Moncivaiz v. State

OPINION

DORSEY, Justice.

Appellant, Jorge Moncivaiz, was indicted for burglary of a habitation and pled guilty. The trial court, sitting without a jury, deferred the adjudication of guilt and placed appellant on probation for five years. Three years later, the court revoked appellant's probation after finding that he violated several of his probationary terms and conditions. It then adjudged appellant guilty of the original burglary offense and sentenced him to fifteen years in the Texas Department of Corrections. By five points of error, appellant claims his conviction is void because his guilty plea was illegally received and because the plea was not substantiated by the evidence. We reverse and remand.1

By his first point, appellant contends that his guilty plea was received in violation of Tex.Code Crim.Proc.Ann. art. 1.13 (Vernon 1977), in that although he filed a written waiver of jury trial that was approved by the court, a representative of the State did not agree in writing to the waiver.

Article 1.13 states:

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 tke defendant enters his plea, (emphasis ours).

The record contains a written waiver of jury signed by the appellant and approved by the trial judge. However, the signature line for the district attorney as representative of the State consenting to such waiver is blank. The State’s written consent does not appear anywhere else in the record.

*724The absence of a written consent signed by a representative of the State is reversible error in view of the clear statutory mandate of Article 1.18. Hoobler v. State, 730 S.W.2d 755 (Tex.Crim.App.1987); Lawrence v. State, 626 S.W.2d 56, 54 (Tex.Crim.App.1982). That rule applies when the judgment of conviction is under direct appeal, although not when under collateral attack. See Ex Parte Aaron, 691 S.W.2d 680, 683 (Tex.Crim.App.1985). The instant case is a direct appeal, so the rule of Lawrence applies.

However, the order deferring adjudication states as follows:

Thereupon, the Defendant, in person in open court, having waived the right of trial by jury in writing, requested the Court to approve the waiver of jury. The Court then determined that such waiver in writing, signed by the Defendant, had been filed herein before the Defendant entered his plea of guilty and that the attorney representing the State had consented in writing to such waiver. (emphasis ours).

The recitals in a formal judgment of a trial court create a presumption of regularity and truthfulness. Breazeale v. State, 683 S.W.2d 446, 450-451 (Tex.Crim.App.1984). Those recitals will not be set aside unless the record affirmatively reflects that error occurred. Breazeale at 450.

The Breazeale opinion refers to Ex Parte Felton, 590 S.W.2d 471 (Tex.Crim.App. 1979) as an example of a case in which such an affirmative showing was made.

In Felton, the appellant was convicted by the court on his plea of guilty. The judgment contained the following recital:

[I]t appearing to the Court that the Defendant, his counsel, and the State’s attorney have agreed in writing in open court to waive a jury in the trial of this cause and to submit this cause to the Court; and the Court having consented to the waiver of a jury herein, the indictment was read, and the Defendant entered his plea of guilty hereto ... (emphasis ours).

Nevertheless, the Court reversed the conviction under article 1.13 because the printed jury waiver form which was filed with the trial court was not signed by the accused.2

Similarly, in the case at bar, the signature line for the assistant District Attorney on the waiver form is blank. We find this omission constitutes an affirmative showing that appellant’s guilty plea was received in violation of article 1.13. See Breazeale, 683 S.W.2d at 450; Aaron, 691 S.W.2d at 683.

Point of error number one is sustained.

Although we are reversing the conviction based on point one, we will also address appellant’s claimed insufficiency of the evidence. Appellant asserts in his third point of error that his guilty plea is not adequately supported by the evidence because the State failed to show that he entered a habitation without the owner’s consent.

A plea of guilty does not authorize a conviction in a bench trial unless there is evidence offered to support the plea and judgment. Dinnery v. State, 592 S.W.2d 343, 351 (Tex.Crim.App.1980); Tex. Code Crim.Proc.Ann. art. 1.15 (Vernon 1977).

However, in the instant case, no statement of facts of the original deferred adjudication hearing were filed with this Court. Furthermore, appellant has not demonstrated that he has been improperly deprived of the statement of facts. See Timmons v. State, 586 S.W.2d 509, 512 (Tex.Crim.App.1979); Aguirre v. State, 680 S.W.2d 567, 570 (Tex.App.—Corpus Christi 1984, no pet.).

In the absence of a statement of facts, where there is no contention that appellant has been improperly deprived of one, we must assume that sufficient evidence was introduced to support the conviction. Ely v. State, 582 S.W.2d 416, 421 (Tex.Crim.App.1979); Tex.R.App.P. 50(d); Tex.Code *725Crim.Proc.Ann. art. 40.10 (Vernon 1979). We overrule point of error number three.

The judgment of the trial court is REVERSED and the cause REMANDED for new trial.

NYE, C.J., dissents.

. No brief has been filed by the State. We thus do not address the issue of possible waiver of the right of appeal by virtue of a plea bargain agreement pursuant to Tex.Code Crim.Proc. Ann. art. 44.02 (Vernon 1977), now found in Tex.R.App.P. 40(b)(1). See Ex Parte Howard, 685 S.W.2d 672 (Tex.Crim.App.1985); see also Ex Parte Hernandez, 705 S.W.2d 700 (Tex.Crim.App.1986).

. Cf., 683 S.W.2d 446 (presumption of truthfulness of judgment not overcome where no jury waiver form was filed by appellant).