Affirmed and Majority Memorandum Opinion and Con curring

Memorandu m Opinion filed August 2 4 , 2023.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00551

- CR

PATRICK O NIEL HOWARD , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 434th Judici al District Court

Fort Bend County, T exas Trial Court Cause No. 21

- DCR

- 095022

MAJORITY M EMORANDUM OPINION

A ppellant Patrick O Neil Howard challenge s his conviction for robbery
, enhanced by a prior con v iction for possession of a c ontrolled substance, for w hich
the trial court assesse s punishment at t en

- years im prisonment

. See Tex. Penal Code Ann. § § 29.02
, 12. 42(b)

. He complains that the trial court committed

assorte d procedural errors implicati n g his du e process rights , and generally
contends that most , i f no t all, of these errors are “s tructural c onstitutional error s ”2

that did not require preservation in the trial court and which are immune to a harmless error analysis

. We affirm

.

I. F ACTUAL A ND P ROCEDURAL B ACKGROUND

O n April 12, 2021
, a

ppellant was ind icte d for r obbery , and eight days later

was served with the indictment. A “Sherriff’s Return” filed in the appell ate record
indicat es that appellant was served in person by a Deputy Sheriff whi l e in custody as a prisoner. 1 The indictment re ads as follows :

T he duly organized Grand Jury of Fort Ben d County, Texas, presents in the District Court of Fort Bend County, Texas, that in Fort Bend County, Texas, [Appellant]
, hereaft er styled the Defenda n t, heretofore

on or about March 25, 20 21 , did then and there, whi le in the cour se of committing theft and with intent to obtain or maintain control of the property, intentionally and knowingly threaten or place Alma Azu z

Martinez AND/ OR Brazos Valley Scho o ls Credit Union in fear of imminent bo dily injury or death; A nd i t is further p resented in and to said Co urt that, prior to the commission of the aforesaid offense (hereafter styled the primary offense), on the 1st day of December, 19 97, in cau se number 7 8 90 in the 316th District Court of Hutc hinson County, Texas, t he D efendant

was finally convicted of the fe lony of Possession of a Controlled Substance [.] While in custody, his counsel moved for and the court ordered a competency evaluati on . The F ort Bend p s y chologist appointed to examine him con cluded appellant was co mpet ent to stand tria l

. Her report states t hat appellant

“ demonstrated basic factual understanding of his charge, as well as basic rational understanding and appreciation f or potential c onseque n ces associated with his charge .”

1 B etween the time appel lant and State filed their briefs , the record was supple mented to inc lud e the Sheri ff ’ s Return. Apart from any request to amend or supplement his b rie f, w ithout leave of th e court , appe llant could have filed a reply brief addressing th is portion of the re cord

.3

On Septem ber 29, 2021 , the S tate moved to amend t he indictment

. The

mot ion fully restates the text of the indictment and the text of the requested
amended indictment. The amendment requested one lett er in the firs t half o f complain an t ’s hyphenated last name be changed , (e. g., th a t Alma Azu z

- Martinez be changed to Alma Azu a

- M artinez ).

The following day a

ppellant
, his trial counsel
, and the State’s prosecutor (with six witnesses) appeared in the 434th District Court i n For t Bend , and in open

court , the two sides announced “ready ”

. T h e tr ial commenced and concluded the same day

. Before opening statements, the trial court took up preliminary matters . First,
the State’s prosecutor called to the court’s a ttention her moti on to amend and
asserted it was made to correct a misspelling in th e vi ctim’s name. Appellant’s counsel respond ed that she was “aware of that, Your Honor, and counsel has no objection

. ” The trial judge granted that motion
, 2 then appellant’ s trial counsel

o ffere d information concerning the subject of appellant’s compet en cy eva luation, stating:
[Appellant ’ s trial co unsel] : Your Honor, I had the o pportunity of meeting with [ a ppellant] since the inception of this case on several occasions. And we have been abl e to h ave logical and rational conversations about these charges.
I n fa ct, today a t his request we are having t his trial. In addition, at his

r equest we are

-- [ a

ppellant] does intend at this moment

-- he could change his mind, at this mom ent to testify in this matter. I would state to the Court that he has

-- he is a p er son that has bee n diagnosed with schizophren ia and that is all delineated in the report written by Dr. Tonya Martin. Dr. Tonya Martin will be available later

2 That motion con tains a certificate of service a sserting that it was s erved on Appellant’s counsel on September 29, 2021 and an automated ce rti ficate of eservi ce sho wing th at it was served on App ellant’s counsel on September 29, 2021

.4

this afternoon to testify befor e the Court. But at this time I would move for the Court to take ju dici al notice of the report that's already

w ith the Court. THE COURT: The Cou rt will take judicial notice of the competency to stand trial, criminal responsibility, sanity evaluation. In my file it is dated 6/29/21, and I have reviewed thoroughly the rep or t th at has been turned in by Dr.

