CHILDERS v. STATE (2025)

OPINION

In open court, appellant personally waived his right to a jury trial for this felony charge of aggravated sexual assault. After the trial court denied his motion to suppress, claiming involuntary consent to a DNA swab, the evidence showed appellant's DNA on the complainant's neck and fingernails. Consistent with the DNA evidence, appellant testified that he physically assaulted the complainant but did not sexually assault her. The trial court found him guilty and assessed punishment at fifty years' confinement.

In two issues, appellant contends that the trial court reversibly erred by denying his motion to suppress and conducting a bench trial without a written waiver of appellant's right to a jury trial. Because any alleged error was harmless, we affirm.

I. Denial of Motion to Suppress

In his first issue, appellant contends that the trial court reversibly erred by failing to suppress appellant's buccal swab because his consent to the taking of the swab was involuntary. The parties dispute whether there was error, which standard of harm would apply, and whether there was harm.

We assume without deciding that the trial court committed constitutional error by admitting the buccal swab and related DNA evidence. Constitutional error must be reversed unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex. R. App. P. 44.2(a); Wells v. State, 611 S.W.3d 396, 410 (Tex. Crim. App. 2020). We ask whether there is a reasonable possibility that the error might have contributed to the conviction or punishment—that is, whether it's possible the error moved the factfinder from a state of non-persuasion to one of persuasion on a particular issue. Wells, 611 S.W.3d at 410. We review the entire record in a neutral light, considering among other things the nature of the error, whether it was emphasized, the probable implications of the error, and the weight that the factfinder likely would have assigned to the error. Id.

The DNA evidence in this case tended to show the presence of appellant's DNA on the complainant's neck and fingernails. The DNA expert testified that her findings were consistent with no male DNA being present on the five swabs taken from the complainant's genital area. Appellant testified that he and the complainant had a “physical altercation,” during which he hit her three times and “just happened to hit her pretty hard.” Afterward, they “made out a few times.”

Considering the entire record, we conclude beyond a reasonable doubt that any error did not contribute to the conviction or punishment because the presence of appellant's DNA on the complainant's neck and fingernails did not relate to a contested issue at trial—that is, the DNA evidence was consistent with appellant's defensive theory of a physical assault unaccompanied by sexual assault. See Meggs v. State, 438 S.W.3d 143, 147–48 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (admission of DNA evidence connecting the defendant to the murder scene was harmless beyond a reasonable doubt when he conceded his presence at the scene and other evidence established his presence); see also Kane v. State, 173 S.W.3d 589, 594–95 (Tex. App.—Fort Worth 2005, no pet.) (admission of involuntary statement was harmless beyond a reasonable doubt when the subject matter did not relate to a contested issue at trial); Gov't of Virgin Islands v. Joseph, 964 F.2d 1380, 1389–91 (3rd Cir. 1992) (admission of statement identifying the defendant as the shooter, in violation of Confrontation Clause, was harmless because his identity as the shooter was not a contested issue at trial); United States v. Richardson, 764 F.2d 1514, 1528–29 (11th Cir. 1985) (admission of involuntary statement was harmless beyond a reasonable doubt because, in light of the defendant's defensive theories, the statement did not tend to establish any contested issue of fact); cf. Garrett v. State, 220 S.W.3d 926, 931–32 (Tex. Crim. App. 2007) (inclusion of an unconstitutional mandatory presumption in the jury charge was harmless because the instruction did not relate to a contested issue at trial); Motilla v. State, 78 S.W.3d 352, 358–59 (Tex. Crim. App. 2002) (harmless non-constitutional error from the admission of evidence that was “irrelevant and somewhat emotional” because it “bore no relationship to the sole contested issue in the case”).

Appellant's first issue is overruled.

II. Written Waiver of Jury Trial

In his second issue, appellant contends that his waiver of a jury trial was not in writing, requiring reversal of his conviction without a review for harmless error.

Article 1.13 of the Code of Criminal Procedure prescribes a defendant's waiver of the right to a jury trial “must be made in person by the defendant in writing in open court.” Tex. Code Crim. Proc. art. 1.13(a). Similarly, Article 1.15 provides: “No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14 ․” Id. art. 1.15.

Appellant does not contest that he waived his right to a jury trial in person and in open court. His waiver was transcribed by the court reporter. “Since [appellant] alleges merely that there was no written jury waiver, and does not allege that there was no jury waiver at all, he alleges statutory error, not constitutional error.” Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002). Thus, the error is analyzed for harm under Rule 44.2(b) of the Texas Rules of Appellate Procedure: If the error does not affect substantial rights, then it must be disregarded. Id. (citing Tex. R. App. P. 44.2(b). In Johnson, the error did not affect a substantial right because the judgment recited that the defendant “waived trial by jury,” and nothing in the record showed that this recitation was false. Id. at 349.

Here, like in Johnson, the alleged error is “merely the failure to file the appropriate paperwork.” See Lira v. State, 666 S.W.3d 498, 518 (Tex. Crim. App. 2023). There is “consent as a matter of fact even if the appropriate form of consent [is] not present in the record.” Id.

Appellant notes that Johnson involved a misdemeanor and thus did not consider Article 1.15's “absolute prohibition” of a felony conviction without a written waiver appearing in the record. But, Article 1.15 explicitly refers to Article 1.13 for the waiver requirement, and this court has applied Johnson in a felony case. See Munguia v. State, 636 S.W.3d 750, 757–60 (Tex. App.—Houston [14th Dist.] 2021, pet. ref'd). We are bound by the Court of Criminal Appeals and this court's prior decisions. See id. at 760; Medina v. State, 411 S.W.3d 15, 20 n.5 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

Because appellant waived his right to a jury trial in person, in open court, and on the record, any failure of the trial court to ensure that the waiver was also in writing is statutory error that did not affect appellant's substantial rights. See Johnson, 72 S.W.3d at 348–49; Munguia, 636 S.W.3d at 757–60.

Appellant's second issue is overruled

III. Conclusion

Appellant's issues are overruled because the alleged errors are harmless. The trial court's judgment is affirmed.

Ken Wise, Justice