Affirmed as Modified and Opinion filed October 5, 2021

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00813

- CR

JOSE WERNER MUNGUIA , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 209th District Court Harris County, Texas Trial Court C a u s e No. 1505 214

O P I N I O N

Does the rec itation i n the trial court ’s written judgment that appellant
“waived the rig ht of trial by j u ry ” control in the absence of any contrary evidence
in the re cord? Yes, and d efend an t s and their counsel should read t h ose judgments and object , if appropriate, while there is time to modif y any error s. Appellant was charged with the offense of aggravated assault with a deadly

weapon. Tex. Penal Code Ann. § 22.02 (a), (b)

. After a bench trial, the trial court found appella n t guilty and assessed punishment at imprisonment for 18 year s

. Tex.2 Penal Code Ann. § 12.33 (a).

In his sole issue on appea l , appellant contends we must reverse and remand
for a new trial because his state and federal constitutional right to a jury t rial w a s violated after the trial court con ducted a ben ch t rial wit hout appellant ’ s waiver of his right to trial by jury. 1 Although the record does not c ontain appellant ’ s oral or written statement indicating a waiver of his right to a jury trial, the judgment

r e cites that appellant “waived the rig ht of trial by j u ry. ” Fo llowing binding precedent from the court of criminal appeals , we affirm the tria l cou rt ’ s j udgment
as challen ged on appeal , tho ugh we mod ify the trial court ’ s judg ment to delete an incorrect spec i al fin ding tha t appellant wa ived his right to ap peal

.
I. B ACKG ROUND

In March 2019, the trial court ’s docket sheet reflects that appellan t requ ested
a new trial date for a jury trial

. The tria l was reset to September 30, 2019. The

cour t ’s do cket sheet reflect s that a “Court Trial ” began on S e pte mber 3 0 and

cont inued for t wo additional days. On O ctober 2, the final day of trial, appellan t fi led a n election requesting that the judge assess punishment in the event a verdict of guilty is retur n ed by the jury

. Appe l lant relies on the foregoing evidenc e to establ ish t hat he requested and wanted a jury for the guilt phase of trial

. Though the reporter ’ s record contains n o reference or discussion of the

1 Appellant di d not p reserve err o r in the tria l court o n thi s issue. See Garza v. Stat e , 435 S.W.3d 258, 260

– 61 (Tex. Crim. App. 2014) ( “ even constitutional errors

— may be forfeited on ap peal if an appellant failed to object at trial ”)

. However, appellant ra ises only str uc tural error in this appeal

. St r uctural error may be raised for the fir st time on appeal b arring an express waiver of the right. See Mendez v. State , 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)

. O nly federal constitutional errors can be “ struc tural ,” though mo st federal constitutional errors are not struc tural

. Lake v. State , 532 S.W.3d 408, 411 (Te x. Crim. App. 2017)

. However, t his court has previously held that denial of a def endant ’s right to a jury trial is a structural error

. In re R.R

. , 3 73 S.W.3d 730, 73 6 ( Tex. App.

— Houston [14th Dist. ] 2012, p et. d enied) ; Green v. State , 36 S.W.3d 211, 216 (T ex. App.

— Houston [14th Dist.] 2001, no pet.).3 waiver of the righ t to trial by jury , t he j udg ment contains the fo l lowing language :

“B oth part ies announc ed ready for t rial. Defe ndant waived the right of trial by jury and entered the plea indicated above. It appeared to the Court that D efendant was mentally competent to stand trial, made the ple a freely and voluntarily , and wa s aware of t he conse quences of the plea. The Court rece ived the plea and entered it of record. After hearing the evidence submitted, if any. T he Court A DJUDGES Defe ndant G UILTY of the offense indicated above. ”

II. A NALYSIS
A. Mo tio n to Abate
On July 25, 2 0 20 , the State filed a motio n in this c ourt s eeking a n abateme n t of the case , so that th is court co uld direct the trial court to “[detail] the pre

- trial colloquy between the appellant, the attorneys, and the trial court and any o the r proceedings omitted re g a rding the waiver of jury t rial issue [

. ] ” The review ing panel at the time denied the motion due to the nature of the relief sought by the
State

