Ex parte Sadberry

This is a post-conviction application for writ of habeas corpus filed pursuant to Tex. Code CRIM.PROC.Ann. art. 11.07. Applicant plead guilty to the offense of delivery of cocaine. Punishment was assessed at thirty years imprisonment. No appeal was taken from this conviction.

Applicant contends that his conviction is invalid because he never executed a written waiver of jury as required by Tex.Code Crim. PROC.Ann. art. 1.13. A copy of the jury waiver attached to applicant’s writ shows that the original was not signed by applicant. The judgment recites that all parties were present and it appeared to the court that “the defendant, defendant’s counsel, and the State’s Attorney have agreed in writing in open court to waive a jury in the trial of this cause.... ” We ordered the trial court to make findings of fact and conclusions of law on this issue. At the evidentiary hearing before the trial court, the State pointed to the following exchange which took place at applicant’s plea of guilty:

[Trial judge]. Do you also understand that you have the right to have a trial by jury in this case both as to your guilt or innocence and as to the punishment to be assessed, if any?

[Applicant]. Yes, sir.

Q. And you waive that right?

A. Yes, sir.

The trial court entered a finding of fact that applicant “knowingly waived his right to a jury but failed to sign a written waiver.” Applicant did not raise the issue of his failure to sign a jury waiver until this writ application. This application presents the issue of whether we will grant post-conviction habeas corpus relief for an applicant’s failure to sign a jury waiver.

In Ex parte Collier, 614 S.W.2d 429, 434 (Tex.Crim.App.1981), we addressed whether relief was available by post-conviction writ of habeas corpus on the grounds that the State’s attorney, though consenting to the jury waiver, had failed to sign the written form as required by article 1.1S. We held that

in the absence of a showing of harm a valid conviction may not be set aside by habeas corpus or collateral attack merely because the State failed to sign the jury waiver of a defendant as required by Article 1.13, V.A.C.C.P., where the evidence does show that the State did in fact agree to such waiver.

Id. This conclusion is consistent with the underlying purpose to be served by the availability of post-conviction writ of habeas corpus. Use of the writ has traditionally been restricted to instances where the trial court’s judgment is void, and cannot be invoked for mere irregularities in the proceedings below. See, e.g., Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Crim.App.1989) (habeas corpus available only to review jurisdictional defects or denials of fundamental or constitutional rights); Ex parte Watson, 601 S.W.2d 350, 352 (Tex.Crim.App.1980) (habeas corpus review only available for questions of jurisdictional defect or denials of fundamental or constitutional rights); Ex parte Shields, 550 S.W.2d 670, 675 (Tex.Crim.App.1977) (opinion on reh’g) (habeas corpus review only for jurisdictional defects or denials of fundamental or constitutional rights); Ex parte McKay, 199 S.W. 637, 639, 642 (Tex.Crim.App.1917) (habeas corpus is not a method of appeal and cannot be invoked for mere irregularities); Ex parte Adlof, 215 S.W. 222, 226 (Tex.Crim.App.1919) (opinion on reh’g) (ha-beas corpus only available to attack void judgments). We have previously explained the limited purpose to be served by a post-conviction writ of habeas corpus:

Habeas corpus lies only to review jurisdictional defects or denials of fundamental or constitutional rights.

⅜ ⅜ ⅜ ⅜? ⅜: ⅜

When a defect in the conduct of a proceeding is challenged, a collateral attack by habeas corpus may be invoked only where the error renders the proceedings absolutely void, [citations omitted] Defects in a proceeding designated as irregularities, consisting of the want of adherence to some prescribed rule or mode of proceeding, either in omitting to do something that is necessary for the orderly conduct of a suit or doing it at an unreasonable time or in an improper manner do not render the proceeding void, [citations omitted]

Shields, 550 S.W.2d at 675. This case does not involve a question of constitutional dimension; it involves an irregularity in the proceedings in the trial court. Neither the federal nor the state constitution require that a trial by jury be waived in writing. Rather, the legislature has chosen to observe careful regulation of that constitutional right by specifying how that right may be waived. See Meek v. State, 851 S.W.2d 868, 870 (Tex.Crim.App.1993). Applicant does not contend that he was denied his constitutional right to a trial by jury or that he did not agree to waive that right; rather, he claims his conviction should be set aside because his signature does not appear on the statutorily prescribed jury waiver form. While we do not sanction noncompliance with procedural rules designed to safeguard constitutional rights, the writ was not intended to provide for relief for such noncompliance where the record is otherwise clear on the rights to which the procedural formalities pertain. Accordingly, we hold that where the applicant does not claim he desired and was deprived of his constitutional right to a trial by jury, that he did not intend to waive a jury trial or that he was otherwise harmed, and the record reflects that the applicant agreed to the waiver, we will not set aside a conviction by habeas corpus or collateral attack due to the applicant’s failure to sign a written jury form pursuant to article 1.13. By so holding, we overrule Ex parte Felton, 590 S.W.2d 471 (Tex.Crim.App.1979), to the extent that it holds relief is available by post-conviction writ of habeas corpus for the failure of a defendant to sign the written jury waiver form where the record reflects that the defendant agreed to the waiver and does not claim he desired and was deprived of a trial by jury, or that he was otherwise harmed.

. Article 1.13 provides that a criminal defendant may waive the right of trial by jury:

... conditioned, however, that such waiver must be made in person by the defendant in writing....

TexCode Crim.Proc.Ann. art. 1.13(a).

. We note that in our recent decision in Meek v. State, 851 S.W.2d 868 (Tex.Crim.App.1993), a direct appeal where we held a harmless error analysis was inapplicable to the failure of the defendant to sign the written jury waiver form, we pointed out that there might be circumstances where a harmless error analysis would be appropriate for assessing a violation of article 1.13 on direct appeal, citing Collier, supra. Although Collier was a post-conviction writ case, we cited it because it involved a situation where the State, as opposed to the defendant, failed to sign a jury waiver form, suggesting that such a situation might be subject to a harmless error analysis on direct appeal.

. Our holding in this opinion is consistent with our holding in Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App.1993), where we recognized that the "failure of the judge to implement [“waiveable only” rights] at trial is an error which might be urged on appeal whether or not it was urged in the trial court.” We are not in this opinion suggesting that a defendant need object at trial in order to later complain that the trial court "failed to implement” his right to a trial by jury, where he desired but was denied that right. Here, applicant does not claim that he desired but was denied his right to a trial by juiy, but merely that he did not sign the statutorily-prescribed form.

. We note that while the issue of jury waiver may be raised for the first time on direct appeal, Meek v. State, 851 S.W.2d 868 (Tex.Crim.App.1993); Boyd v. State, 660 S.W.2d 820 (Tex.Crim.App.1983), there must be evidence in the record sufficient to overcome the judgment’s presumption of regularity, Breazeale v. State, 683 S.W.2d 446 (Tex.Crim.App.1984) (opinion on reh'g).