John Daniel Alexander v. The State of Texas--Appeal from 283rd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-135-CR

JOHN DANIEL ALEXANDER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 283rd District Court

Dallas County, Texas

Trial Court # F93-70538-JT

O P I N I O N

Appellant Alexander appeals from his conviction for burglary of a motor vehicle (enhanced by two prior felony convictions), for which he was sentenced to twenty-five years in the Texas Department of Criminal Justice.

Appellant was charged by indictment with the offense of burglary of a vehicle. Appellant pled nolo contendere before the court and orally waived his right to a jury. After hearing evidence, the court found Appellant guilty; in the punishment hearing, the court found two enhancement paragraphs to be true; and sentenced Appellant to twenty-five years in prison.

Appellant appeals on one point of error: "Appellant failed to execute a written waiver of his right to a trial by jury, thereby rendering his plea involuntary."

Appellant's case was called on March 23, 1994. The court explained the possible penalty range for the offense, and Appellant was asked if he wished to have a jury trial or, "Do you want to waive a jury?" Appellant replied, "I'd rather waive a jury." Appellant then pled nolo contendere to the burglary and "not true" to the enhancement paragraphs.

At the conclusion of the evidence, the trial court found Appellant guilty as charged in the indictment; after the punishment hearing, found the two enhancement paragraphs to be true, and sentenced Appellant to twenty-five years.

On September 19, 1994, the trial court held a hearing on Appellant's motion to amend the record because a written jury waiver form was not included in the record. At the conclusion of the hearing, the trial court entered its findings of fact as follows:

1.The judgment recites that Appellant waived his right to trial by jury in accordance with Article 1.13 of the Texas Code of Criminal Procedure.

2.The clerk's file does not contain a written waiver form.

3.The trial prosecutor testified that she signed the jury waiver form but could not recall if Appellant signed the form.

4.The trial court has no independent recollection of how the jury waiver was handled in the case.

5.Appellant testified that he did not sign a jury waiver form.

6.Appellant testified he was orally admonished as to his right to a jury trial, that he was aware of his right to a jury trial, that he did not object to being tried without a jury, and that he did not indicate that he wanted a jury trial.

7.The record does not reflect all of the necessary steps for a valid waiver of a jury trial as required by Article 1.13 of the Texas Code of Criminal Procedure.

Appellant argues that his conviction should be reversed because the record does not contain a written jury waiver form as required by Article 1.13 of the Texas Code of Criminal Procedure. The State contends Appellant is precluded, under the Helms rule, from raising the issue because his non-negotiated plea of nolo contendere was voluntary and the alleged error is a non-jurisdictional error that occurred prior to Appellant entering his plea. In Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972), the court held that "where a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects, including claimed deprivation of federal due process, are waived." The same effect are: Shallhorn v. State, 732 S.W.2d 636, 637 (Tex. Crim. App. 1987); Morin v. State, 632 S.W.2d 265, 268 (Tex. Crim. App. 1983); Dunmar v. State, 853 S.W.2d 184 (Tex. App. Corpus Christi 1993); and Soto v. State, 837 S.W.2d 401, 403 (Tex. App. Dallas 1992).

There was no plea bargain in this case. Appellant orally waived a jury prior to entry of his non-negotiated plea of nolo contendere. Under the foregoing authorities, Appellant waived his right to a signed jury waiver, which is a non-jurisdictional defect.

Appellant's point is overruled and the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 26, 1995

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