Marquez v. State

• Decision Date: 03 April 1996
• Docket Number: No. 1023-94,1023-94
• Citation: 921 S.W.2d 217
• Parties: Francisco D. MARQUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 217

921 S.W.2d 217

Francisco D. MARQUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 1023-94.

Court of Criminal Appeals of Texas,

En Banc.

April 3, 1996.

Rehearing Overruled May 1, 1996.

Linda Icenhauer-Ramirez, Austin, for appellant.

Lisa Dotin Stewart, Asst. Dist. Atty., Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

Appellant was convicted of indecency with a child. Tex.Penal Code Ann. § 21.11 (1989). The Court of Appeals affirmed his conviction. Marquez v. State, 882 S.W.2d 100 (Tex.App.--Austin 1994) (op. on remand). ¹ We granted appellant's petition for discretionary review to decide whether the Court of Appeals erred (1) in finding that the withdrawal of a jury waiver is addressed to the discretion of the trial court and (2) in inferring facts from the record to conclude that the trial court did not abuse its discretion. We will affirm.

I.

The trial court's docket sheet reflects that appellant's case was set for jury trial six times between April and June of 1993. Eventually, the case was set for a trial before the court on June 28, 1993. On June 28, appellant formally waived his right to jury trial on a plea of not guilty. The court set the matter for trial before the court to be held on July 1, 1993.

On the morning of July 1, the court swore in an interpreter and the State announced ready for trial. At this point, the following exchange took place:

[Appellant's counsel:] Your Honor, for greater purposes we realize that we have filed a request to have this case tried before the court, but just a little while ago my client informed me that he wishes to retract that and have a jury trial in this matter.

[The Court:] He's waived a jury trial, so if he's not ready for this case, then it's too late now to change.

[Appellant's counsel:] Okay.

Immediately following the denial of the request and resolution of a few minor matters, the trial began. The State called eleven witnesses, including the seven year old victim, and rested on the same day that trial began.

On appeal, appellant claimed he was denied his right to a jury trial under the state and federal constitutions "after his attorney notified the court that appellant wished to withdraw his waiver of jury trial prior to the commencement of trial." In affirming appellant's conviction, the Court of Appeals held that the request by a defendant to withdraw a jury waiver is "addressed to the discretion of the trial court." Marquez, 882 S.W.2d at 102. The Court further held that the trial court will not be reversed "absent a clear showing that it abused its discretion." Id. at 102-103. In determining whether the trial court had abused its discretion in this case, the Court stated "[t]here is nothing in the record to indicate that a jury panel was available, and we infer that a grant of appellant's request would have necessitated resetting appellant's trial to a later date." Id. at 103.

While both parties urge adoption of an "abuse of discretion" standard, appellant advocates application of the standard in light of a presumption in favor of granting the withdrawal, while the State essentially seeks a presumption against granting the withdrawal. Appellant contends that a defendant should be entitled to withdraw his jury waiver unless the record affirmatively shows that allowing a withdrawal would unjustly delay the trial, impede justice, or cause an inconvenience to witnesses. The State contends that withdrawal of the waiver should be allowed only if the record affirmatively shows that withdrawal will not delay the trial, prejudice the State, or inconvenience the witnesses.

II.

The Texas Constitution provides that "[t]he right of trial by jury shall remain inviolate." Tex. Const. art. 1, § 15; see also Tex.Code Crim.Proc.Ann. art. 1.12. The United States Constitution also protects the right to trial by jury. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury."). Further, a jury trial is "fundamental to the American scheme of justice ..." Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968); accord Samudio v. State, 648 S.W.2d 312 (Tex.Crim.App.), cert. denied, 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1368 (1983). Because of the "fundamental" and "inviolate" nature of the right to trial by jury, Texas law requires waiver of jury trial to be made in person in writing in open court. Tex.Code Crim.Proc. art. 1.13.

While article 1.13 provides for the method by which a jury may be waived, it does not provide for the undoing of such waiver. Further, this Court has never addressed the question of whether a defendant can withdraw a validly executed jury waiver. Accordingly, both parties point to other jurisdictions that have addressed the issue.

