MILLER, Judge.
This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.
On December 15, 1981, pursuant to a plea bargain, applicant pled guilty to the felony offense of burglary of a building. See V.T.C.A. Penal Code § 30.02. On March 8, 1982, the trial court assessed punishment at eight years confinement in the Texas Department of Corrections.
In his pro se application for writ of habeas corpus applicant contends, inter alia, that at the time of his plea of guilty before the 12th District Court, the attorney representing the State did not sign the consent form for him to waive trial by jury as required by Art. 1.13, V.A.C.C.P. Applicant further contends that his waivers and consent to stipulate evidence were not approved by the court in writing and ordered filed in the file of the papers of the cause as required by Art. 1.15, V.A.C.C.P., since the trial judge's signature does not appear thereon.
Article 1.13, V.A.C.C.P., provides:
"The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him."
Article 1.15, V.A.C.C.P., provides:
"No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital, 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; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause."
On March 16, 1984, an evidentiary hearing was held with applicant represented by an attorney from Staff Counsel for Inmates. At the hearing, a document entitled "Waiver of Rights on a Plea of Guilty — Defendant's Written Stipulations and Waivers" was introduced into evidence. By and through this two-page document, applicant entered a plea of guilty; stipulated in writing to the commission of each element of the offense alleged in the indictment; waived trial by jury; waived the appearance, confrontation, and cross-examination of witnesses; consented to the State's use of affidavits, oral stipulations, written witness statements or other documentary evidence to support the judgment; and waived all rights to appeal.
The document bears the signature of both the applicant and his attorney. The document fails, however, to reflect the signature of the attorney for the State consenting to the waiver of trial by jury. The document also fails to reflect the signature of the trial judge approving the waivers and the applicant's consent to the stipulation of evidence and ordering them to be included in the papers and records of the case. The written judgment of conviction was not introduced into evidence at the hearing. See, Morris v. State, 483 S.W.2d 260, 262 (Tex.Cr.App. 1972) (Onion, P.J., concurring); Willhoite v. State, 642 S.W.2d 531 (Tex.Cr.App. — Houston [14th] 1982, no pet.). See also, Breazeale v. State, 683 S.W.2d 446 (Tex.Cr.App. 1985) (Opinion on Rehearing).
We will first consider applicant's claim that the guilty plea was invalid because the attorney representing the State did not sign the consent form for him to waive trial by jury as required by Art. 1.13, supra.
On direct appeal, when the record reflects the failure of the prosecutor to sign the waiver agreement, the conviction will be reversed, and a prosecutor's post-conviction affidavit reflecting his intent to sign the waiver form will not satisfy the requirements of Art. 1.13. Lawrence v. State, 626 S.W.2d 56 (Tex.Cr.App. 1981). When the attack is collateral, however, the same rule does not apply.
It is clear that the waiver of trial by jury must be signed by the defendant to be valid, and a collateral attack is permissible when his signature is absent. Ex parte Felton, 590 S.W.2d 471 (Tex.Cr.App. 1979). Different rules apply, however, when the State fails to sign the consent to jury waiver. See Boyd v. State, 660 S.W.2d 820 (Tex.Cr.App. 1983).
In Ex parte Collier, 614 S.W.2d 429 (Tex.Cr.App. 1981), the en banc Court considered a claim, brought by writ of habeas corpus, that a guilty plea was invalid because of the failure of the attorney for the State to comply with the requirements of Art. 1.13, supra. At the evidentiary hearing in Collier, the district attorney filed an affidavit stating that the State agreed to waive trial by jury but that the "copy filed was inadvertently not signed by me." In Collier, we overruled all contrary cases to the extent of any conflict and held:
"We conclude that it would be ridiculous to set aside a conviction . . . based merely upon the missing signature of the district attorney when it is obvious that the State did indeed consent to the jury waiver.
We hold 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 consent to 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. at 454.
In the case at bar, the district attorney did not file an affidavit showing the State did in fact agree to the waiver of jury trial. The record of the evidentiary hearing does show, however, that the trial judge reviewed applicant's rights with him, including his right to trial by jury, and determined that he voluntarily waived his rights and entered a plea of guilty. Further, applicant's trial attorney was called as a witness for the State at the evidentiary hearing, and testified as follows:
"Q. When Elzie made his plea of guilty, to your understanding, was it the intention of both the District Attorney's Office and of the Judge to accept his plea, accept his stipulation of evidence and his waiver of rights?
