# Breazeale v. State

> Court of Criminal Appeals of Texas · January 23, 1985 · 683 S.W.2d 446

URL: https://www.frixlaw.com/law-library/cases/9678045

## Case

- **Full name:** Thomas Ray BREAZEALE and Wallace Neil Higgs, Jr., Appellants, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 23, 1985
- **Citations:** 683 S.W.2d 446; 1985 Tex. Crim. App. LEXIS 1206
- **Precedential status:** Published
- **Opinion:** Concurrence by Davis
- **Judges:** Davis, Clinton, Campbell, McCormick, Teague
- **Cited by:** 358 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9678045

## How later opinions describe it (automated extraction)

- concluding that although record did not include document showing formal waiver of trial by jury, appellants did not overcome presumption of truth of recital in judgment that they did waive right to jury
- holding presumption of regularity raised by recital “in person and in writing, in open court, having waived his right of trial by jury,” but presumption would not rise from recital, “No jury having been demanded,” citing Samudio, 648 S.W.2d at 314

## Opinion text

W.C. DAVIS, Judge,
concurring.
Upon reconsideration of appellant’s contention, I agree that the issue is whether, for purposes of appellate review, a recital in the judgment that appellant waived his right to trial by jury, suffices to affirmatively show waiver. The issue is not whether the State failed to comply with the mandatory provisions of Art. 1.13, V.A.C. C.P. because appellant does not contend that he did not waive his right to jury trial. Rather, he essentially contends that the appellate record does not adequately reflect his waiver because the written waiver itself is not in the record. Appellant argues that this Court should not presume a waiver just because the judgment states that he did waive his right to trial by jury.
I join the opinion of the Court that where the judgment of conviction recites that a defendant “waived his right to trial by jury”, the record affirmatively shows a waiver by that defendant. The burden is then on the defendant to refute that recitation and show that he did not waive his right to trial by jury as required by Art. 1.1S. 1
. A different case is presented when the record contains either a judgment reciting merely that no jury was demanded or when the record is silent on the issue. In such cases, the record does not affirmatively reflect a waiver of the right to trial by jury, as is required.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678045. Public record. Not legal advice.