. On June 29, 20 21, this court issued an order in the above case abating the appeal and di recting the trial cour t to make findings of fact a nd conclus ions of law

on w hether appellant waived his right to a jury trial. On July 2, 2021, appellant
filed a motion for reconside ration of this court’s order to abate the appeal for findings of fac t a n d conclusions of law fro m the trial court. Appellant raised tw o issues in his motion: (1) the law

- of

- the

- case doctrine preclude d this court from issuing its June 2021 abatement order and (2) th is court d id not have the power to aba te t h e case and order a supplement to the record i n this appeal.
Appellant ’ s first iss ue for reconside ration was without merit , because there
has been no final determina tion of the appeal

. “ The legal principle or doctrine of

‘ the law of the case ’ in its most b a sic form provide s that an appellate court ’ s4 r e solution of a que stion of l aw in a p revious appeal o f the same case w ill govern the disposition of the same issue should there be another appeal. ” Ware v. State , 736 S.W.2d 700, 701 (Tex. Crim. App. 1987)

. T hough the court of criminal appeals has indicat e d that a determination must be made by a “ court of l a st res ort, ”
the case law is not cle ar which cou rt or courts constitute a court of last resort. See
43 B George E. Dix & John M. Schm olesky, Texas Practice: Criminal Practice
and Procedure § 56 : 1540 (3d e d

. 20 11 & Supp. 2020 ) (The “ Law of the Case ” )

. In

cr im inal appeals , t he d octrine applies when a court of appeals is asked to pas s on a
matter previously determined by the court of criminal appeals, and it has also been held to apply when a court of appeals i s asked to pass on a matte r it has itself previous ly determined r egardl ess of whether discretionary review by the court of criminal appeals was sought or granted on other grounds

. 2 S ee id

. ; see also Carrol l

v

. State , 101 S.W.3d 4 54 , 460 n.35 (Tex. Cr im. App. 2003) ( doctrine was discussed as if it was invoked by any appellate determination ). How e ver, i t does

not apply in any event until there has been a “final” determina tion in a n appe al. And “[n] either par ty has a ‘ settl ed expect at ion ’ concerning the final resolution of

2 “ The ‘ la w of the cas e ’ doctrin e i s define d as that principl e under which question s of la w decide d on appea l to a cour t o f las t resor t wil l gover n the cas e throughou t it s subsequen t stage s

. B y narrowin g the issue s in successiv e stage s of the litigatio n , the la w of the cas e doctrin e i s intende d to achiev e uniformit y of decisio n as wel l as judicia l econom y and efficienc y

. T he do ctrine is based on public p o licy and is aimed at putting an end to litigation. ” Hudson v. Wakefield , 711 S.W.2d 628, 630 (Tex. 1986) (internal citations omitted )

. In the civil context, appeal to the supreme court is not always require d. “ [W] here a dec isi on is rendered by an intermedi ate court, and appeal or other remedy is open to the losing party to have that decision reviewed in the court of last resort, if he fails to avail himself thereof, but allows the case to be remanded for fur ther procee dings, an d thereafter appeals again to the intermediate court and thence to the court of last resort, the points decided by the intermediate court on the first appeal will be r egarded as the law of the case in the court of last resort, and will not there b e re
e xam ined. State By and Through Sta te Bd. of Morticians v. Cortez , 323 S.W.2d 56, 58 (Tex

. App.

— San Antonio 1959), aff'd, 333 S.W.2d 839 (1960). And a court of appea ls will o rdinarily be bound by its initial decision, though the doctrine doe s not ab so lutely bar reconsideration of the issue on a second appeal and lies within the discretion of the court

. Briscoe v. Goodmark Corp. , 102 S.W.3d 714, 716

– 17 (Tex. 2003)

.5 an appeal which is still pending. ” Carroll , 101 S.W.3d at 460 n.35

. This court ’ s prior denial of a motion to abate is not a final determination in the appeal a nd
would not invoke the application of the la w
- of

- th e
- cas e doctrin e.
However, we granted appella nt ’ s motion because appell ant ’ s argume nts challe ng ing the authority of this court to direct the trial court to make findings of
fact and conclusions of law on t he issue of appellan t’s jury waiver ha d merit

. A ppel lant properly requ ested all parts of the clerk’s record and repo rter’s record.
The refore, t here is no partial or incomplete reporter’s record as contemplated by the Rules of Appellate Procedure