-- you said Dr. Martin, yes? [Appellant ’ s trial counsel] : Yes. The state then offered eight exhibits
, (State’s Exhibits 1 through 8), to wh ich appellant’s c ounse l stated “ no objection. ” The court admitted the eight exhib it s.

Th en, at the b ench ( beyond appellant ’ s e arshot) , the State’s prosecutor requested that two lay witnesses (the complainant and one other witness) be
identified at trial only by their fir st na m es. To this request, a ppellant’s counsel
stated: “ I don't ha ve a ny objections .”
In her opening, appella nt’ s tria l co unsel agreed with the S tate’s recitation of the evidence, stating:
In fact, [ a ppellant] today is not contesting th at on the date in ques t ion he did enter into the Brazos Valley Credit Union. He di d slid e a note to the teller, which he had pre viously wr itte n out with a marker saying, “ I have a bomb, give me money. ” And, in fact, that he did not make any overt gestures, did not have any weap o ns then or later. Money was tendered to him and he left the b usin ess and he was subsequently arrested wit hout incid ent. The issue

-- the only issue before the Court will be the testimony that you'll hear from [ a

ppellant] . And [ a

ppell ant] will testify to t h e Court that on this date he is a person with severe mental i lln ess, with schizophrenia. We have a long

- s tanding diag nosis of schizophrenia. But on the day in question he said that the voices told him to go and do this, that he did n ot and would not free l y and voluntarily have done it had he not been hearing voice s on that date. Judge, we believe that t he Cou rt will be a ble to make the appropriate decision at the conclusion of all the evidence today

.5

The State then presented its case, wherein several wit n es ses testified that

a ppellant robbed the Brazos Valley Credi t Un ion by handing the teller a note which rea d: “GOT A B O M b, Give M E $ M ONE y

. ” Other testimony established that employees of the bank alerted the police, that a ppellant was apprehended walk ing
al ong the street in which the bank was located, and that he w as c ompliant and calm when arrested, and that he was found with money and the note

. Following the conclusion of the State’s case in chief, the parties recessed
and when th ey returned after th e c ourt announced they were back on the record the State reque st ed that the court arraign a ppellant.
[ State’ s prosecutor ] : And the n I also wanted the Court to arraign the defendant before the Defense presents their case

- in

- chief. THE CO URT: Let's go off th e r ecord for a second. (Discussion off the record.) THE COURT: B ac k on the record. So earlier on the record we

-- there

was an ame ndment to the indictment. The re was no objection from Defense counsel. However, there is a ten

- day notice requirement from the St ate, and I'm asking if Defense counsel has any objection to t he ten

- day notice? [Appellant ’ s trial counse l] : I don't have any objection. THE COUR T: Without objection, that is noted on the record. We also did not arraign the defendant prior to trial. So a t this time I'd ask the State to arraign the defendant. [ Stat e’ s prosecutor ] : Yes, Your Honor. The State of Texas versus Patrick O ’ Neil Howard: In the name a nd by the a uthority of the State of Texas, the duly organized Grand Jury of Fo rt Bend County, T ex as , presents in the District Court of Fort Bend County, Texas, th a t in Fort Bend County, Texas, [ a ppellant]
, hereafter styled the defendant, heretofo re on or ab out March 25, 2021, did then and there, while in the course of committing the ft and with inten t to o btain or maintain control of property, intentionally and kn ow i ngly threatened or placed Alma Azua

- Martine z and/or Brazos Valley School Credit Uni on in fear of6

imminent bodily injury or death. Against the peace and dignity of the Stat e. Signed by the fo re ma n of the Grand Jury. THE COURT: Okay. [Appellant] , you've h ea r d the allegations against you and the State has read the indictment to the record, h ow do you p lead to these charges, sir? [Appellant] : Not guilty. THE COURT: Let the reco rd reflect that t he d ef endant has pled not guilty to the charges as listed in the in d ictment.

