Collins v. State
| Decision Date | 10 November 1982 |
| Docket Number | No. 2-81-318-CR,2-81-318-CR |
| Citation | 642 S.W.2d 80 |
| Parties | Guy Henry COLLINS, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Danny D. Burns, Jerry J. Loftin, Fort Worth, for appellant.
Tim Curry, Dist. Atty., and Joe C. Lockhart, Asst. Dist. Atty., Fort Worth, for appellee.
Before HUGHES, SPURLOCK and HOLMAN, JJ.
Appellant, Guy Henry Collins, was charged in a two count indictment with possession of a controlled substance, hydromorphone, and delivery of the same. Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 1.02(8) and (23). An enhancement paragraph alleged a previous felony conviction. Collins was found guilty of possession in a trial before the court, which assessed punishment at life in prison. Collins argues, inter alia, that: (1) he was denied a trial by jury after Collins' attorneys withdrew a waiver of jury trial prior to the commencement of trial; (2) the State failed to assist Collins in locating a material witness pursuant to a discovery order; and (3) the trial court erred in proceeding to trial, after having ruled that there was entrapment as a matter of fact and law on the delivery of hydromorphone.
We reverse and remand.
Collins contends that the trial court erred in denying Collins a trial by jury after Collins' attorney withdrew a waiver of jury trial prior to the commencement of the trial.
We will discuss Collins' contention that he was denied a jury trial along with the trial court's various entrapment rulings, as they bear closely on one another.
We find it necessary to set out segments of the proceedings to clarify the record.
On March 23, 1981 Collins signed a waiver of jury trial. On that date the State refused to consent and approve this document. The record reflects that a jury was due to arrive in court at 1:30 p.m. on March 23. However, the jury panel was sent out of the courtroom at 1:30 p.m., so the court could hold a hearing on entrapment as a defense to the delivery charge. A hearing was held, and counsel for the defense questioned Sharon Diane Malone, who was the person that the indictment identified as the one to whom Collins delivered hydromorphone. The court also questioned this witness, to clarify her testimony and the issue of entrapment. Malone testified that she did not receive any drugs from Collins and that the police told her to say that she had received two tablets from Collins, although this was not true.
At this point in Malone's testimony, the court observed that the prosecutor "did not have a case". The court indicated his ruling on entrapment as follows:
Q. Sharon, this is the first time you've told this story where I could hear it, isn't it?
Don't bring me any more cases like that.
MR. WORLEY: Your Honor, we still have a case. [Emphasis added.]
[End of proceedings.]
At the end of these proceedings of March 23, 1981, it appeared that the court had ruled that there was entrapment; and that Collins had signed a document which would have constituted his waiver of jury trial had both the State and the court consented to and approved waiver, as evidenced by their signatures. However, they had not done so. V.A.C.C.P. art. 1.13 sets forth the requisites of a valid waiver.
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. [Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, § 1, eff. Jan. 1, 1966.] [Emphasis added.]
Clearly, these requisites of a valid and effective waiver were not met as of March 23, 1981.
On March 24, 1981, prior to the commencement of the case, and before a jury was impanelled, the trial court clearly reiterated his ruling that there had been entrapment in the delivery of hydromorphone.
[March 24, 1981.]
At this point Collins' pending motions to suppress, to quash the indictment, for continuance, and to dismiss could properly have been heard. These motions were all based on the trial court's entrapment holding.
However, the court refused to hear the above motions; instead addressing the State's attempt to agree and consent to Collins' attempted waiver of a jury trial of the previous day. The record reflects that it was only at this point, on March 24, 1981, that the State signed the waiver document.
MR. WORLEY: Your Honor, we'd like to proceed--we'd like to--I understand the Defense has applied to waive jury and we'd like to agree to that. [Emphasis added.]
The record reflects confusion at this turn of events on the part of Collins' counsel. (On March 23, 1981, the trial court had refused to hear Collins' motion to assert entrapment as a defense until Collins admitted to the court that he was guilty of possession and delivery of hydromorphone.) The following occurred on the 24th:
"The right to trial by jury shall remain inviolate." Tex.Const. art. I, § 15; and, V.A.C.C.P. art. 1.12. The trial court approved of this "waiver" of trial by jury in the face of Collins' timely wish to withdraw any such waiver, prior to the time before a jury panel was seated in the courtroom; which withdrawal could not have resulted in unreasonable delay of trial, or impedance of justice, or prejudice to the State, or inconvenience to witnesses. 1 We hold this action constituted a denial of Collins' right to trial by jury.
The State argues that the trial court subsequently inquired again as to whether Collins wished to waive a jury, and that a jury would have been provided if only a definite response had been made.
[Pause in proceedings.]
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