
. As a matter of fact, appellant Higgs states in his brief that his case "was tried to the Court simultaneously with Appellant's Motion to Suppress Evidence,” and the record bears out an "understanding” between the parties and the court to that effect; and for whatever it is worth the record shows that more than six months before actual trial appellant Breazeale agreed to reset the case for "Trial to Court.” If either appellant did not in fact opt for a trial before the court, the time to let that be known to the judge of the trial court and to the prosecution was before announcing ready for trial that manifestly was going to be conducted by the trial judge without a jury, and then joining issue on the indictment. As with nearly every other matter of procedure perceived to be working adversely to the rights or interests of an accused, some character of outcry ought to be made in order that corrective action may be taken. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977).