Affirmed and Majority Memorandum Opinion and Concurring 

Memorandum Opinion filed August 24, 2023.

In The

Fourteenth Court of Appeals

NO. 14-21-00551-CR

PATRICK ONIEL HOWARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 434th Judicial District Court

Fort Bend County, Texas

Trial Court Cause No. 21-DCR-095022

MAJORITY MEMORANDUM OPINION

Appellant Patrick ONeil Howard challenges his conviction for robbery, 

enhanced by a prior conviction for possession of a controlled substance, for which 

the trial court assesses punishment at ten-years imprisonment. See Tex. Penal 

Code Ann. §§ 29.02, 12.42(b). He complains that the trial court committed 

assorted procedural errors implicating his due process rights, and generally 

contends that most, if not all, of these errors are “structural constitutional errors”
2

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

harmless error analysis. We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 12, 2021, appellant was indicted for robbery, and eight days later

was served with the indictment. A “Sherriff’s Return” filed in the appellate record 

indicates that appellant was served in person by a Deputy Sheriff while in custody 

as a prisoner.1 The indictment reads as follows: 

The duly organized Grand Jury of Fort Bend County, Texas, presents 

in the District Court of Fort Bend County, Texas, that in Fort Bend 

County, Texas, [Appellant], hereafter styled the Defendant, heretofore 

on or about March 25, 2021, did then and there, while in the course of

committing theft and with intent to obtain or maintain control of the

property, intentionally and knowingly threaten or place Alma AzuzMartinez AND/OR Brazos Valley Schools Credit Union in fear of 

imminent bodily injury or death;

And it is further presented in and to said Court that, prior to the

commission of the aforesaid offense (hereafter styled the primary

offense), on the 1st day of December, 1997, in cause number 7890 in 

the 316th District Court of Hutchinson County, Texas, the Defendant 

was finally convicted of the felony of Possession of a Controlled 

Substance[.]

While in custody, his counsel moved for and the court ordered a competency 

evaluation. The Fort Bend psychologist appointed to examine him concluded 

appellant was competent to stand trial. Her report states that appellant 

“demonstrated basic factual understanding of his charge, as well as basic rational

understanding and appreciation for potential consequences associated with his 

charge.”

1 Between the time appellant and State filed their briefs, the record was supplemented to 

include the Sheriff’s Return. Apart from any request to amend or supplement his brief, without 

leave of the court, appellant could have filed a reply brief addressing this portion of the record. 
3

On September 29, 2021, the State moved to amend the indictment. The 

motion fully restates the text of the indictment and the text of the requested 

amended indictment. The amendment requested one letter in the first half of

complainant’s hyphenated last name be changed, (e.g., that Alma Azuz-Martinez

be changed to Alma Azua-Martinez). 

The following day appellant, his trial counsel, and the State’s prosecutor 

(with six witnesses) appeared in the 434th District Court in Fort Bend, and in open 

court, the two sides announced “ready”. The trial 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 attention her motion to amend and 

asserted it was made to correct a misspelling in the victim’s name. Appellant’s 

counsel responded 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

offered information concerning the subject of appellant’s competency evaluation, 

stating: 

[Appellant’s trial counsel]: Your Honor, I had the opportunity of 

meeting with [appellant] since the inception of this case on several 

occasions. And we have been able to have logical and rational

conversations about these charges.

In fact, today at his request we are having this trial. In addition, at his 

request we are -- [appellant] does intend at this moment -- he could

change his mind, at this moment to testify in this matter.

I would state to the Court that he has -- he is a person that has been 

diagnosed with schizophrenia and that is all delineated in the report

written by Dr. Tonya Martin. Dr. Tonya Martin will be available later 

2 That motion contains a certificate of service asserting that it was served on Appellant’s 

counsel on September 29, 2021 and an automated certificate of eservice showing that it was 

served on Appellant’s counsel on September 29, 2021.
4

this afternoon to testify before the Court. But at this time I would 

move for the Court to take judicial notice of the report that's already 

with the Court.

THE COURT: The Court 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 report that 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 which 

appellant’s counsel stated “no objection.” The court admitted the eight exhibits. 