Appellant’s trial counsel then be gan the case

- in

- chief for the defense
, calling
to the witness stand appellan t who admitted to the acts described by the S tate’s
witnesses of the ro bb er y. In support of his defense, he testified that he suffere d
f rom schizoaffective disord er and that he wa s not in his right mind on the morning of the robbery, that he was late by a week in getting a shot he typically received to

tre at the disorder. H e fu rther testified that he was prompted by voices in his head;
h e stated “voices were t alking that they want ed me to commit another bank robbery ”

. He admitted as he did to the police shortly after he was arrested that he came up with t he idea from a fo rm er c ell mate who had reported personal success with robbing ban ks in this manner.

When a sked if he wanted to hurt anyone, he replied that it was not his plan
to, that he just “wanted the money.” Finally, to the question “ And so you ne ver did anything to m ak e anyone feel like you wanted to hurt them? ”
, appellant respo n ded,

“ Of course I did, I went into the bank and robbed it. ” Appellant’s counsel presented no other witnesses and the parties presented brief closing arguments. In
its cl osing appellant’s c ou ns el reiterated appellant’s plea was not “not guilty by

reason o f insanity” but simply “not guilty” for reasons consistent with appellant’s
mental illness . On rebuttal , the State pointed out evidence adduced showing the
rational thought exhibite d by a ppellant

.7

The court announced its finding that appellant was guilty of the listed charge
of second

- degre e robbery
, found true the enhancement for a prior conviction for possession of a controlled substance
, and promptly began the punishment phase of
trial.
During argument the prosecutor noted that the punishment range f or appellant ’ s second

- degree

- felon y o ff ense enhan c ed by prior conviction was betwee n f

iv e and ninety

- nine years. Appellant ’ s trial counsel requested community supervision, or alternatively the minimum five

- year prison sent ence. T he trial court as sessed punishment at imprisonment for ten ye ars as recommended by the S tate ’ s prosecutor.

II. I S SU ES AND A NALYSIS Like appellant’s statement of (two) issues, his argument sect ion is structurally divided in two parts. Ye t, liberally construing the complain ts set out in his brief, the first part rais es three discrete issues to th ree separate pr ocedural

o ccurrences. The three respective questions raised are:

Did the trial court err in rendering judgment against appellant without appellant having been served the in dictment prior to trial?
D id the tri al court err in proceeding to trial in t he absence of a statutory jury waiver ? Did the trial court err in failing to arraign (or read the i ndictment in open court) prior to th e commencement of trial ? Much of t he firs t part is also devoted to a ppellant ’ s contention that these

erro rs are categorically immun e from ordinary preservation requirements. That is,

a ppellant does not claim that he p reserved error. Instead, he argues t he law does not require preservation of err or on any of his points. H e conten ds all his points of

error re late to one of two rare ca te gories : complaints that a bsolute, systemic requirements were violated ; or complaints related to rights which are waivable8

only

– those which the trial court ha s an in dependent duty to implement absent an y request unless there is a n effective express waiver

. See Richardson v. State , 631 S.W.3d 269, 280 (Tex. App.

— Houston [14th Dist.] 2020, p et. ref’d) discussing
Marin v. State , 851 S.W.2d 275, 280 (Tex. Crim. Ap p. 1993 )

. Similarly, t he second part of hi s brief is devoted to argui ng that the totality
of th e complained

- of erro rs culminate s in constitutional, structural error not susceptible to a harmless error analysis, or if s o, that alternatively caused direct and
imm ediate harm to the appellan t.

A. Serv ice of the Indictment and A mended Indictment

A ppellan t complains that the trial court failed to ensure that he was served
with his indictmen t, the amended indictment, or other wise “ apprise [d] him of the charges agai nst him by reading him the ind ictment. ” Appellant relatedly contend s as significant to these om issions the fact that he did not sign a w aiver of

a rraignment.
Service of an Indict ment

The Texas Code of Criminal Pro cedure requires prompt service by th e sheri ff to the accused of a p end ing indictm ent against him and requir es that the
sheriff file a re turn thereon, showing when and how the same was executed . See
Tex. Code Crim. Proc. art. 25.02. Specifically, the relev ant provisions state:
In every case of fel ony, when the accused is in custody, o r as soon as he may be arr ested, the clerk of the co u rt where an indictment has been presented shall immediately make a certified copy of t he same, and deliver such copy to th e sheriff, commanding him forthwith to deli ver such certified copy to the accused

. Tex. Code Crim. Proc. a rt. 25.0 1

. Upon receipt o f s uch writ and copy, the sheriff shall immediately deliver such certified copy of the indictment to the accused and return9

the writ to the clerk issuing the s ame, wi th his return thereon, s how ing when an d how the same was execute d. Tex. Code Crim. Proc. a rt . 25.02.

