Toby Wayne JOHNSON, Appellant, v. The STATE of Texas, 72 S.W.3d 346

OPINION KEASLER, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, HERVEY, and COCHRAN, J.J., joined. This issue in this case is whether the failure to obtain a written jury waiver is harmful. We conclude that the lack of a written jury waiver is not harmful when the record reflects that the defendant waived his right to a jury trial. Toby Wayne Johnson kicked his neighbor’s kitten to death, apparently because “the cat shouldn’t have been on his patio.” He was charged with cruelty to an animal, pleaded not guilty, and was tried before the court.

At the conclusion of the trial, the judge found Johnson guilty and sentenced him to six months in jail and a $500 fine. The judgment states that Johnson “waived trial by jury.” Johnson appealed, arguing that he “never waived a jury in person in open court in writing and with consent of the prosecutors.” He complained that the “required formalities” of Art. 1.13 of the Code of Criminal Procedure were not observed. The Court of Appeals concluded that Art. 1.13 was violated and found it to be statutory error. In determining whether Johnson was harmed, the Court referenced Appellate Rule 44.2(

b) and concluded that, anytime an appellate record does not include a written jury waiver, “we will find that the defendant’s substantial rights have been affected unless the record clearly reflects that the defendant personally gave express consent in open court, intelligently and knowingly.” We granted the State’s petition for discretionary review to review the appellate court’s harm analysis.

Article 1.13(

a) provides, in relevant part, that the defendant “shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State.” The parties have assumed that Art. 1.13(

a) was violated, and the issue before us is whether Johnson was harmed. We have recognized that “[njeither the federal nor the state constitution require that a trial by jury be waived in writing.” Rather, the legislature has chosen to specify the manner in which a jury may be waived. Since Johnson 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. We therefore analyze harm under Appellate Rule 44.2(b).

If the error “does not affect substantial rights” then it “must be disregarded.” The Court of Appeals relied on United States v. Saadya in concluding that, when an appellate record does not include a written jury waiver, “the defendant’s substantial rights have been affected unless the record clearly reflects that the defendant personally gave express consent in open court, intelligently and knowingly.” But as the State points out, Saadya involved the question of error, not harm.

In addition, in Saadya, there was nothing in the record indicating a waiver of jury trial, whereas in this case, the judgment states that Johnson “waived trial by jury.” Finally, using the Saadya test would rewrite Rule 44.2(b), creating a presumption of harmfulness. The Court of Appeals erred in relying on Saadya. Under Rule 44.2(b), we must determine whether the violation of Art. 1.13(a) “affected a substantial right.” In King v.

State, 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.” But that case involved improperly admitted evidence. The King test is not helpful in evaluating error in non-jury proceedings, like the violation of Art. 1.13(a). To determine whether an error “affect[ed] substantial rights,” we consider whether a party had a right to that which the error denied. We have never determined whether the requirement that the waiver of trial by jury be written implicates a right of the defendant as Johnson asserts.

His view is that the requirement is to ensure that a defendant understands his right to a trial by jury. It is unnecessary to decide the question today because the error was harmless even if Johnson’s view were correct. To decide under such a view whether Johnson was harmed by the failure to execute a written waiver, we would ascertain whether he understood his right to trial by jury before his bench trial began.

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-with knowledge of the relevant facts.” In addition, “waiver” is defined as “the act of waiving or intentionally relinquishing or abandoning a known right, claim, or privilege.” Johnson has never alleged that he did not know about his right to a jury trial, nor does the record indicate that he did not. Having no evidence that the judgment’s recitation that Johnson “waived trial by jury” is false, we are bound by that statement.

Johnson argues that the judgment’s recitation is refuted by the clerk’s certification that all of the proceedings relating the case were included in the transcript. But all that means is that there was no written jury waiver, which we have already presumed in finding error. That does not address the question of harm. The judgment states that Johnson 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.

So although Art. 1.13 was violated, Johnson was not harmed by the violation because the record reflects that he was aware of his right to a jury trial and opted for a bench trial. We reverse the judgment of the Court of Appeals and affirm the judgment of the trial court. MEYERS, J., filed a dissenting opinion joined by PRICE and HOLCOMB, J.J. JOHNSON, J., filed a dissenting opinion joined by PRICE and HOLCOMB, J.J. . Johnson v. State, 984 S.W.2d 736, 737-38 (Tex.App.-Waco 1998). . Id. at 738 (quoting United States v. Saadya, 750 F.2d 1419, 1420 (9th Cir.1985)). .

Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex.Crim.App.1993). . Id. . Tex.R.App. P. 44.2(b). . Johnson, 984 S.W.2d at 738 (quoting United States v. Saadya, 750 F.2d 1419, 1420 (9th Cir.1985)). . King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). . See, e.g., Jones v. State, 982 S.W.2d 386 (Tex.Crim.App.1998) (The "ability [of the State to exclude a juror by peremptory challenge] would not have affected any substantial right of the defendant, because a defendant has no right that any particular individual serve on the jury.

The defendant’s only substantial right is that the jurors who do serve be qualified.”), cert. denied, 528 U.S. 985, 120 S.Ct. 444, 145 L.Ed.2d 362 (1999). . Accord, Salinas v. State, 963 S.W.2d 889, 891 (Tex.App.-Corpus Christi), vacated, 980 S.W.2d 219 (Tex.Crim.App.1998), reaffirmed, 987 S.W.2d 922 (Tex.App.-Corpus Christi 1999, no pet.). But see W.A.

Morrison, Interpretive Commentary, 1 Vernon’s Annotated Code of Criminal Procedure 290 (1977) (the reason for requiring that things be put in writing was "because of the recent tendency of the Federal Courts to inquire into the correctness of the State Court’s proceeding in later Federal Habeas Corpus actions”). . Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App.1984) (op. onreh’g). . Black’s Law Dictionary 1276 (7th ed. abridged 2000). . Webster's Third New International Dictionary 2570 (1966).