Then, at the bench (beyond appellant’s earshot), the State’s prosecutor 

requested that two lay witnesses (the complainant and one other witness) be 

identified at trial only by their first names. To this request, appellant’s counsel 

stated: “I don't have any objections.”

In her opening, appellant’s trial counsel agreed with the State’s recitation of 

the evidence, stating: 

In fact, [appellant] today is not contesting that on the date in question 

he did enter into the Brazos Valley Credit Union. He did slide a note 

to the teller, which he had previously written 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

weapons then or later. Money was tendered to him and he left the

business and he was subsequently arrested without incident.

The issue -- the only issue before the Court will be the testimony that 

you'll hear from [appellant]. And [appellant] will testify to the Court

that on this date he is a person with severe mental illness, with 

schizophrenia. We have a long-standing diagnosis of schizophrenia.

But on the day in question he said that the voices told him to go and 

do this, that he did not and would not freely and voluntarily have done 

it had he not been hearing voices on that date.

Judge, we believe that the Court will be able to make the appropriate 

decision at the conclusion of all the evidence today.
5

The State then presented its case, wherein several witnesses testified that 

appellant robbed the Brazos Valley Credit Union by handing the teller a note 

which read: “GOT A BOMb, Give ME $ MONEy.” Other testimony established that 

employees of the bank alerted the police, that appellant was apprehended walking

along the street in which the bank was located, and that he was compliant 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 they returned after the court announced they were back on the record the 

State requested that the court arraign appellant.

[State’s prosecutor]: And then I also wanted the Court to arraign the 

defendant before the Defense presents their case-in-chief.

THE COURT: Let's go off the record for a second.

(Discussion off the record.)

THE COURT: Back on the record. So earlier on the record we -- there 

was an amendment to the indictment. There was no objection from 

Defense counsel. However, there is a ten-day notice requirement from 

the State, and I'm asking if Defense counsel has any objection to the

ten-day notice?

[Appellant’s trial counsel]: I don't have any objection.

THE COURT: Without objection, that is noted on the record. We also 

did not arraign the defendant prior to trial. So at this time I'd ask the

State to arraign the defendant.

[State’s prosecutor]: Yes, Your Honor. The State of Texas versus 

Patrick O’Neil Howard:

In the name and by the authority of the State of Texas, the duly 

organized Grand Jury of Fort Bend County, Texas, presents in the 

District Court of Fort Bend County, Texas, that in Fort Bend County,

Texas, [appellant], hereafter styled the defendant, heretofore on or 

about March 25, 2021, did then and there, while in the course of 

committing theft and with intent to obtain or maintain control of

property, intentionally and knowingly threatened or placed Alma 

Azua-Martinez and/or Brazos Valley School Credit Union in fear of 
6

imminent bodily injury or death. Against the peace and dignity of the

State. Signed by the foreman of the Grand Jury.

THE COURT: Okay. [Appellant], you've heard the allegations against 

you and the State has read the indictment to the record, how do you 

plead to these charges, sir?

[Appellant]: Not guilty.

THE COURT: Let the record reflect that the defendant has pled not 

guilty to the charges as listed in the indictment.

Appellant’s trial counsel then began the case-in-chief for the defense, calling

to the witness stand appellant who admitted to the acts described by the State’s 

witnesses of the robbery. In support of his defense, he testified that he suffered 

from schizoaffective disorder and that he was 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 

treat the disorder. He further testified that he was prompted by voices in his head;

he stated “voices were talking that they wanted me to commit another bank 

robbery”. He admitted as he did to the police shortly after he was arrested that he 

came up with the idea from a former cell mate who had reported personal success 

with robbing banks in this manner. 

When asked 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 never did 

anything to make anyone feel like you wanted to hurt them?”, appellant responded,

“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 closing appellant’s counsel reiterated appellant’s plea was not “not guilty by 

reason of 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 exhibited by appellant. 
7

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

of second-degree 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 for 

appellant’s second-degree-felony offense enhanced by prior conviction was 

between five and ninety-nine years. Appellant’s trial counsel requested 

community supervision, or alternatively the minimum five-year prison sentence. 

