Feysal Ayati-Ghaffari v. State of Texas--Appeal from County Court at Law No. 2 of Collin County

11th Court of Appeals

Eastland, Texas

Opinion

Feysal Ayati-Ghaffari

Appellant

Vs. No. 11-00-00245-CR B Appeal from Collin County

State of Texas

Appellee

Appellant was convicted in the municipal court of running a red light and appealed to the county court. After a nonjury trial, the county court convicted appellant and assessed his fine at $200. Appellant has perfected an appeal to this court. We reverse and remand.

In his sole issue on appeal, appellant contends that error occurred when a nonjury trial was conducted in the absence of a written waiver of his right to trial by jury. The State concedes that error occurred but argues that the error was harmless. We disagree.

Both the State and appellant agree that no written waiver was filed and that no waiver was given in open court. TEX. CONST. art. I, ' 15 and TEX. CODE CRIM. PRO. ANN. art. 1.12 (Vernon 1977) provide for the right to trial by jury. TEX. CODE CRIM. PRO. ANN. art. 1.13 (Vernon Supp. 2002) states that this right must be waived in writing in open court by the defendant in person with the consent and approval both of the trial court and the attorney for the State. Article 1.13 further provides that the consent and approval must be entered in the minutes of the trial court and that the approval and consent of the State must be in writing and filed with the papers of the cause. We are not able to determine beyond a reasonable doubt that the undisputed failure to follow the Article 1.13 requirements for waiving the constitutional right of trial by jury did not contribute to the conviction or punishment; therefore, this error is not harmless. TEX.R.APP.P. 44.2(a).

The judgment of the trial court is reversed, and the cause is remanded.

PER CURIAM

January 10, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.