Appellant, Ken R. Sluis, pled not guilty to Class A misdemeanor assault and was convicted after a court trial. The court assessed punishment of 60 days in jail, probated for one year, and a $300 fine. In five points of error, appellant argues his *Page 411 conviction should be reversed because the record does not reflect he executed a written waiver of his right to a jury trial. We reverse.
Upon making a diligent search of the criminal case file, micrographic records, and closed files section of the District Clerk's office, a document of Jury Waiver can not be located.
We will continue to search for the above mentioned document and upon its location will supplement the appeal record.
A hearing was conducted in the trial court in accordance with our order. A record of the proceedings, along with the trial court's findings and recommendations, were forwarded to this Court.
At the hearing, Linda Hawkins, clerk of Harris County Criminal Court at Law Number 8, testified she did not find a written jury waiver in the file of this cause, nor any indication that such a waiver was ever filed. She also testified it was not uncommon for something to be missing from a clerk's file. Appellant testified he did not waive his right to a jury trial either orally or in writing. Appellant's trial counsel testified he did not recall filing a waiver of jury trial in this case. In its written findings, the trial court concluded:
the appellant, on advice of counsel, requested a trial to the court, both orally and in writing; that in all likelihood, the written waiver of a jury trial was executed by the appellant and filed, but for some reason is not now in the clerk's file.
The defendant in a criminal prosecution for any offense other than a capital felony case in which the State notifies the court and the defendant that it will seek the death penalty 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.
Tex. Code Crim. P. art. 1.13(a).
Since September 1, 1991, the requirement that a jury waiver be in writing has applied to misdemeanor cases, as well as felonies. Khan v. State, 881 S.W.2d 60, 60-61 (Tex.App.-Houston [1st Dist.] 1994, no pet.); see also Samudio v. State,648 S.W.2d 312, 313 (Tex.Crim.App. 1983); Act of May 27, 1991, 72nd Leg., R.S., ch. 652, § 1, 1991 Tex. Gen. Laws 2394, 2394.
We further held that the error was non-constitutional. Therefore, any error, defect, irregularity, or variance that did not affect substantial rights must be disregarded. See Tex.R.App.P. 44.2(b). We concluded that the King1 definition of when a substantial right is affected ("when the error had a substantial and injurious effect or influence in determining the jury's verdict") was awkward to apply in the context of a bench trial. We therefore looked to the federal courts for guidance and adopted the following rule:
Trahan, 991 S.W.2d at 941.[I]f the record contains no written jury waiver, we will find that the defendant's "substantial rights" have been affected unless the record clearly reflects that the defendant personally gave express consent in open court, intelligently and knowingly.
In the present case, no written waiver of jury trial can be found, and no waiver is reflected either in the reporter's record or as an entry on the judge's docket sheet. The judgment recites that "[t]he defendant waived his right of trial by jury"; however, this is insufficient because the record must reflect that the waiver was in writing. Khan, 881 S.W.2d at 61; Trahan, 991 S.W.2d at 939. Appellant testified he did not waive his right to jury trial. His counsel did not recall filing a written jury waiver. There was no evidence that appellant executed a written waiver of jury trial. In its findings and recommendations, the trial court concluded that appellant, "in all likelihood," requested a court trial, both orally and in writing because appellant signed a case reset form, setting the case for "Ct Trial." The reset form is in the clerk's record, and we have examined it. The form is not a waiver of right to jury trial, does not mention the right, and cannot substitute for a waiver of right to jury trial.
Despite the trial court's detailed findings, we conclude that appellant did not waive his right to jury trial in writing, as required by article 1.13(a) of the Code of Criminal Procedure. We further hold that appellant's "substantial rights" were affected because the record does not reflect that appellant personally gave express consent in open court, intelligently and knowingly. Trahan, 991 S.W.2d at 941; Tex.R.App.P. 44.2(b).
We sustain point of error three.
We reverse the judgment and remand the case to the trial court.