The trial court assessed punishment at imprisonment for ten years as recommended 

by the State’s prosecutor.

II.ISSUES AND ANALYSIS

Like appellant’s statement of (two) issues, his argument section is 

structurally divided in two parts. Yet, liberally construing the complaints set out in 

his brief, the first part raises three discrete issues to three separate procedural

occurrences. The three respective questions raised are: 

Did the trial court err in rendering judgment against appellant without 

appellant having been served the indictment prior to trial? 

Did the trial court err in proceeding to trial in the absence of a

statutory jury waiver?

Did the trial court err in failing to arraign (or read the indictment in 

open court) prior to the commencement of trial? 

Much of the first part is also devoted to appellant’s contention that these 

errors are categorically immune from ordinary preservation requirements. That is, 

appellant does not claim that he preserved error. Instead, he argues the law does 

not require preservation of error on any of his points. He contends all his points of 

error relate to one of two rare categories: complaints that absolute, systemic 

requirements were violated; or complaints related to rights which are waivable
8

only–those which the trial court has an independent duty to implement absent any 

request unless there is an effective express waiver. See Richardson v. State, 631 

S.W.3d 269, 280 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) discussing 

Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993).

Similarly, the second part of his brief is devoted to arguing that the totality 

of the complained-of errors culminates in constitutional, structural error not 

susceptible to a harmless error analysis, or if so, that alternatively caused direct and 

immediate harm to the appellant. 

A. Service of the Indictment and Amended Indictment

Appellant complains that the trial court failed to ensure that he was served 

with his indictment, the amended indictment, or otherwise “apprise[d] him of the 

charges against him by reading him the indictment.” Appellant relatedly contends 

as significant to these omissions the fact that he did not sign a waiver of 

arraignment. 

Service of an Indictment

The Texas Code of Criminal Procedure requires prompt service by the 

sheriff to the accused of a pending indictment against him and requires that the 

sheriff file a return thereon, showing when and how the same was executed. See 

Tex. Code Crim. Proc. art. 25.02. Specifically, the relevant provisions state: 

In every case of felony, when the accused is in custody, or as soon as 

he may be arrested, the clerk of the court where an indictment has 

been presented shall immediately make a certified copy of the same, 

and deliver such copy to the sheriff, commanding him forthwith to 

deliver such certified copy to the accused. 

Tex. Code Crim. Proc. art. 25.01.

Upon receipt of such writ and copy, the sheriff shall immediately 

deliver such certified copy of the indictment to the accused and return
9

the writ to the clerk issuing the same, with his return thereon, showing 

when and how the same was executed. 

Tex. Code Crim. Proc. art. 25.02.

Our record includes the precept to serve the indictment, and a return signed 

by the Fort Bend County Sheriff or his deputy who served the indictment. This 

return indicates that the Sheriff received the indictment on April 20, 2021, and 

served appellant with the indictment on April 20, 2021. On this record, there is 

nothing to rebut the evidence indicating that appellant was properly served with the 

original indictment. In the absence of any evidence that the statutory requirements 

were not complied with, appellant’s argument that the trial court erred in failing to 

ensure that he was served with the indictment is overruled. 

Service of Amended Indictment

Appellant also contends that the trial court denied his right to due process by 

failing to ensure that he was served with the amended indictment. With respect to 

amendments to the indictment, the Code of Criminal Procedure states: 

(a) After notice to the defendant, a matter of form or substance in an 

indictment or information may be amended at any time before the date 

the trial on the merits commences. On the request of the defendant, 

the court shall allow the defendant not less than 10 days, or a shorter

period if requested by the defendant, to respond to the amended 

indictment or information.

(b) A matter of form or substance in an indictment or information may 

also be amended after the trial on the merits commences if the 

defendant does not object.

(c) An indictment or information may not be amended over the 

defendant's objection as to form or substance if the amended 

indictment or information charges the defendant with an additional or 

different offense or if the substantial rights of the defendant are 

prejudiced.
10

Tex. Code Crim. Pro. Ann. art. 28.10.

