Fournier v. State

Full title: MARANDA NICHOLE FOURNIER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 17, 2009

No. 05-08-01413-CR (Tex. App. Nov. 17, 2009)

Opinion

No. 05-08-01413-CR

Opinion issued November 17, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.

On Appeal from the 380th Judicial District Court Collin County, Texas, Trial Court Cause No. 380-80632-08.

Before Justices O'NEILL, FRANCIS, and LANG.

MEMORANDUM OPINION

Opinion By Justice FRANCIS.

Following a bench trial, the trial court convicted Maranda Nichole Fournier of class A misdemeanor assault and sentenced her to one year in the county jail. In three issues, appellant contends the trial court erred by failing to comply with article 1.13 requirements regarding her written jury waiver; by convicting her when she had not entered a plea; and by denying her a separate punishment hearing. We affirm. Appellant and her former best friend, Brittany Wood, got into a fist fight. Wood appeared to have "won" the fight, and the two were separated. When the fight resumed, appellant had a box cutter and swung it at Wood, cutting her several times on the arm. Wood received thirty-one stitches to close two of the cuts. Appellant was indicted on a charge of aggravated assault with a deadly weapon. At trial, appellant testified her boyfriend gave her the box cutter and that, because she did not have her glasses on, she did not know the object was a box cutter and had not intentionally cut Wood. The trial court convicted appellant of the lesser charge of assault. In her first issue, appellant contends the trial court reversibly erred by failing to comply with the requirements of article 1.13(a) of the Texas Code of Criminal Procedure. Article 1.13(a) provides:

