Buck v. State, 59119

Decision Date11 June 1980
Docket NumberNo. 59119,No. 3,59119,3
PartiesDean W. BUCK, Appellant, v. The STATE of Texas, Appellee
CourtTexas Court of Criminal Appeals

Paul W. Hanneman, Austin, on appeal only, for appellant.

James L. McMurtry, County Atty., and Joseph A. Turner, Asst. County Atty., Austin, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for driving while intoxicated. Punishment was assessed at ten days in jail and a $500 fine, and appellant was placed on probation.

In his only ground of error appellant contends he was denied his constitutional and statutory rights to a jury trial. He bases this ground of error on the fact that he was tried by a jury of five instead of six persons, 1 citing Article 5, Sec. 17, Texas Constitution, and Art. 33.01, V.A.C.C.P.

From the excerpted record in this case (a complete transcription of the court reporter's notes is not in the record before us, and there is no indication of indigency), it is not clear that an objection was actually made to the trial court, 2 and it is clear that no adverse ruling was obtained. Under the authority cited by appellant, Mackey v. State, 68 Tex.Cr.R. 539, 151 S.W. 802, this record reflects an effective waiver of the right urged:

"The record shows that in the organization of the jury, when both sides got through with their challenges, only five jurors were left. Thereupon both sides agreed in open court, both appellants being present, to try the case before a jury of five, which was done. No objection was made by the appellants, or either of them, by their attorney, or any other way, pending the trial. After the verdict of conviction, on motion for new trial, for the first time appellants claim that the case was tried before a jury of five men only, instead of six, and that they personally did not agree to this at the time. The verdict, as rendered, was signed by one man as foreman, and not by the other four. We think the record clearly shows that each of the appellants did agree to try the case before a jury of five men; but, whether they did or not, they knew all the time during the trial and until after its conclusion that they were being tried by a jury of five men, and made no objection thereto. The charge against them was a misdemeanor. Our statute provides that an appellant in a misdemeanor case can waive a jury altogether. This would carry with it the further right to agree to a trial by a jury composed of less than six men. Stell v. State, 14 Tex.App. 59. And it was too late for appellants to make said objection to wait till...

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6 cases
  • Oechsner v. Ameritrust Texas, N.A.
    • United States
    • Texas Court of Appeals
    • 14 Octubre 1992
    ...his right to jury trial. Daily v. Wheat, 681 S.W.2d 747, 758 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.); Buck v. State, 599 S.W.2d 810 (Tex.Crim.App.1980), overruled on other grounds, and Rideau v. Parkem Industrial Services, Inc., 917 F.2d 892 (5th We have reviewed the record......
  • Bates v. State
    • United States
    • Texas Court of Appeals
    • 6 Octubre 1992
    ...intelligent, and voluntary waiver. Thus, the only issue on waiver is whether the failure to object constitutes a waiver. In Buck v. State, 599 S.W.2d 810 (Tex.Crim.App. [Panel Op.] 1980), the Court of Criminal Appeals held that, when both sides agree in open court, a jury trial could proper......
  • Samudio v. State
    • United States
    • Texas Court of Criminal Appeals
    • 9 Febrero 1983
    ...U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). See Warr v. State, 591 S.W.2d 832 (Tex.Cr.App.1979). The State relies on Buck v. State, 599 S.W.2d 810 (Tex.Cr.App.1980) where only five jurors remained after both sides exercised their challenges in a misdemeanor case. 1 Both sides agreed in ope......
  • Ex Parte David Garza.
    • United States
    • Texas Court of Criminal Appeals
    • 4 Mayo 2011
    ...a right to agree to be tried by a jury of five men.” 38 We applied the rule to affirm a misdemeanor conviction as recently as 1980, in Buck v. State.39 There, in an appeal from a misdemeanor conviction for driving while intoxicated, we held that the defendant waived his federal constitution......
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