. T he cour t o f criminal appeals ha s held “ the supplement ation r ules, Rules 34.5 (c ) and 34.6(d) , cannot be used to create a new
record

. ” LaPointe v. State , 225 S.W.3d 513, 522 (Tex. Crim. App. 2007) ; see also Tex. R. App. P. 34.5(c) (supplementation of clerk’s record); T e x. R. App. P. 34.6(d ) ( s upplementation of r ep orter’s record). However, Rule 34.5(c) provide s that an appellate court in a crimin al cas e can ord er the trial court to prepare and file findings of fact and conclusions of la w as required by law

. Tex. R. App. P

. 3 4.5(c) (2) ( “ I f th e a p pellate court in a cr iminal case orders the tr ial court to p repare and file findings of fact and conclusions o f law as required by law

. . . the trial court clerk must prepare, ce rtify, and file in the appellate court a supplement a l

c l erk ’ s record cont ain i ng those findings and conclu sions. ” ) . The crit ical limitatio n of this provision is found in the language “ as r equ ire d b y law. ” See Berry v. State , 995 S.W.2d 6 99, 70 1

– 0 2 (Tex. Crim. App. 1999 )

. “ ‘ [A] s required by law’ means
that t h e re is some affirma t i ve duty imposed by the l egislatu re upon the co urts to make f indings of fact and conclusions of law

. ” Id

. at 702. Because t he law do es not require a trial court to make findings of fact and conclusions of law on whether a
defendant wai v ed h i s or her right to a jury trial , the suppl eme ntation rul es do not

empower t his court to direct the trial court to make findings of fac t and conc lusions6 of law in this instance.

T exas Rule of Appellate Procedure 44.4 a llow s the creation of a new record
i n certa in circumstances

. It authorizes an appe lla te court to direct the trial court to

correc t an erroneous action or failure or refusal to act that prevents the proper presentation of a case to the court of appeal. Tex. R. App. P. 44.4 (a), (b)

. The cour t of crim inal appeals ha s approved abatement and di rection to the tri al court to create
a new record , sometimes in the f orm of findings of fa ct and co nclusions of law, as necessary and proper in several context s whe n the trial court was required to take

ce r t ain act ion and failed t o do so

. See Hutchinson v. State , 86 S.W.3d 636, 638 n.1 (Tex. Crim. App. 2002) ( trial court did not conduct prope r Batson hearing ); Spence
v. State , 758 S.W.2d 597, 599

– 600 (Tex. Crim. App. 1988) ( trial court refused to permit d e f endant to make offer of proof or bill of excep tio n ) ; Bonh am v. Stat e , 644 S.W.2d 5, 8

– 9 (Tex. Crim. App. 1983) ( trial court did not reduc e to writ ing its findings of fact and conclusions of law on disputed fact issues surrounding taking
of confession )

. H ow ever, the court of cr iminal appeals has not aut horized app ellate

courts to require the trial court to create a new record unless the tria l court ’ s error affected the proper presentation of the case to the appellate court and the error was remediable

. S e e F akeye v. State , 227 S .W.3d 714, 718 (Tex. Crim. App. 2007) (trial cour t’s error in not admonishing app ellant as to deportation consequences of his p lea was n ot remediable error under Rule 44.4)

. Though several of our sister appellate courts have abated app eals fo r the pur pos e of directin g the trial court to

ma ke findin gs of fact an d c onclusions of law on j ury waiver , 3 we conclude that the

3 Rios v. State , 626 S .W.3d 408, 410

– 11 (Tex. App.

— Dallas 2021, pet filed ) (aba te d on appellant’s m otion to perm i t tri al court to condu ct hearin g and to make findi ngs of fact and conclusions of law on jury waiver); Snider v. State , No. 08

- 12

- 00 0 50

- CR, 2013 WL 6671510 , at *1 (Tex. App.

— El Paso Dec. 18, 2 013, pet. ref’d) ( mem. op., not designate d for publ ication) (“ Becau se the ex change between the trial court a nd de fense counsel rai sed the p ossibility that App ellant had expressly waived her right to a jury prior to trial, we abated the app e al for the trial court to conduct a hearing to determine whether Ap pellant had in f ac t waive d the jury.”);7 lack of a wr itten or oral jury waiver is not remediable error and does not prevent appellant from presenting his case on appeal

. See Hut chi n son , 86 S.W. 3d at
638 n.1 ; Fakeye , 227 S .W.3d at 718

. Accordi ngly, we g ranted ap pellant ’ s moti on to reconsider , vacated our June 29, 2021 order , and reinstated the appeal

. We now address the merits of the appeal.

