Waldrop v. State , 129 Tex. Crim. 134 ( 1935 )

The bill of exception upon which appellant relies to exhibit error contains the following recital. "That the duly elected and acting attorney representing the State in said cause did not before such defendant entered his plea of guilty in said cause file in the papers of the cause any written consent and approval, or any kind of instrument in writing, duly signed by said attorney so representing the State in said cause, that such attorney consented and approved that defendant might waive a trial by jury upon such plea of guilty and be tried by the court without a jury."

The bill bears the following endorsement. "The above bill is approved only with the following explanation and modification, to-wit: The defendant and his attorney together with the district attorney in open court represented that they each and all desired to waive a jury and try the case before the court, and that the required papers had been signed. The cause was tried with all parties and attorneys participating and the presentation of this bill on November 23rd was the first intimation the court ever had of any claimed irregularity. The court cannot certify that the required written consent to waiving jury and trying to the court was filed or was not filed. I understand no such paper is now found among the filed papers in the case but I cannot certify whether it was filed and has been lost, misplaced, or destroyed, or was never filed."

The foregoing qualification is authenticated by the signature of the trial judge. Immediately following is a notation that the qualification was excepted to, but such notation is signed only by the attorneys for appellant. It has been held many times that an exception of this character must be authenticated by the trial judge before it would be binding on this court. In Kerr v. State, No. 17,486, opinion on rehearing May 29, 1935 (128 Tex.Crim. Rep.), a number of cases are cited. See also Wills v. State, 77 S.W.2d 875, for reference to other authorities. The bill before us must be considered in connection with the qualification, disregarding the attempted reservation of exception thereto. The record could have been made clear by appellant upon the issue of whether the district attorney had filed written consent and approval for appellant to enter his plea of guilty before the jury. In the condition of the record the recitals in the judgment will be regarded as binding and as stating the facts.

The motion for rehearing is overruled.

Overruled.

ON APPELLANT'S APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.