Opinion filed October 9, 2014



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 2

- 00124

- C R

__________

CHE PATRICE HUTCHINSON , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 35 th District Court Brown County, Texas Trial Court Cause No. CR 21451

M E M O R A N D U M O P I N I O N O N M O T I O N F O R R E H E A R I N G Appellant asserts in his motion for rehearing that we did not fully address his contention regarding the withdrawal of his jury trial waiver. In this regard, he
executed a written waiver of his right to a jury trial. Appellant signed the written jury tr ial waiver on October 25, 2011. It was also signed by Appellant ’s trial counsel, a prosecutor in the district attorney’s office , and the trial judge and was2 filed with the district clerk on October 25, 2011. The written waiver provided in relevant part a s follows:
D efendan t voluntarily, intelligently, and knowingly waives his right to trial by jury as guaranteed to him by the Constitutions of the United States and of the State of Texas with full understanding that trial by jury is a valuab le right. D ef endant has discussed the waiver with his attorney and desires that this case be tried to the Court without benefit of jury.

The trial court notified the parties in a letter dated October 25, 2011, that the case was set for an open plea on January 31, 2012 . Appellant and his trial counsel appeared befor e the trial court on January 31, 2012. Appellant’s trial counsel advised the trial court at the outset of the hearing that Appellant desired to
withdraw his waiver o f jury trial. The trial court denied A ppellant’s request to withdraw his jury trial waiver. Appellant subsequently entered an open plea of guilty to the charged offense

. In his third point of error , Appellant asserted that the trial court should have allowed him to withdraw his previous jury trial waiver. He argu ed in his initial briefing that his jury trial waiver was invalid. In our original o pinion, we interpreted Appellant’s argument as solely a complaint about the validity of his jury waiver. We concluded that his jury wavier did not comply with all of the statutory requirements because it was not made “ in person or in open court. ” However, we also determined that it did not constitute reversible error. According ly, we overruled his third point of error

. In his motion for rehearing, A ppellant asserts that he had an absolute right to withdraw his jury trial waiver because it was invalid. We note that Appellant did not present the trial court with either of his contentions : that his jury trial waiver
was invalid or that he had an absol ute right to withdraw his jury trial waiver3 because of its alleged invalidity. We held in Beason v. State , No . 11

- 11

- 00308

- CR, 2013 WL 4715784
, at *2

– 3 (Tex. App.

— Eastland Aug

. 30, 2013, no pet.) (mem. op., not designated for publication)
, that the failur e to present a claim of a purportedly invalid jury trial waiver to the trial court results in the alleged error not being preserved for appeal. See T EX

. R. A PP

. P. 33.1. The same principle would apply to Appellant’s complaint on appeal that he had an abs olute right to withdraw his jury trial waiver because he did not present this contention to the trial court

. Accordingly, Appellant failed to preserve for appellate review his complaints of an invalid jury trial waiver and an absolute right to withdraw th e purportedly invalid jury trial waiver

. Additionally , we disagree with Appellant’s contention that he had an absolute right to withdraw his jury trial waiver. He premises this contention o n a statement in Hobbs v. State , 298 S.W.3d 193, 197 (Te x. Crim. App. 2009), wherein
the c ourt stated that “ once the defendant validly waives his right to a jury trial, he
does not have an unfetter ed right to reassert that right ” (emphasis added )

. T he
court in Hobbs held that a defendant seeking to withdraw his jury t rial waiver must
show an “absence of adverse consequences” from granting the withdrawal

. Id

. Appellant surmises that
, i f a defendant does not validly wa i ve his right to a jury trial, he has an absolute right to withdraw his waiver. However, Appellant does not cite any authority in support of this proposition. Moreover, the defendant
in Hobbs was in the same procedural posture as Appellant. The written waiver of jury trial in Hobbs was filed on the same day as the hearing wherein the defendant attempted to withdraw the waiver. 1 Id

. at 195. Like the facts in this case, there

1 As noted previously, Appellant’s written jury trial waiver had been on file for approximately three months preceding the hearing wherein Appellant attempted to withdraw it. Accordingly, a great deal more time transpired in this case than in Hobbs between the filing of the jury trial waiver and the hearing wherein Appellant attempted to withdraw it.4 was not an i ntervening court appearance wherein the waiver was made in person or in open court. Irrespectiv e of this fact, the court in Hobbs determined that the defendant was still required to establish an absence of adverse consequences in order to establish error on the part of the trial court in denying the defendant’s request to withdraw his jury trial wai ver. Accordingly, we conclude that Appellant did not have an absolute right to withdraw his written jury trial waiver. Furthermore, the trial court did not abuse its discretion in refusing to allow t he
withdrawal of the waiver because there was no showin g that there would not be

any adverse consequences if the requested withdrawal were granted. Appellant additionally contends that we did not address all of the matters wherein he alleged that trial counsel was ineffe ctive. Appellant’s second point of

er ror addressed his ineffective assistance claim. He asserted numerous instances wherein trial counsel was purportedly ineffective. Among other things, Appellant
contends that we did not address his contention that trial counsel failed to lodge an objection under T EX

. C ODE C RIM

. P RO C

. A NN

. a rt. 38.22
, § 3(a) (West Supp. 2014 )
to the State’s offer of his custodial statement into evidence . In support of this contention, Appellant ass erted as follows in his brief: “ Ap pellant’s statement was inadmissible because the prosecution offered no evidence to show that the recording device used was capable of making an accurate recording, the operator was competent, and the recording was accurate and had not been altered, as

req uired by §3(a)(3). ” Thus, Appellant is asserting that trial counsel should have objected to the State’s alleged failure to make the proper predicate under
Art icle 38.22 , section 3(a) for the admission of Appellant’s statement.
To show ineffective assistance of counsel, a defendant must demons trate both (1) that his counsel’ s performance fell below an objective standard of reasonableness and (2) that there is a reasonable pr obability that, but for counsel’ s5 unprofessional errors, the result of the p roceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687

– 88, 694 (1984) ; Andrews v. State
, 159 S.W.3d 98, 101

– 02 (Tex. Crim. App. 2005). We conclude that Appellant has not satisfied either of these prongs with reference to an objection under
Art icle 38.22 , section 3(a). Appellant’ s trial counsel may have believed that t he State could have overcome a predicate objection and that, therefore , an objection
would have been futile. Given the nature of the statutory elements cited by Appellant concerning capabilities of the recording device, the competency of the operator, and the accuracy of the recording, it would appear that the S tate could
h ave easily overcome a predicate objection. For the same reason, there is not a reasonable probability that the result of the proceeding would have been differen t had trial counsel lodged a predicate objection under Art icle 38.22 , section 3(a). Appellan t’s motion for rehearing is denied.

JOHN M. BAILEY
JUSTICE

October 9, 2014 Do not publish. See T EX

. R. A PP

. P. 47.2( b). Panel consists of: Wright, C.J., Willson, J.
, and Bailey, J.