B. R ight of a ppeal

Althou g h no part y has rai sed this issue, we fi rst address a con flic t in the record regarding appellan t ’ s right of appeal. T he trial cou rt s igned a certifi cat ion of
d efendan t’s right of appeal ( CODRA) stating that this case “ is not a plea

- bargain case, and the def e ndant ha s the ri g ht of appeal

. ” I n its judg ment, howeve r, t he trial

court made the f ollowing special finding : “ APPEAL WAIVED. N O
PE RMISSION TO APPEAL GR ANT ED

. ”

This cou r t has th e power to correct and reform the judgment of the court
below “ to make the rec o rd speak the tru t h ” when it h as t he necessary data and
info rmation to do so

. Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.

— D alla s 1991, pet. ref’d ) ( en ba nc) (On ion, J., reti red pres iding judge of Court of Criminal Appeals, sitting by designation and w r iting en banc co u rt ’ s opinion ) ; s ee French v.
State , 83 0 S. W.2d 607 , 609 (Tex. Crim. App. 199 2) (adopting reasoning of Asberry )

. In a criminal case, Tex as Ru le of A ppel late Pro c edure 43.2(b) (court of appeals may “ modify the trial court ’ s judgment and aff i rm it as modifie d ”) and its

p red e cessors function in pa rt a s a mean s for the appellate court to ren der judgment nunc pro tunc w hen the written judgme nt doe s not ref lect what occ urred in open

Davidson v . Sta t e , 22 5 S.W.3d 807, 808 (Tex. Ap p.

— Fort Worth 2007, no pet.) (abated to determine whether appellant waived right to a jury trial and was denied effective a ssis tance of counsel); Jackson v . St ate , 76 S. W. 3d 798, 800 ( Tex. Ap p

. — Corpus Christi

– Edinburg 2002 , no p et.) (abated to d e termine whether appellant w aived right to jury trial and consented to bench trial)

.8 court a t trial. Tex. R. App. P. 43.2(b); see Asberry , 813 S.W.2d at 529 ( “ Appella t e courts hav e t h e power to reform what ever the tri al court could have correc ted by a judgment nunc pro tunc wh ere the evidence neces sar y t o c orrect the judgment appears in the recor d. ” ). The author ity of an appellate court to reform incor r ect judg m ents is not dependen t u p on the request of any part y, nor d oes it turn on the questio n of whether a party has or has no t ob jected in the tria l c our t. Asberr y , 8 13
S.W.2d at 529

– 30

. “ The appella te court may act sua sponte and may have the duty
to d o so. ” Id

. at 530.
Here, the reco r d suppo rt s the tria l c ourt ’ s CODRA

. Specifically, the record
shows that this case was not a pl ea
- b argain case , as ap pel lan t did not plead guilty

o r nolo co ntendere, and accordingly the r ules re stricting appeal in such
circ u mstances do not a pply

. See T ex

. R . A pp

. P. 25.2(a)(2) ; Tex. Code Cr im. Proc.
Ann. art. 44.02

. Under these circumstances, we con clud e that the tr ial c our t ’ s

s pecial find ing of “APPEAL WAIVED. N O PERMISSION TO APPEAL
GRANTED.” was a clerical err or, and we m o dify the jud gment to delet e tha t special fin ding

. Tex. R. A pp. P. 4 3.2(b); see Asberry , 813 S .W.2d at 529

– 30

. C. Jury waiver

In his sole issue on appea l , appell ant contends there is structural error in the judgment because the trial court conducted a bench t r ial wit h o ut appel lant ’ s waiver
of his right to trial by jur y. The r ight to a jury trial at the guilt stage is both a statutory right and a constituti onal rig ht. 4 See U.S. Const

. art. III, § 2 & amend. V I ; Tex. Const. art. I, § 1 5 ; Tex. Code Cri m. Proc. An n . art. 1

. 12 ; see al so Hobbs v.
St a te , 298 S.W.3d 193, 197 ( Tex. Cri m

. App. 2009)