The defendant in a criminal prosecution for any offense other than a capital felony case . . . shall have the right . . . 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. Proc. Ann. art. 1.13(a) (Vernon 2005). Appellant contends her written jury waiver, although signed by her and her counsel, was not signed by the prosecutor or the trial judge and there is no showing the waiver was executed in open court. The State concedes the statutory requirements were not met. The failure to comply with the formalities of article 1.13(a) is statutory error as neither the state nor federal constitution requires a particular procedure to waive the right to a jury. Johnson v. State, 72 S.W.3d 346, 347 (Tex. Crim. App. 2002). We therefore analyze harm under Texas Rule of Appellate Procedure 44.2(b). If the error does not affect "substantial rights," it must be disregarded. Tex. R. App. P. 44.2(b); Johnson, 72 S.W.3d 347. Here, we cannot conclude appellant's substantial rights were affected. The State's written consent to a defendant's jury waiver is meant to protect the State's right to insist on a jury trial even where a defendant wishes to waive a jury. Shaffer v. State, 769 S.W.2d 943, 944 (Tex. Crim. App. 1989) (op. on reh'g). "Thus, the 1.13 State consent requisite protects the interests of the State and not the defendant, and the violation of such a State protective rule, while constituting error, simply cannot constitute error to a defendant or from which a defendant can complain." Id. Similarly, we cannot conclude appellant was harmed by the failure of the trial judge to sign the waiver. Obviously, the trial judge would not have proceeded with the bench trial if he had not consented and approved of the waiver. To the extent appellant suggests the record fails to show "she knew she had the right to be tried by a jury and voluntarily waived that right," we disagree. The clerk's record contains a written waiver, signed by both appellant and her counsel, in which appellant represented she understood she had "the absolute right to trial by jury" whether pleading guilty or not guilty and desired to waive that right and submit the cause to the trial court "on all issues of law and fact." Moreover, the judgment stated that appellant "waived the right of trial by jury," and that recitation is "binding in the absence of direct proof of [its] falsity." Johnson, 72 S.W.3d 349; Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g). As the court in Johnson reasoned, if appellant waived a jury trial, then she "must have known about [her] right to a jury trial, otherwise [she] could not have waived." See Johnson, 72 S.W.3d 349. Finally, the record contains a pass slip signed by appellant and counsel in which the case was set for a trial by jury. Appellant's signature on this slip demonstrates that she knew she had a right to a jury trial. Having reviewed the record, we conclude it shows appellant understood she had a right to a trial by jury and she was not harmed by the trial court's failure to comply with the all of the requirements of rule 1.13. We overrule the first issue. In her second issue, appellant contends the trial court fundamentally erred by convicting her without her having entered a plea to the indictment. The code of criminal procedure requires a plea to be entered in every criminal case. See Tex. Code Crim. Proc. Ann. arts 26.12, 26.13 (Vernon 2009). If no plea is entered, the trial is a nullity. Lumsden v. State, 384 S.W.2d 143, 144 (Tex. Crim. App. 1964). To support her claim that no plea was entered, appellant relies on the reporter's record of the trial, which does not show a plea to the indictment by appellant. The judgment, however, recites that appellant pleaded not guilty. Recitals contained in the judgment create a presumption of regularity and truthfulness, absent an affirmative showing to the contrary, and are binding in the absence of direct proof of their falsity. Johnson, 72 S.W.3d 349; Breazeale, 683 S.W.2d at 450. Moreover, we must presume the defendant pleaded to the indictment unless it was disputed in the trial court or the record affirmatively shows the contrary. Tex. R. App. P. 44.2(c). Given these presumptions, we cannot conclude appellant has shown error. Appellant did not object in the trial court that she had not entered a plea nor did she object post-trial. Nothing in the record affirmatively demonstrates appellant did not enter a plea, and a silent record does not amount to an affirmative showing. See Sharp v. State, 707 S.W.2d 611, 616 (Tex. Crim. App. 1986) (holding that court reporter's affidavit stating indictment read to defendant during arraignment outside presence of jury did not rebut presumption created by judgment that indictment was read to jury and plea taken before jury); Osteen v. State, 642 S.W.2d 169, 171 (Tex. Crim. App. 1982) (concluding silent record did not overcome presumption created by predecessor to appellate rule 44.2(c) that jury properly impaneled and sworn); Ward v. State, 168 Tex. 493, 495 329 S.W.2d 887, 888 (1959) (op. on reh'g) (concluding that recitations in court's charge and in judgment refuted claim no plea was entered). As for appellant's reliance on this Court's opinion in State ex rel. Ownby v. Harkins, 705 S.W.2d 788, 789 (Tex. App.-Dallas 1986, orig. proceeding), we conclude Harkins is distinguishable because the majority opinion did not discuss either presumption relied on here. Moreover, the facts in Harkins were unique. There, the trial judge called the case for trial, but the prosecutor was not in the courtroom. The judge immediately solicited and then granted a defense motion for directed verdict, noting the State failed to appear. The judge later signed an order granting the motion and entering a judgment of not guilty. The order recited the defendant had entered a not guilty plea. In granting the State's request for mandamus relief, this Court concluded the reporter's record at trial "affirmatively show[ed] that no inquiry was made as to how [the defendant] wished to plead and he did not enter a plea." Under those circumstances, the Court determined that because no plea was entered, the trial court's action in granting the motion for directed verdict was a nullity. Here, the record shows appellant was scheduled to plead guilty on August 13, 2008, but on that date the case was passed until September 22 for a trial before the court. On September 23, the trial court called the case and swore in witnesses. At the conclusion of opening statement, the State asked the court to find appellant guilty as charged. Testimony was presented, including appellant's. In closing argument, appellant contended the evidence did not establish guilt beyond a reasonable doubt and asked the trial court to find her not guilty; the prosecutor argued for a verdict of guilty on the charged offense of aggravated assault. The trial court found appellant guilty of misdemeanor assault and assessed punishment. Consequently, given the applicable presumptions, the absence of objection by appellant, and the factual distinctions between this case and Harkins, we conclude fundamental error did not occur. We overrule the second issue. In her third issue, appellant contends the trial court reversibly erred by sentencing her without affording her a separate hearing regarding punishment. At the conclusion of the evidence, the trial court found appellant guilty, immediately imposed punishment, and then asked if there was "anything else from either side[.]" Appellant's counsel replied, "No, Your Honor." Assuming for purposes of this opinion appellant did not waive her complaint by failing to alert the trial court that she wanted to produce punishment evidence when asked if there was "anything else," she nevertheless waived her complaint by failing to raise it in a motion for new trial. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001); Borders v. State, 846 S.W.2d 834, 836 (Tex. Crim. App. 1992) (per curiam) (plurality opinion). We overrule the third issue. We affirm the trial court's judgment.