O ur record includes the precept to serve the indictment, and a return signed by the Fort Bend County Sheriff or hi s deputy who served the indictm ent. Thi s return indicates that the She riff receiv ed the indictment on April 20, 2021, and

ser ved a ppel la nt with the indictment on April 20, 2021. On this record, there is nothing to rebut the evidence indicating that a ppell ant was properly served with the
ori gin al indictment. In the absence of any evid ence that the stat utory requirements

were no t complie d with
, a ppellant’s argument that the trial court erred in failing to

e nsure t hat he was served with the indict men t is ove rruled.

S ervice of Amended Indictme nt
Appellant also contend s th at the trial co urt denied his right to due process by failing to ensure th at he was served with the amended indictment

. With respect to
amendments to the indictment , the Code of C riminal Pro cedure states:
(a) Afte r notice to the defendant, a matter of form or substance in an indictment or i nformation may be amended at any time before the date the trial on the merits commences. On the request of the def endant, the court shall allow the defend ant not less th an 10 day s, or a shor ter period if requested by the defendant, to re spond to the amende d indictment or information. (b) A matter of form or substance in an indictment or information may also be amended after the trial on the merit s commences if the defenda nt does n ot object. ( c) An indictment or information may not be am en ded over the defend ant's objection as to form or substance if t he amended indictment or information charges the defendant with an add itional or different offense or if the s ubstantial righ ts of the d efendant a re prejudiced.10

Tex. Code Crim. Pro. Ann. art

. 28.10

. Even if, a s appellant contends

— his complaint conc erning service of the
amended charges implicate s a category

- one Marin right

— such a complaint is not supported by the record; the record does not show tha t a ppellant was never served
with an amended complaint

. The unchallen ged certificate of service on the S tate’s

m otion to amend indicates that the State served a motion to amend the i ndictment

on a ppellant’s coun sel the day before trial

. Before t ri al beg an, a ppellant’s counsel acknowledged the moti on on the record , stated t hat she was aware of the proposed
amendment and had no objection to the change and affirmatively waived ten days’
notice to respon d

. Th us, to the ext ent appellant complain s that his rig ht t o be given an opportunity to respond to t he amended charges implicate s a category

- two Marin right , the record shows appellant ’ s counsel affirmatively waived that right. As the
record sho ws that appe llant ’ s co un sel did not object to the amended in dictmen t or information or re quest additional time to respond to the am ended indictment, and
that appellant ’ s counsel waived the statutory notice period
, we ov errule a ppellant’s complaint to the extent that he argues the trial co urt erred in failing to e ns ur e tha t he was served with the am e nd ed ind ic t men t or failing to provide h im an adequate opportunity to respond

. Moreover, the mere correction of one le tter in c om plainant ’ s name d id not add a new charge or render the original charge against appellant a d ifferen t offense
,

an d not hing in the record shows that appellant ’ s substantial rights were prejudiced

. Both the original and amended in dictment na me the same bank as the place of the robbery and nothing in the record indicates the identity of the named teller wa s si g nificant to appellant ’ s defense
, or a subject of dispute at trial

. See Wilharm v.
State , No. 01

- 15

- 00507

- CR, 2016 WL 7369203, at *3

– 4 (Tex. App.

— Houston [1st Dist.] Dec. 15, 2016, no pet.) (mem . op., not designated for publication) ( h olding11

no error that tri al court grant ed pro secution ’ s amendment of indi ct ment s olely to change spelling of com plain ant ’ s name immediately before trial) ; See also Soules
v. State , No. 08

- 15

- 00384

- CR, 2019 WL 5616974, at *2

– 4 (Tex. App.