. A defendant has the right to

4 A criminal defendant h as no cons titutional ri ght to have a jury determine punishme nt. Barrow v. State , 207 S .W.3d 3 77, 380 (Tex. Crim. App. 2006). In Te xas, however, a criminal d efendant has the st atutory right to elect to have the jury assess punishment. See Tex. Code Crim. Pr oc. Ann. art s

. 26.14 , 3 7.07 , § 2(b).9 waive a trial by jury. See Adams v. Un ited Sta tes , 317 U.S. 269, 275 (1942);
Hobbs , 298 S.W.3d at 197; see also Tex. C ode Crim. Proc. Ann. ar t. 1 .13( a)

. A s a
matt er of protecting a defenda nt ’ s constitutio nal righ t to a jury trial, the State must establish on the record an express, knowing, and intelli gent waiver. See Hobbs , 298 S.W.3d at 197. A defendant ’ s mere acquiesce n ce in proceeding to tri al w ithout

a jury doe s not constitute an expres s waiver. See Ex pa rte L yles , 891 S.W.2d 960, 962 (Tex. Crim. App. 1995).

Neither the federal nor the stat e const itution require s that trial by jury be
waived in wr iting. Jo hnson v. State , 72 S.W.3d 346, 348 (Tex

. Crim. A p p. 2002) ; Ex part e Sadbe r ry , 864 S.W.2d 54 1, 543 ( Tex. Cri m. App. 1993)

. The legislature
has “ chosen to observe careful regulation of that c onstitu tional right by specifyi ng how that right may be waived. ” Sadbe r ry , 86 4 S.W.2d at 543. Code of Crim i nal
Proc edure a rticle 1. 13(a) sets out the require d formal ities of a jury waiver in Texas.
See Tex. Code Crim. Proc. Ann. art. 1.13(a). It p rovides that the defendant “shall have the right, upon enter i ng a plea, to waive the r ight of trial by jury , condit i oned,
ho wever, that . .

. the waiver must be made in perso n by the defendant in writing in open court with the consent and appro val of the c ourt , a nd the attorney representing the state.” Id

. Here, it is undisputed there is no written waiver of th e right t o trial by j ury for the guilt stage . Thus, the tri al court erred by failing to observe the mandatory requirements of article 1.13

. See Jo hns on , 72 S.W.3d at
347

– 48

. However, fail u re to o bserve the requ irements of article 1.13 is statutory

error, n ot const itu t ional or structural

. Id

. at 348

. Because appellant only as serts

str uctural error in this appeal, we consider only whether the record establi s hes a n express, knowing , and intelligent waiver of the right to trial by jury. See Hobbs , 298 S.W.3d a t 197.

A jur y waiver is never presume d fr o m a silent record, at least o n direct10 appea l. See Samudio v. State , 658 S.W.2d 312, 314 (Tex. Crim. App. 1983).
H owever, we do n o t have a silent rec ord before us in th is appeal. There is a judgment , rendered b y the t rial co urt , whic h states appellant waived his right to a jury trial. In the context of p erforming a harm analysis to address statutory error , the cour t of crimin al appeals in Johnson discussed the presumptions applica ble to a recital of waiver of the righ t to tri al b y jur y :

T he judgment rec ites that Johnson “wai ved tria l by jury.” That recitation is “binding in the absence of direct proof of [its] falsi ty.” If Joh nson “waived” a jury trial, then he must have known about his right to a jury trial, otherwise he coul d n o t hav e waived it. The ve ry use of the term “wa ive” p resume s knowledge, because “to waive a right one must do it knowingly

— with knowledge of the releva nt facts.” In addition, “waiver” is defined as “the act of waiving or intentionally relinquish i ng or a ban d oning a known right, cla im, or privilege.”

