Affirmed and Memorandum Opinion issued August 8, 2017. 

In the

Fourteenth Court of Appeals 

NO. 14-16-00846-CR

NO. 14-16-00847-CR

PETER GOLDMAN LEVY, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 183rd District Court 

Harris County, Texas 

Trial Court Cause Nos. 1499548 and 1499549 

M E M O R A N D U M O P I N I O N 

Appellant Peter Goldman Levy was convicted by the trial court of aggravated 

assault with a deadly weapon and of being a felon in possession of a firearm. The 

trial court assessed punishment at confinement for twenty-five years. Appellant 

challenges his convictions, arguing that the records failed to show he knowingly and 

intentionally waived his right to a jury trial and that he suffered harm. Because the 
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judgments recite the waiver of jury trial and there is no direct evidence to the 

contrary, we affirm. 

I. BACKGROUND

On May 6, 2015, appellant shot complainant Reginald Mathews in the neck 

with a pistol. Mathews ran to a friend’s home, and his friend called 9-1-1. The 

friend told the dispatcher appellant was the suspected shooter. Police officers went 

to appellant’s home, but he was not there. Appellant’s roommate phoned appellant 

to return. When appellant arrived, he told the officers that he had shot Mathews and 

where to find the gun. The officers found the gun, and forensic testing confirmed 

that it was used to shoot Mathews. 

Appellant was charged by indictment with being a felon in possession of a 

firearm. The indictment included two enhancement paragraphs for prior felonies. 

Appellant was also charged with aggravated assault with a deadly weapon. This

indictment also included two enhancement paragraphs for additional prior felonies. 

Appellant pleaded not guilty to the offenses and true to all the enhancement 

paragraphs. After a trial to the court, the trial court found appellant guilty of both 

offenses and sentenced him to two concurrent terms of twenty-five years in the 

Institutional Division of the Texas Department of Correctional Justice. 

No written waiver of trial by jury appears in the record of either case. The 

record in both cases includes several case reset forms signed by appellant stating that 

the cases were set for “Ct. Trial,” “Ctrl,” “Ct trial,” “CT,” and “Crt TRL.” Each 

judgment is captioned “Judgment of Conviction by Court—Waiver of Jury Trial.” 

Each judgment states that “Defendant waived the right of trial by jury and entered 

the plea indicated above. The Court then admonished Defendant as required by 

law.” Appellant timely appealed both cases. 
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II. ANALYSIS

In a single issue, appellant argues that the record in his cases failed to show 

he knowingly and intentionally waived his right to a jury trial and that he suffered 

harm because the lack of written waiver affected his substantial rights. 

Appellant argues that his convictions must be reversed because the records in 

his cases do not contain a written waiver of a jury trial as required by article 1.13(a)

of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 1.13(a)

(West 2015) (“The defendant . . . shall have the right, upon entering a plea, to waive 

the right of trial by jury, conditioned, however, that . . . the 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 consent and approval by the 

court shall be entered of record on the minutes of the court, and the consent and 

approval of the attorney representing the state shall be in writing, signed by that 

attorney, and filed in the papers of the cause before the defendant enters the 

defendant’s plea.”). The absence of a written jury waiver under article 1.13(a)

constitutes statutory, not constitutional, error. See Johnson v. State, 72 S.W.3d 346, 

348 (Tex. Crim. App. 2002). Therefore, we analyze harm under rule 44.2(b) of the 

Texas Rules of Appellate Procedure and consider whether the error affected the 

defendant’s “substantial rights.” See id. (citing Tex. R. App. P. 44.2(b)). 

In Johnson, the Court of Criminal Appeals held the lack of a written waiver 

in violation of article 1.13(a) is not harmful where the record reflects that the 

defendant waived his right to a jury trial. Id. at 349. Like both of the judgments in 

appellant’s cases, the judgment in Johnson recited that the defendant “waived trial 

by jury.” See id. Use of the term “waive” presumes knowledge because “to waive 

a right one must do it knowingly—with knowledge of the relevant facts.” Id. (citing 

Black’s Law Dictionary 1276 (7th ed. abridged 2000)). Furthermore, “waiver” is 
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defined as the “act of waiving or intentionally relinquishing or abandoning a known 

right, claim, or privilege.” Id. (citing Webster’s Third Int’l Dictionary 2570 (1966)). 

Such a recitation of a waiver of jury trial is “binding in the absence of direct proof 

of [its] falsity.” Id. (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 

1984) (op. on reh’g)). Without such direct proof, the defendant cannot overcome 

the presumption of regularity in the judgment. See id. 

In addition to the express recitations in the judgments, both records contain 

multiple case reset forms, each signed by appellant, indicating that the “type of 

setting” in appellant’s cases was a court trial. See Jackson v. State, 76 S.W.3d 798, 

803 (Tex. App.—Corpus Christi 2002, no pet.) (finding no harm per Johnson where 

there were “several continuances and re-settings for the bench trial” and appellant 

received bench trial she requested). Therefore, although article 1.13(a) was violated, 

appellant, like the defendant in Johnson, was not harmed by such violation because 

the record reflects that appellant was aware of his right to a jury trial and opted for 

a bench trial. See 72 S.W.3d at 349. 

Although appellant acknowledges the holding in Johnson, he contends that 

this court instead should adopt the dissent’s position in Johnson and find harm 

because the record does not affirmatively reference appellant’s written or oral 

waiver. See id. at 352 (Johnson, J., dissenting). However, as an intermediate 

appellate court, we are bound to follow the majority opinion in Johnson. See 

Williams v. State, 848 S.W.2d 777, 781 (Tex. App.—Houston [14th Dist.] 1993, no 

pet.) (“[D]issenting opinions do not bind this court.”). 

Appellant also cites an unpublished opinion from our court, Jetson v. State, 

No. 14-13-00629-CR, 2014 WL 3778829, at *4 (Tex. App.—Houston [14th Dist.] 

July 31, 2014, pet. ref’d) (mem. op.). Appellant distinguishes his case from Jetson, 

asserting that in his case there was no detailed colloquy regarding waiver. We first 
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note Jetson is an unpublished opinion that does not bind us. See Tex. R. App. P. 

47.7(a). Additionally, in Jetson we applied Johnson and concluded that the 

defendant failed to overcome the judgment’s recitation of waiver. See Jetson, 2014 

WL 3778829, at *2, 4 (defendant’s statement that “colloquy is insufficient” is not 

evidence that judgment’s recitation of waiver is false). 

Finally, appellant points to evidence during the punishment phase that he 

suffers from mental-health issues in support of finding harm. However, there is no 

indication that appellant’s history of post-traumatic stress disorder would have any 

effect on his ability to waive a jury trial. Appellant therefore has failed to overcome 

the regularity of the judgments. See Johnson, 72 S.W.3d at 349. 

We overrule appellant’s sole issue. 

III. CONCLUSION

We affirm the trial court’s judgments. 

 

 /s/ Marc W. Brown 

 Justice 

Panel consists of Justices Christopher, Brown, and Wise. 

Do Not Publish — TEX. R. APP. P. 47.2(b).