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Salinas v. State2/19/1998
This appeal arises from Simon Salinas's conviction for driving while intoxicated. We are called upon to consider the statutory requirement of written jury trial waivers, contained in article 1.13 of the Texas Code of Criminal Procedure, as well as the statutory admonishments required by article 26.13 of the Texas Code of Criminal Procedure. We affirm.
Facts
Salinas was indicted for driving while intoxicated in an indictment filed December 12, 1995, and was re-indicted by an instrument filed October 18, 1996.Voir dire of prospective jurors commenced on December 17, 1996. During voir dire, the trial court explained the range of punishment for the crime for which Salinas stood accused. Salinas was represented by counsel during the voir dire, as well as all subsequent proceedings.
On December 18, 1996, Salinas pleaded not guilty and the jury trial began. However, after the evidentiary portion of the guilt/innocence phase was underway, the record indicates that Salinas informed the trial court of his desire to withdraw his plea of not guilty and to re-plead guilty.
The trial court admonished Salinas as to his rights and the various consequences of a guilty plea. Having been assured that Salinas understood the consequences of pleading guilty, the trial court accepted Salinas's guilty plea. The jury trial then progressed to the punishment phase.
The jury assessed punishment at five years' incarceration and a fine of $2,000. Judgment was entered thereon. This appeal ensued.
Salinas raises two points of error on appeal, both of which seek remand. First, he contends that the absence from the record of a written jury trial waiver warrants reversal. Second, he contends that the trial court's failure to admonish Salinas as to the range of potential punishment, when Salinas withdrew his first plea and pleaded guilty, constitutes reversible error. We overrule both points of error for the reasons set forth below. Waiver of Jury Trial
In support of his first point of error, Salinas directs our attention to our recent opinion in Havard v. State, 925 S.W.2d 290 (Tex. App.-Corpus Christi 1996, no pet.). In Havard, we reversed the conviction of a defendant who had been convicted upon a bench trial. Id. at 291. The Havard defendant did not sign written waivers prior to her bench trial, and her sole appellate contention (which we found to be dispositive) focused on the trial court's failure to obtain jury waivers prior to Havard's bench trial. Id.
Assessing Havard's argument, we noted that a written jury trial waiver is not required by either the state or federal constitution. Havard, 925 S.W.2d at 291 (citing Ex Part Sadberry, 864 S.W.2d 541, 543 (Tex. Crim. App.--1993)). Rather than having a constitutional basis, the requirement is purely statutory. Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon 1977 & Supp. 1997); Havard, 925 S.W.2d at 291. Nevertheless, that is the extent of Havard's relevance to the instant case. Havard is otherwise distinguishable on the ground that, in the instant case, Salinas informed the trial court of his desire to withdraw his plea of not guilty and to re-plead guilty only after a jury trial had commenced.
It is undisputed in the instant case that Salinas did not sign a jury waiver. That constitutes error. However, as noted in Havard, the error does not implicate either the state or federal constitution. Havard, 925 S.W.2d at 291. Therefore, we must determine whether the error affected a "substantial right" of Salinas. Tex. R. App. P. 44.2 (providing that, aside from constitutional errors, "ny other error, defect, irregularity, or variance that does not affect substantial rights mus
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