The approaches taken by other jurisdictions are diverse. Ohio and Pennsylvania have conferred on the defendant, by statute or procedural rule, an absolute right to withdraw a jury waiver before trial. Pa.R.Crim.P. 1102(b). Commonwealth v. Wright, 362 Pa.Super. 464, 524 A.2d 970, 971-972 (1987). Ohio R.C. § 2945.05. State v. Grimsley, 3 Ohio App.3d 265, 444 N.E.2d 1071, 1073 & 1073-1074 n. 2 (1982). The general rule, however, is that withdrawal of the waiver is within the "sound discretion" of the trial court. People v. Chambers, 7 Cal.3d 666, 102 Cal.Rptr. 776, 778, 498 P.2d 1024, 1026 (Cal.1972). Colorado R.S.A. § 18-1-406(3). State v. Rankin, 102 Conn. 46, 127 A. 916, 917 (1925). Floyd v. State, 90 So.2d 105, 106 (Fla.1956). People v. Catalano, 29 Ill.2d 197, 193 N.E.2d 797, 800 (1963), cert. denied, 377 U.S. 904, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964). Woodson v. State, 501 N.E.2d 409, 411 (Ind.1986). State v. Burnett, 218 Kan. 696, 542 P.2d 707, 708 (1976). State v. Catanese, 385 So.2d 235, 237 (La.1980). Mathias v. State, 284 Md. 22, 394 A.2d 292, 294 (1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979). People v. Miller, 149 Misc.2d 554, 566 N.Y.S.2d 429, 432 (N.Y.Super.Ct.1990). Sutton v. State, 163 Neb. 524, 80 N.W.2d 475, 476 (1957). State v. Villareall, 57 Or.App. 292, 644 P.2d 614, 615 (1982). State v. Ellis, 598 S.W.2d 826, 827 (Tenn.Crim.App.1980). Thomas v. Commonwealth, 218 Va. 553, 238 S.E.2d 834, 835-836 (1977). State v. Cloud, 133 Wis.2d 58, 393 N.W.2d 123, 125 (App.1986).

While the authorities overwhelmingly agree that it is within the trial court's discretion to allow withdrawal of a jury waiver, the authorities disagree over the nature of that discretion and how it should be exercised. Alabama and Oklahoma have concluded that a trial court does not err in refusing to permit the withdrawal of a jury waiver so long as the waiver had been executed voluntarily, knowingly, and intelligently--implying that the trial court's discretion is absolute once a valid waiver has been made. Day v. State, 395 So.2d 119, 120 (Ala.Crim.App.1980). Wabaunsee v. State, 554 P.2d 36, 38 (Okla.Crim.App.1976). ² Some states require an affirmative showing by the defendant that he will suffer prejudice, or that there has been a change in circumstances justifying re-evalvation of the waiver, or at least, that the defendant has a good reason for changing his mind. Chambers, 102 Cal.Rptr. at 778, 498 P.2d at 1026 (trial court did not abuse its discretion because defendant did not give a sufficient reason for changing his mind). Woodson, 501 N.E.2d at 411 (Indiana) (trial court did not abuse its discretion because defendant failed to demonstrate a change of circumstances that would justify a re-evaluation of his waiver). Hutchins v. State, 493 N.E.2d 444, 446 (Ind.1986) (defendant must demonstrate harm or show a change of circumstances justifying withdrawal of the waiver). State v. Anderson, 243 Kan. 677, 763 P.2d 597, 600 (1988) (defendant must prove that he was harmed by the trial court's refusal to permit withdrawal of the jury waiver). People v. McQueen, 52 N.Y.2d 1025, 438 N.Y.S.2d 299, 299, 420 N.E.2d 97, 97 (1981) (trial court did not abuse its discretion because defendant gave no reason for withdrawal of the waiver other than that he "changed his mind"). Villareall, 644 P.2d at 616 (Oregon) (quoting Chambers on relevant factors to consider, including the timeliness, the reason for the requested withdrawal, and the possibility of unduly delaying the trial or inconveniencing the witnesses).

But, the more common trend is to afford the defendant relief so long as other participants are not adversely affected:

[A] limitation is placed upon the exercise of discretion by the trial court by the rule therein recognized that if an accused's application for withdrawal of waiver of jury trial is made in due season, so as not to substantially delay or impede the cause of justice, the trial court should allow the waiver to be withdrawn.

Annotation, Withdrawal of Waiver of Right to Jury Trial in Criminal Case, 46 A.L.R.2d 919, 920 (1956); see also, e.g., 21A Am.Jur.2d Criminal Law § 900 (1981); 50 C.J.S. Juries § 111 (1947). Authorities adhering to this view hold that a defendant should be permitted to withdraw his jury waiver unless granting the request would prejudice the state, delay the trial, impede justice, or inconvenience the witnesses, or, in some cases, unless the defendant's request was made in bad faith. Rankin, 127 A. at 917 (Connecticut). Floyd, 90 So.2d at 106 (Florida). Cain v. State, 102 Ga. 610, 29 S.E. 426, 427 (1897). Catanese, 385 So.2d at 237 (Louisiana). State v. Jones, 270 Md. 388, 312 A.2d 281, 284-285 (1973). Sutton, 80 N.W.2d at 476 (Nebraska). Thomas, 238 S.E.2d at 835-36 (Virginia). City of Seattle v. Williams, 101 Wash.2d 445, 680 P.2d 1051, 1056 (1984). Cloud, 393 N.W.2d at 126 (Wisconsin). ³

Some courts have pointed to the sanctity of the right to trial by jury in applying this prevailing abuse of discretion standard. As explained by one ...