Before Justices Nowell, Miskel, and Kennedy Opinion by Justice Kennedy Following a bench trial, the trial judge found appellant, Francisco Hernandez, guilty of aggravated sexual assault of a child in cause numbers F19-76280-K and F19-76281-K and sentenced him to ten years’ imprisonment in each case, with the sentences to run concurrently. In a single issue, appellant urges the trial court violated his constitutional rights by holding a bench trial when the record does not demonstrate that he expressly, knowingly and intelligently waived his right to a jury trial. For the reasons set forth herein, we reverse the trial court’s judgments and remand the cases for a new trial. BACKGROUND A grand jury returned two indictments against appellant. Both indictments alleged appellant committed continuous sexual abuse of a child in violation of Texas Penal Code section 21.02. The complainants are appellant’s biological children. Appellant pleaded “Not Guilty” to both charges, and the cases were consolidated in a single trial before the court. At the conclusion of the guilt–innocence phase of trial, the State conceded that it had not met its burden to establish appellant committed the offense of continuous sexual abuse of a child, but urged the evidence was sufficient to support a conviction for the lesser included offense of aggravated sexual assault. The trial court agreed and found appellant guilty in both cases of aggravated sexual assault of a child. The trial court’s judgments are captioned “Judgment of Conviction by Court—Waiver of Jury Trial” and contain the form’s boilerplate language, “Defendant waived the right of trial by jury and entered the plea indicated above.”[1] DISCUSSION In his sole issue on appeal, appellant argues the record does not support a finding he knowingly and voluntarily waived his right to a jury trial. As a result, he contends that his constitutional rights were violated. The State responds, urging the record reflects appellant waived his right to a jury trial despite the lack of a written jury waiver as required by Article 1.13 of the Code of Criminal Procedure. I. Preservation of Error Appellant did not object to a bench trial in the trial court. Generally, error must be preserved under Rule 33.1 of the Texas Rules of Appellate Procedure. TEX. R. APP. P. 33.1. Under that rule, the complainant must object and state the ground for the objection with sufficient specificity that the trial court knows what the complainant wants and why the complainant thinks he is entitled to it. Id. 33.1(a)(1)(A). The complainant must also object when the court can remedy the error, and a ruling on the objection must be obtained unless the trial court refuses to rule. Id. 33.1(a)(2)(A)–(B). Rule 33.1 does not apply to all alleged errors. Litigant rights usually fall into three categories: (1) systemic requirements and prohibitions, (2) waivable-only rights, (3) and forfeitable rights. Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004); Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Rule 33.1 does not apply to complaints about systemic requirements and prohibitions or to waivable-only rights. Mendez, 138 S.W.3d at 342. Either type of complaint can be raised for the first time on direct appeal. Id. The right to a jury trial is a waivable- only right. Rios v. State, 665 S.W.3d 467, 477 (Tex. Crim. App. 2022). Therefore, appellant can argue for the first time on direct appeal that he was denied his federal constitutional right to a jury trial and that the procedures required by Article 1.13(a) of the Code of Criminal Procedure for waiving a jury were violated notwithstanding his failure to object at trial. See id. II. Right to Trial by Jury and Knowing and Intelligent Waiver of Same The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” U.S. CONST. VI; see Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (applying the Sixth Amendment jury trial guarantee to the states). The right of trial by jury shall remain inviolate. TEX. CONST. art. I, § 15; TEX. CODE CRIM. PROC. ANN. art. 1.12. A defendant has a limited right to waive his constitutional right to a jury trial in favor of a bench trial or pleading guilty. Rios, 665 S.W.3d at 478 (citing Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942); Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009); U.S. CONST. VI; TEX. CONST. art. I § 15; CODE CRIM. PROC. art. 1.12)). Article 1.13 of the Texas Code of Criminal Procedure sets forth the procedural safeguards for ensuring an express, knowing, and intelligent jury-trial waiver. CODE CRIM. PROC. art. 1.13. “The defendant in a criminal prosecution . . . shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned however, . . . 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.” Id. art. 1.13(a). “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.” Id. Waiver of the constitutional right to trial by jury requires an intentional relinquishment or abandonment of the right. See Rios, 665 S.W.3d at 479 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). A waiver will not be inferred from a silent record. Id.; Guillett v. State, 677 S.W.2d 46, 49 (Tex. Crim. App. 1984). Courts indulge every reasonable presumption against waiver of fundamental constitutional rights. Johnson, 304 U.S. at 464; see Boykin v. Alabama, 395 U.S. 238, 243 (1969). “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970) (footnote omitted); see Godinez v. Moran, 509 U.S. 389, 400–01 (1993) (“The purpose of the ‘knowing and voluntary’ inquiry . . . is to determine whether the defendant actually . . . understand[s] the significance and consequences of a particular decision.”). Whether “there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case.” Adams, 317 U.S. at 278. Recently, the Texas Court of Criminal Appeals addressed the knowing and intelligent waiver requirement. Rios, 665 S.W.3d 467. In doing so, it set forth several factors that could be considered in the analysis. Id. at 479–82. They are: 1. Whether the defendant knew about his right to a jury and the nature of the right; 2. Whether the defendant executed a written jury waiver; 3. Whether the trial court admonished the defendant about his right to a jury; 4. The defendant’s education and background and legal sophistication; 5. The level of the defendant’s involvement in his defense; 6. His ability to understand courtroom discussion regarding waiver of a jury; 7. The words and actions of the defendant; 8. Discussions with trial counsel about the right to a jury and representations of trial counsel; 9. What language the defendant understands and the presence of an interpreter if not English; 10.The lack of an objection before or shortly after the bench trial