Even if, as appellant contends—his complaint concerning service of the 

amended charges implicates a category-one Marin right—such a complaint is not 

supported by the record; the record does not show that appellant was never served 

with an amended complaint. The unchallenged certificate of service on the State’s 

motion to amend indicates that the State served a motion to amend the indictment 

on appellant’s counsel the day before trial. Before trial began, appellant’s counsel 

acknowledged the motion on the record, stated that she was aware of the proposed 

amendment and had no objection to the change and affirmatively waived ten days’ 

notice to respond. Thus, to the extent appellant complains that his right to be given 

an opportunity to respond to the amended charges implicates a category-two Marin

right, the record shows appellant’s counsel affirmatively waived that right. As the 

record shows that appellant’s counsel did not object to the amended indictment or 

information or request additional time to respond to the amended indictment, and 

that appellant’s counsel waived the statutory notice period, we overrule appellant’s 

complaint to the extent that he argues the trial court erred in failing to ensure that 

he was served with the amended indictment or failing to provide him an adequate 

opportunity to respond. 

Moreover, the mere correction of one letter in complainant’s name did not 

add a new charge or render the original charge against appellant a different offense, 

and nothing in the record shows that appellant’s substantial rights were prejudiced.

Both the original and amended indictment name the same bank as the place of the 

robbery and nothing in the record indicates the identity of the named teller was 

significant 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) (holding 
11

no error that trial court granted prosecution’s amendment of indictment solely to 

change spelling of complainant’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, 2019, no pet.) (mem. op., not designated for publication) (holding 

complaint on appeal fails where appellant failed to establish the offense in the 

original indictment was a different statutory offense than the offense for which he 

was charged after the indictment was amended). Accordingly, we find no harm. 

B. Jury Waiver

In his second issue, appellant alleges that the record contains no jury trial 

waiver, and contends that the trial court violated his right to a jury trial in the 

absence of an express waiver. 

The right to a jury trial is a statutory and constitutional right, but neither the 

state nor federal constitutions require that a jury waiver be made in writing. 

Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002). However, Article 

1.13(a) of the Texas Code of Criminal Procedure, does require a written waiver; 

specifically, it provides:

(a) The defendant in a criminal prosecution for any offense other than 

a capital felony case in which the state notifies the court and the 

defendant that it will seek the death penalty shall have the right, upon 

entering a plea, to waive 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 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.

There is no dispute the trial court erred in failing to observe the mandatory
12

requirements of article 1.13. Appellant neither made an express request for a jury 

trial, nor did appellant execute a written jury waiver. 

The State however, directs us to this court’s recent decision which guides 

our harm analysis. In Munguia v. State, we held that where the record contains a 

judgment asserting that the appellant waived his right to a jury trial, and no 

contrary evidence appears in the record, the lack of a written jury waiver in the 

record will not result in reversal. 636 S.W.3d 750, 757–58 (Tex. App.—Houston

[14th Dist.] 2021, pet. ref’d). We addressed the issue as follows: 

A jury waiver is never presumed from a silent record, at least on direct 

appeal. See Samudio 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, rendered by the trial court, which states 

appellant waived his right to a jury trial. In the context of performing 

a harm analysis to address statutory error, the court of criminal 

appeals in Johnson discussed the presumptions applicable to a recital 

of waiver of the right to trial by jury:

The judgment recites that Johnson “waived trial by jury.” 

That recitation is “binding in the absence of direct proof 

of [its] falsity.” If Johnson “waived” a jury trial, then he 

must have known about his right to a jury trial, otherwise

he could not have waived it. The very use of the term 

“waive” presumes knowledge, because “to waive a right 

one must do it knowingly—with knowledge of the 

relevant facts.” In addition, “waiver” is defined as “the 

act of waiving or intentionally relinquishing or 

abandoning a known right, claim, or privilege.”

Johnson, 72 S.W.3d at 349 (internal citations omitted). The Johnson

court reasoned that a recitation of a waiver of the right to a 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 direct proof, the appellant cannot overcome the 

presumption of regularity in the judgment. See id.

