Article 1.13 of the Code of Criminal Procedure is more than just a good idea; it is the legislatively mandated procedure for waiving the right to a trial by jury. Such a carefully delineated procedure for relinquishing a fundamental right requires, at a minimum, substantial compliance. Instead of requiring even a colorable attempt to comply with Article 1.13, the majority relies on what it describes as a harmless error analysis to hold that what actually took place at trial was close enough to what the Code prescribes should have happened and therefore appellant was not harmed. This conclusion is untenable on its own and it is a misapplication of our rules for evaluating harmless error. Therefore, I dissent.

Lest the majority opinion create the mistaken impression that a four-word recitation on a preprinted judgment form sufficiently approximates the procedures set forth in Article 1.13, I review here Article 1.13(a)'s very specific demands. To be valid, a waiver must be:

1. Made in a criminal prosecution

• Other than one for which the State seeks the death penalty
• By the defendant
• In person
• In writing
• In open court
• With the consent and approval of the Court
• In writing
• With the consent and approval of the State
• In writing
• Filed in the papers of the cause
• Before the defendant enters his plea

Tex. Code Crim. Proc. art 1.13 (Vernon Supp. 2001). These requirements are mandatory and relate directly to a trial judge's authority to conduct a bench trial. So necessary are these prerequisites that in the absence of prosecutorial consent to a waiver, a trial judge has a ministerial duty to conduct a jury trial. State ex rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex. Crim. App. 1992).

When the Legislature carefully and in great detail specifies the procedure for relinquishing a basic right, we have in the past required at least substantial compliance with that procedure. See Nonn v. State, 41 S.W.3d 677, 679 (Tex. Crim. App. 2001) and Cockrell v. State, 933 S.W.2d 73, 90-1 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997) (requiring substantial compliance with Article 38.22 of the Code of Criminal Procedure). Article 1.13, which dictates how a criminal accused may assert his right to waive trial by jury, should require no less. Yet the majority does not require substantial compliance; rather, the majority states, "[t]he parties have assumed that [Article] 1.13(a) was violated, and the issue before us is whether Johnson was harmed." Johnson v. State, No. 389-99, slip op. at 2 (Tex. Crim. App. April 10, 2002) (hereinafter referred to as "Majority Op."). The majority then proceeds to rely on the presumption of regularity of judgments to conclude that Johnson waived his right to a jury trial. Id. at 4-5. The majority's reasoning, however, goes beyond mere reliance on the presumption of regularity of judgments; it effectively exalts the presumption into an irrefutable truth that eclipses the statute itself, writing:

The judgment recites that Johnson "waived trial by jury." That recitation is "binding in the absence of direct proof of its falsity." If Johnson "waived" a jury trial, then 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."

Majority Op. at 5 (citations and footnotes omitted). I do not think the presumption should be so broadly construed. The presumption of regularity of judgments may be applied to presume that the requirements of Article 1.13 were complied with if the judgment makes such a recitation, but it should not be applied to hold that a recitation in a judgment that makes no mention of statutory compliance should be read to mean a statute was complied with. ⁽¹⁾

The problems with such an expansive use of the presumption of regularity of judgments notwithstanding, it is clear that determining whether appellant waived his right to a trial by jury has little do with determining whether appellant was harmed by the uncontroverted failure of the parties to follow Article 1.13. Ultimately, the majority's reasoning can be reduced to the following circular proposition: Article 1.13 was violated, but appellant was not harmed because an actual waiver took place and Article 1.13 was therefore not really violated. Harm in this instance should not be gauged by looking to whether a waiver took place, i.e. whether there was error; it should be gauged by looking to the deleterious effects of the parties' failure to follow the procedure in Article 1.13.

Here, there is no indication of compliance with Article 1.13. The recitation in the judgment that appellant waived a trial by jury is not sufficient to overcome the utter lack of evidence that the parties adhered to the requirements set forth by the Legislature. This failure to comply constitutes error. Appellant was harmed by the error. ⁽²⁾ As we noted in King, 953 S.W.2d at 271 and in Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998), a nonconstitutional error will be harmless if we can say with "fair assurance" that the error "did not influence the jury or had but a slight effect." Johnson, 967 S.W.2d at 417. The majority opines that this test has no application to non-evidentiary error. Majority Op. at 4. I disagree. Applying the King approach to the instant appeal would simply require us to determine what effect failure to follow the procedures mandated by Article 1.13 had on the outcome of this proceeding.

Using the King approach, I conclude that the failure had an injurious effect on the outcome of the proceeding and it was, therefore, harmful. Article 1.13 interposes two additional parties into the decision to forego a jury trial because it is a decision not made solely by an accused and his attorney. See Carr, 847 S.W.2d at 562. In order to properly divest a jury of its authority as the factfinder in a criminal offense, a court must comply with Article 1.13. Appellant was harmed by being tried to a judge who had not followed the statutory procedure for memorializing his authority to sit in the capacity of factfinder. A determination that appellant himself wanted a jury trial is not necessary to the conclusion that he was harmed by the failure to be presented with the option. The error in this case was harmful and I would affirm the Court of Appeals.

Filed April 10, 2002

Publish

1. It is on this basis that Brezeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g) may be distinguished from the instant appeal. The recitation in the judgment in Brezeale was that the defendants were tried to the court, "in person and in writing, in open court having waived [their] right of trial by jury." Brezeale, 683 S.W.2d at 449. The presumption of regularity operated to make binding the recitation that the waiver was in person, in writing and in open court. The only recitation in the judgment in the instant appeal is that appellant "waived trial by jury." The presumption of regularity does not operate to expand this recitation to mean "appellant waived trial by jury in accordance with the requirements of Article 1.13 of the Code of Criminal Procedure." The only conclusion that the recitation in this judgment supports is that appellant waived trial by jury by some manner other than Article 1.13, if he waived it at all. We should not use the presumption of regularity to read out statutory requirements or override the presumption that criminal defendants do not waive constitutional rights. See Robles v. State, 577 S.W.2d 699, 703 (Tex. Crim. App. 1979) ("[a] waiver will not be 'lightly inferred' and courts will indulge every reasonable presumption against the waiver of fundamental constitutional rights").

2. Both the State Prosecuting Attorney ("S.P.A.")and the Tarrant County District Attorney ("D.A.") filed petitions for discretionary review in this appeal. Both urge that the error was harmless. The S.P.A. argues that harm in this instance cannot be analyzed using the test for harmless error articulated in King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In King, we held that a substantial right is affected "when the error ha[s] a substantial and injurious effect or influence in determining the jury's verdict." Id. The S.P.A. argues and the majority agrees that harmless error in this case must be analyzed by looking to the particular right implicated. See Majority Op. at 4. The D.A. argues that the King approach should be used in all cases analyzing harmless error under Rule 44.2(b) of the Rules of Appellate Procedure. I agree with the D.A. for the reasons I articulated in Jones v. State: linking harmless error to the underlying constitutional right means that nonconstitutional error can never be harmful unless there is a constitutional violation. 982 S.W.2d 386, 401 (Tex. Crim. App.1998) (Meyers, J., dissenting). However, for the purposes of the instant appeal, I simply note in passing that declining to decide which rights are affected by the failure to follow Article 1.13 and using a test that goes to whether an error took place but calling it harmless error analysis will not assist the already frustrated courts and litigants of this state in applying Rule 44.2(b) in the future. In this regard, see George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 43.423f (Supp. 2000) at 218 ("Jones is of little help in determining as a general matter what Rule 44.2(b) means by substantial right").