Opinion filed October 9, 2014

In The

Eleventh Court of Appeals __________

No. 11-12-00124-CR

__________

CHE PATRICE HUTCHINSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR21451

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 trial 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 was 
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filed with the district clerk on October 25, 2011. The written waiver provided in 

relevant part as follows: 

Defendant 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 valuable right. Defendant 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 before 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 of jury trial. The trial court denied Appellant’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 argued in his initial 

briefing that his jury trial waiver was invalid. In our original opinion, 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. 

Accordingly, we overruled his third point of error.

In his motion for rehearing, Appellant 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 absolute right to withdraw his jury trial waiver 
3

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 failure 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 TEX. R. APP. P. 33.1. The same principle would 

apply to Appellant’s complaint on appeal that he had an absolute 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 the 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 on a 

statement in Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009), wherein 

the court stated that “once the defendant validly waives his right to a jury trial, he 

does not have an unfettered right to reassert that right” (emphasis added). The 

court in Hobbs held that a defendant seeking to withdraw his jury trial waiver must 

show an “absence of adverse consequences” from granting the withdrawal. Id. 

Appellant surmises that, if a defendant does not validly waive 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. 
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was not an intervening court appearance wherein the waiver was made in person or 

in open court. Irrespective 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 waiver. 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 the 

withdrawal of the waiver because there was no showing 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 ineffective. Appellant’s second point of 

error 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 TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (West Supp. 2014) 

to the State’s offer of his custodial statement into evidence. In support of this 

contention, Appellant asserted as follows in his brief: “Appellant’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 

required 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 

Article 38.22, section 3(a) for the admission of Appellant’s statement. 

To show ineffective assistance of counsel, a defendant must demonstrate 

both (1) that his counsel’s performance fell below an objective standard of 

reasonableness and (2) that there is a reasonable probability that, but for counsel’s 
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unprofessional errors, the result of the proceeding 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 

Article 38.22, section 3(a). Appellant’s trial counsel may have believed that the 

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 State could 

have easily overcome a predicate objection. For the same reason, there is not a 

reasonable probability that the result of the proceeding would have been different

had trial counsel lodged a predicate objection under Article 38.22, section 3(a). 

Appellant’s motion for rehearing is denied.

JOHN M. BAILEY

JUSTICE

October 9, 2014

Do not publish. See TEX. R. APP. P. 47.2(b). 

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.