Munguia v. State, 636 S.W.3d at 757–58.
13

Turning to the record in our case, we note the record contains a judgment 

which was promptly followed by a corrected judgment. Though both only contain 

recitals indicating appellant’s jury-trial waiver, and nothing contrary to this stated 

intent, the former, original judgment, contained unrelated inaccuracies, such as

appellant’s plea of “guilty”. The relevant recitals contained in the live, corrected 

judgment, are expressed as follows: “The State waived its right to a jury trial and

Defendant elected to proceed with a trial before the Court.”

The only difference between this case and Munguia is that the recital 

language used to indicate the voluntary relinquishment of the right to a jury trial 

was arguably more precise in this case. Whereas the recitals in Munguia and 

Johnson only employed the term “waiver”, the trial court’s corrected judgment in 

this case, in addition to using the phrase “WAIVER OF JURY TRIAL” in the title 

of the document, refers to appellant’s election–an unmistakably voluntary act

illustrating appellant’s knowledge and deliberate choice of “a trial before the 

court” rather than a trial before a jury. As in Munguia, the record here contains no 

direct proof that the recital is false. In fact, elsewhere in the record, including 

appellant’s testimony, appellant made statements 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. You know what I'm saying, to have 

this woman scared of me after six months after 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 added).

The record contains judgments indicating appellant waived his right to a 

jury, and in the absence of contrary evidence, those judgments are presumed to be 

true and regular. See Munguia v. State, 636 S.W.3d at 758. 

C. Arraignment and the Reading of the Indictment and Taking of The Plea
14

Appellant’s third complaint or group of complaints relate to the trial court’s 

mid-trial arraignment of appellant, or the reading of the indictment and taking of 

his plea, after the State’s case-in-chief.

The most direct point of error under this third complaint is that the trial court

erred by failing to ensure that appellant was arraigned prior to the beginning of 

trial, and as a result, according to appellant, he was harmed because he was 

unaware of the complainant’s name during trial.

3 Appellant also complains that 

the court committed reversible error for failing to read the indictment and take his

plea at the beginning of trial because appellant had not expressly waived his right 

to arraignment, the two-day period between the indictment and arraignment, or the

reading of the enhancement paragraph before his punishment hearing.

Our rules require that we presume the occurrence of certain regular

procedural events which are not always apparent from the record, such as a 

defendant’s arraignment and the court’s taking of his plea, except when matters 

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

the contrary. Tex. R. App. P. 44.2(c)(3)&(4). Rule 44.2 states: 

(c) Presumptions. Unless the following matters were disputed in the 

trial court, or unless the record affirmatively 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 affirmatively shows that defendant was arraigned and pleaded

“not guilty” to the indictment, but, as appellant complains, these events occurred

3

In connection with this complaint, appellant makes assorted accusations alleging the 

trial court and the State conspired against him. 
15

out of the ordinary sequence.

At the outset we distinguish between two statutory procedures referred to by 

appellant. First, Chapter 36 of the Code of Criminal Procedure defines various

procedures applicable to jury trials. Appellant frequently refers to the first 

provision in this Chapter which sets out a prescribed sequence of events for jury 

trials. The first step in this sequence, provided in article 36.01(a)1, describes the 

procedure for reading the indictment to the jury, as follows: 

(a) A jury being impaneled in any criminal action, except as provided 

by Subsection (b) of this article, the cause shall proceed in the 

following order:

1. The indictment or information shall be read to the jury by the 

attorney prosecuting. When prior convictions are alleged for 

purposes of enhancement only and are not jurisdictional, that 

portion of the indictment or information reciting such 

convictions shall not be read until the hearing on punishment is 

held as provided in Article 37.07.

Tex. Code Crim. Proc. Ann. art. 36.01.

Having already addressed appellant’s jury-waiver issue, Chapter 36 is not 

germane to appellant’s bench trial and does not control the outcome of this appeal. 

Nor are we aware of (or does appellant point to) any similar statutory right to the 

reading of the indictment applicable to bench trials, at any specific phase of the 

trial. 