Jo hnson , 72 S.W .3d at 349 (internal citations omitted )

. The Johnson court reasoned that a recita tion of a waiver of the right to a jury trial is “binding in the absence of direct proof of [ its] falsit y .” Id

. ( cit i ng Br eazeale v. State , 6 83 S.W.2d 446, 450 (Te x . C rim. App . 1984) (op. on reh ’ g)). Without direct proof, the appellant cannot overcome the presumptio n of regularity in the judgment. S ee id

. As in Johnson , the judgment here recite s that appella n t “waive d t h e rig ht of trial by jury .” See id

. 5 T he discussion and hol ding in Johnson , though raised in a different context, determine our review of the judg ment and appellate record

5 Appellant also does n o t contend he lacked the o pportun ity to review the judgment and object

. The judgment , which cont ains appellan t ’ s fi ngerprint, is very conspic uously titled

“ J udgment of Con viction by Court

— Waiver of Jury Trial. ” While we rea lize that in criminal cases the f o cus is st ill on oral impo sition of sentence in open court , the complexity of modern criminal written judgments has grown to the point that significant items in the modern judgment

are not orally pronoun ced in open judgment

. D efendants and their cou nsel ne ed to revi ew those judgmen ts beca use not everything can be fixed for the first time on appeal using the Asberry and Fren ch nunc pro tunc practi c e. It begs the question of whether counsel is effective if counsel does not rev iew the written judgment.11 before us. We conclude that the recitation of a waiver of jury trial is s ufficien t t o estab lish the waiver of appellant ’ s constitutiona l right to a jury trial, unless there is direct proof of its fal sity.
Appellant argues th at documen ts in the record “ l iterally indicate [] [appellant] sought a trial by jury ” and overc ome the pre sumption of regul arity and
truthfu lness in the judgment. Appellant first reli es on language in his election to have the t rial court sentence him “ in the e vent a verdi c t of guilty is returned by the Jury. ” Because a waiver of jury trial “ effec tiv ely waives not o nly [ a defendant ’ s]
ri ght to have a jury determi ne his gu i lt or innocence, but also his right to have a jury assess punishment , ” appellant argues tha t this electi o n would be redundant if
he had inten ded to elect a b ench trial for the gui lt phase. S e e Edw ards v. State , 2 7 3 S.W.3d 919, 922 (Tex. Ap p.

— Houston [14th Dist.] 2009). The election was filed
with the tr ial court on the day the p unishment phase of trial began ( the last day of a
three

- day trial ) and generally tr ack s the pro visions of Code of Cr i mina l Proc edure
articl e 37.07. Tex. Code Crim. P roc. Ann. art. 37.07 , § 2(b) ( “ in other cases where the defendant so elects in writing befo re the comm encement of the voir dire
examinat ion of the jury panel, the punishment s hall be assessed by t he same jur y

. . . [i] f a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, chang e his election of one who assesse s the punishment ” ).

G iven appellant ’ s timing in filing his election, the election was redundan t no
matter wheth er ap pellant inte nded to waive a j ury trial for the g uilt phase or not

. It is unclear what appellant intended in filing the elect ion , and we can not speculate about appellan t ’ s intentions outside the record

. Even if we presume the election
form provid e d som e cir cumstantial evidence that appellant de sired a ju ry trial for the guilt phase of trial , it is not direct proof that he did not wai ve his rig ht to a jury
trial. See generally Crawford v. State , 502 S.W.2d 768, 769 (Tex. Crim. A pp.12 1973) ( “ T his cou r t has for some time he ld that the distinction be tween circ umstantial evidence and direct evidence is that the latter applies directly to th e ultimate fact to be proved, while circumstantial evidence is the direct proof of a minor fact which, by logical in f erenc e, de monstrates t he fact to be proved

. ” ).
T herefor e, we conclude that appellant ’ s election for the trial court to assess punishment , i n the even t the jury returns a finding of guilty, filed during or af ter the guilt phase of a bench trial , is not dir e ct ev idenc e of the fa l sity of the jury

- waiver re cit al in t he judgment. Cf. Davidson v. State , 225 S.W.3d 807, 808 (Tex. App.

— Fort Worth 200 7, no pet. ) (defendant met his burden through testimony that his counsel waived jury trial without his kn owledge or c onsen t and
tried to s ilence defendant when d efe ndant beca me concerned after realizing there

was no jury ).

