Opinion
No. 05-07-01476-CR
Opinion Filed February 3, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-71463-XT.
Before Justices BRIDGES, RICHTER, and MAZZANT.
MEMORANDUM OPINION
Eric Charles Hobbs appeals his conviction, following a bench trial, for the aggravated assault of his ex-brother-in-law Bennett Goodman. See Tex. Pen. Code Ann. 22.02(a)(2) (Vernon Supp. 2008). In four points of error, Hobbs asserts the court erred in denying his request to withdraw his jury waiver and in denying his request for a hearing on his motion for new trial. We affirm.
Background
Hobbs filed his jury waiver the day of trial. When the court called the case for trial, however, Hobbs's counsel moved for a continuance and for withdrawal of the waiver. Counsel explained he had just been "surprised" with notes from the prosecutor about some recorded conversations the prosecutor intended to use at trial. The conversations were between Hobbs and some of his family members and "consist[ed]" of Hobbs's "attempt[s] to make witnesses," including Goodman, "not show up for [a] bond hearing" and "not cooperate with the D.A.'s office." Counsel also noted additional concerns existed and, with the court's permission, Hobbs himself explained that those concerns stemmed from "previous cases he and his wife had with the D.A.'s office" as well as an absent witness. Worried about Hobbs's "effort to make [Goodman] unavailable to the Court," the trial judge ruled the State would be allowed to call Goodman that day and the trial would then be recessed for two weeks to allow for the review of the recordings and notes and to allow counsel to "look into" the additional concerns Hobbs had raised. The trial judge also ruled that Hobbs could not withdraw his waiver. The trial judge reasoned that Hobbs "was well aware" of the conversations but "just did not share" them with counsel. The State then called Goodman to testify and, following the recess and testimony from additional witnesses, the trial judge found Hobbs guilty and assessed an enhanced punishment of forty years' confinement. Hobbs timely moved for a new trial, alleging that his waiver "was neither knowing nor voluntary" and requested a hearing on his motion. In the motion, which he verified, Hobbs stated he is illiterate and his counsel asked him to sign the waiver without explaining it to him. Hobbs further stated that when his counsel finally explained to him what the waiver was, he "immediately insisted" that counsel not file the waiver and also "immediately demanded" a jury trial. The trial judge summarily denied the motion.Withdrawal of Waiver
In his first, second, and third points of error, Hobbs asserts the trial judge's denial of his motion to withdraw his jury waiver was an abuse of discretion and violation of his right to a jury trial under both the United States and Texas Constitutions and the Texas Code of Criminal Procedure. See U. S. Const. amend. VI; Tex. Const. art. 1, § 15; Tex. Code Crim. Proc. Ann. art. 1.12 (Vernon 2005). Recognizing that a trial court abuses its discretion in denying a request to withdraw a jury waiver where the State, witnesses, or court would not be prejudiced, see Marquez v. State, 921 S.W.2d 217, 223 (Tex.Crim.App. 1996), Hobbs argues "nothing in the record . . . suggests allowing [him] to withdraw his jury waiver would have [resulted in] any adverse consequences." A silent record, however, does not mean prejudice would not have occurred. Id. at 223 n. 7. A defendant seeking to withdraw his jury trial waiver bears the burden of establishing on the record that his request will not interfere with the orderly administration of the business of the court, result in unnecessary delay or inconvenience to witnesses, or prejudice the State. Id. at 223. A record silent on that issue is a record with no proof on that issue. Id. at 223 n. 7. Here, Hobbs's counsel's only argument at trial was as follows:We have received other information [the recordings] that we were not aware of at the time we signed our waiver of jury trial and because of that new information, because we have not had an opportunity to review it, we're also requesting [in addition to a continuance] that we withdraw our waiver of jury trial and proceed with a jury trial.This argument does not establish that no "adverse consequences" would flow, and Hobbs called no witnesses, nor questioned the prosecutor, nor showed on the record the lack of prejudice to the court. Moreover, contrary to Hobbs's assertion, the record does show potential adverse consequences if the trial court allowed Hobbs to withdraw his jury waiver and had to continue the case to allow for a jury trial. As stated, Hobbs had made attempts to keep Goodman from "cooperat[ing] with the D.A.'s office." Concerned Hobbs might make Goodman unavailable for trial, the trial judge had the State call Goodman as a witness that day. Hobbs presented neither argument nor evidence to assuage the judge of his concern or to show a continuance to allow for a jury trial would not be necessary. Given the record before us, we conclude Hobbs failed to carry his burden and the trial court did not abuse its discretion in denying Hobbs's request to withdraw his waiver. See, e.g., id. at 223 (concluding no abuse occurred where appellant failed to claim or demonstrate granting of withdrawal of jury trial waiver would not result in adverse consequences to State, witnesses, or court); Taylor v. State, 255 S.W.3d 399, 402 (Tex.App.-Texarkana 2008, pet. ref'd) (no abuse occurred where appellant failed to rebut trial court's observations that allowing withdrawal of waiver would "wreck" court's docket). We overrule Hobbs's first three points of error.
Denial of Motion for New Trial
In his fourth point of error, Hobbs challenges the trial court's denial of a hearing on his motion for new trial. In challenging the court's ruling, Hobbs notes that a trial court abuses its discretion in not holding a hearing on a motion for new trial where the motion is verified, or accompanied by affidavit, and raises matters not determinable from the record upon which relief could be granted. See Lucero v. State, 246 S.W.2d 86, 94 (Tex.Crim.App.), cert. denied, 129 S.Ct. 80 (2008); Klapesky v. State, 256 S.W.3d 442, 454-55 (Tex.App.-Austin 2008, pet. ref'd). Hobbs contends the court abused its discretion in denying his request for a hearing on his motion because his assertions in the motion that (1) he is illiterate, (2) his counsel did not explain to him what the waiver was before asking him to sign it, and (3) he asked his counsel to not file the waiver once he learned the effect of the waiver were "matters not determinable from the record" showing his waiver was not "knowing or voluntary" and entitling him to a new trial. See Hoang v. State, 825 S.W.2d 729, 731 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd) (to be effective, jury trial waiver must be "voluntarily and knowingly" consented to by defendant). We disagree. Taken alone, these assertions might entitle Hobbs to relief, but taken in context with the motion and state of the record, they do not. Hobbs's specific allegations in his motion were as follows:On or about February 15, 2007, Defendant was visited in jail by his trial court attorney . . . The attorney gave the Defendant a document and asked him to sign it without explaining it to him. Further, the Defendant was unable to read the document since he is illiterate. The Defendant signed it and handed it back to his attorney as requested. At a later meeting, Defendant's attorney informed Defendant that the paper he signed was in fact a jury trial waiver. The Defendant immediately insisted that the attorney not file the waiver and demanded a jury trial. Subsequently, at a hearing in April 2007 [the trial], the Defendant requested that the Court grant him a jury trial which was denied.
Hobbs also stated in his motion that the waiver "contain[ed] no cause number and ha[d] the wrong [c]ourt number written on its face." However, he does not rely on this allegation on appeal.