“[T]he decision of the Fifth District Court of Appeals to uphold his conviction holding to John[son] v. State 72, S.W.3d 346, 347(Tex.Crim.App.) is in conflict with other Court rulings [and] based on the circumstances of Rios’s case the Court of Appeals should have held to State EX Rel Curry v. Carr, [847 S.W.2d] 561, 562 (Tex.Crim.App.1992) and reversed Rios’ conviction and ordered that he be given a trial by jury as he asked for.”
Rios entered a not guilty plea before the court and was convicted. On appeal, Rios argued his right to a jury trial was violated because the trial court never advised him that a jury trial was an option. Although Tex. Code Crim. Proc. art. 1.13 requires a jury trial waiver to be in writing, there was none in the record. Nor was there any on-the-record discussion of the right or waiver. The judgment included a self-populating form recitation that “Defendant waived the right of trial by jury.” On Rios’s request, the case was abated on appeal for an evidentiary hearing to determine if the recitation in the judgment was correct. After the hearing, the trial court reiterated that Rios’s trial counsel testified he had advised Rios of his right to a jury trial and found Rios’s testimony lacked credibility when he said he didn’t know he had a right to a jury trial and did not voluntarily consent to a bench trial.
A divided panel of the court of appeals affirmed. The lead opinion relied on Johnson, 72 S.W.3d at 349, which held that, absent direct proof of its falsity, a judgment recital was binding and refuted an Art. 1.13 claim. It determined that Rios had no proof the judgment recital was false. It also pointed to several pass slips Rios signed indicating the case was being reset for a court trial, Rios’s counsel’s testimony that it had always been the plan to have a bench trial, Rios’s lack of objection to the absence of a jury, and Rios’s concession on appeal that he was aware of his right to a jury trial. One justice joined in the result but filed a “Concurrence Dubitante” (doubting a legal point but unwilling to state it was wrong or file an open dissent). This opinion questioned Johnson, found the record far from clear that Rios had waived his right to a jury trial, and asserted that the judicial system should afford the ten minutes of court time necessary to ensure protection of the jury trial right. The dissenting justice concluded that, without an express waiver of the jury trial right in the record, the error was constitutional and distinguished Johnson, where the defendant complained only of the absence of a written waiver, not a waiver altogether. Even under Johnson, the recitation in the judgment had been rebutted since nothing in the record supported a finding that the trial court informed Rios of his right to a jury trial and that Rios expressly gave up that right.
In addition to reiterating parts of the doubt-based concurrence and the dissent, Rios argues in his pro se petition that he was unlike the defendant in Johnson who grew up in America and would have had a better understanding of English expressions and how American laws work. He contends that the pass slips were blank when he signed them and so could not have resulted in his waiving his right to a trial by jury. Rios sees a contradiction between Johnson, which permits a defendant’s jury trial right to be waived without a written waiver and State ex rel. Curry v. Carr, which required written consent by the State before a defendant would be permitted to waive a jury. He argues that, even if no one wanted to try his case in front of a jury, that is what should happen if he wanted it. And he asserts there is an “overwhelming amount of evidence” that he “did in fact want a trial by jury.”