When the trial court read appellant the amended indictment and took his 

plea, appellant could have lodged an objection and requested that the State 

reintroduce evidence but failed to do so. See Reed v. State, 500 S.W.2d 497, 499 

(Tex. Crim. App. 1973)(overruling complaint challenging whether was arraigned

and that ‘he pleaded to the indictment,’ when the record revealed appellant had 

been arraigned and that appellant had pleaded to the indictment but that he failed to 
16

complain about it at trial). Moreover, appellant counsel agreed to the modified 

procedures. See Keith v. State, No. 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 failing to “arraign 

[defendant] at trial” and by “failing to have [him] enter a plea to the indictment at 

trial” where appellant assented to modified procedures when moving forward to 

guilt-innocence at pretrial suppression hearing). Under these circumstances we 

decline to read into Rule 44.2(c), any sequence, stage or timing essential to any one 

of the listed occurrences. Because appellant’s trial counsel assented to the midtrial arraignment or the court’s acceptance of appellant’s not-guilty plea, and the 

record does not show that these events did not occur, the presumption under Rule 

44.2(c) has not been overcome. See id.; see also Reed v. State, 500 S.W.2d at 499; 

Tex. R. App. P. 44.2(c)

Though the thrust of appellant’s complaint seems to target the procedure in 

Chapter 36, appellant also makes a passing mention to the provisions contained in

Chapter 26 of Texas Code of Criminal Procedure, which provide the rules

pertaining to arraignments. That Code section provides that “in all felony cases

[including those tried by a judge rather than a jury], after indictment, there shall be 

an arraignment.” Tex. Code Crim. Pro. Ann. art. 26.01. The stated purpose of the 

arraignment procedure is for “fixing his identity and hearing his plea.” Tex. Code 

Crim. Pro. Ann. art. 26.02. The Code further states: 

No arraignment shall take place until the expiration of at least two 

entire days after the day on which a copy of the indictment was served 

on the defendant, unless the right to such copy or to such delay be 

waived, or unless the defendant is on bail.

Tex. Code Crim. Pro. Ann. art. 26.03.

Though it is not clear that appellant raises the issue, the only perceivable 
17

statutory error committed by the court is that it arraigned appellant less than “two 

entire days” after he was served with the amended indictment. Although 

appellant’s counsel had clearly indicated a waiver of the right to service of the 

indictment before trial, it less clear that appellant waived the right to be arraigned 

“at least two entire days” after being served with a copy of the amended 

indictment. To the extent the right was not waived, and to the extent the trial court 

erred in failing to hold the arraignment after the passing of the prescribed period, 

we consider whether appellant was harmed. 

Appellant contends this error to be structural error. Presuming for the sake of 

argument that the court committed this structural error, the error is subject to

review under Texas Rule of Appellate Procedure 44.2(a), such that we must

reverse unless the record shows beyond a reasonable doubt that the error did not 

contribute to the conviction or punishment. Much of appellant’s argument with 

respect to harm is based on his contention that he was neither served with the 

indictment or amended indictment, such that in his perspective, the mid-trial 

arraignment was the first time he had been apprised of his charge. As already

discussed above, the record does not support these contentions. Moreover, it is 

significant that appellant’s counsel waived the 10-day notice period required for 

the service of the indictment, and did not request a continuance of trial. Appellant 

fails to explain, nor can we find in the record, how the correction of the teller’s last 

name altered in any way his ability to defend the robbery charges against him or 

how this contributed to his conviction or punishment. See Tex. R. App. P. 44.2(a). 

Despite the unconventional sequence at trial, i.e., the mid-trial arraignment, where 

appellant was given the opportunity to hear the State’s entire case-in-chief prior to 

being required to state his plea on the record, we find the error harmless.

Because we find beyond a reasonable doubt that the error did not contribute 
18

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

III. CONCLUSION

We have carefully considered all of appellant’s stated grounds of error. 

Having found no grounds for reversible error in the record, we affirm the judgment 

of the trial court. 

/s/ Randy Wilson 

Justice

Panel consists of Justices Spain, Poissant, and Wilson.

Do not publish — Tex. R. App. P. 47.2(b).