began; and 11.Whether there is a docket entry indicating that the defendant expressly waived his right to a jury on the record and that waiver was voluntary, knowing, and intelligent. Id. The burden is on the State on direct appeal to develop a record showing an express, knowing and intelligent waiver of a defendant’s right to a jury. Id. at 485. In appellant’s cases, the trial court did not admonish him about his right to a jury trial. After admonishing appellant with respect to the range of punishment and inquiring about plea negotiations, the trial court instructed the State to read the two indictments and accepted appellant’s pleas of “Not Guilty” to each. It then instructed the State to call its first witness. No jury waivers were executed in this case, and the right to a jury trial and waiver of same was never discussed in open court. The trial court’s docket entries in these cases do not indicate appellant waived his right to a jury on the record and that any waiver was knowing and intelligent. There was no word or action by appellant suggesting he knowingly and voluntarily waived his right to a jury trial. There is no indication in the record that appellant’s trial counsel discussed with him the right to a jury or that appellant knew the implications of waiving his right to a jury. A defendant need not understand every nuance of the right to a jury before waiving that right (and we decline to adopt any definitive statement), but a waiver cannot be knowing and intelligent unless the record shows that the defendant at least had sufficient awareness of the relevant circumstances and likely consequences of waiving his right to a jury. Brady, 397 U.S. at 748 (footnote omitted). The record is silent with respect to appellant’s education and background but does show that an interpreter was present at trial. With respect to appellant’s sophistication and legal acumen, the State contends appellant understood the judicial process and chose to hire legal counsel to represent him and asserts that appellant had already proceeded to a jury trial on another offense. But hiring counsel when faced with criminal charges does not in and of itself establish sophistication or competence in navigating through the Texas criminal justice system. Doing so may merely signal the accused recognized he was not equipped to or did not wish to handle the matter himself. While the record contains a transcript from a pretrial conference, that included a separate matter, during which motions in limine were discussed, there is no indication in the record whether the separate case actually proceeded to trial before the cases at issue here, and, if so, whether the matter was ultimately tried before the court or a jury. The record is silent as to appellant’s involvement in his defense, but it does show that, other than acknowledging he understood the range of punishment and entering his not guilty pleas, he was silent during trial. While the judgments indicate there was a waiver of jury trial, there are errors in the judgments and the recitations do not speak to whether appellant expressly, intelligently and knowingly waived his right to a jury, which is the inquiry here. Rios, 665 S.W.3d at 485. As the court of criminal appeals has recognized, application of the presumption of regularity to a constitutional no-waiver claim seems inappropriate given that it does not inform the knowing and intelligent inquiry and because the burden is on the State on direct appeal to develop a record showing an express, knowing, and intelligent waiver of a defendant’s right to a jury. Id. Given the burden of proof is on the State and the sparse record in this case, we are forced to conclude that the evidence is insufficient to show that appellant expressly, knowingly and intelligently waived his right to a jury. III. Harm Having concluded that the record does not show appellant knowingly and intelligently waived his right to a jury trial, we now turn to the issue of harm and whether a violation of the constitutional right to a jury trial is subject to a harmless- error analysis. A violation of the federal constitutional right to a jury trial is structural error. Id. at 485–86 (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). This structural error defies harm analysis because the error affects the framework of the trial. Id. We sustain appellant’s sole issue. IV. Errors in the Judgments In a cross-issue, the State asserts the trial court’s judgments erroneously indicate appellant pleaded “Guilty” to the offense. We note that in addition to this error, the trial court erred by assessing costs in both cases. See CODE CRIM. PROC. art. 102.073(a) (“In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.”); see also Garcia v. State, No. 05-21-01134-CR, 2022 WL 5113172, at *1 (Tex. App.—Dallas Oct. 5, 2022, no pet.) (mem. op., not designated for publication) (For purposes of this rule, a person convicted of two or more offenses in the same trial or plea proceeding is convicted of those offenses in a “single criminal action.”) (quoting Hurlburt v. State, 506 S.W.3d 199, 201–04 (Tex. App.—Waco 2016, no pet.)). Because we have sustained appellant’s issue, we do not need to modify the judgments and we overrule the State’s cross issue as moot. TEX. R. APP. P. 47.1. CONCLUSION Having concluded that the record does not show that appellant knowingly and intelligently waived his right to a jury, and because the error is structural, we sustain appellant’s sole issue and reverse the trial court’s judgments and remand the cases for a new trial. Because we find constitutional error, we need not consider whether the failure to comply with Article 1.13 of the Texas Code of Criminal Procedure requirements, a statutory error, constituted harm requiring reversal. TEX. R. APP. P. 47.1. Nancy Kennedy NANCY KENNEDY JUSTICE Publish TEX. R. APP. P. 47 230058F.P05 Court of Appeals Fifth District of Texas at Dallas JUDGMENT FRANCISCO HERNANDEZ, Appellant THE STATE OF TEXAS, Appellee participating. On Appeal from the Criminal District Court No. 4, Dallas County, Texas Trial Court Cause No. F19-76280-K. No. 05-23-00058-CR V. Opinion delivered by Justice Kennedy. Justices Nowell and Miskel Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. Judgment entered this 30th day of January, 2024. Court of Appeals Fifth District of Texas at Dallas JUDGMENT FRANCISCO HERNANDEZ, Appellant No. 05-23-00059-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 4, Dallas County, Texas Trial Court Cause No. F19-76281-K. Opinion delivered by Justice Kennedy. Justices Nowell and Miskel participating. Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. Judgment entered this 30th day of January, 2024.
