Cindy Hamilton's judgment recites that she waived trial by jury, but the record contains no written jury waiver. In Johnson v. State, ⁽¹⁾ we found this error harmless where there was nothing in the record to refute the judgment's recital. The Court of Appeals attempted to distinguish Johnson from this case, but we find its efforts unpersuasive. Johnson controls, and the error here was harmless.

Hamilton was convicted of prescription fraud in a bench trial. She appealed and claimed that the record failed to contain a written jury waiver. The Court of Appeals agreed that no written jury waiver appeared in the record and, therefore, the trial court erred. ⁽²⁾ It concluded that Hamilton's substantial rights were affected because she did not give express consent in open court to be tried without a jury. ⁽³⁾

After the court's decision, we decided Johnson. ⁽⁴⁾ There we assumed error but held that the defendant was not harmed by the lack of a written jury waiver because the judgment recited that he had waived a jury trial and "that statement indicates that Johnson knew about his right to a jury trial. We must presume that statement correct in the absence of direct proof of its falsity, and there is no such proof in the record." ⁽⁵⁾

The State filed a petition for discretionary review challenging the appellate court's decision in this case. We granted the petition, vacated the appellate court's judgment, and remanded for the court to reconsider the case in light of Johnson. ⁽⁶⁾ On remand, the Court of Appeals distinguished Johnson and again held that Hamilton was harmed. ⁽⁷⁾ We again granted the State's petition, this time to decide whether the appellate court "appropriately disregard[ed] Johnson . . . when it allowed the absence of evidence to substitute for direct proof controverting a presumptively valid judgment . . . ."

In Johnson, we assumed error because of the lack of a written jury waiver, and proceeded to a harm analysis. In that case, the judgment recited that the defendant "waived trial by jury." ⁽⁸⁾ We concluded that this recitation was "binding in the absence of direct proof of its falsity." ⁽⁹⁾ We explained that if Johnson waived a jury trial, "he must have known about his right to a jury trial, otherwise he could not have waived it. The very use of the term 'waive' presumes knowledge, because 'to waive a right one must do it knowingly - with knowledge of the relevant facts.'" ⁽¹⁰⁾ We also reasoned that Johnson had not alleged that he was unaware of his right to a jury trial, and the record did not indicate that he was unaware of it. Since there was nothing in the record to indicate that the judgment's waiver recitation was false, we concluded that we were "bound" by it. ⁽¹¹⁾

The Court of Appeals distinguished this case from Johnson because in this case, the judgment recites that Hamilton

in person and in writing in open Court having waived right of trial by jury, such waiver being with the consent and approval of the Court and now entered of record on the minutes of the Court and such waiver being with the consent and approval of the Criminal District Attorney of Collin County, Texas, in writing, signed by him/her, and filed in the papers of the cause . . . ⁽¹²⁾

The appellate court then reasoned that "the documentation recited in the judgment simply does not exist." ⁽¹³⁾ It stated that the clerk's record contains no jury waiver, no consent by the trial court, and no consent by the State, and the reporter's record contains no statement by Hamilton in open court waiving a jury. ⁽¹⁴⁾ The Court of Appeals concluded that "[t]he fact that the documents and statements referenced in the judgment are absent . . . is direct proof the recitals in the judgment that Hamilton waived her right to a jury are false." ⁽¹⁵⁾

The Court of Appeals erred in two important respects. First, the recital in Hamilton's judgment is not substantially different from that in Johnson. In Johnson, the judgment stated, "The Defendant having been duly arraigned, waived trial by jury, pleaded [a blank with NOT GUILTY inserted] to the information herein, and submitted to the court." ⁽¹⁶⁾ While the language in Hamilton's judgment is more thorough, the most critical language is nearly identical in both judgments. Johnson's judgment stated that he "waived trial by jury" and Hamilton's judgment states that she "waived right of trial by jury." As in Johnson, this language indicates that Hamilton "must have known about [her] right to a jury trial, otherwise [she] could not have waived it. The very use of the term 'waive' presumes knowledge, because 'to waive a right one must do it knowingly - with knowledge of the relevant facts.'" ⁽¹⁷⁾ The Court of Appeals erred in concluding that the language of Hamilton's judgment distinguished this case from Johnson.

The Court of Appeals also erred in finding that the absence of evidence in the record directly refuted the judgment's recital. As the State points out, negative evidence does not amount to direct proof. That neither the clerk's record nor the court reporter's record contain evidence of a jury waiver merely means, as in Johnson, that there was no written jury waiver, which we have already presumed in finding error. It "does not address the question of harm." ⁽¹⁸⁾

Moreover, there is some evidence in the record that Hamilton was aware of her right to a jury trial. The record contains a "pass slip" dated a month before trial and signed by Hamilton. It states that the case is set for trial, then gives the option of checking either "before the Court" or "by a jury." A check mark appears in the space preceding "before the Court." Hamilton argues that this form does not reflect that she knew that she had a right to a jury trial. But it is some evidence that she did, and it is direct evidence, unlike the absence of evidence on which the Court of Appeals relied.

The judgment recites that Hamilton waived trial by jury. Even though she did not do so in writing, there is nothing in the record to indicate that this recitation of waiver is false or that Hamilton was actually unaware of her right to a jury trial. Therefore, Hamilton's substantial rights were not affected by the trial court's error in failing to secure a written jury waiver.

This case is indistinguishable from Johnson. The Court of Appeals erred in holding otherwise. We reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

DATE DELIVERED: September 10, 2003

DO NOT PUBLISH

1. 72 S.W.3d 346 (Tex. Crim. App. 2002).

2. Hamilton v. State, 2002 Tex. App. LEXIS 1239 * 7 (February 19, 2002) (not designated for publication) (Hamilton I).

3. Id.

4. 72 S.W.3d 346.

5. Id. at 349.

6. Hamilton v. State, No. 0551-02 (Tex. Crim. App. Delivered June 26, 2002) (not designated for publication) (Hamilton II).

7. Hamilton v. State, 2002 Tex. App. LEXIS 6977 (September 30, 2002) (not designated for publication) (Hamilton III).

8. Johnson, 72 S.W.3d at 349.

9. Id.

10. Id.

11. Id.

12. Hamilton III, * 3.

13. Id.

14. Id. at * 3-4.

15. Id. at *4.

16. Johnson, 72 S.W.3d at 352 (Johnson, J., dissenting).

17. Johnson, 72 S.W.3d at 349.

18. Id.