Marquez v. State

• Decision Date: 17 August 1994
• Docket Number: No. 3-93-458-CR,3-93-458-CR
• Citation: 882 S.W.2d 100
• Parties: Francisco D. MARQUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 100

882 S.W.2d 100

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

No. 3-93-458-CR.

Court of Appeals of Texas,

Austin.

Aug. 17, 1994.

Petitions for Discretionary Review Granted Dec. 7, 1994.

Linda Icenhauer-Ramirez, Austin, for appellant.

Ronald Earle, Dist. Atty., Robert Smith, Asst. Dist. Atty., Austin, for appellee.

Before POWERS, JONES and KIDD, JJ.

ON REMAND

PER CURIAM.

The district court found appellant guilty of indecency with a child and assessed punishment, enhanced by a previous felony conviction, at imprisonment for seven years. Tex.Penal Code Ann. § 21.11 (West 1989). In two points of error, appellant contends he was denied the right to trial by jury guaranteed by the United States and Texas constitutions. ¹

The record contains a written waiver of trial by jury signed by appellant and his attorney, and approved by counsel for the State and the district court. Tex.Code Crim.Proc.Ann. art. 1.13(a) (West Supp.1994). The waiver was filed on June 28, 1993. The cause was called for trial on appellant's plea of not guilty on July 1, 1993. After the State announced ready, defense counsel stated:

MR. JONES: 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.

MR. JONES: Okay.

Appellant argues that the record makes it clear that, at the time of his trial, appellant did not desire to waive his right to a jury. Appellant further argues that there is nothing in the record to show that the withdrawal of the jury waiver would have resulted in an unreasonable delay, inconvenience to the witnesses, or prejudice to the State. Appellant concludes that, under the circumstances, the district court's refusal to permit the withdrawal of the jury waiver denied him his state and federal constitutional right to trial by jury.

The Sixth Amendment provides that in all criminal prosecutions, "the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." U.S. Const. amend. VI. The Texas Constitution provides that "[t]he right of trial by jury shall remain inviolate," and authorizes the legislature to "pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency." Tex. Const. art. I, § 15. The legislature has provided that a criminal defendant may waive the right to trial by jury, provided 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 prosecutor. Art. 1.13(a).

Although appellant has asserted his federal and state constitutional claims under separate points of error, his arguments and authorities under each point are essentially identical. Appellant makes no effort to demonstrate that the Texas Constitution affords a criminal defendant any greater right to withdraw a prior waiver of trial by jury than does the United States Constitution. With regard to the question presented by this appeal, we believe the two constitutional provisions are identical.

Appellant relies on two opinions, neither of which is directly on point. Wilson v. State, 698 S.W.2d 145 (Tex.Crim.App.1985); Collins v. State, 642 S.W.2d 80 (Tex.App.--Fort Worth 1982, no pet.). In Wilson, the defendant appeared before a magistrate, waived his right to trial by jury, and entered a plea of no contest. After hearing evidence, the magistrate found the defendant guilty and the case was reset to allow the preparation of a presentence report. When the defendant later appeared before the district court, the court refused to accept the plea because of exculpatory statements made by the defendant to the probation officer who prepared the presentence report. The district court advised appellant, "your alternative then is to put twelve people in the jury box and they get to decide...." 698 S.W.2d at 146. One month later, however, the district court refused to permit the defendant to withdraw his jury waiver and, after a bench trial, found him guilty. The Court of Criminal Appeals held that under the circumstances, the defendant's jury waiver was revoked when he changed his plea.

It is very clear that in this case the court intended to return the appellant to his same status prior to his plea of nolo contendere (more specifically, the right to have a jury trial).

The trial court's actions in this case clearly revoked all the prior proceedings before the magistrate.

Wilson, 698 S.W.2d at 147.

Unlike the defendant in Wilson, appellant did not waive his right to trial by jury in conjunction with a plea of guilty or no contest. The waiver form is styled "waiver of jury trial on plea of not guilty" and states that "the defendant will plead not guilty to said charge." The procedural law governing a trial before the court on a plea of guilty has evolved on the basis of different policy considerations than that governing a trial before the court on a plea of not guilty. Wilson, 698 S.W.2d at 147. Moreover, unlike the district court in Wilson, the court below never indicated that appellant would be permitted to withdraw his jury waiver. Wilson is both factually and legally distinguishable from the cause before us.

In Collins, the defendant signed a waiver of jury trial but the prosecutor refused to consent to the waiver. When, at a later hearing, the prosecutor indicated that he then was willing to agree to the jury...