"A. Yes. I wouldn't think it would be any other case.
"Q. And at the time the plea was entered, you'all operated on that assumption, that they were accepted?
"A. Right . . . "
Applicant does not contend that he was deprived of a jury trial, nor does he deny that he waived trial by jury. Applicant's trial attorney signed the waiver form which expressly stated that applicant executed the waiver with the advice and consent of defense counsel. At trial, applicant's attorney proceeded on the understanding that the district attorney's office had consented to the waiver of trial by jury and applicant does not claim otherwise. What is missing is the district attorney's signature on the written form. The colloquy quoted above is the only record evidence of the district attorney's intention to consent to the waiver of trial by jury. While the issue is close, we hold that the record sufficiently demonstrates the understanding of the parties at trial that the State did agree to the applicant's waiver of trial by jury. Applicant's contention is overruled.
Applicant originally contended that he did not sign the waiver and that his signature was forged. Applicant, however, did not proceed on that claim at the evidentiary hearing.
We will next consider applicant's claim that his guilty plea was invalid because his waivers and consent to stipulate evidence were not approved by the Court in writing and ordered filed in the file of the papers of the cause as required by Art. 1.15, supra, since the trial judge's signature does not appear thereon.
The waivers and consent must be approved by the court in writing. The printed form becomes a writing of the court only when the judge places his signature on it. Young v. State, 648 S.W.2d 6 (Tex.Cr.App. 1983).
On direct appeal, this Court has consistently held that compliance with Art. 1.15, supra, is mandatory in a trial before the court, regardless of the plea, for a stipulation to be considered as evidence. Clark v. State, 657 S.W.2d 121 (Tex.Cr.App. 1983); Ellard v. State, 650 S.W.2d 840 (Tex.Cr.App. 1983); Young v. State, 648 S.W.2d 6 (Tex.Cr.App. 1983); Valdez v. State, 555 S.W.2d 463 (Tex.Cr.App. 1977); Hughes v. State, 533 S.W.2d 824 (Tex.Cr.App. 1976); Elder v. State, 462 S.W.2d 6 (Tex.Cr.App. 1971).
Failure to comply with the statute will not result in an acquittal, however, because the deficiency is trial error. See Duran v. State, 552 S.W.2d 840 (Tex.Cr.App. 1977), and Ex parte Duran, 581 S.W.2d 683 (Tex.Cr.App. 1979).
We believe, however, that the same rule should not apply when the attack is collateral. Collier, supra, teaches that when a defendant collaterally attacks his conviction by asserting that the State did not consent to the waiver of trial by jury, additional evidence may be adduced to demonstrate that the State did in fact consent. Such evidence, if believed, will defeat the collateral attack even where the original consent form is not signed by the State. We believe that the Collier rule should be extended to apply to habeas corpus or collateral attacks based upon a trial judge's failure to comply with Art. 1.15, supra. Thus, in the absence of a showing of harm, a valid conviction will not be set aside by habeas corpus or collateral attack merely because the trial judge failed to sign the defendant's written waivers and consent to stipulate evidence as required by Art. 1.15, V.A.C.C.P., where the evidence does show that the trial judge did in fact approve the defendant's waivers and consent to stipulate evidence.
In the case at bar, the trial judge testified at the evidentiary hearing that, among other things, he reviewed the applicant's rights with him, determined that he was competent, and that he voluntarily waived his rights to a jury trial and to confront his accusers. The trial judge testified that it was his intention to approve the plea and enter it of record. He also testified that he certainly did intend to sign the stipulation and waiver form, and the fact it was not signed was merely an oversight. The testimony of applicant's trial attorney reflects that when the applicant made his plea of guilty, it was the attorney's understanding that the judge intended to accept the plea, the stipulation, and the waiver of rights. Applicant does not assert that he did not waive those rights or that his waiver was not knowingly and voluntarily made. We find the evidence sufficiently demonstrates the trial judge's approval of the applicant's waivers and consent to the stipulation of evidence notwithstanding the omitted signature on the form. Applicant's contention is overruled.
The relief sought is denied.
TEAGUE, J., dissents.