—

El Paso Oct. 31, 201 9, no pet. ) (mem . op., not designated for pu blication) ( holding complaint on app eal fails where a ppellant fail e d to establish the offense in the original indict ment was a different statutory offen se than the offense for which he was charged after the indic tment was amende d )

. Accordingly
, we find no harm

. B. Jury Waiver

In his se cond issue, appel lant alleges that t he record contains no jury trial
wai ver, and contends that the trial court viola ted his right to a jury trial in th e absence of an express waive r. The right to a jury trial is a statut ory and constitutional right, but neither the

s tate nor f

ederal c onst it utions require that a jury waiver be made in writing.
Johnson v. State , 72 S.W.3 d 346, 348 (Tex. Crim. App. 2002). However , Article 1.13(a) of the Texas Code o f Criminal Procedure
, doe s r equire a written waiver ;
spec ifi cal ly, it provides : (a) The defendant in a criminal prosecution for any offense other than a capital felony ca se in which the state notifies the court and the defendant that it wi ll seek the deat h penalty shall have the rig ht, upon entering a plea, to wai ve the right of trial by jury, conditioned, however, that, except as provided by Article 27.19, the waiver must be made in person by the defendant in writing in open court with the consent and app roval 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 writi ng, signed by th at attorney, and filed in th e papers of the cause before the defendant enters the defendant's plea

. There is no dispute the trial court erred in f ailing to observe the mandatory12

requirements of article 1.13

. Appellan t neither made an expres s request for a jury trial, nor did appell an t ex ecute a wr itten jury waiver

. The State howev er, directs us to th is court’s recent decision which guides

our har m analysis . In Munguia v. State , we held that where the record contai ns a judgment asserting that the appella nt w aived hi s right to a j ur y tr ial, and no contrary evidence appears in t he record, the lack of a writ ten jury waiver in the
record will not resu lt in reversal. 636 S.W.3d 750, 757

– 58 (Tex. App.

— Houston [14th Dist.] 2021, pet. ref’d) . We addressed the is sue as follo ws:

A jury wa iv er i s never presumed from a silent record, at least on direct appeal. See S amudio v. State , 648 S.W.2d 312, 314 (Tex. Crim. App. 1983) . However, we do not have a silent record before us in this appeal. There is a judgment, rende red by the t rial court, wh ic h st ates appellant waived his right to a jury trial. In the context of perf orming a harm analysis to address statu tory error, the court of criminal appeals in Johnson discussed the presum ptions applicable to a r ecital of waiver of the righ t to trial by ju ry: The judgment recites that Johnson “waived trial by jury.” That recitati on is “binding in the absence of direct pro of of [its] falsity.” If Johnson “waived” a jury trial, then he must h ave known about his righ t to a jury tria l , o therwise he could not ha ve w aived it. The very use of the term “waive” presumes knowledge, because “to waive a right one must do it knowin gly

— with knowledge of the relevant facts.” In addition, “waiver” is define d as “the act of waiving or intentionall y re linquish ing or abandon in g a known right, claim, or privilege.” Johnso n , 72 S.W.3d at 349 (internal citations omitted). The Johnson court rea soned that a recitation of a waiver of the right to a jury trial is “b inding in the absence of direct proof of [i t s] falsi ty.” Id. (cit in g B reazeale v. State , 683 S.W.2d 446, 450 (Te x. Crim. App. 1984) (op.

on r eh'g)). Without direct proof, the appel lant cannot overcome the presumption of regularity in the judgment. See i d. Munguia v. State , 636 S.W.3d at 757

– 5 8

.13

T urning to the record i n ou r case, we note the record contains a judg ment which was promptly follo wed by a corrected judgment. Though both o nly contain
recit als indicating app ellant ’ s jury

- trial w aive r, and not hing contrary to this st ated intent, the forme r , ori ginal judgme nt , cont ained unrelated inaccuracies , such as

appe llant ’ s plea of “ guilty ”

. T he relevant recitals contained in the live, c orrected judgment
, are expressed as follows: “ The State waived its rig ht to a jury trial and
D efendant elected to pr oceed with a tria l b ef ore the Court. ”
The only difference between th is case and Munguia is that t he recital language used to indicate the vo luntary relinquishment of the right to a jury trial was arguably more pre cise in this case. W hereas the recit als in Mungu ia and
Johnson o nly employed the term “waiver”
, the trial court ’ s corrected judgment in
this case , in addition to using the phrase “ WA IVER OF JURY TRIAL ” in the title of the document, refers to appellant ’ s election

– a n unmistakab ly voluntary act illus tratin g appellant’s kn owle dge and deliberate choice of “ a trial before the

cou rt” r ather than a trial before a jury

. As in Munguia , the reco rd here contains no direct proof that the recital is false. In fact, e lsewhere in the record, including appell ant’s testim ony, appellant m ade statem ents consistent with the recital

