No. 05-02-01124-CR
Opinion Filed July 3, 2003 Do Not Publish
On Appeal from the County Court, Rockwall County, Texas, Trial Court Cause No. CR01-1254. AFFIRM
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion By Justice Wright.
Rustyn Mack Ratcliff appeals his conviction for driving while intoxicated (DWI). After finding the appellant guilty, the trial court assessed punishment at confinement for 120 days, probated for two years. In two points of error, appellant contends (1) the trial court erred by failing to obtain a written wavier of appellant's right to a jury trial, and (2) the evidence is factually insufficient to support his conviction. We overrule appellant's points of error and affirm the trial court's judgment.
Background
On August 18, 2001, Jeff Stapleton, a Royce City police officer, stopped appellant on Interstate highway 30 for speeding. Because Stapleton noticed a "strong odor" of alcohol on appellant, he administered field sobriety tests, including a one-leg stand and nose touch test. After two tests, appellant refused to submit to anymore tests. Stapleton arrested appellant for DWI and transported him to the Rockwall County Sheriff's Office. Appellant refused to perform additional sobriety tests and refused to give a specimen of his breath. Appellant was later found guilty of driving while intoxicated. This appeal followed. Written Jury Waiver
In his first point of error, appellant contends that the trial court erred by failing to obtain a written waiver of his right to a jury trial. Under Texas law, defendant's waiver of his right to a jury trial must be made in person, in writing, in open court with the consent and approval of the court and the attorney representing the State. Tex. Code Crim. Proc. Ann. Art. 1.13(a) (Vernon Supp. 2002); Loveless v. State, 21 S.W.3d 582, 584 (Tex.App.-Dallas 2000, pet. ref'd). However, where appellant alleges merely that there was no written jury waiver, and does not allege that there was no jury waiver at all, he alleges statutory error, not constitutional error. Because this is not a structural constitutional error, harmless error analysis is the proper standard of review. Johnson v. State, 72 S.W.3d 346, 348 (Tex.Crim.App. 2002); Loveless, 21 S.W.3d at 584. Under Appellate Rule 44.2, if the error "does not affect substantial rights" then it "must be disregarded." Tex.R.App.P. 44.2(b). The lack of a written jury waiver is not harmful when the record reflects that the defendant was aware of his right to a jury trial and waived that right. Johnson, 72 S.W.3d at 349. In the absence of direct proof of its falsity, the recitation in the judgment that the defendant had "waived trial by jury" is binding. Id. Here, the record reflects that appellant was aware of his right to trial by jury and waived this right. The judgment recites that appellant and the State "have agreed to waive a jury and to submit this cause to the Court." The term "waive" presumes knowledge, because to waive a right one must first have knowledge of the existence of such right. Johnson, 72 S.W.3d at 349. Although appellant contends that he was "not asked" and "did not indicate any approval to this waiver," appellant has not presented any evidence asserting the recitation concerning jury waiver is actually false. Id. Absent direct proof to the contrary, a recitation in the judgment that the defendant waived his right to a jury trial is binding on this Court. Id. We overrule appellant's first point of error. Factual Sufficiency
In his second point of error, appellant contends that evidence is factually insufficient to support his conviction. In particular, appellant contends that the determination by the trial court that appellant was intoxicated is contrary to the overwhelming weight of the evidence because appellant testified that he (1) pulled over immediately, did not have blood shot eyes, and had no trouble retrieving his insurance card or driver's license; (2) had less than two beers; and (3) demonstrated a belligerent attitude due to anger, not intoxication. After reviewing the record, we disagree. The factually sufficient review process begins with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We then view all the evidence in the record related to appellant's sufficiency challenge, not just the evidence that supports the verdict. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We reverse only if (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence so as to be clearly wrong and unjust. Id. at 11. A person commits an offense if he is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon Supp. 2002). "Intoxicated" means not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body or having an alcohol concentration of 0.08 grams of alcohol per 100 milliliters of blood. Tex. Pen. Code Ann. § 49.01(1)(B), (2) (Vernon Supp. 2002). Although appellant testified that he was not intoxicated, other evidence shows that he was. Stapleton testified that upon initial contact with the appellant there was a "strong odor of an alcoholic beverage" about the appellant. Stapleton also testified that when asked, appellant told Stapleton that he had been drinking and had consumed "several beers" that evening. Furthermore, Stapleton testified that appellant performed poorly on both field sobriety tests, indicating that he was too intoxicated to operate a motor vehicle. Stapleton's lack of experience as a police officer goes to his credibility as a witness, but does not render his testimony insufficient to support appellant's conviction. Nor does appellant's testimony that he performed well on the field sobriety tests and did not refuse to perform any field sobriety tests render Stapleton's testimony insufficient. Finally, the videotape does not show appellant was not intoxicated at the time he was driving. The videotape does show: (1) appellant being uncooperative by refusing to stand where the officer asked him to; (2) the officer reading appellant the statutory warnings; and (3) appellant refusing to give a breath sample unless his attorney was present. Despite appellant's contention that the evidence is factually insufficient to support his conviction, we disagree. Due deference must be accorded to the trial court regarding the weight and credibility of the evidence. Under these facts, we cannot conclude that the evidence is so weak that the verdict is clearly wrong and unjust. Nor can we conclude that the verdict is so against the overwhelming weight of the evidence so as to be clearly wrong and unjust. Thus, we conclude the evidence is factually sufficient to support appellant's conviction. See Johnson, 23 S.W.3d at 7. We overrule appellant's second point of error. Accordingly, we affirm the trial court's judgment.