Robert Poindexter v. State ( 2005 )

                              NUMBER 13-02-345-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

ROBERT POINDEXTER,                                                                 Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

On appeal from the 347th District Court of Nueces County, Texas.

MEMORANDUM OPINION

                         Before Justices Hinojosa, Yañez, and Garza

                            Memorandum Opinion by Justice Garza

After a bench trial, appellant was convicted of the felony offense of possession of a controlled substance with intent to deliver.  On appeal, this Court held that the evidence was legally insufficient to support appellant=s conviction, reversed the conviction, and ordered an acquittal.  Poindexter v. State, 115 S.W.3d 295, 296B97 (Tex. App.CCorpus Christi 2003), rev=d, 153 S.W.3d 402 (Tex. Crim. App. 2005).  On the State=s petition for discretionary review, the court of criminal appeals concluded that the evidence linked appellant to the contraband and was legally sufficient to support his conviction.  See Poindexter, 153 S.W.3d at 412B13.  On remand, this Court now considers appellant=s remaining issues regarding a written jury waiver and the factual sufficiency of the evidence.

Appellant argues that his conviction and sentence must be reversed because the clerk=s record does not contain a jury waiver signed by him and consented to by the State.  See Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon 2005).  We disagree.  The lack of a written jury waiver is not harmful if, as in this case, the record reflects that the defendant was aware of his right to a jury trial and waived that right.  See Garza v. State, 77 S.W.3d 292, 292 (Tex. Crim. App. 2002) (per curiam). Accordingly, appellant=s first issue is overruled.        

Appellant also argues that the evidence is factually insufficient to support his conviction because he was not present when the hidden contraband was discovered and did not have access to it.  The evidence adduced at trial included hearsay testimony to which appellant=s counsel did not object.  According to this testimony, which is properly considered in a sufficiency review, see Tex. R. Evid. 802, appellant was in possession and knew the secret location of the contraband later discovered by police at his home.  When viewed in a neutral light, the proof of guilt in this case is not so obviously weak as to undermine confidence in the conviction, nor is it greatly outweighed by contrary proof.  See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  Appellant=s second issue is therefore overruled.

The judgment of the trial court is affirmed.        

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.                                             

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered and                    

filed this the 4th day of August, 2005.