Lawrence v. State
Decision Date | 09 December 1981 |
Docket Number | No. 68316,No. 3,68316,3 |
Citation | 626 S.W.2d 56 |
Parties | Melvin Earl LAWRENCE, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Melvyn Carson Bruder, Dallas, for appellant.
Henry Wade, Dist. Atty., William D. Sheetz and John L. Hubble, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, TOM G. DAVIS and DALLY, JJ.
Appeal is taken from a conviction for robbery. Trial was before the court upon a plea of nolo contendere and punishment was assessed at five years.
Initially, appellant contends that it was error for the court to proceed to trial without first securing a waiver to a jury trial in compliance with Art. 1.13, V.A.C.C.P., which reads as follows:
(Emphasis supplied).
Appellant argues that the trial court proceeded without an effective jury waiver because the State, acting by and through the prosecutor, failed to sign the jury waiver agreement. The record clearly supports appellant's argument.
In Ex Parte Felton, 590 S.W.2d 471 (Tex.Cr.App.), this Court considered whether the absence of a defendant's signature on a written waiver of right to a jury trial rendered the waiver ineffective. It was held that a printed form for the waiver of a jury trial only becomes effective after execution by the parties sought to be bound. In Ex Parte Collier, 614 S.W.2d 429 (Tex.Cr.App.), this Court held "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 ... where the evidence does show that the State did in fact agree to such waiver." Id. at 434. In the case at bar, however, appellant raises the lack of compliance with Art. 1.13, supra, on direct appeal.
In Thompson v. State, 226 S.W.2d 872 (Tex.Cr.App.), the defendant on direct appeal complained of a failure in the record to show a consent in writing by the State's attorney to a waiver of a jury as required by Art. 10a, V.A.C.C.P. (1925) ( ). The absence of a written consent signed by the State was held in Thompson to constitute reversible error. See also Ex Parte Marzulla, 343 S.W.2d 701 (Tex.Cr.App.); Ex Parte Foster, 162 Tex.Cr.R. 191, 283 S.W.2d 761; Ex Parte Ammons, 290 S.W.2d 668 (Tex.Cr.App.). Art. 1.13, supra, is quite clear in its requirement that the prosecutor sign the waiver agreement. The language of Art. 1.13, supra, plainly requires that the consent...
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