. During trial he stated:
Of course I did, I went into the bank and robbed it. I understand that and for that I'm guilty as dead on. Yo u know wh at I'm saying, to have t his woman scared of me after six months af te r it ' s been done, she acts like it was yesterday or today or it just happened. You know, so that's terrible in my case and in the jury's

-- I mean in the Court's eye

. (emphasis ad ded). The record contains judgmen ts indicating a p pell an t waiv ed his right t o a ju ry, and in the abse nce of contrary evidence, those judgments are presumed to be true and regular. See Mungu ia v. S tate , 636 S.W.3d at 7 58

. C. Arrai gnment and the Reading of t he Indict ment and Taking of The P lea14

Appellant ’ s th ir d comp la int or group o f comp laints relate to the trial court ’ s mid

- trial arraignment of appellant , or the reading of the indictment and taking of his plea , after the S tate ’ s case

- in

- chief

. The most di rect point of error under this thir d complaint is t hat th e tria l court
erred by fai ling to ensure that appellant was arraigned prior to the beginning of
trial , and as a result, according to appella nt , he was harmed because he was

unaw are of the complainant ’ s name dur ing trial

. 3 Appellant a lso complains th at

t he cou rt committed re ver sib le error for failing to read the indictment and take his plea at the beginning of trial because ap p el lant had not ex pressly waived his right to arraignment , the two

- day period betwe en the indictment and arr aig nment , or the

re ading of t he enhancement par agraph befo re his punishment hearing

. Our rules require that we presume the occurrence of certain re gular

pr ocedur al events which are not always apparent from the record , such as a
defendant ’s arraign ment and the court ’s taking of his ple a, except when mat ters

were disputed in the trial court, and except when the record affirmatively shows the contrary

. T ex. R. App. P. 44.2(c) (3)& (4). Rule 44.2 states:
(c) Presumptions. Unless the following matters were dispute d in the trial c ourt, or u nless the record a ffirmatively shows the contrary, the court of appeals must presume:

. . . (3) that the defendant was arraigned; (4) that the defendant pleaded to the indictment or other charging instrument; The record affirmativ ely shows that d efenda nt w as arraigned and p leaded “not guilty ” to the indictmen t , but , as appellant complains, these events occurred

3 In connecti on with this complaint, a ppellant makes assorted accusat ions alleging th e tria l cou rt and the S tate conspired against him.15

out of the ordinary sequenc e. At the outset we distinguish between two s tatutory procedures referred to by

a ppellant . Fi rst , Chapter 36 of the Cod e of Criminal Proc edure defines various procedu res applicable to jury trials

. Appellant frequen tl y refers to th e first provision in this Chapter which sets out a prescribed sequence of events for jury
trial s . The fi rst step in t his sequence, pr ovided in article 36.01(a)1
, describes th e procedure for reading the indictment to the jury, as follows : (a ) A jur y being im paneled in any criminal action, except as provided by Subsection (b) of this article, the cause shall proceed in th e following orde r: 1. The indictment or inf

o rmation shall be read to the jury by the attorney pro secuting. When prior convic tions a re alle ged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or inform ation recitin g such convictio ns sha ll n ot be read until t he hearing on punishment is held as provided in Artic le 37.07. Tex. Code Crim. P ro c . Ann . art. 36. 01

. Having already ad dressed appellant ’ s jury

- waiver issue, Chapter 3 6 is not germane to appellant ’ s bench trial a nd does not cont rol th e ou t come of this appe al

. Nor are we aware of (or does appellant point to) any simila r statutory righ t to the
readi ng of the indictment applicable to bench trial s , at any specific phase of the
trial

. When the trial court read appel lant the amended indic tment and took his ple a , appellant could have lodged an objection and requested that the State
reintroduce evidence but failed to do so. See Reed v. S tate , 500 S.W.2d 497, 499 (Tex. Crim. App. 1973) ( overruling complaint challenging wh ether was arraig ned

an d that ‘he pleaded to the indictment, ’ when the record revealed appellant ha d been arraigned and that appellant had ple aded to the indic tment but that he failed to16

complain about it at trial)

. Moreover, appellant counsel agr eed to the modified proced ures

. See Keith v. State , N o. 09

- 00

- 00485

- CR, 2001 WL 1441242 at *5 (Tex. App.