Th e other proof appellan t o ffers in s upport of his argument is the c o urt ’ s doc ket sheet and a case
- reset form

. T h e case
- reset form ref lects t hat i n July 2019 , t he defense requested a reset of a jury trial

. 6 A case
- reset req uest submit ted months
in advance of trial proves only the fact that appellant requested a jury tria l setting
at that time , but it does not constitute direct evid ence that th e reci tal in the jud gme nt is false. Similarly, t h e court ’ s docket sheet reflects that a ppellan t ’ s case was de signated as a jury

- t ri al setting up until the day of trial , though the setting was changed to a court trial on the day of trial

. The do cket sheet p r ovide s direct proof of the fact that appellant ’ s trial was designated as a jury

- trial setting until the
time of trial , and therefo re can , at best, be characterized as some circumstantial
evidence. Howeve r, i t is not direct proof of the falsity of the reci t als i n the judgment

. W e conclude appellant has n ot identif ied an y dire ct pr oof of the falsity of the recitals in the judgment.

6 The c ase reset form appears to identif y the ty p e of setting as “ JTR. ” For purposes of

a rgument, w e presume this abbrevi ation reflects jur y trial requested

.13 App ellant further suggests that the jury

- waiver recitation in this case is n ot
pr e sumptively true, bec ause it is inc luded in “ bo i lerpl ate ” language fro m a
pre printed judgment fo rm. Yet, t he recitation in Johnso n was no dif ferent: the defendant there similarly waived his right to a jury trial in a pre pri nted judgment
form. Johnson , 72 S.W.3d at 349 , 352 . And the Co de of Crimi n al Pro c edure requires that tr ial courts use the judgmen t forms pr omulgated by the Office of
Court Ad ministration for felony convictions. T ex. Code Crim. Proc. Ann. art.
42.01 , § 4. The presumption of regularity applies to all judgm ents , including form judgments

. 7 See B reaze ale , 6 83 S.W .2d at 450

. Therefore, the fact the recitals at issue are from a pre

- pr inted judgment is not material

. See id

. ; see also 43 George
E. Dix & John M. Schm olesky, Texas Practice: Criminal Practice and Procedure § 40 : 6 (3d ed . 20 11 & Sup p . 2020 ) ( “ The Cour t t hen concluded that the pri nted langua ge in the judgment that Johnson “waived trial by jury” was sufficient to
sh ow that he entered a voluntary, knowing, and intelligent waiver of his right to trial by jury that would stand in the abse n ce of contradictor y e videnc e ” ) ; Ramirez
v. Stat e , No

. 01

- 1 2

- 00339

- CR, 2013 WL 1183304, at *2 (Tex. App.

— Houston [1st Dist.] Mar. 21, 2013, no pet .) ( mem op., not designated for publication) ( “ Ramirez raises no irregularity casting doubt on the adequacy of the waive r recited in the required judgme n t form s. ” )

. A s an in t ermediate court of appeals , we are bo und to follow the precedent of
the court of criminal appeals

. S ee Tex. Const

. art. V, § 5 (a) (providing that court of criminal appeals is final authorit y for int erpr eting cri min al law in Texas). T h e recitation in th e ju dgment establishe d appella nt ’ s wavier of his right to trial by

7 The formal judgment addressed by the court of criminal appe als in Brea z eale was also a form judgment wi th “ boiler plate ” language. See Br eazeale v . State , 655 S.W.2d 230, 23 2 (Tex. App.

— Houston [14th Dist.] 198 3) , rev ’ d , 683 S.W.2d 446 (Te x . Crim. App. 19 84) ( “ The form judgment contains the recitation, ‘ the Defenda nt, in pers on and in writing, in open court, having

wa ived his right o f trial by jury [ .] ’ ” ).14 jury

. And without direct evidence of the fals ity of the recit al s in the judgment, w e are bound t o presum e the truthfulness and regula rity o f those r eci tals

. See Jo hnson , 7 2 S.W.3d at 349 ; B reaz eale , 683 S.W.2d at 450

. B ecause appe llant has not
identifi ed any direct proof of the falsity of the recitals in the judgment, we conclude th ere is no structural error in the judgment rende red by the tr ial court

. W e o v errule appellant ’ s sole issue.

III. C ON CLUS ION

We mod i fy th e tr ial co urt ’ s judgm ent to delete the special finding,

“ APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED. ” Hav i ng overruled appella nt’s sole issue on appeal , we affirm , as mo dified, th e t rial cour t’s judgment as challen g ed on appeal

. Te x. R. App. P. 43.2( b ).

/s/ Charles A. S pain Justice

Pan el con sists of Justi ce s Bo urliot , Zimmere r, and Spain

. Pub lish

— T ex . R. App. P. 47.2(b)

.