Ex Parte Eric Bryan Schmidt ( 2003 )

Affirmed and Opinion filed October 9, 2003

Affirmed and Opinion filed October 9, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-97-01398-CR

____________

EX PARTE ERIC BRYAN SCHMIDT, Appellant

On Appeal from the County Criminal Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 97-37145

M E M O R A N D U M   O P I N I O N   O N R E M A N D

Appellant appeals the denial of his application for writ of habeas corpus.  The trial court denied appellant=s application on September 23, 1997.  On original submission, this court dismissed for want of jurisdiction.  Schmidt v. State, 1999 WL 144817 (Tex. App.CHouston [14th Dist.] March 18, 1999) (not designated for publication).  The Court of Criminal Appeals found this court has jurisdiction and remanded for consideration of the merits of appellant=s application.  Ex parte Schmidt, 109 S.W.3d 480 (Tex. Crim. App. 2003).

Appellant entered a plea of guilty to the misdemeanor offense of driving while intoxicated on July 18, 1983.  No appeal was taken from that conviction.  On September 4, 1997, appellant filed an application for writ of habeas corpus collaterally attacking the conviction on the grounds that he did not voluntarily, knowingly, and intelligently waive his right to a jury trial or to an attorney.  The trial court denied relief.

In a single issue, appellant contends the trial court erred in denying relief because he never voluntarily, knowingly and intelligently waived his right to trial by jury.  At the hearing on appellant=s application, appellant testified that he did not waive his right to an attorney, nor did he waive his right to a jury trial.  He testified that if he had known of his right to a jury trial, he would have requested one.  Kenneth Olive, the court reporter for the trial judge who took appellant=s plea in 1983, testified that the trial judge, as a regular practice, admonished defendants as to their right to an attorney and the repercussions of a jury waiver.

At the time of appellant=s 1983 plea, misdemeanor jury waivers were not required to be in writing. See State v. Welch, 810 S.W.2d 13, 16 (Tex. App.CAmarillo 1991, no pet.).  The 1983 judgment recites that appellant Aknowingly, intelligently, voluntarily, and expressly waived trial by jury.@ That recitation is binding in the absence of direct proof of its falsity.  Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002).  The only evidence appellant produced in support of his application was his own testimony that he did not waive his right to a jury trial.  The testimony of the defendant alone is insufficient to rebut the presumption of regularity in the judgment.  Reeves v. State, 500 S.W.2d 648, 649 (Tex. Crim. App. 1973); Brown v. State, 917 S.W.2d 387, 390 (Tex. App.CFort Worth 1996, pet. ref=d).  Therefore, appellant has failed to overcome the presumption of regularity in the judgment. Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Opinion filed October 9, 2003.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).