Opinion
No. 05-11-00527-CR No. 05-11-00827-CR No. 05-11-00828-CR
07-25-2012
ERIK JERMAINE BOWEN, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRM; Opinion issued July 25, 2012
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 401-80666-09, 401-80667-09, and 401-80668-09
OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice FitzGerald
Appellant Erik Jermaine Bowen was charged with two counts of deadly conduct and one count of aggravated assault. He waived his right to a jury trial. After a bench trial, he was convicted and sentenced to fifteen years in prison on each of the deadly conduct counts and thirty years in prison on the aggravated assault count. On appeal, appellant complains about the denial of his motion to withdraw his jury waiver and the denial of his oral motion for continuance. We affirm.
I. Background
The evidence at trial supported the following facts. Brian Sarty and his wife Amy lived in Anna, Texas. At around two o'clock in the morning on September 1, 2008, Amy told Brian that she had gone to close the garage door of their home and she had seen someone run out of the garage. Brian went outside and walked down the street to see if anything else was going on. On the way back to his house, he heard a dog barking, and he walked into the gap between two other houses on his street to investigate. Someone was there behind an air-conditioning unit, and the person stood up and fired two shots. Brian turned and ducked, and the person ran past him. Brian chased the person down the street, and the person fired two more shots back at Brian as he ran. After chasing the person about two blocks, Brian tackled him. The person bit Brian in the abdomen area and also struck Brian across the head with the gun. Then the assailant ran to a parked vehicle and drove away. Brian testified that he got a good look at the person he fought with that night, and he identified appellant as the assailant.
On April 2, 2009, appellant was indicted in three separate indictments for two counts of deadly conduct by knowingly discharging a firearm in the direction of a habitation and one count of aggravated assault by biting Brian Sarty and by hitting him on the head with a firearm. On March 9, 2011, appellant appeared before Judge Mark Rusch of the 401st Judicial District Court of Collin County for a hearing. Judge Rusch advised appellant that he was set for jury trial the week of March 21, and he further advised appellant that the trial might be delayed to the week of April 4 because of a possibility that appellant's attorney might be called to trial in federal court during the week of March 21. A week later, appellant filed written jury trial waivers in all three cases. On March 16, visiting judge Webb Biard held a hearing on the jury-trial waivers at which appellant was present. Judge Biard advised appellant of the ranges of punishment, and the prosecutor asked appellant some questions to verify that appellant had not been threatened or promised anything to get him to waive his right to jury trial and that he was voluntarily waiving that right. After that, the State consented to the waiver of jury trial and verified that the bench trial would take place the next week. On March 24, 2011, visiting judge Quay Parker called the cases for trial. Through counsel, appellant announced not ready because he had waived his right to a jury trial based on his past experiences with Judge Rusch and he had expected to be tried by Judge Rusch. He orally moved for a continuance to allow the case to be tried by Judge Rusch, and he alternatively moved to withdraw his waiver of jury trial. The State opposed appellant's motions, citing the age of the case, the victims' need for closure, and the fact that the State had fifteen witnesses prepared to testify that day. After hearing argument, Judge Parker denied appellant's motion to withdraw his jury waiver and proceeded with a bench trial. Appellant pleaded not guilty in all three cases. The case was tried, and Judge Parker found appellant guilty in all three cases. He sentenced appellant to fifteen years in prison on each deadly conduct count and thirty years in prison on the aggravated assault count. The sentences run concurrently. Appellant timely appealed all three judgments.
The prosecutor said on the record that Judge Rusch was absent because of illness.
II. Analysis
Appellant presents two issues on appeal. In his first issue, he argues that the trial judge erred by denying appellant's motion for continuance. In his second issue, he argues that the trial judge erred by denying appellant's motion to withdraw his jury trial waiver.
A.Motion for continuance
At the beginning of trial, appellant orally moved for a continuance so that the case could be heard by Judge Rusch. He moved in the alternative to withdraw his jury waiver. The trial judge expressly denied the motion to withdraw jury waiver, and he implicitly denied the motion for continuance by immediately proceeding to trial.
A motion for continuance that is not in writing and not sworn preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); accord Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009); Sumrell v. State, No. 05-09-00238-CR, 2010 WL 3123302, at *3 (Tex. App.-Dallas Aug. 10, 2010, pet. ref'd) (not designated for publication). Appellant's motion for continuance was not sworn or in writing. Accordingly, appellant failed to preserve his first issue for appellate review.
B.Motion to withdraw jury waiver
In his second issue on appeal, appellant argues that the trial judge abused his discretion by denying his motion to withdraw his jury waiver. The following rules apply. A criminal defendant who has made a valid jury waiver and then moves to withdraw that jury waiver bears the burden of establishing "that his request to withdraw his jury waiver has been made sufficiently in advance of trial such that granting his request will not: (1) interfere with the orderly administration of the business of the court, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the State." Hobbs v. State, 298 S.W.3d 193, 197-98 (Tex. Crim. App. 2009); accord Marquez v. State, 921 S.W.2d 217, 223 (Tex. Crim. App. 1996) (plurality op.). A motion to withdraw a jury waiver is addressed to the trial judge's discretion. Hobbs, 298 S.W.3d at 198. Thus, we will not reverse the trial judge's decision unless the judge abused his discretion. Green v. State, 36 S.W.3d 211, 213 (Tex. App.-Houston [14th Dist.] 2001, no pet.). A trial judge abuses his discretion only when his decision is so clearly wrong as to lie outside the zone of reasonable disagreement. See Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010).