—

Beaumont Nov. 14, 2011, pet. ref’d) (mem . op., not designated for publication) (overruling complaint that trial court erred for f ailing to “arraign [ defendant ] at trial” and by “ failin g to have [him] enter a plea to the indictment at
trial ” where appellant assented to modified procedures whe n moving fo rward to guilt

- innocence at pretrial suppression hearing). Under these circ umstances we decline to read into Rule 44.2(c)
, any seq uence, stag e or timing esse ntial to any one of the listed occurrences . Because appellant ’ s trial counsel assented to the mid

trial arraignment or the court ’ s acceptance of appellant’s not

- guilty plea
, and the
record does not show that thes e events did not occur , the presumptio n under Rule 44.2(c) h as not been overcome. See id.; see also Reed v. S tate , 500 S.W.2d at 499 ; Tex . R. App. P. 44.2(c)
Thoug h the thrus t of appellant ’ s complaint seems to target the procedure in Chapter 36, a ppell ant also makes a pas sing m ention t o the pro visions contained in Chapter 26 of Texas Code of Criminal Pro cedur e, which provide the rules pertaining to arraignment s. Th at Cod e section pro v ides that “ i n al l felony cases [ including those tried by a judge rathe r th a n a jury] , afte r indi ctment, there sha ll be an arraignment. ” Tex. Code Crim. Pro. Ann. art. 26.01

. T he stated purpose of the
arrai gnment procedure is for “ f ixing his i dentity and he aring his plea. ” Tex. Code
Crim. Pro. Ann. art. 26.02

. T he Code furth er s tates:

No arrai gnment shall t ake place until the expiration of at least two entire days after the d ay on which a copy of the indic tment was served on the defendant, un less the right to such copy or to such delay be waived, or unless the defendant is o n ba il. Tex. Code C rim. P ro. Ann. art. 26. 03

. Though it is not clear t hat appellant raises the issu e, t he only perceiv able17

statutory e rror committe d by the court is tha t i t arra i gned ap pellant less than “ two entire days ” after he was served with the am end ed i ndictment

. Alth ough

a ppella nt ’ s counse l had clearly indicated a wa iver of the right to service of t he
indictment before trial , it less clear that appellant waived the right to be ar raigned

“ at lea st two entire days ” after being served with a copy of t he a mended
indictmen t. T o the ex tent the right was not waived, and to the extent t he trial court
erred in failing to hold the arraign ment after the passing of the pre scri bed period,

we consider whether appellant was harmed

. Appellant contends this error to be structural er ror. P resuming for the sake of argument that the cou rt committed this struct ural erro r , the e rror is subject to review under Texas Rule of Appellat e Proced ure 44.2( a ), s uch that we must

reverse unless the record shows beyond a reasonabl e do ubt that the err or did not contribute t o the conviction or punishment

. Much of appell ant ’ s argument with respect t o harm is based on his contention that he wa s neither served with the
indictment or amended indictment
, such tha t in his perspective, the mid

- trial

arr aignmen t was the first time he had been appr is ed of his charge. As already
discussed above , the re cord d oes not support these contentions. Moreover , it is significant that appellant ’ s counsel waived the 10

- d ay notice period required for
the s ervi ce of the in dict ment , and did n ot reque st a continuance of trial. Appellant
fails to explain, nor c an we find in th e record, how the correction of the teller ’ s last
name altered in any way his ability to defend the r obb ery ch arges against him or how t his contributed to h is con viction or punish ment

. See Tex. R. App. P. 44.2( a ). Despite the unco nvention al sequence at tr ial, i.e., the mid

- trial arr aig nment , where appellant was gi ven th e opportunity to hear the S tate ’ s e ntir e case

- in

- chief prior to being requ ired to sta te hi s plea on the record
, we find the error h armless

. Because we find beyond a reasonable doubt that the error did not contribu te18

to ap pellant ’ s conviction or punishment
, we overrule appellant ’ s third complaint.

III. C ONCLUSION

We hav e care ful ly considered al l of a ppellant ’ s state d grounds of error

. Ha ving found no grounds for reversible error in the record , we affirm t he judgme nt of the trial court.

/s/ Randy Wilson Justice

Panel consis ts of Jus tic es Spain
, Poi ssant , an d Wilson.

Do no t publish

— Tex. R . App. P. 47.2(b).