The first factor appellant was required to show was that the withdrawal of the jury waiver would not interfere with the orderly administration of the court's business. Hobbs, 298 S.W.3d at 197. Appellant argues the record supports this element because at the pretrial hearing on March 9, Judge Rusch said that appellant could go to trial the week of March 21 as scheduled or could instead go to trial the week of April 4. Appellant urges that this offer shows that allowing him to withdraw his jury waiver would not have interfered with the court's business. But, as the State points out, appellant did not seek to withdraw his jury waiver until March 24, and he did not show that, as of that date, the court could still give him a jury trial the week of April 4. Moreover, as the State also points out, when appellant moved to withdraw his jury waiver, he did not offer to try the case the week of April 4 but rather suggested the case be reset for April 18. The record does not show whether the court could easily accommodate an April 18 jury-trial setting. We conclude that the trial judge could reasonably decide that appellant failed to carry his burden of proving his motion did not interfere with the orderly administration of the court's business.
The second factor that appellant was required to show was that the withdrawal of his jury waiver would not result in unnecessary delay or inconvenience to witnesses. Id. Appellant again relies on Judge Rusch's March 9 statement that he could try the case the week of March 24 or the week of April 4. According to appellant, this means Judge Rusch implicitly found that there would be no inconvenience to the witnesses to reset the trial. We disagree. Plainly circumstances had changed between March 9 and March 24, when the court called the case for trial and appellant sought to withdraw his jury waiver. On March 24, the State announced that it was ready to proceed to trial and advised that it had fifteen witnesses prepared to testify that day. The State's assertion is corroborated to a large extent by the fact that eleven of its witnesses testified the first day of trial. The appellant put on no evidence that resetting the trial would not inconvenience the witnesses or result in unnecessary delay. The trial judge could reasonably conclude that appellant failed to carry his burden as to the second Hobbs factor.
The third factor appellant was required to show was that the withdrawal of the jury waiver would not prejudice the State. Id. Appellant again relies on Judge Rusch's March 9 statement that the case could be tried during either of two upcoming weeks, asserting this is evidence that the State would not have been prejudiced by the granting of appellant's motion to withdraw jury waiver. The State argued to the trial judge that a delay in the trial to allow for a jury trial would prejudice the State because it was difficult for the State to track down and subpoena all of its witnesses for trial two years after the incident in question. We observe that the trial judge could have sworn the witnesses in and told them to return at the new trial setting. Nevertheless, given the placement of the burden of proof, the trial judge could reasonably conclude that appellant failed to demonstrate a lack of prejudice to the State.
Appellant points out that during the hearing on the validity of his jury waiver, Judge Biard indicated that the bench trial would be before Judge Rusch. Specifically, Judge Biard asked appellant, "And it's your desire to waive the right to a jury trial and go before Judge Rusch?" Similarly, the prosecutor asked appellant during the hearing, "Is it your voluntar[y] choice that you waive a jury and have this case heard by Judge Rusch in the 401st?" But appellant does not explain how these facts support his argument under the Hobbs factors, and we conclude that they do not. They may tend to show a mistaken belief by appellant that he was guaranteed a bench trial by Judge Rusch, and thus that appellant's motion was not made in bad faith. but these facts do not show that Judge Parker abused his discretion under the Hobbs factors.
Appellant relies heavily on Green v. State, 36 S.W.3d 211 (Tex. App.-Houston [14th Dist.] 2001, no pet.), but that case is distinguishable. In that case, the defendant waived his right to a jury trial, but on the day he was set for trial he filed a motion for continuance and a motion to withdraw his jury waiver. Id. at 213. The trial judge granted a continuance of about five weeks but denied the motion to withdraw jury waiver. Id. The court of appeals held that the trial judge abused her discretion, concluding that granting of the continuance amounted to an implicit finding that allowing the defendant to withdraw his jury waiver would not have any adverse effects on the court, the witnesses, or the State. Id. at 215. Because the record contained no controverting evidence of such adverse effects, the court of appeals reversed. Id. at 215-16. In the instant case, by contrast, the trial judge did not grant a continuance after appellant asked to withdraw his jury waiver. Viewing the facts and circumstances in their totality, we hold that the trial judge did not abuse his discretion by denying appellant's motion to withdraw jury waiver.
III. Disposition
For the foregoing reasons, we affirm the judgments of the trial court.
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110527F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ERIK JERMAINE BOWEN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00527-CR
Appeal from the 401st Judicial District Court of Collin County, Texas. (Tr.Ct.No. 401- 80668-09).
Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 25, 2012.
KERRY P. FITZGERALD
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ERIK JERMAINE BOWEN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00827-CR
Appeal from the 401st Judicial District Court of Collin County, Texas. (Tr.Ct.No. 401- 80666-09).
Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 25, 2012.
KERRY P. FITZGERALD
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ERIK JERMAINE BOWEN, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 401st Judicial District Court of Collin County, Texas. (Tr.Ct.No. 401- 80667-09).
Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 25, 2012.
KERRY P. FITZGERALD
JUSTICE